JPMC Specialty Mtge. LLC v Espada

JPMC Specialty Mtge. LLC v Espada 2016 NY Slip Op 06967 Decided on October 25, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 25, 2016
Tom, J.P., Mazzarelli, Richter, Manzanet-Daniels, Webber, JJ.
2023 380797/12

[*1]JPMC Specialty Mortgage LLC, Plaintiff-Respondent,

v

Luis Espada, "John Doe" and "Jane Doe", etc., Defendants-Appellants.

Carl E. Person, New York, for appellants.

Fein, Such & Crane, LLP, Syracuse (John A. Cirando of counsel), for respondent.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered July 23, 2015, which denied the proposed intervenors' motion to dismiss the complaint or, in the alternative, to vacate their default and grant leave to answer, unanimously affirmed, without costs.

The proposed intervenors lack standing to raise the improper service defense on behalf of the mortgagor (see Wells Fargo Bank, N.A. v Bowie, 89 AD3d 931 [2nd Dept 2011]). In any event, the defense is unavailing in light of the affidavits of service (see Matter of de Sanchez v JP Morgan Chase Bank, 57 AD3d 452, 454 [1st Dept 2008]).

The limited power of attorney held by the proposed intervenors does not authorize them to litigate to protect the mortgaged property since they hold no title and are not mortgagors, and the title-holding owner purposefully chose not to litigate over the property (cf. Lorisa Capital Corp. v Gallo, 119 AD2d 99, 108-109 [2nd Dept 1986] [realty management functions to which power of attorney was limited reasonably included litigating on behalf of absentee owner who could not do so for himself]). In a similar vein, the mortgagor having intentionally stopped mortgage payments and declined to answer the complaint, no reasonable excuse could be shown to vacate the default (see Amalgamated Bank v Helmsley-Spear, Inc., 109 AD3d 418, 419-420 [1st Dept 2013], affd 25 NY3d 1098 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED:

CLERK