Nationstar Mortgage, LLC v Harrilall
Attorneys and Parties
Brief Summary
Foreclosure litigation: whether proceedings must be stayed for substitution of a deceased borrower’s estate representative when a default judgment had already been entered.
The Supreme Court sua sponte stayed all proceedings and marked the case off the calendar until a representative of the deceased defendant’s estate was substituted.
The stay of all proceedings and the requirement that substitution occur before restoration.
Because the borrower had been properly served under Civil Practice Law and Rules (CPLR) 308(2) [service by delivery to a person of suitable age and discretion at the actual dwelling place or usual place of abode, plus mailing], failed to appear, and a default judgment had already been entered; the borrower’s subsequent death did not affect the merits, so strict adherence to a substitution stay was unnecessary.
Background
Nationstar Mortgage, LLC commenced a 2013 foreclosure action against Parmanand Harrilall and others involving Queens property. Harrilall was properly served, including via CPLR 308(2), but failed to answer; a default judgment entered in 2016. In 2019, Harrilall’s sister conveyed the property to his brother-in-law, Navrindra Rampersaud. Rampersaud asserted Harrilall died in 2020, moved to intervene, and sought dismissal. The Supreme Court, citing the death, sua sponte stayed the action and marked it off calendar pending substitution of an estate representative.
Lower Court Decision
By order entered September 15, 2023 (Supreme Court, Queens County, Lance Evans, J.), the court sua sponte stayed all proceedings and marked the case off the active calendar until substitution of a representative for the deceased defendant’s estate.
Appellate Division Reversal
Treating the notice of appeal as an application for leave and granting leave under CPLR 5701(c) [permits the Appellate Division to grant leave to appeal from an order not appealable as of right], the Appellate Division reversed insofar as appealed from and vacated the stay. Relying on precedent (e.g., Nationstar Mtge., LLC v Azcona; Wells Fargo Bank, N.A. v Miglio), the court held that where a default judgment has already been entered and the death does not affect the merits, strict adherence to a stay pending substitution is unnecessary, especially given proper service under CPLR 308(2).
Legal Significance
Clarifies that in foreclosure cases where the borrower was properly served and defaulted, and a default judgment entered, the borrower’s subsequent death does not mandate a stay for substitution of an estate representative. This allows foreclosure proceedings to continue without procedural delay when the merits are unaffected by the death.
A mortgagor’s post-default death does not require a substitution stay; courts may proceed without awaiting the appointment of an estate representative when proper service and default are established.