Legal Document: Evurich Pitkin Llc v. U.S. Bank Trust, N.A., As Trustee For Lsf11 Master Participation Trust

On March 28, 2023 a EXHIBIT(S) - A (Motion #1) - Appellants Brief was filed involving a dispute between Evurich Pitkin Llc, and U.S. Bank Trust, N.A., As Trustee For Lsf11 Master Participation Trust, for Real Property - Other (Quiet Title) in the District Court of Kings County.

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INDEX NO. 509436/2023
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) = I ON ND 0
NYSCEF BOC. NO. 8 To be argued BRECEIVED NYSCEF: 08/10/2023
John A. Cirando, Esq.
Syracuse, New York
Estimated time: 15 minutes

AD NO: 2023-02583
STATE OF NEW YORK
SUPREME COURT
APPELLATE DIVISION - SECOND DEPARTMENT

FEDERAL NATIONAL MORTGAGE ASSOCIATION,
Plaintiff,
against

BRIJWATTIE BANDHU,
Defendant/Respondent,

NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY
TRANSIT ADJUDICATION BUREAU; MOESON & ASSOCIATES, CORP., JUAN
GARCIA; NEW YORK CITY DEPARTMENT OF FINANCE; “JOHN DOE #1” through
“JOHN DOE #12”,
the last twelve names being fictitious and unknown to plaintiff, the persons or parties
intended being the tenants, occupants, persons or corporations, if any, having or claiming
an interest in or lien upon the premises, described in the complaint.
Non-Responding Defendants,

cians
US BANK TRUST, N.A., as Trustee for
LSF11 MASTER PARTICIPATION TRUST,
Non-Party Appellant.

Kings County Index No. 19592/2010

THE APPELLANT’S BRIEF

DJ. & J.A. CIRANDO, PLLC
250 South Clinton Street, Suite 350
Syracuse, New York 13202
(315) 474-1285; cirandolaw@outlook.com
Appellate Attorneys for
FEIN, SUCH & CRANE, LLP
Attorneys for Non-Party Appellant
28 East Main Street, Suite 1800
Rochester, New York 14614
(585) 232-7400
John A. Cirando, Esq.
David P. Case, Esq.
Rebecca L. Konst, Esq.
Of Counsel
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TABLE OF CONTENTS
TABLE OF AUTHORITIES il

QUESTIONS PRESENTED . Iv

BRIEF ANSWER IV

STATEMENT PURSUANT TO CPLR §5531.
PRELIMINARY STATEMENT
STATEMENT OF FACTS
POINT I 11
APPELLANT’S MOTION TO RENEW SHOULD HAVE BEEN GRANTED
AS THERE HAS BEEN A CHANGE IN THE LAW.

POINT II... 14
APPELLANT’S HAS EXTABLISHED ITS PRIMA FACIE CASE FOR
JUDGMENT OF FORECLOSURE.

POINT III 15
RESPONDENT HAS CONVEYED HIS INTEREST IN THE MORTGAGED
PREMISES AND THEREFORE DIVESTED HIMSELF OF THE STANDING
TO CHALLENGE THE ACTION.

POINT IV 16
RESPONDENT HAS NOT APPEARED IN THE ACTION AND HAS NOT
MOVED TO VACATE HIS DEFAULT.

POINT V 17
THERE ARE NOT TWO ACTIONS PENDING.

CONCLUSION 19
APPELLANT’S MOTION TO RENEW SHOULD HAVE BEEN GRANTED
DUE TO THE CHANGE IN LAW.

