Adam Leitman Bailey, P.C. Successfully Defends Foreclosing Plaintiff’s Action against Motions to Vacate and Dismiss
In Ventures Trust 2013-I-H-R by MCM Capital Partners, LLC, its trustee v. The Public Administrator of Nassau County, as Administrator for the Estate of Stella Pinto, et al., the borrower passed away during the pendency of the action. Thereafter, a surrogate’s proceeding was commenced in which the public administrator was appointed for the deceased borrower’s estate. Adam Leitman Bailey, P.C. was subsequently retained by the foreclosing plaintiff and swiftly moved to have the public administrator substituted as a party defendant in the place and stead of the deceased borrower so that the action could proceed.
Prior to her passing, the borrower untimely served an answer to the complaint which was timely rejected by the foreclosing plaintiff.
The borrower then filed a motion for an order vacating her default and permitting service of an answer in the action, which was denied by the court.
After the public administrator was appointed and substituted into the action, one of the defendants (served as a john doe at the subject mortgaged premises) moved to: (i) vacate the appointment of the public administrator, (ii) substitute himself in the place of the deceased borrower on the ground that he was the nominated executor in the deceased borrower’s (at the time) un-probated will, and (iii) dismiss the action as time-barred by the statute of limitations.
The defendant was the informant listed on the borrower’s certificate of death and had full knowledge of the existence of the will.
Despite these facts and despite having knowledge of the action since its inception, the defendant waited until over three years after the borrower’s passing and after the public administrator had been appointed to admit the will to probate and to move for the requested relief in the plaintiff’s foreclosure action.
Notably, the defendant attempted to conceal the fact that he was served as a john doe at the mortgage premises from the court.
In opposition to the motion, Adam Leitman Bailey, P.C. successfully argued and established that: (i) the defendant was served with process in the action and failed to timely answer or move with respect to the complaint (a fact which he was attempting to conceal), and (ii) the motion was procedurally improper, as the defendant was in default and needed to first successfully move to open his default before moving for the requested relief on the merits.
In addition to opposing the motion, Adam Leitman Bailey, P.C. cross-moved for default judgment and an order of reference.
In an order dated March 27, 2017, Judge Thomas A. Adams accepted and adopted all of Adam Leitman Bailey, P.C.’s arguments in denying the defendant’s motion in its entirety and granting the plaintiff’s cross-motion in its entirety.
After the denial of his first motion, the defendant again moved for the same relief and also moved to, inter alia: (i) vacate his default and all prior orders issued in the action on the ground that he was not served with process, (ii) to vacate the default of the deceased borrower’s estate, and (iii) for leave to serve a late answer on behalf of the deceased borrower’s estate.
In opposition to the motion, Adam Leitman Bailey, P.C. successfully argued and established that: (i) the defense of lack of personal jurisdiction was waived since the defendant failed to raise the defense in his prior motion to dismiss, (ii) the substitution of a party because of death does not extend or renew the time to take any procedural step that has expired, and (iii) the court’s prior order denying the borrower’s motion to vacate constitutes the law of the case and, as such, precludes the defendant from re-litigating the borrower’s default in the action.
In an order dated October 30, 2017, Judge Thomas A. Adams accepted and adopted all of Adam Leitman Bailey, P.C.’s arguments in denying the defendant’s motion in its entirety, except for the defendant’s request to substitute himself as executor of the deceased borrower’s estate in the place and state of the public administrator, which was granted on the plaintiff’s consent.
Jackie Halpern Weinstein, Esq. and another attorney of the Foreclosure Group at Adam Leitman Bailey, P.C. secured these wins for the foreclosing plaintiff.