Wells Fargo Bank N.A. v. Javier , 153 A.D.3d 1199 ( 2017 )

Wells Fargo Bank N.A. v Javier (2017 NY Slip Op 06711)

Wells Fargo Bank N.A. v Javier

2017 NY Slip Op 06711

Decided on September 28, 2017

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 September 28, 2017
Tom, J.P., Mazzarelli, Andrias, Oing, Singh, JJ.

381159/13 4521 4520

[*1]Wells Fargo Bank N.A., Plaintiff-Respondent,

v

Ricardo Javier, Defendant-Appellant, New York State Department of Finance, et al., Defendants.

Petroff Amshen LLP, Brooklyn (Christopher Villanti of counsel), for appellant.

Reed Smith LLP, New York (Andrew Messite of counsel), for respondent.

Judgment of foreclosure and sale, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about March 13, 2017, unanimously affirmed, without costs. Appeal from order, same court (Norma Ruiz, J.), entered March 31, 2016, which, upon renewal, denied defendant Ricardo Javier's motion to extend the time to answer, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Defendant failed to show both a reasonable excuse for his default and a potentially meritorious defense to this foreclosure action (see US Bank N.A. v Brown, 147 AD3d 428, 429 [1st Dept 2017]). His assertion that he had been "led to believe" (by parties unnamed) that he did not need to answer the complaint because he had submitted a loan modification application is not a reasonable excuse, in view of the clear warning contained in the summons served in this action that failure to respond could result in a default judgment and loss of his home (see id.). Given his failure to proffer a reasonable excuse for the default, we need not determine whether defendant demonstrated a potentially meritorious defense to the action (see id. at 429-430).

The referee's failure to give notice of the proceedings (see CPLR 4313) to ascertain the amount due on the mortgage does not require reversal of the judgment of foreclosure and sale. Both parties submitted evidence to the court — the ultimate arbiter of the issue — in their motions to confirm or vacate the referee's report, and the court correctly found that defendant's evidence failed to rebut plaintiff's evidence (see Union Chelsea Natl. Bank v Rumican 190 Corp., 257 AD2d 463 [1st Dept 1999], lv dismissed in part, denied in part 93 NY2d 989 [1999]; Adelman v Fremd, 234 AD2d 488 [2d Dept 1996]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 28, 2017

CLERK