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Home / Case Digests / Appellate Division, Fourth Dept. / Fourth Department — Foreclosure: The Ekelmann Group v. W. Dean Stuart

Fourth Department — Foreclosure: The Ekelmann Group v. W. Dean Stuart

Appellate Division, Fourth Department


Default Judgment — Waiver of Default Interest

The Ekelmann Group v. W. Dean Stuart
CA 12-02215
Appealed from Supreme Court, Steuben County

Background: The defendant was a mortgagor, borrower or debtor on several mortgages and promissory notes that were assigned to National Loan Investors in 1996. All of those documents were subsequently consolidated into a single note and single mortgage. The defendants became obligated under this note. In 2011, the loan documents were assigned to the plaintiff, at which time the plaintiff commenced a foreclosure action. The defendants appealed from an order that struck their answer, affirmative defenses, dismissed their counterclaims, and denied two cross-motions to amend their answer or seek summary judgment. They also appeal from an order appointing a referee to compute the amounts due upon the loan documents.

Ruling: The Appellate Division affirmed the order appointing the referee and dismissed the remainder of the defendants’ appeal. The plaintiff submitted evidence that the defendants had defaulted, and a letter detailing one of the plaintiff’s subordination agreement did not raise an issue of fact regarding the plaintiff’s good faith and fair dealing, or that the plaintiff was interfering with any of the defendants’ business relationships. Further, the plaintiff did not waive entitlement to the default interest rate based on its continued acceptance of late payments.

Michael Wegman of the Snavely Law Firm for the defendants-appellants; J. Eric Charlton of Hiscock & Barclay for the plaintiff-repsondent