PRINTING SPECIFICATIONS STATEMENT 20
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TABLE OF AUTHORITIES

Cases

Aurora Loan Servs., LLC v Gross, 139 AD3d 772, 774 [2% Dept] 11
Aurora Loan Sevs., LLC v. Taylor, 114 A.D.3d 627 [2™ Dept.] 14
Bank of N.Y. Mellon v Lawson, 176 A.D.3d 1155 [2™ Dept]... 16, 17
Charter
One Bank, FSB v. Leone, 45 A.D.3d.958 [3 Dept.] 13, 14
Citibankv. Kerszko, 203 A.D.3d 42, 72 fnd [2™ Dept 2022] 10
Citimortgage, Inc. v. Zaibak, 188 A.D.3d
982 [2™ Dept] 5, 8, 10, 11, 12, 13, 18
Deutsche
Bank Nat'l Trust Co. v. Rudman, 80 A.D.3d 651 [2 Dept] 16,17
Deutsche
Bank Natl. Trust Co. v. Khalil, 208 A.D.3d 555, 557 [2" Dept] 12
Deutsche Bank v Lewin, 205 A.D.3d 677 [2 Dept. 2002] 10
Midfirst Bank v. Agho, 121 A.D.3d 343, 34[2™ Dept.] 13, 14
NYCTL 1996-1 Trustv. King, 304 A.D.2d
629 [2™ Dept] 15
OneWest Bank FSB v. Carey, 104 A.D.3d
444, 445 [1st Dept]... 14
Red Tulip, LLC v. Neiva, 44 A.D.3d 204, 209 [1st Dept]. 13
US. Bank, NA. v Duran, 174. A.D.3d 768 [2 Dept] 12,13
US Bank N.A. v Dorestant, 131 AD3d 467, 469 [2™ Dept] 11
Valiotis v Bekas, 191 A.D.3d 1037 [2™ Dept] 15
Wells Fargo v. Jackson, 208 A.D.3d 613 [2™ Dept 2022] 10

ii
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Statutes

CPLR §1018 5, 14
CPLR §2221[e] 5, 10, 18
CPLR §308[2] 5, 11
CPLR §3215[c] 5, 6, 10, 11, 12, 13
CPLR §3408 13
CPLR §5015[a][ 1] 15, 16
RPAPL §1303]3] 17

iii
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QUESTIONS PRESENTED

Whether appellant's Motion to Renew should have been granted due to a
change
in the law?

Whether the trial court erred in dismissing the instant action, as appellant
established its prima facie case?

Whether respondent lacks standing to challenge the action, due to his
conveyance of his interest in the subject property?

Whether respondent is barred from seeking relief, due to his failure
to vacate
his default?

Whether appellant is not barred from seeking a Motion to Renew, because
there were not two foreclosure actions pending at the time of the Motion?

BRIEF ANSWER
All the questions should be answered in the affirmative, as appellant
established its entitlement to Judgment as a matter of law. Respondent
has failed to vacate his default; therefore, he lacks the standing to challenge this
action, and due to his conveyance of his interest in the subject property he no
longer has standing to defend against the foreclosure of the premises. Since the
prior actions had been dismissed at the time of the Motion to Renew, there were
not two actions pending
and appellant is not barred from seeking renewal based
ona change
in the law.

iv
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STATEMENT PURSUANT TO CPLR §5531

The index number below was 19592/2010.

The full names of the original parties are set forth in the above caption. The
names of the parties have not changed.

The action was commenced in Supreme Court, Kings County by the filing,
by the plaintiffs of a Motion to Renew and for a Default Judgment and Order
of Reference on November 30, 2021.

This is an appeal of a Decision and Order (Larry D. Martin, J.S.C.), dated
November 17, 2022, which denied appellant’s Motion to Renew.

This appeal is not on the appendix method.

This is an appeal on the full reproduced Record.
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AD NO: 2023-02583
STATE OF NEW YORK
SUPREME COURT
APPELLATE DIVISION - SECOND DEPARTMENT

FEDERAL NATIONAL MORTGAGE ASSOCIATION,
Plaintiff,
against

BRIJWATTIE BANDHU,
Defendant/Respondent,

pecnciormnnnaSinc
US BANK TRUST, N.A., as Trustee for
LSF11 MASTER PARTICIPATION TRUST,
Non-Party Appellant.

Kings County Index No. 19592/2010

THE APPELLANT’S BRIEF
—

PRELIMINARY STATEMENT

This is an appeal of a Decision and Order (Larry D. Martin, J.S.C.), of the

Supreme Court Kings County, dated November 17, 2022, and entered January 6,

2023, which denied appellant’s Motion to Renew.
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The Notice of Appeal was timely filed on February 17, 2023, and served on

February 21, 2023, since the Decision and Order was not served with Notice of Entry

until March8, 2023.

