Court blocks borrower’s late bid to unwind foreclosure default
The case kept moving. U.S. Bank Trust, which succeeded FNMA as the foreclosing party, secured a default judgment against all nonappearing defendants in June 2022. The matter was referred to a referee to calculate the amount owed.
The borrower surfaced in March 2023 – nearly four years later – and moved to dismiss the complaint as time-barred and for lack of personal jurisdiction. He also sought to vacate the 2019 service order. The plaintiff opposed.
Suffolk County Supreme Court denied the motion in July 2024. The Appellate Division affirmed unanimously.
On vacatur, the court applied a straightforward test: a party trying to undo an order entered on default must show a reasonable excuse for the default and a potentially meritorious opposition to the original motion. The borrower showed neither. The court acknowledged that judges can vacate orders in the interest of justice even after the one-year statutory deadline, but only where there is fraud, mistake, inadvertence, surprise, or excusable neglect. Nothing in the record qualified.
The statute of limitations argument hit a more basic problem. Because the borrower never vacated his default, he was barred from raising the defense at all – a well-settled principle in New York foreclosure law reinforced across multiple appellate decisions.
