BAC Home Loans Servicing, LP v. Alvarado
| Decision Date | 30 January 2019 |
| Docket Number | Index No. 1059/10,2016–04708 |
| Parties | BAC HOME LOANS SERVICING, LP, etc., respondent, v. Gregorio ALVARADO, et al., appellants, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
Lizarraga Law Firm, PLLC, Jackson Heights, N.Y. (William R. Liza´rraga of counsel), for appellants.
Leopold & Associates, PLLC, Armonk, N.Y. (Fernando C. Rivera–Maissonet of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Gregorio Alvarado and Jose DeLeon appeal from an order of the Supreme Court, Queens County (Duane A. Hart, J.), entered August 24, 2015. The order, insofar as appealed from, granted the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against those defendants and an order of reference, and, in effect, denied that branch of those defendants' cross motion which was to dismiss the complaint insofar as asserted against them for lack of standing.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendants Gregorio Alvarado and Jose DeLeon and an order of reference, and substituting therefor a provision denying the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and so much of a subsequent order of the same court (Salvatore J. Modica, J.) entered June 8, 2017, as, in effect, upon reargument, adhered to the determination in the order entered August 24, 2015, granting the plaintiff's motion, is vacated.
The plaintiff commenced this action to foreclose a mortgage given by the defendant Gregorio Alvarado to secure a note in the amount of $ 490,000. The complaint alleged, among other things, that the plaintiff was the owner and holder of the note, that Alvarado defaulted on the note and mortgage, and that the defendant Jose DeLeon was the current deed holder of the subject property. Alvarado and DeLeon (hereinafter together the defendants), appearing pro se, answered the complaint with a general denial as to the allegations in the complaint. The defendants did not make a pre-answer motion to dismiss the complaint on the ground of lack of standing and did not raise the issue of standing as an affirmative defense. The plaintiff subsequently moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference. The defendants opposed the plaintiff's motion and cross-moved, inter alia, to dismiss the complaint insofar as asserted against them for lack of standing. In opposition to the defendants' cross motion and in further support of its motion for summary judgment, the plaintiff introduced evidence as to its standing. The plaintiff, however, never contended in the Supreme Court that the defendants had waived the issue of standing. In the order appealed from, the court granted the plaintiff's motion and, in effect, denied the defendants' cross motion. On appeal, the defendants contend that the court should have denied the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against them and an order of reference, and granted that branch of their cross motion which was to dismiss the complaint for lack of standing. The plaintiff contends, among other things, that the defendants waived the issue of standing by not raising it in a pre-answer motion to dismiss or as an affirmative defense and that, in any event, it established proper standing.
The defense of lack of standing in an action to foreclose a mortgage is waived if the defendant does not raise it in a pre-answer motion to dismiss or as an affirmative defense (see CPLR 3018[b] ; U.S. Bank Nat. Assn. v. Nelson, ––– A.D.3d ––––, 93 N.Y.S.3d 138, 2019 N.Y. Slip Op. 00494 [2d Dept. 2019] ; Bank of N.Y. Trust Co., N.A. v. Chiejina, 142 A.D.3d 570, 572, 36 N.Y.S.3d 512 ; One W. Bank, FSB v. Vanderhorst, 131 A.D.3d 1028, 1028, 16 N.Y.S.3d 460 ; see also Matter of Fossella v. Dinkins, 66 N.Y.2d 162, 167, 495 N.Y.S.2d 352, 485 N.E.2d 1017 ). Here, in opposition to the plaintiff's motion for summary judgment and in support of their cross motion to dismiss, the defendants argued that the plaintiff lacked standing to commence this action. The plaintiff, in its "reply ... in further...
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