U.S. Bank National Association v. Mohammed Manzurul Islam
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Attorneys and Parties
Brief Summary
Mortgage foreclosure procedure and abandonment of claims after a defendant's default.
The Supreme Court, Kings County, denied the defendant's motion to dismiss the complaint as abandoned under CPLR 3215(c) [provides that if a plaintiff fails to take proceedings for entry of judgment within one year after a defendant's default, the court shall dismiss the complaint as abandoned unless sufficient cause is shown], vacated a prior conditional dismissal order, and granted the plaintiff a judgment of foreclosure and sale.
The Appellate Division reversed the judgment of foreclosure and sale, granted the defendant's CPLR 3215(c) motion to dismiss the complaint insofar as asserted against him as abandoned, denied the plaintiff's request for a judgment of foreclosure and sale, and dismissed the appeal from the intermediate order because it was subsumed by the judgment.
The plaintiff did not seek a default judgment or otherwise take qualifying proceedings for entry of judgment within one year after the defendant defaulted in July 2012. Its later March 2015 motion was untimely, the earlier request for judicial intervention for a settlement conference did not count because no foreclosure settlement conference was required since the defendant did not reside at the property, and the plaintiff's change of counsel was not a reasonable excuse.
Background
The plaintiff commenced a residential mortgage foreclosure action in 2012 against Mohammed Manzurul Islam and others concerning property in Brooklyn. Islam was served under CPLR 308(2) [service is complete 10 days after filing proof of service with the clerk], and proof of service was filed on June 7, 2012, making service complete on June 17, 2012. He therefore had until July 17, 2012, to answer or move, but he did not do so and was in default as of that date. Although the plaintiff filed a request for judicial intervention within the next year seeking a foreclosure settlement conference, it did not move for a default judgment and order of reference until March 2015. In 2019, the Supreme Court issued a conditional order directing dismissal as abandoned. In 2021, Islam moved to dismiss under CPLR 3215(c), and the plaintiff cross-moved to vacate the conditional dismissal and for a judgment of foreclosure and sale.
Lower Court Decision
By order dated May 25, 2022, the Supreme Court, Kings County, effectively denied Islam's motion under CPLR 3215(c), granted the plaintiff's cross-motion to vacate the September 12, 2019 conditional dismissal order, and granted a judgment of foreclosure and sale. A judgment of foreclosure and sale dated the same day directed the sale of the property.
Appellate Division Reversal
The Appellate Division held that the plaintiff failed to take proceedings for entry of judgment within one year of the defendant's July 17, 2012 default, as required by CPLR 3215(c). The court ruled that the request for judicial intervention did not toll or satisfy the statute because a conference under CPLR 3408(a)(1) [mandatory foreclosure settlement conferences for certain home loans involving owner-occupied property] was not required where the defendant did not reside at the property. The court also held that the plaintiff failed to show a reasonable excuse for the delay; a change in attorneys did not suffice and in any event occurred after the one-year statutory period had already expired. Because no reasonable excuse was shown, the court did not need to reach whether the foreclosure claim was potentially meritorious.
Legal Significance
This decision reinforces that CPLR 3215(c) is mandatory, not discretionary in the first instance: if a plaintiff does not timely pursue a default judgment within one year after a defendant's default, the claim is deemed abandoned unless the plaintiff shows both a reasonable excuse for the delay and a potentially meritorious claim. In mortgage foreclosure cases, filing a request for judicial intervention for a settlement conference will not count as taking proceedings for entry of judgment when the conference was not legally required.
Foreclosure plaintiffs must move for default relief within one year after a defendant's default or risk mandatory dismissal as abandoned. Administrative steps that do not qualify as proceedings for entry of judgment, and later changes in counsel, will not save an untimely case.