STATEMENT OF FACTS

On June 5, 2008, Brijwattie Bandhu (hereinafter respondent) executed a Note

for the principal amountof $600,000, securedby a Mortgage
on the subject property

2363 Pitkin Avenue, Brooklyn, New York 11207, to Mortgage Electronic

Registration Systems, Inc (MERS) as nominee for SunTrust Mortgage, Inc., its

successors and assigns, and was recorded in CRFN 2008000318975 in the office of

the New York City Register on August 11, 2008 (20, 32, 50-52, 55-75, 229-230).

The Mortgage
was then assignedby MERS, as nominee for SunTrust Mortgage, Inc.

to Federal National Mortgage Association (FNMA) by virtue of and Assignment

Mortgage on October 8, 2009; and further assigned by virtue of a Conective

Assignment of Mortgage on October 17, 2012 (20, 32-33, 77-86). After

commencement
of the instant action, the Note was transferred, and the Mortgage

assigned by FNMA to U.S. Bank Trust, NA., as Trustee for LSF11 Master

Participation Trust, by virtue of an Assignment of Mortgage dated March 5, 2019

(20-21, 33, 78-88).
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Respondent defaulted on the Mortgage as of the January 1, 2009 payment (21,

36, 167-203, 205). All Notices of Default, and Notices pursuant to RPAPL §1304

were sent (21). The Notice of Default was sent on July 22, 2009 to respondent by

First-Class Certified Mail, at respondent’s last know address of 426 Shepard Ave,

Brooklyn, New
Y ork 11208 (34, 90-91). Pre-Foreclosure Notices pursuantto RPAPL

§1304
were mailed to respondent
on February 1, 2010, by regular
Fist Class Mail and

by First-Class Certified Mail to the subject property and to respondent’s last known

address (35, 93-100).

On August 6, 2010, a Summons and Verified Complaint
was filed in the Kings

County Clerk’s Office seeking to foreclose
a residential mortgage secured by the

subject property (20, 109-130). A Notice of Pendency was filed on August 6, 2010,

and on July 15, 2013 appellant re-filed the Notice of Pendency in accordance with

RPAPL §1331 and CPLR Article 65 (21, 132-140). At the time the action was

commenced, appellant was the holder of the Note (22, 33, 51-52). A Request for

Judicial Intervention was filed on August 23, 2010 (267-268). Respondent did not

answer, and the time to answer has expired (23). A mandatory Settlement Conference

was held on November1, 2010, but respondent failed to appear and the case was

released from the Settlement Conference Part (23, 217-218). Respondent is not a

resident of the subject property, as subject to a Bargain and Sale Deed, dated July 9,

2012 and recorded in CRFN 2012000477621 in the Office of the New York City
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property to Eurich Pitkin, LLC (23, 274-281).

On or about June 21, 2013, appellant moved for Order of Reference in

Mortgage Foreclosure, and filed the Affinnation required by Administrative Order

431/11 (23, 213-265). In an Order dated November 19, 2014, and entered November

25, 2014, appellant’s Motion was denied and the action dismissed pursuant to CPLR

§3215(c) (24, 311). Kings County Supreme Court Justice Lary D. Martin noted in

his Order that a Short- Form Order granting default was entered on January 14, 2014,

subject to review by the Foreclosure Department, and following
the review the court

is denying
the Motion as moot (270). Justice Martin explained that the instant Motion

was made on June 25, 2013, some two years following the case being released from

the Conference Part, without any explanation for the delay, therefore the Complaint

was dismissed and the Motion denied as moot (270-271). No Notice of Entry of that

dismissal order was served upon Plaintiffs counsel.

On February 5, 2015, Justice Martin entered an Order canceling the August 6,

2010 Notice of Pendency, which had been refiled on July 15, 2013 (308).

After commencement of the instant action, on October 24, 2018, the original

wet-ink Note was transferred to, and accepted by, Wells Fargo, as document

custodian for U.S. Bank Trust, N.A., as Trustee for LSF11 Master Participation

Trust, who remains in possession
of the original Note (33).
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On November 30, 2021, appellant filed a Motion to Renew and for Default

Judgment
and Orderof Reference (13-15). In the Motion, appellant soughtto renew

and restore the action pursuant to CPLR §2221[e]; to appoint a Referee to compute

the amount due; amend the caption pursuantto CPLR §1018 by substituting
Evurich

Pitkin, LLC in place of Brijwattie Bandhu; substituting U.S. Bank Trust NA, as

Trustee for LSF11 Master Participation Trust in place of Federal National Mortgage

Association; removing John and Jane Doe as party defendants; and declaring all non-

answexing defendants
in default (13-14).

