Wells Fargo
Bank, N.A. SUCCESSOR BY MERGER TO WELLS FARGO HOME MORTGAGE,
INC., F/K/A NORWEST MORTGAGE, INC., Plaintiff,
against
Irma Rene Wallace A/K/A IRMA RENEE WALLACE,
ADMINISTRATOR AND HEIR TO THE ESTATE OF MICHAEL J. WALLACE
A/K/A MICHAEL WALLACE, et. al., Defendants.
|
31741/2008
Plaintiff:David Dunn, Esq.
HOGAN LOVELLS US LLP
NY NY
Defendant:
Sara L. Manaugh, Esq.
JOHN C. GRAY
South Brooklyn Legal Services, Inc.
Brooklyn NY
Arthur M. Schack, J.
The following papers numbered 1 to 8 were considered:Papers Numbered:
Notice of Motion and Affidavits (Affirmations) Annexed___1
Affidavits (Affirmations) in Opposition_________________2, 3, 4
Report and Recommendation of Judicial Hearing Officer ___5
Memoranda of Law_________________________________6, 7
_____________________________________________________________________
___
In this foreclosure action, for the premises located at 495 Powell Street,
Brooklyn, New York (Block 3814, Lot 2, County of Kings), defendant IRMA RENE
WALLACE (WALLACE) alleges that plaintiff WELLS FARGO BANK, N.A.
SUCCESSOR BY MERGER TO WELLS FARGO HOME MORTGAGE, INC., F/K/A
NORWEST MORTGAGE, INC. (WELLS FARGO) engaged in "bad faith" at
mandatory settlement conferences, conducted pursuant to CPLR Rule 3408. Defendant
WALLACE moves to: confirm, pursuant to 22 NYCRR § 202.44, the March 10,
2011-report of Judicial Hearing Officer (JHO) Lewis Douglass, a retired Justice of the
Supreme Court; impose monetary sanctions on plaintiff WELLS FARGO;
waive all arrearages, outstanding fees and costs on WALLACE's loan; deem
WALLACE's loan current; and, award attorneys' fees and costs to WALLACE. Plaintiff
WELLS FARGO opposes.
The Court finds that plaintiff WELLS FARGO did not negotiate in good
faith to reach a mutually agreeable resolution in mandatory settlement conferences, in
violation of CPLR Rule 3408 (f) and grants to an extent, as will be explained, defendant
WALLACE's motion.
ackground
Plaintiff WELLS FARGO holds the note and mortgage in this foreclosure
action. Defendant WALLACE's deceased husband, MICHAEL J. WALLACE, obtained
from WALL STREET MORTGAGE BANKERS LTD DBA AS POWER EXPRESS, a
loan for $112,575.00, on June 1, 1998, as evidenced by the note for that amount and
secured by the mortgage for the property at 495 Powell Street. On the closing date of the
loan and mortgage, June 1, 1998, the loan and mortgage were assigned to NORWEST
MORTGAGE, INC., a predecessor of plaintiff WELLS FARGO.
Subsequently, MICHAEL J. WALLACE died and defendant WALLACE
was appointed Administratrix of her husband's estate. On November 27, 2000, as [*2]Administratrix of the Estate of MICHAEL WALLACE,
defendant WALLACE deeded the premises to herself, subject to any pre-existing liens.
WALLACE was identified in plaintiff's loan file as an "authorized third party." In
settling her husband's estate, WALLACE became current on the subject loan, but never
assumed the loan.
In 2006 WALLACE's brother was killed and she was unable to work for a
period of time. She fell behind in her loan payments and WELLS FARGO commenced a
foreclosure action against defendant WALLACE as Administratrix and Heir of
MICHAEL WALLACE. This action was discontinued when defendant WALLACE paid
the past due amount and fees of about $7,000.
WALLACE, in May 2008, again fell behind in her payments due to the loss
of business income. Plaintiff WELLS FARGO commenced the instant foreclosure action
in November 2008. WALLACE failed to interpose an answer, but contacted WELLS
FARGO to attempt to modify the loan. WELLS FARGO alleges that in November 2008
it informed WALLACE that because she was not a signatory to the loan and had not
assumed the loan, she was not eligible for a loan modification. WALLACE alleges that
WELLS FARGO, from August 2008 to January 2010, put her into four different trial
payment plans. Despite making payments, she did not secure a loan modification.
