| Wells Fargo Bank, N.A. v Miller |
| 2016 NY Slip Op 01318 [136 AD3d 1024] |
| February 24, 2016 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., as Successor by Merger toWells Fargo Bank Southwest, N.A., Formerly Known as Wachovia Mortgage, FSB, andAnother, Respondent, v Michael Miller, Appellant, et al.,Defendants. |
The Law Firm of Vaughn & Weber, PLLC, Mineola, NY (John A. Weber IV ofcounsel), for appellant.
Woods Oviatt Gilman LLP, Rochester, NY (Katerina Kramarchyk of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Michael Miller appeals, as limitedby his brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.),entered August 25, 2014, as denied that branch of his motion which was for a hearing todetermine whether the plaintiff met its obligation to negotiate in good faith pursuant toCPLR 3408 (f).
Ordered that the order is affirmed insofar as appealed from, with costs.
"Pursuant to CPLR 3408 (f), the parties at a mandatory foreclosure settlementconference are required to negotiate in good faith to reach a mutually agreeableresolution" (U.S. Bank N.A. vSmith, 123 AD3d 914, 916 [2014]; see CPLR 3408 [f]; Wells Fargo Bank, N.A. vMeyers, 108 AD3d 9, 11 [2013]). " 'The purpose of the good faithrequirement [in CPLR 3408] is to ensure that both plaintiff and defendant are prepared toparticipate in a meaningful effort at the settlement conference to reachresolution' " (US BankN.A. v Sarmiento, 121 AD3d 187, 200 [2014], quoting Governor's Program BillMem No. 46R, Bill Jacket, L 2009, ch 507 at 11).
To conclude that a party failed to negotiate in good faith pursuant to CPLR 3408 (f),a court must determine that "the totality of the circumstances demonstrates that the party'sconduct did not constitute a meaningful effort at reaching a resolution" (US BankN.A. v Sarmiento, 121 AD3d at 203). "Where a plaintiff fails to expeditiously reviewsubmitted financial information, sends inconsistent and contradictory communications,and denies requests for a loan modification without adequate grounds, or, conversely,where a defendant fails to provide requested financial information or providesincomplete or misleading financial information, such conduct could constitute the failureto negotiate in good faith to reach a mutually agreeable resolution" (id. at204).
Here, contrary to the appellant's contention, on this record, the totality of thecircumstances supports the Supreme Court's determination that the plaintiff's actionsconstituted a meaningful effort at reaching a resolution (see Citibank, N.A. v Barclay,124 AD3d 174 [2014]; Flagstar Bank, FSB v Titus, 120 AD3d 469 [2014]).Moreover, the appellant failed to make any showing that a [*2]hearing was warranted on this issue. Accordingly, the courtproperly denied that branch of the appellant's motion which was for a hearing todetermine whether the plaintiff met its obligation to negotiate in good faith pursuant toCPLR 3408 (f). Mastro, J.P., Hall, Maltese and LaSalle, JJ., concur.