Nationstar Mtge., LLC v. Turcotte, 161 A.D.3d 1090

In 2007 the Turcottes executed a note secured by a mortgage on Suffolk County real property; they defaulted and Nationstar commenced foreclosure on June 25, 2008.
Defendants filed a verified answer; they later filed Chapter 7 bankruptcy on May 13, 2010, and received a discharge on August 24, 2010 (automatic stay terminated upon discharge).
A CPLR 3408 settlement conference was held June 18, 2010; defendants did not appear. Nationstar moved for summary judgment; the court granted the unopposed motion by order dated November 9, 2010.
Defendants’ 2011 CPLR 5015(a) motion to vacate for lack of proper service was denied; a judgment of foreclosure and sale was entered June 9, 2014, and the property was sold.
In May 2015 defendants moved under CPLR 5015(a) to vacate the 2010 summary judgment order and the foreclosure judgment, arguing Nationstar committed misconduct by failing to disclose the bankruptcy and by participating in the 2010 settlement conference in violation of the automatic stay; the court denied the motion and the denial was affirmed on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of CPLR 5015(a)(3) motion	Nationstar: defendants waited unreasonably long to seek relief.	Turcotte: moved only after sale/eviction notice; delay excusable.	Denied — motion was untimely; defendants knew of alleged misconduct in 2010 but waited until 2015.
Alleged plaintiff misconduct (failure to disclose bankruptcy/violation of stay)	Nationstar: no dispositive misconduct; summary judgment papers were considered after stay ended.	Turcotte: Nationstar misled court and violated automatic stay by appearing at settlement conference.	Denied — defendants failed to show device, trick, or deceit or prejudice warranting vacatur; court effectively suspended proceedings until stay ended.
Whether summary judgment was based on failure to attend CPLR 3408 conference	Nationstar: judgment rested on summary judgment submissions, not on nonappearance.	Turcotte: court granted relief because they missed the settlement conference.	Held: Order recited review of Nationstar’s affidavit; summary judgment was not predicated on nonappearance.
Applicability of CPLR 3408 mandatory settlement conference	Nationstar: the loan was not a nontraditional/subprime loan, so former CPLR 3408 did not mandate conference.	Turcotte: entitled to mandatory CPLR 3408 settlement conference.	Held: Defendants’ adjustable-rate note did not qualify as a nontraditional home loan; mandatory conference did not apply.

Wells Fargo Bank, N.A. v. Miller, 150 A.D.3d 1046 (2d Dep’t 2017) (court may rely on evidentiary submissions to grant summary judgment in foreclosure)
North Am. Sav. Bank, FSB v. Esposito-Como, 141 A.D.3d 706 (2d Dep’t 2016) (evaluation of foreclosure summary judgment submissions)
LaSalle Bank N.A. v. Oberstein, 146 A.D.3d 945 (2d Dep’t 2017) (vacatur requires a showing of device, trick, or deceit leading defendant to not defend)
Wells Fargo Bank Minn., N.A. v. Coletta, 153 A.D.3d 756 (2d Dep’t 2017) (reasonableness/timeliness standard for CPLR 5015 motions)
Bank of N.Y. v. Stradford, 55 A.D.3d 765 (2d Dep’t 2008) (delay after knowledge of alleged misconduct defeats CPLR 5015 claim)
Sieger v. Sieger, 51 A.D.3d 1004 (2d Dep’t 2008) (motions to vacate must be made within a reasonable time)
Carr v. McGriff, 8 A.D.3d 420 (2d Dep’t 2004) (court may suspend proceedings pending resolution of an automatic bankruptcy stay)
Independence Bank v. Valentine, 113 A.D.3d 62 (2d Dep’t 2013) (former CPLR 3408 applied only to high-cost/subprime/nontraditional loans)
Blumes v. Madar, 21 A.D.3d 518 (2d Dep’t 2005) (standard for vacating foreclosure judgment)
Federal Home Loan Mtge. Corp. v. Nappy, 254 A.D.2d 323 (2d Dep’t 1998) (vacatur principles in foreclosure context)