- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Moreno v. Argent Mortgage Co., LLC
- Docket
- 2024-06534
- Filed
- May 27, 2026
- Slip Op
- 2026 NY Slip Op 03301
- Citation
- 2026 NY Slip Op 03301 (N.Y. App. Div. 2d Dep’t 2026)
Background
In April 2010, BAC Home Loans Servicing commenced a foreclosure action against Nelly Moreno, accelerating the entire mortgage debt. In 2012, BAC voluntarily discontinued the action. In February 2019, Bank of America, N.A. commenced a second foreclosure action. In an order entered May 31, 2022, the Supreme Court canceled the notice of pendency in the second action and directed that “the acceleration of the loan is revoked, and the loan is reinstated.”
In July 2023, Moreno and 665N, LLC commenced this action pursuant to RPAPL 1501(4) to cancel and discharge the mortgage, arguing that the six-year statute of limitations to foreclose had expired since the 2010 acceleration. The defendants moved to dismiss under CPLR 3211(a), and the plaintiffs failed to oppose the motion. The Supreme Court granted the unopposed dismissal in November 2023. In March 2024, the plaintiffs moved to vacate the default under CPLR 5015(a)(1), claiming law office failure. The Supreme Court denied the motion, and the plaintiffs appealed.
Holding
The Appellate Division, Second Department affirmed the denial of the motion to vacate, finding that the plaintiffs failed to demonstrate both a reasonable excuse for the default and a potentially meritorious opposition. On the excuse prong, the court found that the law office failure claimed by the plaintiffs’ counsel did not rise above “mere neglect,” which is insufficient to constitute a reasonable excuse. Counsel’s explanation lacked the required “detailed and credible” account of the default.
On the merits prong, the court also found that the plaintiffs failed to demonstrate a potentially meritorious opposition to the defendants’ dismissal motion. The court’s analysis addressed the complex interplay between mortgage acceleration, voluntary discontinuance, and the statute of limitations — though the merits determination was secondary to the failure of the reasonable excuse showing.
Takeaways
This decision reinforces the strict requirements for vacating defaults based on law office failure. Under CPLR 5015(a)(1) and CPLR 2005, law office failure may be accepted as a reasonable excuse in the court’s discretion, but “it was not the Legislature’s intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse.” Counsel must provide a specific, detailed, and credible explanation for the failure to respond — vague or conclusory assertions of oversight are insufficient.
The case also touches on the continuing complexities of mortgage statute-of-limitations litigation in New York. Actions to cancel mortgages under RPAPL 1501(4) based on expired statutes of limitations remain actively litigated, but the legal landscape has been significantly reshaped by the Foreclosure Abuse Prevention Act and judicial decisions addressing revocation of acceleration.
Why It Matters
For mortgage defense practitioners, this case is a cautionary example of the procedural pitfalls that can undermine substantive claims. Even if the plaintiffs had a viable argument that the statute of limitations barred foreclosure, their failure to oppose the dismissal motion — compounded by an inadequate vacatur motion — resulted in the loss of the claim. Attorneys handling complex real estate litigation must maintain rigorous calendaring and motion-response systems, as a single missed deadline can be irrecoverable when the court finds no reasonable excuse for the default.