Instead, WELLS FARGO informed her about loan modification denials because of
missing documents or missed payments.
While WELLS FARGO accepted loan mortgage payments from WALLACE
for
many years, it claims it did not extend a federal Home Affordable
Modification Program (HAMP) modification to WALLACE because she did not assume
the loan and mortgage. Further, WELLS FARGO claims that WALLACE cannot assume
the loan and mortgage until she first pays all arrears outstanding on the loan.
Defendant WALLACE, to resolve the matter, obtained counsel for
assistance. Her counsel requested a mandatory settlement conference, pursuant to CPLR
Rule 3408 (f), which states in relevant part, "[b]oth the plaintiff and defendant shall
negotiate in good faith to reach a mutually agreeable resolution, including a loan
modification, if possible." With the assistance of counsel, WALLACE submitted a new
HAMP application at the end of April 2010.
JHO Douglass conducted seven mandatory settlement conferences from May
2010
to March 2011. At the first settlement conference, on May 4, 2010,
WALLACE's counsel reported that her previous application for a loan modification had
been denied because the mortgage remained in her late husband's estate. The parties
established that the goal of their negotiations was a HAMP loan modification. Under the
HAMP program, outstanding interest and fees may be capitalized and added to the
current unpaid principal balance. At the next settlement conference, on June 7, 2010,
counsel for WELLS FARGO stated that WALLACE's HAMP application was under
review and only a title search remained to be done. Further, WELLS FARGO's counsel
reported that WELLS [*3]FARGO began running the
title search on April 27, 2010. At the third settlement conference, on September 8, 2010,
a WELLS FARGO representative appeared by telephone and reported that WELLS
FARGO would not consider WALLACE for a loan modification unless she assumed the
loan and made the loan current.
As a result of these three mandatory settlement conferences, JHO Douglass
directed defendant WALLACE's counsel to file a motion in support of a proposed order
and recommendation that: WELLS FARGO bears responsibility for the accumulation of
WALLACE's arrears on the loan; WELLS FARGO should be sanctioned with an order
that WALLACE is deemed current on the loan; all arrears are waived; and, the case
dismissed because of WELLS FARGO's conduct and failure to negotiate in good faith,
as required by CPLR Rule 3408 (f). JHO Douglass established a briefing schedule for the
motion and adjourned the next settlement conference to December 3, 2010.
Defendant's counsel submitted to JHO Douglass and served upon plaintiff a
motion for an order and recommendation sanctioning WELLS FARGO under the Court's
equitable powers and dismissing the action with prejudice. Then, plaintiff's counsel
submitted to JHO Douglass and served upon defendant opposition to the motion.
JHO Douglass conducted a fourth settlement conference on December 3,
2010. He set a schedule for supplemental briefing of the motion with the consent of the
parties. At the fifth settlement conference, on January 4, 2011, JHO Douglass presented
to counsel for both plaintiff and defendant his "Recommendation to Dismiss," based
upon plaintiff's lack of good faith in settlement conference proceedings and in response
to WALLACE's persistent efforts to obtain a loan modification.
JHO Douglass, in his "Recommendation to Dismiss" found that plaintiff
WELLS FARGO lacked good faith by incorrectly informing defendant WALLACE that
under HAMP she, as a widow, had to assume full liability on the mortgage loan, even
though she was not a signatory, and pay approximately $30,000 to make the loan current
before a permanent modification could be considered. Further, plaintiff WELLS
FARGO's lack of good faith was compounded by not asserting this until after defendant
WALLACE was induced into signing four trial payment plans and paying approximately
$11,000, pursuant to these trial payment plans. JHO Douglass, at page 3 of his
"Recommendation to Dismiss," held:
This widow was treated in an unfair and shabby manner by Wells
Fargo, and Wells Fargo ran roughshod over her rights until the Court
referred her to the publically funded South Brooklyn Legal Services.