Attached to the Motion was the November 30, 2021, Affirmation of Craig K.

Beideman, Esq. in Support of the Motion for a Default Judgment and Order of

Reference (19-27). Beideman recounted the history of the matter, and indicated
that

due to a change in the law, the prior court’s determination should be changed (20-

24). Beideman explained that in Citimortgage, Inc. v. Zaibak (188 A.D.3d 982 [24

Dept.]), this Court held that the filing of a Request for Judicial Intervention in a

Mortgage Foreclosure action constitutes “proceedings for entry of judgment” within

the meaning of CPLR §3215[c] (24-25). In the case at bar, the action wes

commenced on August 6, 2010; respondent
was served pursuant to CPLR §308[2] on

August 9, 2010, with the mailing component being completed on August 10, 2010;

and respondent
had 30 days to answer, which expired on September
19, 2010 (25).

Appellant filed a Request For Judicial Intervention (RJT) on or about August 26,
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2010, which was well within the year of respondent's default, and was even filed

before
the expiration of respondent’s
time to answer the Summons and Complaint

(25). Pursuant to Citimortgage v. Zaibak (supra), the filing of the RJI on August 10,

2010 constituted proceedings taken towards the entry of judgment and was sufficient

to satisfy the requirements of CPLR §3215[c] (25-26). Therefore, the November 19,

2014 Order should be vacated and the matter restored to the court’s active calendar,

in addition, the caption should be amended to substitute the proper parties as

requested in the Court below (25-29).

Attached to the Motion was the September 3, 2021, Affidavit of Priscilla

Serrato, Assistant Secretary of Fay Servicing, LLC, as Attomey-in-Fact for U.S.

Bank Trust, N.A. as Trustee for FSF11 Master Participation Trust, in Support of the

Motion for Default Judgment and Order of Reference (30-37, 159-165). Serrato

based her Affidavit on her personal knowledge or examination of the financial book

and business records made in the ordinary course of business, maintained by Fay to

be accurate and fair representation of the occurrences with which the record purports

to represent; she is familiar with the recordkeeping systems that Fay uses to record

and create information related to the mortgages they service; the records
are made at

or about the time the event is being recorded; and such records include those of any

Prior servicer and are integrated and boarded with and into the Servicing Systems

maintained
by Fayas a result of the transfer of the loan (30-31). Serrato noted
the date
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of default, the mailing of the proper notices, and copies of the documents reviewed

were attachedto her Affidavit (30-37).

On November 10, 2022, non-party Evurich Pitkin LLC through their counsel

filed the Affirmation of Chezki Menashe, Esq. in Opposition to Motion, in which

they claimed that the Motion should be dismissed in its entirety as untimely; relief in

this action was waived, abandoned, and/or barred by estoppel; the Motion for

substitution was untimely; and the request for Default Judgment and Order of

Reference against the non-party was premature prior to being joined (282-291).

Menashe noted that on August 30, 2016, appellant commenced a new action to

collect on the same Mortgage, alleging that no other proceedings had been had for

the recovery of said sum (283, 316-336). Respondent
filed an Answer asserting that

the 2016 Action was time-barred (283-284, 343-345). On February 14, 2018,

appellant filed for Summary Judgment, and on June 25, 2018 appellant obtained an

Order granting it Summary Judgment and an Orderof Reference (284, 347-349, 351-

354). On July 24, 2019, Kings County Supreme Court Justice Noach Dear issued an

Order dismissing the 2016 Action as time-barred (356), thereaftera Notice of Appeal

wes filed on that case (2019-10754) which appeal has been perfected
and the lower

court Order was affirmed by this Court on December 9, 2022 (284). Menashe

Claimed
that appellant, while appealing the dismissal of the 2016 action is now

seekingto restore the 2010 Action at the same time (284); the Motion
for Renewal is
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untimely, as appellant clearly elected to commence a new action instead of seeking

an appeal on the Judgment of dismissal; and the time to seek an appeal has long

lapsed (285-286).

