| Lewis v Wells Fargo Bank, N.A. |
| 2015 NY Slip Op 09076 [134 AD3d 777] |
| December 9, 2015 |
| Appellate Division, Second Department |
[*1]
| Nicole Lewis, Respondent, v Wells FargoBank, N.A., as Trustee for Option One Mortgage Loan Trust 2006-2 Asset-BackedCertificates, Series 2006-2, et al., Appellants, et al.,Defendant. |
Hinshaw & Culbertson, LLP, New York, N.Y. (Schuyler B. Kraus, Nicholas A.Corsano, and Marka Belinfanti of counsel), for appellants.
Lee M. Nigen, Brooklyn, N.Y. (Ellery Asher Ireland of counsel), for respondent.
In an action, inter alia, to recover damages for fraudulent misrepresentation andviolations of Banking Law § 6-l, the defendants Wells Fargo Bank, N.A., asTrustee for Option One Mortgage Loan Trust 2006-2 Asset-Backed Certificates, Series2006-2, and American Home Mortgage Servicing, Inc., appeal from an order of theSupreme Court, Kings County (Velasquez, J.), dated October 25, 2013, which deniedtheir motion for summary judgment dismissing the complaint insofar as asserted againstthem.
Ordered that the order is reversed, on the law, with costs, and the motion of thedefendants Wells Fargo Bank, N.A., as Trustee for Option One Mortgage Loan Trust2006-2 Asset-Backed Certificates, Series 2006-2, and American Home MortgageServicing, Inc., for summary judgment dismissing the complaint insofar as assertedagainst them is granted.
On May 10, 2006, the plaintiff executed a note and mortgage on a residentialproperty in Brooklyn in favor of Option One Mortgage Corporation (hereinafter OptionOne). Thereafter, Option One assigned the note and mortgage to the defendant WellsFargo Bank, N.A., as Trustee for Option One Mortgage Loan Trust 2006-2 Asset BackedCertificates, Series 2006-2 (hereinafter Wells Fargo). In 2008, the plaintiff defaulted onher payments under the note, and a foreclosure action was commenced against her.
In June 2011, the plaintiff commenced this action against, among others, WellsFargo and the defendant American Home Mortgage Servicing, Inc., which serviced theloan (hereinafter together the defendants). The plaintiff asserted causes of action torecover damages for fraudulent misrepresentation and violations of Banking Law§ 6-l, General Business Law § 349, and the Federal Truth inLending Act (15 USC § 1601 et seq.). The defendants moved forsummary judgment dismissing the complaint insofar as asserted against them. TheSupreme Court denied the motion. We reverse.
To recover damages for fraudulent misrepresentation, a plaintiff must prove (1) amisrepresentation or an omission of material fact which was false and known to be falseby the [*2]defendant, (2) the misrepresentation was madefor the purpose of inducing the plaintiff to rely upon it, (3) justifiable reliance by theplaintiff on the misrepresentation or material omission, and (4) injury (see Blanco v Polanco, 116AD3d 892 [2014]; Bernardiv Spyratos, 79 AD3d 684, 687 [2010]; Pidwell v Duvall, 28 AD3d 829, 831-832 [2006]).
Here, the defendants demonstrated their prima facie entitlement to judgment as amatter of law dismissing the cause of action to recover damages for fraudulentmisrepresentation by submitting the note, the mortgage, and the loan application. Theloan application, which was signed by the plaintiff, set forth the terms of the mortgage,the plaintiff's monthly income, her current combined monthly household expense underan existing mortgage, and her proposed combined monthly household expense under thenew mortgage. In opposition, the plaintiff failed to raise a triable issue of fact. While theplaintiff alleged in the complaint that the defendants made false representations regardingher ability to make payments on the mortgage, in opposition to the defendants' motion,she identified no specific statement constituting a false representation.
Banking Law § 6-l "imposes limitations and prohibits certain 'practicesfor high-cost home loans' " (Aries Fin., LLC v 12005 142nd St., LLC, 127 AD3d 900,901 [2015], quoting Banking Law § 6-l [2]). A "high-cost home loan" isdefined by Banking Law § 6-l (1) (d) as a home loan in which the terms ofthe loan exceed one or more of certain thresholds. At the time the subject loan wasexecuted in May 2006, Banking Law § 6-l (1) (e) (i) defined a "home loan,"in part, as a loan "in which . . . [t]he principal amount of the loan does notexceed the lesser of: (A) conforming loan size limit for a comparable dwelling asestablished from time to time by the federal national mortgage association; or (B) threehundred thousand dollars" (Banking Law former § 6-1 [1] [e] [i]). Thedefendants demonstrated their prima facie entitlement to judgment as a matter of lawdismissing the cause of action to recover damages for violations of Banking Law§ 6-l by presenting evidence that the subject loan exceeded the statutorymaximum of $300,000, and, therefore, was not a "home loan" entitled to protectionagainst "high-cost home loans" (see Endeavor Funding Corp. v Allen, 102 AD3d 593, 594[2013]). In opposition, the plaintiff failed to raise a triable issue of fact.
With respect to the causes of action to recover damages for violations of GeneralBusiness Law § 349 and the Federal Truth in Lending Act, the defendantsdemonstrated their prima facie entitlement to judgment as a matter of law by presentingevidence that those causes of action were barred by the applicable statutes of limitations(see 15 USC § 1635 [f]; Gaidon v Guardian Life Ins. Co. ofAm., 96 NY2d 201, 210 [2001]). In opposition, the plaintiff failed to raise a triableissue of fact as to whether the statutes of limitations were tolled or otherwise inapplicable(see Loiodice v BMW of N.Am., LLC, 125 AD3d 723, 725 [2015]).
Accordingly, the Supreme Court should have granted the defendants' motion forsummary judgment dismissing the complaint insofar as asserted against them.
The parties' remaining contentions either are without merit or need not be reached inlight of our determination. Mastro, J.P., Dickerson, Roman and Maltese, JJ., concur.