Freedom Mortgage Corp. v. Toro

113 A.D.3d 815, 979 N.Y.2d 622

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 2014
• Status: Published

Opinion

After the defendant mortgage debtor, Rosita Toro (hereinafter the debtor), defaulted in appearing in this foreclosure action, the plaintiff moved for the appointment of a referee to compute the amounts due and owing to it, and for related relief. The debtor did not oppose the plaintiffs motion.

The Supreme Court denied the plaintiff’s motion, without prejudice, on the ground that the plaintiffs papers contained an acknowledgment of the assignment of the note and mortgage by an out-of-state notary, and an affidavit attesting to the debtor’s default in repaying the mortgage loan that was notarized by an out-of-state notary, both without certificates of conformity. The plaintiff appeals.

It appears from this record that the plaintiff was the holder of the mortgage and note. In any event, by failing to appear in the action, the debtor waived the defense of lack of standing (see HSBC Bank USA, N.A. v Taker, 104 AD3d 815, 817 [2013]). However, the affidavit attesting to the debtor’s default in repaying the mortgage loan did not comply with CPLR 2309 (c). Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in denying relief to the movant without prejudice.

In view of the foregoing, we affirm the order appealed from. Skelos, J.P., Lott, Cohen and Hinds-Radix, JJ., concur.