In addition, Menashe claimed that appellant abandoned this action and waived

any right to renew by seeking to close the case and commence a subsequent

foreclosure action (287); it would be inequitable to allow appellant to restore this

action that it denied was pending in the 2016 Verified Complaint; and where it

obtained relief based upon the judgment of dismissal in this case (817). In orderto

have commenced the 2016 action, this action (2010 Action) could not have been

pending (287-290). Respondent argued that the Motion to substitute Pitkin must also

be denied, as it was not made within a reasonable time (290-291), and if substitution

is allowed, then the Motion for Default and Order of Reference are premature as

Pitkin has not been granted time to join the action (291).

On November 15, 2022, appellant’s counsel Beideman filed a Memorandum

of Law in Further Support of Plaintiff FNMA’s Motion to Renew, in which he

reiterated that due to the change in the law, since appellant filed a RJI within a year

of defendant's default, under Citimortgage, Inc. v. Zaibak (supra) that constitutes a

preliminary step taken towards the entry of a judgment (357-362). Appellant has

established its entitlement to a judgment of foreclosure, as a matter of law, by

producing the Mortgage and unpaid Note, along with evidence of default (362).
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Since respondent
has transferred his interest
in the subject property, and appellant
has

elected to not seek a deficiency judgment, he divested himself of the ability to

challenge the action (362-363). Even if respondent had not divested himself of any

interest in the Mortgaged premises and proceedings, his papers should still be

disregarded as he has not appeared in the action and has not moved to vacate his

default (363). Before respondent should be allowed to participate in these

proceedings, he should first move to vacate his default, but even if he did so he

would be unable to show any factual allegations which would constitute a reasonable

excuse for his failure to timely respond to the Summons and Complaint (363).

Beideman further explained that there are not two actions pending, as the action filed

under Kings County Index number 19592/2010 has been dismissed, and a subsequent

action filed under Kings County Index Number 515249/2016 has also been dismissed

(365-366).
As such, there are no actions pending until the court grants renewal (366).

The contention that appellant waived his right to seek restoration because it filed a

subsequent action is also unavailing, as the restoration is being sought because of a

change
in the law, which was not made until, November 18, 2020, four years after

the subsequent
action was commenced (366).

On November
17, 2022, Justice Martin entered his Decision and Order, in

which he denied appellant’s
Motion to Renew based on a change of law, stating that

there is “clearly a split amongst the justices of the Appellate Division, Second
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Department as to what constitutes initiation of proceedings for the entry of a

judgment’ (11). Justice Martin found that while one panel held that the filing of the

specialized RJI requesting settlement conferences is sufficient (Citimortgage v.

Zaibak, 188 A.D.3d 982, 983 [2™ Dept. 2020), it has been recognized that such a

holding is an outlier and contrary to the weight of the precedents (see, Citibankv.

Kerszko, 203 A.D.3d 42, 72 fn4 [2 Dept 2022][Baros, dissenting]; see also Wells

Fargo v. Jackson, 208 A.D.3d 613 [2% Dept 2022] [reiterating-post Zaibak—that “the

one-year deadline of CPLR §3215[c] was tolled by the mandatory settlement

conferences” rather than the filing of the RJI baning 3215{c]]; Deutsche Bank v

Lewin, 205 A.D.3d 677 [2™ Dept. 2002])(11-12).
A Notice of Appeal was timely filed on February 17, 2023, and served on

February 21, 2023, and Notice of Entry was not filed until March 8, 2023 (3-10).

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POINT I

APPELLANT’S MOTION TO RENEW SHOULD HAVE BEEN GRANTED
AS THERE HAS BEEN A CHANGE IN THE LAW.

Under CPLR §2221[e] a “Motion for leave to renew: (1) shall be identified

specifically as such; (2) shall be based upon new facts not offered on the prior

Motion that would change the prior detenmination or shall demonstrate
that there has

been a change in the law that would change the prior determination; and (3) shall

contain reasonable justification for the failure to present such facts on the prior

Motion.”

CPLR §3215[c] provides: “[i]f the plaintiff fails to take proceedings for the

entry of judgment within one year after the default, the court shall not enter judgment

but shall dismiss the Complaint as abandoned . . . unless sufficient
cause is shown

why the Complaint should not be dismissed.” To avoid dismissal pursuant to CPLR.