Not only did Wells Fargo induce her to pay $11,000.00 pursuant to trial
modification agreement[s], Wells Fargo now seeks interest which is
accumulating at the rate of $630 [a] month while the case floundered
because of the wrong information provided by Wells Fargo in the first
place. Thus, for at least 25 months . . . Wells Fargo has mishandled this
file
[and] it now seeks to add an additional $15,000 to the unpaid balance.
Wells Fargo has also violated the spirit of federal law which was
enacted to protect widows. Many mortgages will included a "due on
sale"
provision which requires that the full amount is due when there is a
transfer in a title without the permission of the lender. Thus when title
is transferred from the deceased husband to the widow this "due on
sale" . . . clause becomes effective. The Congress, recognizing the
distress that this would place on families, has specifically exempted
surviving spouses from these "due on sale" provisions, in what is
commonly referred to as the "Garn-St. Germain Act," 12 U.S.C. 1701
j-3. To ask the widow to pay $30,000 with no commitments clearly
violates the spirit of the "Garn-St. Germain Act" and is another factor
in the conclusion that Wells Fargo has not acted in "good faith."
JHO Douglass stayed his recommendation for twenty days in the hope that
plaintiff WELLS FARGO's review of his recommendations would result in a loan
modification. Despite this stay, counsel for plaintiff WELLS FARGO did not offer a loan
modification at the sixth settlement conference, on January 26, 2011. JHO Douglass
adjourned the matter to a seventh settlement conference on March 10, 2011. Again,
counsel for plaintiff did not offer WALLACE a loan modification. At this conference,
JHO Douglass referred the matter to me with his "Recommendation to Dismiss."
As a final resort, on April 29, 2013, I ordered one last settlement conference,
on June 24, 2013. I conducted the conference, but the parties remained at an
impasse.
WELLS FARGO's position that WALLACE may not assume the instant
mortgage
loan in default is unsupported by the note, the
mortgage and the law. By requiring WALLACE to bring the subject mortgage loan
current, WELLS FARGO is, in effect, attempting to block her right of assumption, in
contravention of the provisions of its own mortgage agreement. Also, this violates the
spirit of federal law enabling family members of a borrower to assume the mortgage loan
upon the borrower's death. Because a widow is permitted under federal law, to assume
her deceased husband's mortgage loan,
WELLS FARGO position is untenable, demonstrates bad faith and
insidious.
WELLS FARGO signed onto HAMP, a federal program aimed at
helping
homeowners "both those who are in default and those who are at imminent
risk of default" by reducing their monthly mortgage payments to "sustainable levels."
(HAMP Supp Dir. 09-01 at 1). The HAMP program is designed to capitalize arrears and
forbear principal to achieve the target monthly payment. Nowhere within its guidelines or
directives does HAMP permit servicers to require a borrower to cure a default prior to
modification. WELLS FARGO's attempt to circumvent its obligations under HAMP, by
requiring WALLACE to first reinstate her loan before it will allow her to assume the
subject mortgage loan and consider her for a HAMP modification, cannot be
countenanced.
Additionally, WELLS FARGO's position finds no support in the note or the
mortgage agreement. The mortgage does not contain a provision that the loan must be
current before an assumption or modification can take place. To the contrary, the
mortgage specifically provides that the lender may permit a person who takes over the
original mortgagor's rights to modify payment.
Moreover, WELLS FARGO's demand that WALLACE pay nearly $30,000
to reinstate the loan essentially bars her from assuming the mortgage because she is
unable to afford such an excessive payment.Discussion
The Garn-St. Germain Depository
Institutions Act of 1982 (Pub L 97-320, 96 US Stat 1469, 1505-1595, codified in 12
USC § 1701j-3, protects spouses from contractual provisions permitting mortgagees
to call a loan due upon the death of a borrower or transfer from a borrower to his spouse
or child. Most mortgage agreements contain a "due-on-sale" or transfer clause that allows
for an acceleration of the debt and the right to foreclose if the borrower transfers the
encumbered property to another person without the lender's permission. In effect, these
provisions, if enforced, require the person taking title to the property to pay off the
existing mortgage by refinancing or other means. As a result, a widow who is unable to
refinance would be forced to sell the family home after the death of her husband.
