Justice Joan Kenney
HSBC Bank moved for a judgment of foreclosure and dismissal of borrower, 127 Fulton LLC's, and guarantor Brown's counterclaims. HSBC, 140 Wendover II LLC's predecessor-in-interest, was owner of the subject notes and mortgages and filed this foreclosure action. When HSBC served its pleadings, 127 and Brown were already in default under the terms of the notes and mortgages. After assignment was completed, Wendover executed another modification of the loans, and 127 and Brown consented to entry of an order of foreclosure, waiving any defenses and counterclaims. Yet, 127's and Brown's answer included counterclaims indicating HSBC delayed requisitions thereby delaying completing the construction by the required deadline in the building loan agreement. Red Hook Construction, a mechanic's lienor, alleged the sole motivation for Wendover to foreclose now was to render its lien worthless. The court found Wendover failed to address or refute the negative implications raised by Red Hook's principal's affidavit, thus raising factual issues regarding the veracity of statements made by Wendover's principal. Also, as discovery may help in narrowing or resolving disputed issues of fact, summary judgment was denied.
