78 A.D.3d 1167
N.Y. App. Div.2010Background
- Foreclosure action against Barbara Ann Slavinski; judgment of foreclosure and sale dated June 12, 2007 entered upon her default for failure to appear or answer; motion to vacate the judgment and set aside the sale denied by Supreme Court, Nassau County; appellant appealed the denial; communications with plaintiff's attorneys argued not to constitute an informal appearance; appellant argued for vacation under CPLR 5015(a)(1) and for alleged meritorious defenses; the Court affirmed the denial for lack of reasonable excuse and lack of meritorious defense, and held no basis to invoke inherent power to vacate in the interest of substantial justice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether communications to opposing counsel count as appearance | Slavinski's contacts with plaintiffs' counsel constitute appearance | Contacts were for loan information/modification, not appearance | Not an appearance; no pro se participation |
| Whether Slavinski defaulted by failing to answer | Default due to failure to answer after appearance not required | Appellant did not file an answer; default occurred | Appellant defaulted; none of the arguments overcome default |
| Whether CPLR 5015(a)(1) relief should be granted | Default overturned due to meritorious defense or reasonable excuse | Did not provide reasonable excuse or meritorious defense | Denied; no reasonable excuse or meritorious defense shown |
| Whether there existed a meritorious defense based on fraud or L/T claims | Foreclosure defenses based on fraud or TILA/RESPA/HOEPA/GBL 349 | No meritorious defense shown | No meritorious defense established |
| Whether court should exercise inherent power to vacate in interest of substantial justice | Inherent power to vacate exists in rare cases | Not warranted here | Not warranted; inherent power not invoked |
Key Cases Cited
- Meyer v A & B Am., 160 A.D.2d 688 (1990) (informal appearance not established by communications with counsel)
- General Elec. Credit Corp. v Zemrus, 115 A.D.2d 953 (1985) (informal appearance not found; loan context)
- Thomas v Callahan, 222 A.D.2d 1070 (1995) (participation not pro se appearance in foreclosure)
- Cohen v Ryan, 34 A.D.2d 789 (1970) (absence of appearance; default context)
- Dorrer v Berry, 37 A.D.3d 519 (2007) (reasonable excuses required for default)
- Voss Dental Lab v Surgitex, Inc., 210 A.D.2d 985 (1994) (reasonable excuses for default)
- People v Scudds, 195 A.D.2d 778 (1993) (default excuse standards)
- Deutsche Bank Natl. Trust Co. v Sinclair, 68 A.D.3d 914 (2009) (meritorious defense required in 5015(a)(1))
- Beach v Ocwen Fed. Bank, 523 U.S. 410 (1998) (statutory/t substantive defense considerations)
- U.S. Bank N.A. v Pia, 73 A.D.3d 752 (2010) (foreclosure defenses and standards)
- Fremont Inv. & Loan v Haley, 23 Misc 3d 1138[A] (2009) (analysis of defenses in foreclosure)
- Fremont Inv. & Loan v Laroc, 21 Misc 3d 1124[A] (2008) (foreclosure defense standards)
- Woodson v Mendon Leasing Corp., 100 NY2d 62 (2003) (inherent power to vacate judgment in interest of substantial justice)