The United States Congress determined to relieve surviving spouses and
other relatives of this tremendous burden by prohibiting banks from using due-on-sale
clauses against spouses, children, and other relatives who inherit property. In relevant
part, Garn-St. Germain, at 12 USC § 1701j-3, states:
(d) Exemption of specified transfers or dispositions
With respect to a real property loan secured by a lien on residential real
property
containing less than five dwelling units, including a lien on the stock
allocated to
a dwelling unit in a cooperative housing corporation, or on a residential
manufactured home, a lender may not exercise its option pursuant to a
due-on-
sale clause upon - -
.........
(5) a transfer to a relative resulting from the death of a borrower;
(6) a transfer where the spouse or children of the borrower become an owner
of
the property;
By exempting family members from having to make substantial payments
upon the death of the borrower, these exceptions enable them to, in effect, assume the
mortgage loan outstanding on the transferred property.
The federal law's protection for intra-family transfers exists to protect
families from the excessive burden of needing to make a large payment under the due on
sale/ [*4]transfer provision that is standard in mortgage
security instruments. Without these protections, widows, children, parents, and other
family members of deceased mortgagors would be in danger of losing the family home
after the death of a loved one.
Because WALLACE acquired title to the subject property as a result of
the death of her husband, the borrower, she is exempt from any due-on-sale clause,
pursuant to 12 USC § 1701j-3 (d) (5). Further, she is exempt from any due-on-sale
clause, pursuant to 12 USC § 1701j-3 (d) (6), because she acquired title to property
that was owned by her husband, the borrower. The Court, In the Matter of the Estate
of Griffith, 183 Misc 2d 210 (Sur Ct, Nassau County 2000), held, at 212, "[f]ederal
law prohibits the enforcement
of due-on-sale clauses in nine common circumstances, including a transfer
where the spouse of the borrower becomes an owner of the property (12 USC §
1701j-3 [d] [3], [6])."
Thus, WALLACE should be exempt from having to pay more than $30,000
to assume the mortgage loan towards which she has paid thousands of dollars in
mortgage
payments for years. WELLS FARGO's position that WALLACE must bring
the loan current before she can assume the loan finds no support in the law and
substantially impinges on her ability to negotiate a loan modification and resolve her
foreclosure just as her husband would if were still alive. Indeed, WELLS FARGO's
requirement that WALLACE pay all of the arrears before she can assume the loan
effectively has the same effect as a prohibitive due on sale/transfer clause. Accordingly,
WALLACE should be afforded the protection offered to family members under Garn-St.
Germain.
Given that WALLACE is entitled to assume the loan, and because WELLS
FARGO entered into a contract with the federal government to participate in the HAMP
program, WELLS FARGO may not require WALLACE to bring the loan current before
reviewing her HAMP application. JHO Douglass correctly recognized this fact and made
recommendations with respect to WELLS FARGO's bad faith conduct.
WELLS FARGO's course of conduct and negotiation posture constitutes bad
faith.
Therefore, equity should not intervene on behalf of WELLS FARGO. "A
foreclosure action is equitable in nature and triggers the equitable powers of the court
(see Notey v Darien Constr. Corp., 41 NY2d 1055, 1055-1056 [1977]). Once
equity is invoked, the court's power is as broad as equity and justice require.' (Norstar
Bank v Morabito, 201 AD2d 545 [2d Dept 1994])." (Mortgage Elec. Registration Sys.,
Inc. v Horkan (68 AD3d 948 [2d Dept 2009]). (See Jamaica Sav. Bank v
M.S. Inv. Co., 274 NY 215 [1937]). "Since it is the plaintiff lender who seeks
equitable relief from this court, the onus is upon the lender to satisfy the requisites of
equity and come to this court with clean hands.' (Junkersfeld v Bank of Manhattan
Co., 250 App Div 646 [ld Dept 1937].)" (M & T Mtge. Corp. v Foy, 20 Misc 3d 274, fn 1 [Sup
Ct, Kings County 2008]). (See
Wells Fargo [*5]Bank, N.A. v Hughes, 27 Misc 3d
628, 634 [Sup Ct, Erie County 2010]). Moreover, a principal of equity is that "[a]
wrongdoer should not be permitted to profit from his or her wrong (see Kirschner v KMPG LLP,
15 NY3d 446, 464 [2010]; Campbell v Thomas, 73 AD3d 103, 116-117 [2d Dept
2010]; Beaumont v American Can Co., 215 AD3d 249 [1d Dept 1995])."
