First Franklin Fin. Corp. v. AlfauFirst Franklin Fin. Corp. v. Alfau
Dorf & Nelson LLP, Rye, NY (Jonathan B. Nelson of counsel), for appellant.
DECISION & ORDER
In an action, inter alia, to foreclose a mortgage, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Greco, Jr., J.), entered October 16, 2015, which, upon a dеcision of the same court (Rios, J.) dated October 28, 2013, denied its unopposed motion for leave to enter a default judgment, to appoint a referee, to reform the subject mortgage to add the name of the defendant Herminia I. Alfau as a mortgagor, to amend the caption to excise the defendants “John Doe #2” through “John Doe #10,” substitute Pilar Luna as a defendant in place of “Jоhn Doe #1,” and substitute U.S. Bank National Association, as trustee for the holders of the First Franklin Mortgage Loan Trust Mortgage Pass-Through Certificates, Series 2005-FF10, as the plaintiff, and, sua sponte, dismissed the complaint.
ORDERED that the order and judgment is modified, on the law, (1) by deleting the provision therеof dismissing the complaint, and (2) by deleting the provisions thereof denying those branches of the plaintiff‘s motion which were to amend the сaption to excise the defendants “John Doe #2” through “John Doe #10,” substitute Pilar Luna as a defendant in place of “John Doe #1,” and substitutе U.S. Bank National Association, as trustee for the holders of the First Franklin Mortgage Loan Trust Mortgage Pass-Through Certificates, Series 2005-FF10, as thе plaintiff, and substituting therefor a provision granting those branches of the motion; as so modified, the order and
In 2005, the defendant Rafael E. Alfau mortgaged property located in Queens that was owned by his wife, the defendant Herminia I. Alfau (hereinafter together the Alfau defendants). In May 2008, the plaintiff commenced this action against, among others, the Alfau defendants, alleging that Rafael defaulted by failing to make the monthly payment due in February 2008. The complaint asserted causes of action, inter alia, to foreclose the mortgage, to reform the mortgage to add Herminia as a mortgagor, since she owned the property, or, alternatively, to impose an equitable lien or equitable mortgage on the property.
After the Alfau defendants’ time to appear or answer the complaint expired, the plaintiff moved for leave to enter a default judgment, to appoint a referee, to reform the mortgage to add Herminia as a mortgagor, and to amend the caption to excise the defendants “John Doe #2” through “John Doe #10,” substitute Pilar Luna as a defendant in place of “John Doe #1,” and substitutе U.S. Bank National Association, as trustee for the holders of the First Franklin Mortgage Loan Trust Mortgage Pass-Through Certificates, Series 2005-FF10 (hereinafter USBank), as the plaintiff. The Supreme Court issued a decision dated October 28, 2013, concluding that the unopposed motion should be denied. Thereafter, the plaintiff moved, inter alia, in effect, for leave to renew its prior motion. In an order dated October 23, 2014, the court denied that branch of the motion which was for leave to renew. Subsequently, the court entered an order and judgment denying the plaintiff‘s motion, inter alia, for leave to enter a default judgment and, sua sponte, dismissed the complaint. The plaintiff appеals.
“On a motion for leave to enter a default judgment pursuant to
Here, since the Alfau defendants defaulted in appearing or answering the complaint and failed to demonstrate grоunds for vacating their default, they were precluded from asserting lack of standing as a defense. Accordingly, it was unnecessary for thе plaintiff to demonstrate that it had standing to commence the action in order to establish its entitlement to a default judgment (see Bank of N.Y. Mellon v Izmirligil, 144 AD3d 1067, 1069-1070).
Nevertheless, the plaintiff failed to submit the requisite proof of the facts constituting the claim (see DLJ Mtge. Capital, Inc. v United Gen. Tit. Ins. Co., 128 AD3d at 762). “While a verified complaint may be used as the аffidavit of the facts constituting the claim, it must contain evidentiary facts from one with personal knowledge” (id. [citation omitted]; see
Since the plaintiff‘s motion papers failed to set forth sufficient facts to enable the Supreme Court to detеrmine whether there exists a viable cause of action, the court properly denied those branches of the plaintiff‘s motiоn which were for leave to enter a default judgment, to appoint a referee, and to reform the mortgage. However, thе plaintiff‘s submissions were sufficient to grant those branches of its motion which were to amend the caption to excise the defendants “John Doe #2” through “John Doe #10,” substitute Pilar Luna as a defendant in place of “John Doe #1,” and substitute USBank as the plaintiff. Since standing was not in issue, there was no bar to substituting USBank as the plaintiff and to amend the caption accordingly (see TCIF REO GCM, LLC v Walker, 139 AD3d 704, 706).
The Supreme Court properly denied that branch of the
Finally, the Supreme Court should not have dismissed the complaint sua sponte (see U.S. Bank, N.A. v Razon, 115 AD3d 739, 740). Accordingly, the complaint must be reinstated.
HALL, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court