No corroboration, no excuse - and the court was not buying it
A New York appeals court has blocked a borrower’s attempt to vacate a foreclosure order nearly five years after it was entered.
The Appellate Division’s Third Department affirmed the order on October 29 in a case that began with a JP Morgan Chase mortgage originated in 2011 and now sits with Wilmington Savings Fund Society as trustee.
Chase filed to foreclose in 2019, alleging the borrower had defaulted. She answered but raised no affirmative defenses. When Chase moved for summary judgment - a ruling without a full trial - she filed no opposition. The court granted it, struck her answer, and appointed a referee to calculate what was owed.
In 2020, Chase assigned the mortgage to Wilmington Savings Fund Society, FSB. By 2022, the referee calculated the total due and determined the Ulster County property - a single-family home under one tax account - could not be sold in parcels.
That should have brought things to a close. But in 2024, after changing lawyers, the borrower moved to vacate the 2019 order, claiming law office failure. She said her original attorney, and others she hired for the foreclosure and a related bankruptcy, never told her the motion or order existed.
The court found her account unsupported. Her only evidence was her own affidavit - no corroboration from anyone she blamed. Nothing to explain how none of them knew about the order across nearly five years. Supreme Court called the account one that “strained credulity.” The appellate panel agreed.
New York law requires both a reasonable excuse and a meritorious defense to vacate a default. The borrower failed the first test, so the court did not reach the second.
Timing worked against her too. The referee had already reported and the case was nearing conclusion. Vacatur would prejudice the lender.
She also challenged the referee’s report, arguing a Carrington Mortgage Services supervisor who submitted a supporting affidavit lacked authority as attorney-in-fact. The court disagreed, pointing to a limited power of attorney granting Carrington broad authority to execute servicing documents, and the supervisor’s statement that he acted on personal knowledge of the records.
Her claim that the referee never explained why the property should sell as one parcel fell short - a tax search appended to the report showed a single-family dwelling under one tax account number.
For servicers and foreclosure teams, the practical takeaway: documentation of authority - powers of attorney, business records affidavits, clean assignment chains - separates a smooth confirmation from years of extra litigation.
The panel affirmed without costs. This is a slip opinion, subject to revision before publication in the Official Reports.
