U.S. Bank Trust v. McGlone

Summary

The New York Appellate Division, Second Department, dismissed the appeal from an intermediate order and affirmed an order and judgment of foreclosure and sale. The court held that the defendants failed to establish fraud, misrepresentation, or other misconduct warranting vacatur under CPLR 5015(a)(3), and rejected their challenges concerning mortgage assignments, certificates of conformity, and standing.

Holdings

1. The appeal from the May 3, 2018 order was dismissed because the right to take a direct appeal from that order terminated upon entry of the order and judgment of foreclosure and sale; issues raised on the order were reviewable on the appeal from the final order and judgment.
2. To vacate an order granting summary judgment in a foreclosure action under CPLR 5015(a)(3), the movant must establish that the opposing party procured the order through fraud, misrepresentation, or other misconduct; the defendants failed to make that showing.
3. The out-of-state acknowledgments on the affidavits and on the August 14, 2014 and October 24, 2016 assignments of mortgage substantially conformed to New York requirements and therefore did not require certificates of conformity. Even if a certificate was required for any document, its absence was a waivable irregularity rather than a fatal defect absent actual prejudice.
4. A mere assignment of the mortgage is irrelevant to the plaintiff's standing to foreclose because the mortgage is not the dispositive document of title.

Questions Presented

1. Whether the appeal from the May 3, 2018 order had to be dismissed after entry of the order and judgment of foreclosure and sale.
2. Whether the defendants established fraud, misrepresentation, or other misconduct warranting vacatur under CPLR 5015(a)(3) of the prior order granting summary judgment in the foreclosure action.
3. Whether the out-of-state acknowledgments and absence of certificates of conformity on the affidavits and assignments of mortgage invalidated the documents or established misconduct.
4. Whether the assignments of mortgage affected the plaintiff's standing to foreclose.

Disposition

affirmed