SUPREME COURT OF THE STATE OF XXX
COUNTY OF QUEENS
_____________________________________
XXX MORTGAGE, LLC.,
Plaintiff,
v.
XXX, et al,
Defendant.
Index No .XXX
XXX
Assigned Judge:
Hon.XXX
MOTION TO VACATE DEFAULT JUDGMENT
COMES NOW Defendants KEVIN HOSEIN, and LIAH HOSEIN, pro se, and file this
Motion to Vacate Default Judgment, pursuant to N.Y. C.P.L.R. § 5015. In support thereof, the
Defendants state as follows:
BACKGROUND FACTS
Defendants respectfully refer the Court to the Affidavit of XXX for a full
recitation of the facts and procedural history.
Defendant XXX is the owner of real property located at 8710 149thAvenue,
Howard Beach, XXX, and the real property located at 94-22 XXX Court, Unit 1B, Ozone
Park, New York.
A foreclosure action was filed in this Court relating to a mortgage loan taken by XXX on November XXX in the amount of $XXXThe action cited various Defendants including XXX, XXX
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On or about May XXX and January XXX Justice XXX issued a Judgement of
Foreclosure and Sale and Amended Judgment of Foreclosure and Sale, respectively.
ARGUMENTS
Defendants are entitled to relief from the default judgment pursuant to CPLR § 5015.
Pursuant to CPLR § 5015(a)(4), a party can seek relief from a judgment if the Court lacks
jurisdiction to render the judgment or order. Accordingly, under CPLR 5015(a)(4), a default must
be vacated once a movant demonstrates lack of personal jurisdiction. See Velez v Forcelli, 125
AD3d 643, 644). "Although a party moving to vacate a default must normally demonstrate a
reasonable excuse and a meritorious defense, the movant is relieved of that obligation when lack of
personal jurisdiction is asserted as the ground for vacatur". Id. at 644 [internal quotation marks
omitted]). Thus, in determining whether the defendant was entitled to vacatur under CPLR
5015(a)(4), the Supreme Court considers the defendants’ contention that the court lacked personal
jurisdiction over them, and not whether the defendants had provided a reasonable excuse for their
default.
In the instant action, Defendants Kevin Hosein, and Liah Hosein assert that the Default
Judgment should be vacated because the Court lacks personal jurisdiction over them. First, the
Defendants are not party to Ashmeen Modikhan’s loan agreement. Second, the said Defendants do
not reside at Ashmeen Modikhan’s property. Further, the Plaintiff has provided no records either
mentioning Kevin Hosein, and Liah Hosein, or showing their liability, in any way.
THEREFORE, due to the foregoing averments, the motion to vacate should be granted in its
entirety.
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Respectfully,
____________________ ___________________
XXX
____________________ ___________________
XXX
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
_____________________________________
XXX MORTGAGE, LLC.,
Plaintiff,
v.
XXX, et al,
Defendant.
Index No .XXX
XXX
Assigned Judge:
Hon. XXX
MOTION TO VACATE DEFAULT JUDGMENT
COMES NOW Defendants XXX, and XXX, pro se, and file this
Motion to Vacate Default Judgment, pursuant to N.Y. C.P.L.R. § 5015. In support thereof, the
Defendants state as follows:
BACKGROUND FACTS
Defendants respectfully refer the Court to the Affidavit of XXX for a full
recitation of the facts and procedural history.
Defendant XXXX is the owner of real property located at 8710 149thAvenue,
XXX Beach, XXX, and the real property located at 94-22 XXX Court, Unit 1B, Ozone
Park, XXX
A foreclosure action was filed in this Court relating to a mortgage loan taken by XXX n on November XXXX in the amount of $XXX
The action cited various Defendants including XXX
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On or about May XXX and January XXX, Justice XXXX issued a Judgement of
Foreclosure and Sale and Amended Judgment of Foreclosure and Sale, respectively.
ARGUMENTS
Defendants are entitled to relief from the default judgment pursuant to CPLR § 5015.
Pursuant to CPLR § 5015(a)(4), a party can seek relief from a judgment if the Court lacks
jurisdiction to render the judgment or order. Accordingly, under CPLR 5015(a)(4), a default must
be vacated once a movant demonstrates lack of personal jurisdiction. See Velez v Forcelli, 125
AD3d 643, 644). "Although a party moving to vacate a default must normally demonstrate a
reasonable excuse and a meritorious defense, the movant is relieved of that obligation when lack of
personal jurisdiction is asserted as the ground for vacatur". Id. at 644 [internal quotation marks
omitted]). Thus, in determining whether the defendant was entitled to vacatur under CPLR
5015(a)(4), the Supreme Court considers the defendants’ contention that the court lacked personal
jurisdiction over them, and not whether the defendants had provided a reasonable excuse for their
default.
In the instant action, Defendants XXX, and XXX assert that the Default
Judgment should be vacated because the Court lacks personal jurisdiction over them. First, the
Defendants are not party to Ashmeen Modikhan’s loan agreement. Second, the said Defendants do
not reside at Ashmeen Modikhan’s property. Further, the Plaintiff has provided no records either
mentioning Kevin Hosein, and Liah Hosein, or showing their liability, in any way.
THEREFORE, due to the foregoing averments, the motion to vacate should be granted in its
entirety.
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Respectfully,
____________________ ___________________
XXXX Date
____________________ ___________________
XXX Date
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