Non-Waivable Standing Defense and Sale Report Deadlines under RPAPL 1302-a & 1355

Introduction

U.S. Bank N.A. v. Singh (2025 NYSlipOp 01664) is a Second Department decision clarifying two statutory regimes in New York residential foreclosure practice:

• RPAPL 1302-a—non-waivable defense of lack of standing in home-loan foreclosures;
• RPAPL 1355—timeliness and effect of a referee’s report of sale and confirmation deadlines.

In this case, the mortgagor, Jarnail Singh, defaulted on his mortgage, the bank obtained a default judgment of foreclosure and sale, and the property sold at auction in 2016. Singh later sought to restore the action, challenge U.S. Bank’s standing, set aside the referee’s deed for alleged RPAPL 1355 violations, and add subsequent purchasers and mortgagees as necessary parties. The Supreme Court, Queens County, denied relief, and the Appellate Division affirmed.

Summary of the Judgment

The Appellate Division held that:

1. RPAPL 1302-a’s non-waivable standing defense cannot be invoked by a defaulting defendant who has never vacated the default or shown a reasonable excuse for failing to answer;
2. Late filing of a referee’s report of sale under RPAPL 1355, and failure to move for confirmation, do not require setting aside the deed where no prejudice or misconduct is shown;
3. The defendant’s request to add post-sale purchasers or mortgagees under CPLR 1001 was therefore moot.

Consequently, the order denying Singh’s motion to restore, to set aside the sale, and to add parties was affirmed, with costs.

Analysis

Precedents Cited

• Bray v. Cox (38 NY2d 350): Generally, issues not raised or that could have been raised in a dismissed appeal are waived; here, prior appeal was withdrawn, not dismissed, so issues are live.
• Rubeo v. National Grange Mut. Ins. Co. (93 NY2d 750): Appellate courts’ inherent jurisdiction to review issues despite procedural bars.
• GMAC Mtge., LLC v. Coombs (191 AD3d 37) & Deutsche Bank Natl. Trust Co. v. Groder (218 AD3d 542): RPAPL 1302-a applies to foreclosures issued on default judgments, but standing defense only available post-sale if default has been vacated.
• U.S. Bank N.A. v. Ashon (226 AD3d 941), Citibank N.A. v. Boyce (226 AD3d 867), U.S. Bank N.A. v. Goldberger (211 AD3d 1077): Reinforcing that a defaulting defendant who never vacated his default may not invoke RPAPL 1302-a’s standing defense.
• U.S. Bank v. Emmanuel (83 AD3d 1047): A party’s standing does not implicate subject-matter jurisdiction in mortgage foreclosures.
• Emigrant Mtge. Co., Inc. v. Hartman (173 AD3d 975), Bank of Smithtown v. Pine Tree Devs., LLC (105 AD3d 983): Irregularities in sale reports may be overlooked absent prejudice.
• Guardian Loan Co. v. Early (47 NY2d 515), Alkaifi v. Celestial Church (24 AD3d 476): Courts may set aside sales tainted by fraud, collusion or misconduct that affect fairness.

Legal Reasoning

1. RPAPL 1302-a Standing Defense. Effective December 23, 2019, RPAPL 1302-a preserves the defense of lack of standing in home-loan foreclosures even if not raised in a responsive pleading or pre-answer motion. But the statute expressly limits post-sale standing challenges to defendants whose default‐based foreclosure judgments they have previously vacated. Singh never vacated his default, and he offered no reasonable excuse for his prolonged inaction. Under established Second Department law, absence of standing is not a jurisdictional defect freeing a defaulting mortgagor from the requirement to vacate before challenging the sale.

2. RPAPL 1355 Report of Sale. RPAPL 1355(1) requires a referee’s report of sale within 30 days of sale; RPAPL 1355(2) requires confirmation motions within four months (or eight days if no surplus). Although AMG’s referee’s report dated August 15, 2017 was never filed or confirmed timely, Singh identified no prejudice and pointed to no fraud or collusion. Consistent with Emigrant and Bank of Smithtown, mere procedural irregularities cannot invalidate a sale absent a substantial impact on a party’s rights.

Impact

U.S. Bank v. Singh cements two important practical truths in New York residential foreclosures:

1. Defendants who default and never vacate cannot leverage RPAPL 1302-a to nullify a foreclosure or sale—any standing challenge remains deferred until they clear their default and demonstrate a valid excuse for delay.
2. Court-supervised foreclosure sales will not be undone for mere RPAPL 1355 timing lapses unless the defaulting mortgagor shows actual prejudice, fraud, or collusion affecting the integrity of the sale.

Future litigants will find in Singh a reaffirmation that foreclosure sales under default judgments are robust against procedural attack, so long as no equitable injustice is shown.

Complex Concepts Simplified

• Default Judgment: A court order granting foreclosure when the borrower fails to respond.
• RPAPL 1302-a: A statute protecting a borrower’s right to argue the lender lacked legal standing—provided the borrower has vacated any default.
• Referee’s Report of Sale: A document filed by the court-appointed referee reporting the result of the auction.
• Confirmation of Sale: A motion asking the court to approve and finalize the foreclosure sale.
• Vacating Default: A borrower’s formal request to undo a default judgment, opening the door to substantive defenses.

Conclusion

U.S. Bank N.A. v. Singh clarifies that RPAPL 1302-a’s non-waivable standing defense cannot rescue a mortgagor who remains in default, and that RPAPL 1355 technical violations alone do not invalidate a foreclosure sale. By reaffirming long-standing default principles and setting a high bar for procedural attacks on referee’s deeds, the Second Department ensures that foreclosure sales remain dependable instruments of justice, subject only to genuine equitable concerns.