(Norwest Bank Minn. N.A. v E.M.V. Realty Corp., 84 AD3d 835, 836 [2d Dept
2012]).
Moreover, WELLS FARGO's refusal to grant WALLACE a loan
modification in mandatory settlement conferences is egregious given that it tacitly
acknowledged WALLACE's rights under the note and mortgage by repeatedly reinstating
the mortgage loan. WELLS FARGO knew for more than a decade that MICHAEL
WALLACE died in 1999 and that title to the home had been transferred to his wife by a
deed that was a matter of public record in 2000. With knowledge of MICHAEL
WALLACE's death, WELLS FARGO accepted his widow's payments to reinstate the
mortgage loan in late 2000. In 2006, WELLS FARGO reinstated the loan for a second
time after WALLACE paid arrears of approximately $7,000 and resumed monthly
payments. When WELLS FARGO discontinued its 2006 foreclosure action against
WALLACE it implicitly acknowledged her ownership and rights under the subject
mortgage. WELLS FARGO's reinstatement of the loan and its agreement permitting
WALLACE to resume month payments were tantamount to an agreement permitting her
assumption of the loan. Further, since 2008, WELLS FARGO solicited more than
$11,000 in payments from WALLACE. This led her to believe that it intended to modify
her loan so that it was affordable to her.
The Court, in Wells
Fargo Bank, N.A. v Meyers (108 AD3d 9, 11 [2d Dept, 2013]), instructed:
CPLR 3408 provides for mandatory settlement conferences in
certain residential foreclosure actions (see former CPLR 3408). In
2009,
shortly after the passage of the Subprime Residential Loan and
Foreclosure
Laws, the Legislature amended a number of the recently enacted
statutes,
including CPLR 3408 (see L 2009, ch 507). The purposes of the
amendments were to allow more homeowners at risk of foreclosure
to benefit from consumer protection laws and opportunities to prevent
foreclosure; to establish certain requirements for plaintiffs in
foreclosure
actions obligating them to maintain the subject properties; to establish
protections for tenants living in foreclosed properties; and to strengthen
consumer protections aimed at defeating "rescue scams" (Governor's
Mem, Bill Jacket, L 2009, ch 507, at 5). The 2009 amendments include
a provision requiring that "[b]oth the plaintiff and defendant shall
negotiate in good faith to reach a mutually agreeable resolution,
including a loan modification, if possible" (CPLR 3408 [f]).
While CPLR 3408 (f) requires the parties at a settlement
conference to negotiate in good faith, that section "does not set forth
any specific remedy for a party's failure" to do so (Hon. Mark C.
Dillon, The Newly-Enacted CPLR 3408 for Easing the
Mortgage
Foreclosure Crisis: Very Good Steps, but not Legislatively
Perfect,
30 Pace L. Rev 855 at 875 [2010]).
The Chief Administrator for the Courts promulgated 22 NYCRR §
202.12-a, the rules for CPLR Rule 3408 mandatory settlement conferences. 22 NYCRR
§202.12-a (c) (4) provides that:
The parties shall engage in settlement discussions in good faith
to reach a mutually agreeable resolution, including a loan modification
if possible. The court shall ensure that each party fulfills its obligation
to negotiate in good faith and shall see that conferences not be unduly
delayed or subject to willful dilatory tactics so that the rights of both
parties may be adjudicated in a timely manner.
In HSBC Bank, USA v McKenna (37 Misc 2d 885, 905-906 [Sup
Ct, Kings County 2012]), the Court provides a lengthy discussion as to the meaning of
"good faith," finding:
Generally, "good faith" under New York law is a subjective
concept, "necessitat[ing] examination of a state of mind." (See
Credit
Suisse First Boston
v Utrecht-America Finance Co., 80 AD3d 485,
487 [1d Dept 2011], quoting Coan v Estate of Chapin, 156 AD2d
318,
319 [1d Dept 1989]). "Good Faith" is an intangible and abstract quality
with no technical meaning or statutory definition." (Adler v 720
Park
Ave. Corp., 87 AD2d 514, 515 [1d Dept 1982], quoting Doyle
v
Gordon, 158 NYS 2d 248, 249 [Sup Ct, New York County 1954]).
