Wash. Mut. Bank v. Nussen

• Decision Date: 13 April 2016
• Docket Number: 2015-06612, Index No. 6446/07.
• Parties: WASHINGTON MUTUAL BANK, formerly known as Washington Mutual Bank, FA, appellant, v. Libby NUSSEN, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 828
29 N.Y.S.3d 522
2016 N.Y. Slip Op. 02804

WASHINGTON MUTUAL BANK, formerly known as Washington Mutual Bank, FA, appellant,
v.
Libby NUSSEN, et al., respondents, et al., defendants.

2015-06612, Index No. 6446/07.

Supreme Court, Appellate Division, Second Department, New York.

April 13, 2016.

29 N.Y.S.3d 522

Stiene & Associates, P.C., Huntington, N.Y. (Charles W. Marino of counsel), for appellant.

29 N.Y.S.3d 523

Ted T. Mozes, PLLC, Spring Valley, N.Y., for respondents.

JOHN M. LEVENTHAL, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

138 A.D.3d 828

In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Loehr, J.), dated October 10, 2013, as denied that branch of its motion which was for summary judgment on the complaint insofar as asserted against the defendants Libby Nussen and Isaac Nussen and, in effect, denied those branches of its motion which were to strike the answer of those defendants, for an order of reference, and to substitute JPMorgan Chase Bank, National Association, as the plaintiff in this action and amend the caption accordingly nunc pro tunc.

ORDERED that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, and those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Libby Nussen and Isaac Nussen, to strike the answer of those defendants, for an order of reference, and to substitute JPMorgan Chase Bank, National Association, as the plaintiff in this action and amend the caption accordingly nunc pro tunc are granted, and the matter is remitted to the Supreme Court, Rockland County, for further proceedings, including the amendment of the caption in accordance herewith.

In 2003, the defendants Libby Nussen and Isaac Nussen (hereinafter together the respondents) obtained a residential mortgage loan from the plaintiff, Washington Mutual Bank, formerly known as Washington Mutual Bank, FA, in the principal sum of $1,162,500. In 2007, the respondents defaulted on the loan. The plaintiff sent the respondents notice of their default, but the respondents did not cure the default. In July 2007, the plaintiff commenced this foreclosure action.

138 A.D.3d 829

Based upon the understanding that all of the defendants had defaulted, the plaintiff successfully moved for an order of reference. In January 2008, a judgment of foreclosure and sale was entered. However, about one month later, the respondents advised the plaintiff that they had in fact filed a late answer. On March 13, 2008, the plaintiff agreed to “voluntarily vacate” the prior order of reference and judgment of foreclosure and sale and accept the respondents' late answer.

On or about September 25, 2008, after the...