Wilmington Savings Fund Society, FSB v Dresdner
Categories
Attorneys and Parties
Brief Summary
Mortgage foreclosure procedure and abandonment of claims after a defendant's default.
The Supreme Court, Kings County, denied the defendants' request under CPLR 3215(c) [if the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned unless sufficient cause is shown] to dismiss the complaint as abandoned.
The Appellate Division reversed the order insofar as appealed from and granted dismissal of the complaint against Bella Dresdner and Martin Dresdner as abandoned.
The plaintiff's predecessor waited more than six years after the defendants' default before moving for a default judgment and order of reference, and it failed to provide a reasonable excuse for that delay. The defendants also did not waive their CPLR 3215(c) rights by merely participating in settlement conferences.
Background
In September 2010, BAC Home Loans Servicing, L.P. (BAC) commenced a mortgage foreclosure action against Bella Dresdner and Martin Dresdner, among others. The defendants did not answer or otherwise appear. BAC did not move for leave to enter a default judgment and for an order of reference until May 2017. In July 2018, the defendants cross-moved to dismiss the complaint against them as abandoned under CPLR 3215(c).
Lower Court Decision
The Supreme Court denied the branch of the defendants' cross-motion seeking dismissal as abandoned, effectively allowing the foreclosure action to proceed despite the long delay in seeking a default judgment.
Appellate Division Reversal
The Appellate Division held that the defendants had not waived their right to seek dismissal because they neither answered nor otherwise appeared on the merits before making their cross-motion, and their participation in CPLR 3408 settlement conferences did not amount to a formal or informal appearance. The court further held that BAC failed to take proceedings for entry of judgment within one year of default and failed to establish sufficient cause for the delay. Its references to Administrative Order 548/10, Hurricane Sandy, and loss mitigation efforts were conclusory or legally insufficient. The complaint therefore had to be dismissed against these defendants as abandoned.
Legal Significance
The decision reinforces that in foreclosure cases, a plaintiff must timely take a concrete step toward a default judgment, such as moving for an order of reference under Real Property Actions and Proceedings Law (RPAPL) 1321, within one year of a defendant's default. It also confirms that attendance at mandatory settlement conferences does not waive a defaulting defendant's right to later invoke CPLR 3215(c).
A foreclosure plaintiff that waits beyond one year after default to seek a default judgment risks mandatory dismissal as abandoned unless it can show both a reasonable excuse for the delay and a potentially meritorious claim; routine settlement activity or unsupported delay explanations will not save the case.