§3215[c], “Lilt is not necessary for a plaintiff to actually obtain a default judgment

within one year of the default’ (Citimortgage, Inc. v Zaibak, 188 A.D.3d 982, 983

[2™ Dept], cf. US Bank N.A. v Dorestant, 131 AD3d 467, 469 [2™ Dept]; see
Aurora Loan Sews., LLC v Gross, 139 AD3d 772, 774 [2 Dept]). Rather, “[als
long as proceedings
are being taken, and these proceedings
manifest an intent not to

abandon the case but to seek a judgment, the case should not be subject to dismissal”

(Zaibak, 188 A.D.3d. at 983).

11
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The instant action was commended on August 6, 2010; respondent was served

pursuant to CPLR §308[2] on August 9, 2010, with the mailing component being

completed on August 10, 2010; and respondent had 30 days to Answer, which

expired on September 19, 2010 (25). Appellant filed a Request for Judicial

Intervention (RJT) on or about August 26, 2010, which was well within the year of

respondent’s default, and was even filed before the expiration of respondent’ s time to

answer the Summons and Complaint (25). To avoid dismissal pursuant to CPLR

§3215[c] “Lilt is not necessary for an appellant to actually obtain a default judgment

within one year of the default, and an appellant is not even required to specifically

seek a default judgment within a year” . it is enough that appellant took a

preliminary step towards obtaining a default judgment of foreclosure and sale

(Deutsche Bank Natl. Trust Co. v. Khalil, 208 A.D.3d 555, 557 [2™ Dept]).
Moreover, appellant was not required to account for any additional periods of delay

that may have occurred subsequent to the initial one-year period contemplatedby

CPLR §3215[c] (Deutsche Bank Natl. Trust Co., 208 A.D.3d at 558).

In the case at bar, appellant demonstrated that, within one year [before

September 19, 2011] after the respondent’s default, it filed a Request for Judicial

Intervention (RJT) [August 26, 2010] which sought a Mortgage foreclosure on the

subject property, and a foreclosure settlement conference as mandated by CPLR

§3408 (see Zaibak, 188 A.D.3d. at 983). Where a settlement conference is a

12
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necessary prerequisite to obtaining a default judgment (see CPLR §3408[a], [ml), a

formal RJI for such a conference, in connection with an ongoing demand for the

ultimate relief sought in the complaint constitutes “proceedings for entry of

judgment’ within the meaning of CPLR §3215[c] (Zaibak, 188 A.D.3d. at 983; see

also U.S. Bank, NA. v Duran, 174 A.D.3d 768 [2™ Dept]). This Court’s ruling in
Zaibak is the logical and correct ruling on this issue because CPLR §3215{c] merely

requires that the plaintiff take proceedings towards a default judgment and, in a

mortgage foreclosure action on a home loan, no default may be obtained until a

CPLR §3408 settlement conference is had. Accordingly, since plaintiff timely filed

the RJI requesting a CPLR §3408 settlement conference, it took the first step in the

proceedings
towards a default judgment Since appellant demonstrated
that it

initiated proceedings for the entry of a judgment within one year after the

respondent’s default, it was not required to proffer a reasonable excuse or

demonstrate a potentially meritorious cause of action (see CPLR §3215[c]; see also

Zaibak, 188 A.D.3d. at 983).

Therefore, due to the change in law establishedby Zaibak (188 A.D.3d. at

983) the Motionto Renew should have been granted, as appellant
filed the RJI within

one year from respondent's default (see also U.S. Bank, N.A. v Duran, 174 A.D.3d at

770).

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POINT II

APPELLANT’S HAS EXTABLISHED ITS PRIMA FACIE CASE FOR
JUDGMENT OF FORECLOSURE.

