| Balsam v Fioriglio |
| 2014 NY Slip Op 08593 [123 AD3d 750] |
| December 10, 2014 |
| Appellate Division, Second Department |
[*1]
| Howard A. Balsam, Respondent, v PatrickFioriglio, Appellant, et al., Defendants. |
Patrick Fioriglio, Brooklyn, N.Y., appellant pro se.
Howard A. Balsam, New York, N.Y., respondent pro se.
In an action to foreclose a mortgage, the defendant Patrick Fioriglio appeals, aslimited by his brief, from so much of a judgment of the Supreme Court, Kings County(Schack, J.), dated January 6, 2014, as, upon a decision of the same court dated August 5,2013, made after a nonjury trial, is in favor of the plaintiff and against him.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
On November 15, 2006, the defendants Patrick Fioriglio and Zenda Fioriglio(hereinafter together the Fioriglios) borrowed from the plaintiff the principal sum of$60,000 at an annual interest rate of 13%, and the plaintiff secured this obligation bytaking a mortgage on the Fioriglios' residential one-family dwelling in Brooklyn. TheFioriglios made their timely monthly mortgage payments of principal and interest fromDecember 1, 2006, to September 1, 2007, but, in October 2007, ceased making themortgage payments, and remain in default. In June 2008, the plaintiff commenced thisforeclosure action.
After a trial on the defenses asserted by the Fioriglios, the Supreme Court awardedjudgment to the plaintiff, concluding that the plaintiff was not, as a condition precedentto obtaining a judgment of foreclosure, obligated to comply with Banking Law§ 6-l and Real Property Actions and Proceedings Law§ 1302 et seq., which impose several procedural and substantive obligationsupon certain mortgage lenders who make subprime or high-cost home mortgage loansand thereafter seek to foreclose on the underlying mortgages.
Statutory interpretation begins with the plain language of the statute; the clearestindicator of legislative intent is the statutory text. Therefore, "the starting point in anycase of interpretation must always be the language itself, giving effect to the plainmeaning thereof" (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d577, 583 [1998]; see AppletonAcquisition, LLC v National Hous. Partnership, 10 NY3d 250, 260 [2008];Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104 [2001]; Matter of Pro Home Bldrs., Inc. vGreenfield, 67 AD3d 803, 805 [2009]; Matter of State Div. of Human Rights v Berler, 46 AD3d32, 40 [2007]; Ragucci vProfessional Constr. Servs., 25 AD3d 43, 47 [2005]).
Section 1 of the Banking Law provides that the Banking Law and its amendments"shall be applicable to all corporations, partnerships and individuals defined in [BankingLaw § 2] [*2]and to such othercorporations, unincorporated associations, partnerships and individuals as shall subjectthemselves to special provisions thereof, or who shall, by violating any of its provisions,become subject to the penalties provided therein."
Section 6-l (1) of the Banking Law sets forth the definitions applicable tohigh-cost home loans such as the one at issue here. It defines a "[l]ender" as "a mortgagebanker as defined in paragraph (f) of subdivision one of section five hundred ninety ofthis chapter" (Banking Law § 6-l [1] [i]). Section 590 (1) (f) of theBanking Law defines a "mortgage banker" as "a person or entity who or which islicensed pursuant to section five hundred ninety-one of this chapter to engage in thebusiness of making mortgage loans in this state." Subdivision (2) of Banking Law§ 590 provides that "[n]o individual, person, partnership, association,corporation or other entity shall engage in the business of making mortgage loanswithout first obtaining a license from the superintendent in accordance with the licensingprocedure provided in this article and such regulations as may be promulgated by thesuperintendent" (Banking Law § 590 [2] [a]). However, the samesubdivision also provides that "[t]he licensing provisions of this subdivision shall notapply to . . . any individual, person, partnership, association, corporation orother entity which makes not more than three such loans in a calendar year, nor morethan five in a two year period, provided that no such mortgage loans have been madewhich were solicited, processed, placed or negotiated by a mortgage broker, mortgagebanker or exempt organization" (Banking Law § 590 [2] [a] [iii]).
It is not disputed that the subject mortgage loan was the only such loan the plaintiffever made. Accordingly, the plain language of the applicable sections of the BankingLaw, as set forth above, requires the conclusion that the plaintiff, as an individual whomade "not more than three such loans in a calendar year, nor more than five in a two yearperiod," was exempt from the licensing provisions of Banking Law § 590(2) (a) (see Banking Law § 590 [2] [a] [iii]). Although the plaintiffwas a person who made a loan without being licensed as a "mortgage broker," he was nota "lender" as defined in Banking Law § 6-l (1) (i), nor did fallwithin the definition of any other category to which the provisions of section 6-lof the Banking Law apply. Consequently, the Supreme Court properly concluded that theprohibitions, obligations, and requirements prescribed by that section did not apply to theplaintiff (see Banking Law §§ 1, 6-l [1] [i]), and thatthe plaintiff was entitled to a judgment of foreclosure regardless of whether he compliedwith the disputed provisions of the Banking Law.
The appellant's remaining contentions are without merit. Dillon, J.P., Miller, Malteseand Duffy, JJ., concur.
Motion by the respondent on an appeal from a judgment of the Supreme Court,Kings County, dated January 6, 2014, inter alia, to strike the appellant's reply brief on theground that it refers to matter dehors the record. By decision and order on motion of thisCourt dated September 29, 2014, that branch of the motion which is to strike theappellant's reply brief was held in abeyance and referred to the panel of Justices hearingthe appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the submission of the appeal, it is
[*3] Ordered that that branch of the motion which is tostrike the appellant's reply brief on the ground that it refers to matter dehors the record isgranted to the extent that Point II of the reply brief is stricken and has not beenconsidered on the appeal, and that branch of the motion is otherwise denied. Dillon, J.P.,Miller, Maltese and Duffy, JJ., concur.