Opinion
9501 Index 381054/07
05-30-2019
U.S. BANK NATIONAL ASSOCIATION, etc., Plaintiff–Appellant, v. Lascell SPENCE also known as Lacell A. Spence, Defendant–Respondent, Federal National Mortgage Association, et al., Defendants.
Parker Ibrahim & Berg LLP, New York (Anthony Del Guercio of counsel), for appellant.
Parker Ibrahim & Berg LLP, New York (Anthony Del Guercio of counsel), for appellant.
Sweeny, J.P., Renwick, Manzanet–Daniels, Tom, Oing, JJ.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about February 21, 2017, which granted the Estate of Novlett Spence and defendant Lascell Spence's motion to vacate a judgment of foreclosure and sale, entered June 15, 2016, vacated an "Order Vacating Order of Reference and Granting Second Order of Reference," entered June 10, 2015, stayed the sale of the subject property until further order of the court, and ordered that a substitution for decedent Novlett Spence be made a party to the action, unanimously affirmed, with costs.
In a mortgage foreclosure action, a decedent who executed a note and mortgage on real property is not a necessary party if the decedent made an absolute conveyance of all of her interest in the property and if the plaintiff does not seek a deficiency judgment against the decedent's estate (see Wells Fargo Bank, NA v. Emma , 161 A.D.3d 1131, 1132, 78 N.Y.S.3d 425 [2d Dept. 2018] ; Countrywide Home Loans, Inc. v. Keys , 27 A.D.3d 247, 247, 811 N.Y.S.2d 362 [1st Dept. 2006], lv denied 7 N.Y.3d 702, 818 N.Y.S.2d 192, 850 N.E.2d 1167 [2006] ; HSBC Bank USA v. Ungar Family Realty Corp. , 111 A.D.3d 673, 673–674, 974 N.Y.S.2d 583 [2d Dept. 2013] ; Waterfall Victoria Master Fund, Ltd v. Dingilian , 92 A.D.3d 593, 594, 939 N.Y.S.2d 40 [1st Dept. 2012] ).Here, the judgment of foreclosure and sale contains language providing for a potential deficiency judgment against the decedent if the sale of the property did not cover the amount due to plaintiff. Accordingly, the motion to vacate was properly granted (see U.S. Bank N.A. v. Esses , 132 A.D.3d 847, 848, 18 N.Y.S.3d 672 [2d Dept. 2015] ; cf. Waterfall Victoria Master Fund at 594, 939 N.Y.S.2d 40 ; Countrywide Home Loans at 247, 811 N.Y.S.2d 362 ).