New Decision Clarifies Foreclosure Practice Rules in Second Department
By: Katerina M. Kramarchyk, Esq.
On February 25, 2015, the Second Department clarified the powers of trial court judges and the time in which standing arguments may be asserted, indicating: (1) the Supreme Court has no revisory or appellate jurisdiction to vacate an order or judgment of the same court, and (2) a defendant who does not answer a complaint, nor make a pre-answer motion to dismiss waives the defense of lack of standing and that defense is inappropriate to be made by a judge sua sponte.
As background, the Plaintiff/mortgagee commenced an action in foreclosure against a borrower who defaulted of his mortgage payments.The Defendant/borrower never appeared in the action and an ex parte order of reference was submitted and granted by Judge Knipel.The Plaintiff moved for a Judgment of Foreclosure and Sale in front of a separate judge, and was denied the same. Instead, the new judge entered a sua sponte order that: denied Plaintiff 's motion for Judgment of Foreclosure and Sale, vacated the prior Order of Reference issued by the original judge, and dismissed the underlying complaint for lack of standing.
As to the trial court's powers in revising decisions made by other judges of the same court, the Second Department clarified that while a trial court has the discretion to correct an order or judgment with a mistake or defect not affecting a substantial right of a party, the trial court has no authority to revise decisions made by the same court.
As to the sua sponte dismissal, the Second Department advised that judges should use their discretion to dismiss complaints sparingly. The Court also notes that a party's lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal.If not argued in a pre-answer motion to dismiss or in their answer, the Defendant will waive a standing defense.
This decision is available online at http://www.courts.state.ny.us/reporter/3dseries/2015/2015_01609.htm