In residential mortgage foreclosure actions, a plaintiff establishes its prima

facie entitlement to judgment by producing the Mortgage and the unpaid Note, and

evidence of the default (Midfirst Bank v. Agho, 121 A.D.3d 343, 34 [2" Dept];

Charter One Bank, FSB v. Leone, 45 A.D.3d 958 [3% Dept]; Red Tulip, LLC v.
Neiva, 44 A.D.3d 204, 209 [1st Dept.]). For a plaintiff to establish standing, it must

demonstrate possession of the Note, either by producing the written assignment of

the Note (Midfirst Bank, supra at 348; Aurora Loan Servs., LLC v. Taylor, 114

A.D.3d 627 [2% Dept.]) or demonstrating physical delivery of the Note to the

Plaintiff (Midfirst Bank, supra at 348; OneWest Bank FSB v. Carey, 104 A.D.3d 444,

4A5 [1st Dept).
The burden then shifts to the borrower to demonstrate, through competent and

admissible evidence, any defense, which could raise a question of fact (Charter One

Bank, supra at 958).

In the case at bar, appellant has established its entitlement to a judgment of

foreclosure as a matter of law by producing the Mortgage, the unpaid Note, along

with evidence of the borrower's default with the Summons and Complaint (20, 32,

33, 50-52, 55-75, 77-88,167-203, 205, 229-230) (Midfirst Bank, supra at 348;

OneWest Bank, supra
at 445).

14
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NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/20/2023

POINT III

RESPONDENT HAS CONVEYED HIS INTEREST IN THE MORTGAGED
PREMISES AND THEREFORE DIVESTED HIMSELF OF THE STANDING
TO CHALLENGE THE ACTION.

CPLR §1018 provided that “[uJpon any transfer of interest, the action may

be continued by or against the original parties unless the court directs the person to

whom
the interest is transferred to be substituted or joined in the action.”

“A party who conveys his or her interest in property that is the subject of a

foreclosure action ‘effectively divest[s]’ himself or herself of standing to challenge

[a] plaintiff's request for a judgment of foreclosure and sale” (Valiotis v Bekas, 191

A.D.3d 1037 [2" Dept]; NYCTL 1996-1 Trust v. King, 304 A.D.2d 629 [2™
Dept.]).

In the case
at bar, respondent, through aJuly 9, 2012 Bargain and Sale Deed,

transferred his title interest in the subject property to Eurvich Pitkin, LLC (23, 274-

281). As such, respondent lacks standing to challenge the foreclosure action, and

has no good faith basis to do so as appellant is correctly requesting he be removed

from the action (23, 274-281) (Valiotis, 191 A.D.3d at 1038; NYCTL 1996-1

Trust, 304 A.D.2d at 630-631). Moreover, any consideration the Court gave to

nor-party Eurvich Pitkin, LLC, was an abuse of discretion. They were not a party

to the action, nor did they move to intervene. Without coming into the action as

15
INDEX NO. 509436/2023
FILED: KINGS COUNTY CLERK 11/20/2023 10:59 PM
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/20/2023

would be required through the CPLR, their opposition to the motion was

procedurally inappropriate.

POINT IV

RESPONDENT HAS NOT APPEARED IN THE ACTION AND HAS NOT
MOVED TO VACATE HIS DEFAULT.

“A defendant in default is not entitled to affirmative relief of a non

jurisdictional nature absent vacatur [ ] of his or her default” (CPLR §5015{al[
1];

Bank of NY. Mellonv Lawson, 176 A.D.3d 1155 [2 Dept.]). A defendant who

defaults in an actionto foreclose a mortgage must demonstrate a reasonable excuse

for the default and the existence of a potentially meritorious cause of action in

order to vacate the default (CPLR §5015fa][1]; Bank of N-Y. Mellon, 176 A.D.3d

at 1157).

Even if respondent had not divested himself of his interest in the subject

property, he has not moved to vacate his default, and therefore should not be

allowed to participate in these proceedings (Bank of N.Y. Mellon, 176 A.D.3d at

1157).

In addition, respondent would subsequently fail to vacate his default, as he

has not provided any factual allegations which would constitute a reasonable

excuse for his failure to timely respond to the Summons and Complaint (23-23,

217-218). Even if respondent could provide a reasonable excuse for his default, he

16
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NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/20/2023

would also fail to provide a meritorious defense, as he failed to provide any

defense to the non-payment of the mortgage, or make any allegations which would

excuse his refusal to fulfill his contractual obligations (Deutsche Bank Nat! Trust

Co. v. Rudman, 80 A.D.3d 651 [2™ Dept.)).

Therefore, since respondent

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Peter P. Sweeney Track Judge’s New Case

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November 20, 2023

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March 28, 2023

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