| Flagstar Bank, FSB v Walker |
| 2013 NY Slip Op 08593 [112 AD3d 885] |
| December 26, 2013 |
| Appellate Division, Second Department |
| Flagstar Bank, FSB, Appellant, v Bevan Walker etal., Respondents, et al., Defendants. |
—[*1] Bevan Walker and Pamella M. Walker, also known as Pamella Walker, Brooklyn,N.Y., respondents pro se.
In an action to foreclose a mortgage, the plaintiff appeals, by permission, from anorder of the Supreme Court, Kings County (Kramer, J.), dated May 31, 2012, which, suasponte stayed the proceedings and directed the plaintiff to re-evaluate the defendants'mortgage loan for modification under the federal Home Affordable ModificationProgram. By decision and order on motion dated October 22, 2012, this Court grantedthat branch of the plaintiff's motion which was to stay all proceedings in theabove-entitled action pending hearing and determination of the appeal.
Ordered that the order is reversed, on the law, with costs, and the matter is remittedto the Supreme Court, Kings County, for further proceedings consistent herewith.
On January 22, 2009, the defendants Bevan Walker and Pamella M. Walker, alsoknown as Pamella Walker, executed a note to borrow $548,576, and executed a mortgageagainst their residential property to secure the note. After the defendants defaulted, theplaintiff, the alleged current holder of the mortgage and note, commenced this action toforeclose the mortgage. After three settlement conferences, the Supreme Court, withoutobjection, set the matter down for a hearing to determine whether the plaintiff fulfilled itsobligation, imposed pursuant to CPLR 3408 (f), to "negotiate in good faith to reach amutually agreeable resolution." At the hearing, an employee of the plaintiff testified,among other things, that he had reviewed the defendants' mortgage loan prior to thecommencement of the foreclosure action and had determined that it was ineligible formodification under the federal Home Affordable Modification Program (hereinafterHAMP) because the mortgage loan was insured by the Federal Housing Administrationand did not originate prior to January 1, 2009. Following the hearing, the Supreme Court,sua sponte, directed the plaintiff to reevaluate the defendants' mortgage loan formodification under HAMP, and stayed the proceedings until such reevaluation wascompleted. Subsequently, this Court granted the plaintiff's motion for leave to appeal(see CPLR 5701 [c]) and stayed all proceedings pending the hearing anddetermination of the appeal.
Although CPLR 3408 (f) requires parties to negotiate in good faith, "it is obviousthat the parties cannot be forced to reach an agreement, CPLR 3408 does not purport torequire them to, [*2]and the courts may not endeavor toforce an agreement upon the parties" (Wells Fargo Bank, N.A. v Meyers, 108 AD3d 9, 20[2013]). Here, as the plaintiff had established that the defendants' loan was ineligible formodification under HAMP, the sua sponte relief granted by the Supreme Court wasinappropriate, as it cannot be deemed a "mutually agreeable resolution" to the matter(see id. at 23; see alsoEmigrant Mtge. Co., Inc. v Fisher, 90 AD3d 823 [2011]). Instead, the SupremeCourt should have made a determination as to whether the plaintiff satisfied itsobligation pursuant to CPLR 3408 (f) to "negotiate in good faith to reach a mutuallyagreeable resolution" (see Wells Fargo Bank, N.A. v Meyers, 108 AD3d at 23;see also Wells Fargo Bank,N.A. v Van Dyke, 101 AD3d 638 [2012]). Accordingly, the matter must beremitted to the Supreme Court, Kings County, for such factual finding, and, if applicable,an appropriate remedy (see Wells Fargo Bank, N.A. v Meyers, 108 AD3d at 23).Skelos, J.P., Dickerson, Cohen and Hinds-Radix, JJ., concur. [Prior Case History: 37Misc 3d 312.]