"It encompasses, among other things, an honest belief, the absence of
malice and the absence of a design to defraud or to seek an unconscionable
advantage." (Doyle v Gordon, 158 NYS2d at 259-160; see also UCC
1-201 [19] ["Good Faith' means honesty in fact in the conduct or
transaction concerned."] "Good faith is . . . lacking when there is a
failure to deal honestly, fairly, and openly." (Matter of CIT
Group/
Commerical Servc., Inc. v 160-09 Jamaica Ave. Ltd.
Partnership,
25 AD3d 301, 303 [1d Dept 2006] [internal quotation marks and
citation omitted]; see also Southern Indus. v Jeremias, 166 AD2d
178,
183 [2d Dept 1978]). "In New York, as elsewhere, good faith'
connotes an actual state of mind—a state of mind motivated by
proper motive." Plotti v Fleming, 277 Fed 864, 868 [2d Cir 1960]).
In the context of negotiations, the absence of agreement does not itself
establish the lack of good faith. (See Brookfield Indus. v
Goldman,
87 AD2d, 752, 753 [1d Dept 1982]).
Usually, a finding of lack of good faith in CPLR Rule 3408 settlement conferences has
been determined from the conduct of the mortgagee/plaintiff. "Conduct such as
providing conflicting information, refusal to honor agreements, unexcused delay,
unexplained charges, and misrepresentations have been held to constitute bad faith.'" (Flagstar Bank, FSB v Walker,
37 Misc 3d 312, 318 [Sup Ct, Kings County 2012]). (See Wells Fargo Bank, N.A. v
Ruggiero, 39 Misc 3d 1233 (A), at * 6 [Sup Ct, Kings County 2013]; One W. Bank, FSB v
Greenhut, 36 Misc 3d 1205 (A), at * 4-5 [Sup Ct,
Westchester County 2012]).
The Appellate Division, Second Department, in, Wells Fargo Bank, N.A.
v Meyers, supra at 20, discussed the remedies that a court may use if foreclosure
plaintiffs violated their obligation, pursuant to CPLR Rule 3408 (f), to negotiate in good
faith. The Court observed:
In the absence of specific guidance from the Legislature or the
Chief Administrator of the Courts as to the appropriate sanctions or
remedies to be employed where a party is found to have violated its
obligation to negotiate in good faith pursuant to CPLR 3408 (f), the
courts have resorted to a variety of alternatives in an effort to enforce
the statutory mandate to negotiate in good faith. For example, upon
finding that foreclosing plaintiffs have failed to negotiate in good faith,
courts have barred them from collecting interest, legal fees, and
expenses
(see Bank of Am.,
N.A. v Lucido, 35 Misc 3d 1211 [A] [Sup Ct., Suffolk
County 2012]; BAC
Home Loans v Westervelt, 29 Misc 3d 1224 [A]
[Sup Ct., Dutchess County 2010]; . . . Wells Fargo Bank v
Hughes,
27 Misc 3d 628 [Sup Ct., Erie County 2010] . . . [and] imposed a
monetary sanction pursuant to 22 NYCRR part 130 (see
Deutsche
Bank Trust Co. of
Am. v Davis, 32 Misc 3d 1210 [A] [Sup Ct, KingsCounty 2011]; cf. BAC Home Loans v
Westervelt, 29 Misc 3d 1224.
Further, in Wells Fargo Bank, N.A. v Meyers, supra at 23, the Court
instructed:
In the absence of a specifically authorized sanction or remedy in
the statutory scheme, the courts must employ appropriate,
permissible,
and authorized remedies, tailored to the circumstances of each
given
case. What may prove appropriate recourse in one case may be
inappropriate or unauthorized under the circumstances presented in
another. Accordingly, in the absence of further guidance from the
Legislature or the Chief Administrator of the Courts, the courts
must
prudently and carefully select among available and authorized
remedies,tailoring their application to the circumstances of the case.
