Wachovia Mortg. FSB v. Macwhinnie
| Decision Date | 25 September 2019 |
| Docket Number | 2016–08837,Index No. 42651/09 |
| Citation | 175 A.D.3d 1587,108 N.Y.S.3d 183 |
| Parties | WACHOVIA MORTGAGE FSB, etc., Respondent, v. John V. MACWHINNIE, etc., Appellant, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
175 A.D.3d 1587
108 N.Y.S.3d 183
WACHOVIA MORTGAGE FSB, etc., Respondent,
v.
John V. MACWHINNIE, etc., Appellant, et al., Defendants.
2016–08837
Index No. 42651/09
Supreme Court, Appellate Division, Second Department, New York.
Argued - April 23, 2019
September 25, 2019
Young Law Group, PLLC, Bohemia, N.Y. (Ivan E. Young of counsel), for appellant.
Reed Smith LLP, New York, N.Y. (Zalike T. Pierre and Andrew B. Messite of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant John V. Macwhinnie appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Suffolk County (Robert F. Quinlan, J.), dated July 10, 2018. The order and judgment of foreclosure and sale, insofar as appealed from, upon two orders of the same court, both dated April 27, 2016, denying that defendant's motion for leave to enter a default judgment on his counterclaims and to dismiss the complaint insofar
as asserted against him, granting the plaintiff's application, in effect, to compel that defendant to accept its late reply to the counterclaims, and granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike that defendant's answer and dismiss his affirmative defenses and counterclaims, and to appoint a referee to compute the amount due to the plaintiff, and upon the referee's oath and computation, confirmed the referee's report and directed the sale of the subject premises.
ORDERED that the order and judgment of foreclosure and sale is affirmed insofar as appealed from, with costs.
On June 25, 2007, the defendant John V. Macwhinnie (hereinafter the defendant) executed and delivered to World Savings Bank, FSB (hereinafter WSB), an adjustable rate mortgage note, marketed under the name "Pick–a–Payment," in the amount of $1,290,000. The repayment of the loan was secured by a mortgage encumbering the defendant's real property in Water Mill. Thereafter, effective December 31, 2007, WSB changed its name to Wachovia Mortgage, FSB (hereinafter the plaintiff). The defendant allegedly defaulted in making his mortgage payment due March 15, 2009, and all payments due thereafter.
In October 2009, the plaintiff commenced this action to foreclose
the mortgage against the defendant and others. Pursuant to a stipulation entered into between the plaintiff and the defendant in May 2012, the defendant answered the complaint in June 2012, asserting various affirmative defenses and counterclaims. In August 2012, the plaintiff served its reply to the counterclaims, which was rejected by the defendant as untimely.
On July 9, 2013, the defendant moved for leave to enter a default judgment in the amount of $3,870,000 on his counterclaims and to dismiss the complaint. The plaintiff opposed the motion and made an application, in effect, to compel the defendant to accept its late reply to the counterclaims. The plaintiff contended, inter alia, that it had a reasonable excuse—namely, law office failure—for the brief delay in serving its reply to the defendant's counterclaims, and that the counterclaims, in any event, failed to state a viable cause of action.
On March 4, 2014, while the defendant's motion was pending, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer and dismiss his affirmative defenses and counterclaims, and to appoint a referee to compute the amount due to the plaintiff. The defendant opposed the motion.
In two orders, both dated April 27, 2016, the Supreme Court denied the defendant's motion, granted the plaintiff's application, in effect, to compel the defendant to accept its late reply to the counterclaims, and granted the plaintiff's motion. Thereafter,...
To continue reading
Request your trial
-
Sherrod v. Mount Sinai St. Luke's
... ... properly before this Court (see Wachovia Mtge. FSB v ... Macwhinnie, 175 A.D.3d 1587, 1590; see also Deutsche ... Bank Trust Co ... ...
-
Nationstar Mortg., LLC v. Jean-Baptiste, 2017-02057
...lack of standing is raised for the first time on appeal and is not properly before this Court (see Wachovia Mtge. FSB v. Macwhinnie , 175 A.D.3d 1587, 1590, 108 N.Y.S.3d 183 )."A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is either the holde......
-
Thompson v. Glob. Contact Servs.
... ... action.” Yeiser v. GMAC Mortg. Corp. , 535 ... F.Supp.2d 413, 423 (S.D.N.Y. 2008) (quoting Watts v ... Swiss Bank ... is ... precluded.” Id. at 124 n.16. Similarly, in ... Wachovia Mortgage FSB v. Macwhinnie , the Appellate ... Division held that a counterclaim-plaintiff ... ...
-
Deutsche Bank Trust Co. v. Marous
...complied with the notice requirements of RPAPL 1304 is improperly raised for the first time on appeal (see Wachovia Mtge. FSB v. Macwhinnie, 175 A.D.3d 1587, 1590, 108 N.Y.S.3d 183 ).Accordingly, with regard to the order dated January 4, 2017, we agree with the Supreme Court's denial of the......