| Deutsche Bank Natl. Trust Co. v Williams |
| 2009 NY Slip Op 04023 [62 AD3d 826] |
| May 19, 2009 |
| Appellate Division, Second Department |
| Deutsche Bank National Trust Company,Appellant, v Addington Williams, Respondent, et al.,Defendants. |
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In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from somuch of an order of the Supreme Court, Kings County (Kramer, J.), dated August 8, 2007, asgranted the motion of the defendant Addington Williams to vacate a judgment of the same courtentered April 4, 2007, upon that defendant's default in answering or appearing, in favor of it andagainst that defendant.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, themotion of the defendant Addington Williams to vacate the judgment entered April 4, 2007 isdenied, and the matter is remitted to the Supreme Court, Kings County, for the entry of anappropriate amended judgment in accordance herewith.
As security for a loan, the defendant Addington Williams gave a mortgage to the plaintiff'spredecessor in interest with respect to premises located at 535 East 55th Street in Brooklyn.Williams defaulted on the repayment of the loan in March 2005 and, after notice and a demandfor payment, the plaintiff commenced this foreclosure action. Williams failed to appear oranswer the complaint, an order of reference was entered, and the referee reported the amountowed as of June 29, 2006.
After the plaintiff moved for a default judgment of foreclosure and sale, but before theSupreme Court decided that motion, Williams contacted the plaintiff and requested anopportunity [*2]to cure his default. The parties entered into aforbearance agreement on November 16, 2006, which set forth a plan for the repayment of thedebt. The plaintiff agreed that it would postpone the foreclosure action, provided that there wasno default by Williams in complying with the terms of repayment. The agreement clearlyprovided that the plaintiff was not cancelling the foreclosure action, but merely postponing it.Williams made the lump-sum payment required under the agreement, and made two monthlypayments, but defaulted on the repayments in March 2007. Under the terms of the forbearanceagreement, Williams's default resulted in the immediate termination of that agreement, the fullamount owed under the loan became due and payable, and the plaintiff was authorized tocontinue with the foreclosure action.
Contrary to the determination of the Supreme Court, a forbearance agreement does notconstitute a settlement of the foreclosure action. As a result, the provisions of CPLR 2104regarding stipulations of settlement have no relevance to the forbearance agreement. Rather, amortgagee that enters into a forbearance agreement merely refrains from immediately exercisingthe remedies it may have and grants the mortgagor an extension of time for the repayment of hisor her debt (cf. Matter of Delafield 246Corp. v City of New York, 11 AD3d 268, 272 [2004]).
Here, the forbearance agreement is clear and unambiguous. As with any such unambiguouscontract, the plaintiff was entitled to the enforcement of the agreement according to its terms (see Ross v Sherman, 57 AD3d758 [2008]; Novelty Crystal Corp.v PSA Institutional Partners, L.P., 49 AD3d 113, 118 [2008]; Rocar Realty Northeast, Inc. v JeffersonVal. Mall Ltd. Partnership, 38 AD3d 744, 746 [2007]) and, when Williams defaultedunder the terms of that agreement, the plaintiff was entitled to proceed with the foreclosureaction (see Option One Mtge. Corp. vCorman, 39 AD3d 724 [2007]).
The payments made by Williams under the forbearance agreement must, however, beconsidered as part of the referee's calculation of the amounts owed and credited, as of the date ofthe foreclosure sale, in determining the proper disposition of the proceeds of the sale (seeRPAPL 1355). Accordingly, we remit the matter to the Supreme Court, Kings County, forthe entry of an appropriate amended judgment that credits the payments made by Williams incalculating the sum to be awarded to the plaintiff. Spolzino, J.P., Santucci, Angiolillo and Eng,JJ., concur. [See 17 Misc 3d 320.]