Justice Thomas Whelan
Deutsche Bank sought to foreclose a mortgage given by the Espinoza defendants in connection with the subject real property, which was assigned to plaintiff. The mortgage loan was the subject of a modification agreement restating the amounts due and adjusting the interest rate. The bank alleged defendants defaulted in making payments due under the note and mortgage as modified. Settlement procedures required by CPLR 3408 were undertaken, but the matter was released without a settlement. Plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale. Defendants cross-moved for vacatur of the order of reference and dismissal of the complaint. The court ruled as the cross-moving defendants defaulted, they were not entitled to affirmative relief of a non-jurisdictional nature, or absent vacatur of their defaults. It stated defendants' papers revealed no meritorious excuse for their lengthy default, finding the failure to advance any excuse warranted denial of the cross-motion for relief under §3012(d). Also, defendants' failure to succeed on their application to vacate their defaults in answering warranted denial of their motion to dismiss the complaint. Plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale was granted.
