Realty Law Digest

, New York Law Journal

   | 1 Comments

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law, discusses a mortgage foreclosure action where the Appellate Division held the lender was erroneously ordered to modify a loan following its failure to negotiate in good faith pursuant to CPLR 3408. The court found that parties must negotiate in good faith, but the statute does not provide for a specific remedy for a parties' failure to do so.

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What's being said

  • Ovez Japanwalla

    Despite the finding that the trial court could not " fashion" it's own remedy, the modification would have been the obvious outcome had the lender and it's counsel abided by the good-faith requirement for negotiations.
    Many cases are stopped in their tracks and subverted to determinations that a home can be foreclosed, because the dilatory tactics lenders use and accepted by Court as being truthful when in reality they are just conclusory statements without any iota of facts to support them such as the amount in arrears.
    The Summary Judgment requirements as:
    1) presence of note, 2) ,3) EVIDENCE OF DEFAULT WHICH CAN BE OBFUSCATED WITH JUST A STATEMENT BY THE LENDER THE HOMEOWNER IS IN DEFAULT WITHOUT JUSTIFYING WITH TRUTHFUL ACCOUNTING. MOST OF THE TIME THE LENDER JUST REFUSES TO ACCEPT A PAYMENT ATHEN CLAIMS PAYMENTS WERE NOT MADE.
    i WAS VERY PLEASED WITH THIS FINDING BY THE APP. DIV.

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