Wells Fargo Bank, N.A. v. Kissi

Appellate Division of the Supreme Court of New York

Wells Fargo Bank, N.A. v. Kissi

2017 NY Slip Op 6, 146 A.D.3d 407, 43 N.Y.S.3d 740

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 3, 2017

Docket2593 381152/13

StatusPublished

This text of 2017 NY Slip Op 6 (Wells Fargo Bank, N.A. v. Kissi) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wells Fargo Bank, N.A. v. Kissi, 2017 NY Slip Op 6, 146 A.D.3d 407, 43 N.Y.S.3d 740 (N.Y. Ct. App. 2017).

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Opinion

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered September 30, 2015, which, inter alia, granted plaintiff’s motion for a judgment of foreclosure, and denied defendant Josephine Kissi’s cross motion to vacate her default, unanimously affirmed, without costs.

Defendant’s conclusory, undocumented assertion in her affidavit that she had moved, when she had not notified either the post office or the lender of any change of address, was insufficient to rebut the presumption of proper service, even by nail and mail, created by the process server’s affidavit (see Sharbat v Law Offs, of Michael B. Wolk, P.C., 121 AD3d 426, 427 [1st Dept 2014]; U.S. Bank Natl. Assn. v Vanvliet, 24 AD3d 906, 908 [3d Dept 2005]). Defendant’s conclusory “incorporation by reference” of her proposed verified complaint and counterclaim, without any attempt to make a legal argument or explain her theories, was insufficient to establish a meritorious defense under CPLR 5015 (a) (1). In any event, the principal claims appear to be under the Truth in Lending Act (15 USC § 1601 et *408 seq.), and are time-barred (see 15 USC §§ 1640 [e]; 1635 [f]).

Concur — Friedman, J.P., Sweeny, Richter, Manzanet-Daniels and Kapnick, JJ.

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Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered September 30, 2015, which, inter alia, granted plaintiff’s motion for a judgment of foreclosure, and denied defendant Josephine Kissi’s cross motion to vacate her default, unanimously affirmed, without costs.

Defendant’s conclusory, undocumented assertion in her affidavit that she had moved, when she had not notified either the post office or the lender of any change of address, was insufficient to rebut the presumption of proper service, even by nail and mail, created by the process server’s affidavit (see Sharbat v Law Offs, of Michael B. Wolk, P.C., 121 AD3d 426, 427 [1st Dept 2014]; U.S. Bank Natl. Assn. v Vanvliet, 24 AD3d 906, 908 [3d Dept 2005]). Defendant’s conclusory “incorporation by reference” of her proposed verified complaint and counterclaim, without any attempt to make a legal argument or explain her theories, was insufficient to establish a meritorious defense under CPLR 5015 (a) (1). In any event, the principal claims appear to be under the Truth in Lending Act (15 USC § 1601 et *408 seq.), and are time-barred (see 15 USC §§ 1640 [e]; 1635 [f]).

Concur — Friedman, J.P., Sweeny, Richter, Manzanet-Daniels and Kapnick, JJ.

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Bluebook (online)

2017 NY Slip Op 6, 146 A.D.3d 407, 43 N.Y.S.3d 740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-fargo-bank-na-v-kissi-nyappdiv-2017.

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