[Emphasis
added]
In US Bank v Sarmiento
(121 AD3d 187 [2d Dept 2014]), plaintiff appealed from an order that among
other things, at 197:
granted Sarmiento's motion to bar the plaintiff from collecting interest
or fees that accrued on the subject loan since December 1, 2009, to
bar the plaintiff from recovering any costs or attorneys' fees it incurred
in this action, and to direct the plaintiff to review the subject loan for a
HAMP loan modification using correct information and without regard
to interest or fees that have accrued on the subject loan since December
1,
2009. The Supreme Court determined that, while the plaintiff had failed
to negotiate in good faith as required by CPLR 3408 (f), Sarmiento had
acted in good faith.
The Sarmiento Court, at 203, in affirming the order of Supreme
Court, Kings County, [*6]instructed, "we hold that the
issue of whether a party failed to negotiate in good faith' within the meaning of
CPLR 3408 (f) should be determined by considering whether the totality of the
circumstances demonstrates that the party's conduct did not constitute a meaningful effort
at reaching a resolution [Emphasis added]." Moreover, at 204, the
Court stated, "our determination is consistent with the purpose of the statute, which
provides that parties must negotiate in good faith' in an effort to resolve the action, and
that such resolution could include, if possible,' a loan modification." Further, at 204, the
Court instructed:
Where a plaintiff fails to expeditiously review submitted
financial
information, sends inconsistent and
contradictory communications, and
denies requests for a loan modification without adequate grounds, or,
conversely, where a defendant fails to provide requested financial
information or provides incomplete or misleading financial information,
such conduct could constitute the failure to negotiate in good faith to
reach a mutually agreeable resolution.
Lastly, the Sarmiento Court was aware that it could not force a lender
to rewrite the terms of a mortgage loan. The Court, at 208, held:
We are cognizant that, in a foreclosure action, "[t]he court's role
is limited to interpretation and enforcement of the terms agreed to by
the
parties, and the court may not rewrite the contract or impose additional
terms which the parties failed to insert" (131 Heartland Blvd. Corp
v
C.J. Jon Corp., 82 AD3d 1118, 1189 [2011]; see Wells Fargo
Bank v
Meyers, 108 AD3d 9; Maser Consulting, P.A. v Viola Park
Realty, LLC,
91 AD3d 836, 837 [2012]). Thus, in fashioning a remedy for a violation
of the good-faith negotiation requirement set forth in CPLR 3408 (f),
courts should be mindful not to rewrite the contract at issue or impose
contractual terms which were not agreed to by the parties.
In applying the Sarmiento sanction of cancelling certain interest as a
sanction for
plaintiff not negotiating in good faith in a mandatory foreclosure settlement
conference the Court, in U.S. Bank Nat. Ass'n v Williams (121 AD3d 1098, 1102
[2d Dept 2014]), held:
The record demonstrates that the foreclosing parties repeatedly
represented to the referee and to Williams that they were considering
Williams for HAMP loan modification and repeatedly demanded that
Williams submit additional documentation in support of that application,
notwithstanding the prohibition against such a modification in the PSA,
which they did not disclose until approximately 13 months after negotiations
began. Under these circumstances, the Supreme Court providently
exercised its discretion in finding that U.S. Bank was not entitled to
collect interest accrued as a result of its wrongful conduct (see
generally
U.S. Bank, N.A. v
Sarmiento, 121 AD3d 187; Norwest Bank Minn. v
E.M.V. Realty Corp., 94 AD3d 835, 836; Dayan v York, 51 AD3d
964,
965).
