| Wells Fargo Bank, N.A. v Van Dyke |
| 2012 NY Slip Op 09164 [101 AD3d 638] |
| December 27, 2012 |
| Appellate Division, First Department |
| Wells Fargo Bank, N.A., Respondent, v June Joan VanDyke et al., Appellants, et al., Defendants. |
—[*1] Hogan Lovells US LLP, New York (David Dunn of counsel), for respondent. Jacob Inwald, New York, for Legal Services NYC, amicus curiae. Shira Galinsky, Meghan Faux and Pavita Krishnaswamy, Brooklyn, for South BrooklynLegal Services, amicus curiae. James Jantarasami, Bronx, for Legal Services NYC-Bronx, amicus curiae. Jeanette Zelhof, New York (Renee Cadmus and Linda Jun of counsel), for MFY LegalServices, Inc., amicus curiae. Margaret Becker, Staten Island, for Staten Island Legal Services, amicus curiae. Franklin Romeo, Jamaica, for Queens Legal Services, amicus curiae. [*2]Hon. Betty Staton, Brooklyn (Catherine P. Isobe ofcounsel), for Bedford-Stuyvesant Community Legal Services, amicus curiae. Donna Dougherty, Rego Park, for JASA/Legal Services for the Elderly in Queens, amicuscuriae. Rebecca Case-Grammatico, Rochester, for Empire Justice Center, amicus curiae. Josh Zinner, New York, for Neighborhood Economic Development Project (NEDAP),amicus curiae.
Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered August 25, 2011, whichdenied the Van Dyke defendants' motion to dismiss the complaint as against them, unanimouslyaffirmed, without costs.
Defendants failed to demonstrate that plaintiff's representative was not fully authorized tonegotiate a settlement of this residential foreclosure action on plaintiff's behalf or that thenegotiations that were had were a sham (see CPLR 3408). Contrary to defendants'apparent belief, plaintiff was not required by CPLR 3408 to offer them a settlement. While theaspirational goal of CPLR 3408 negotiations is that the parties "reach a mutually agreeableresolution to help the defendant avoid losing his or her home" (CPLR 3408 [a]), the statuterequires only that the parties enter into and conduct negotiations in good faith (see subd[f]). As the motion court found, there are situations in which the statutory goal is simply notfinancially feasible for either party. Defendant June Van Dyke, while asserting that nearly twothirds of her income was rental property, produced no lease, no affidavits by tenants, and no bankstatements showing funds traceable to the rents she alleges she has been collecting for a numberof years. The bank statements she submitted covered a mere three months. Under thecircumstances, it was not unreasonable for plaintiff to resist using her purported rental income inits loan modification calculations. In any event, even if the rental income were used, plaintiffwould be ineligible for available modifications. Contrary to defendants' apparent contention, themere fact that plaintiff refused to consider a reduction in principal or interest rate does notestablish that it was not negotiating in good faith. Nothing in CPLR 3408 requires plaintiff tomake the exact offer desired by defendants, and plaintiff's failure to make that offer cannot beinterpreted as a lack of good faith.
While it does not affect the result in this case, we reject plaintiff's contention that compliancewith the good faith requirement of CPLR 3408 is established merely by proving the absence offraud or malice on the part of the lender. Any determination of good faith must be based on thetotality of the circumstances. In this regard we note that CPLR 3408 is a remedial statute.[*3]
We have considered defendants' remaining argumentsand find them unavailing. Concur—Friedman, J.P., Acosta, Renwick, Richter andRomán, JJ.