(See U.S. Bank Nat. A'ssn v Smith, 123 AD3d 914 [2d Dept
2014])
In the instant action, the Court, in applying Sarmiento to the "totality
of the circumstances" in the settlement negotiations between WELLS FARGO and
WALLACE, finds that plaintiff WELLS FARGO's conduct "did not constitute a
meaningful effort at
reaching a resolution." WELLS FARGO's insistence that WALLACE had to
assume the loan and make it current before considering her for a loan modification, in
violation of the Garn-St. Germain Act, contravened the plain meaning and legislative
intent of CPLR
Rule 3408. Further, WELLS FARGO not asserting this until after
WALLACE was induced into signing four trial payment plans and collecting from
WALLACE approximately $11,000 pursuant to these trial payment plans is not
negotiating in good faith. JHO Douglass, at page 3 of his "Recommendation to Dismiss"
is correct that "[t]his widow was treated in an unfair and shabby manner by Wells Fargo,
and Wells Fargo ran roughshod over her rights . . . Wells Fargo has also violated the
spirit of federal law which was enacted to protect widows. To ask the widow to pay
$30,000 with no commitments clearly violates the spirit of the Garn-St. Germain Act'
and is another factor in the conclusion that Wells Fargo has not acted in good
faith.'"
In determining the proper sanction for WELLS FARGO's bad faith, the
Court is mindful that it cannot impose a loan modification upon WELLS FARGO unless
agreed to by WELLS FARGO, nor can the Court dismiss the instant action. The Court
finds that the appropriate sanction for the bad faith conduct by WELLS FARGO, as per
Wells Fargo Bank, N.A. v Meyers, and examining the totality of the
circumstances, as per US Bank v Sarmiento, is barring WELLS FARGO from
collecting interest or fees that accrued on the subject loan since September 8, 2010, the
day of the third settlement conference, when a WELLS FARGO representative informed
WALLACE and JHO Douglass that WELLS FARGO would not consider WALLACE
for a loan modification unless she assumed the loan and made it current. Further,
WELLS FARGO is barred from recovering any costs or attorneys' fees it incurred in the
instant action and is directed to review the subject loan for a HAMP loan modification
without requiring WALLACE [*7]to first assume the
loan and make it current. The parties will appear before the Court for a settlement
conference on Monday, August 3, 2015 at 2:30 P.M.
Conclusion
Accordingly, it is
ORDERED, that the motion of defendant IRMA RENE WALLACE to
confirm the
report of Judicial Hearing Office Lewis Douglass is confirmed to the extent
of finding that plaintiff WELLS FARGO BANK, N.A. SUCCESSOR BY
MERGER TO WELLS FARGO HOME MORTGAGE, INC., F/K/A NORWEST
MORTGAGE, INC. engaged in "bad faith" at mandatory settlement conferences,
conducted pursuant to CPLR Rule 3408; and it is further
ORDERED, that plaintiff WELLS FARGO BANK, N.A.
SUCCESSOR BY MERGER TO WELLS FARGO HOME MORTGAGE, INC., F/K/A
NORWEST MORTGAGE, INC. is barred from collecting interest or fees that
accrued on the subject mortgage of defendant IRMA RENE WALLACE from September
8, 2010; and it is further
ORDERED, that plaintiff WELLS FARGO BANK, N.A.
SUCCESSOR BY MERGER TO WELLS FARGO HOME MORTGAGE, INC., F/K/A
NORWEST MORTGAGE, INC. is barred from recovering any costs or attorneys'
fees it incurred in the instant action from defendant IRMA RENE WALLACE; and it is
further
ORDERED, that plaintiff WELLS FARGO BANK, N.A. SUCCESSOR BY
MERGER TO WELLS FARGO HOME MORTGAGE, INC., F/K/A NORWEST
MORTGAGE, INC. is directed to review the subject loan for a HAMP loan
modification without requiring defendant IRMA RENE WALLACE to first assume the
subject loan and make it current; and it is further
ORDERED, that the parties to this action, plaintiff WELLS FARGO
BANK, N.A. SUCCESSOR BY MERGER TO WELLS FARGO HOME MORTGAGE,
INC., F/K/A NORWEST MORTGAGE, INC. and defendant IRMA
RENEWALLACE, shall appear before this Court, in Part 27, Room 277, 360 Adams
Street, Brooklyn, New York 11201, on Monday, August 3, 2015, at 2:30 P.M. for a
settlement conference.
This constitutes the Decision and Order of the Court.
ENTER
________________________________
HON. ARTHUR M. SCHACK
J. S. C.