The following papers numbered EF35 read on the motion of the Defendant borrower Michelle Beersingh for an Order, inter alia, for relief under CPLR 3408; and the opposition papers numbered EF28-34 seeking to establish good faith conduct on Plainiff’s part. ORDER ON THE ISSUE OF GOOD FAITH After reading the papers submitted by the parties, and reviewing the applicable case law, It is the ORDER and FINDING of this Court that the Plaintiff failed to negotiate in good faith; and it is further ORDERED, that all interest, disbursements, costs, and attorney’s fees that have accrued during the period between February 22, 2019 and May 12, 2022, the date of this order, shall be abated and tolled. The foregoing is based upon the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT On 3/24/22, the Court1 directed counsel via email as follows: Justice Evans directs you to submit memoranda. They will have an agreed statement of facts, including the length of the delay in making a decision, cases which held that the delay was excessive warranting relief (specific cases not general), the bank’s decision, if any, the reasons therefore, and copies of the cases, to be submitted by email and e-filed by April 1, 2022 close of business. The memoranda should also specify efforts to resolve this hearing without court intervention. Thank you. (Emphasis supplied). I. Joint Statement of Agreed-Upon Facts On April 1, 2022, the parties submitted the following “JOINT STATEMENT OF FACTS” pursuant to the Court’s directive, which was countersigned by both counsel: 1. Defendants Michelle Beersingh (“Defendant”) and Euron Burns entered into a mortgage loan agreement with HSBC Mortgage Corporation (USA) on or about March 24, 2009. The agreement required Ms. Beersingh and Mr. Burns to repay a loan of $273,830.00, secured by their home, over thirty years. A copy of the mortgage loan agreement is annexed hereto as Exhibit A. 2. Ms. Beersingh and Mr. Burns separated in 2014, and are undergoing divorce proceedings. 3. On October 27, 2016, Ms. Beersingh entered into a loan modification agreement with HSBC Bank USA, N.A. The loan modification agreement required Ms. Beersingh to repay $325,706.17, over forty years, with a step rate of interest. The interest rate is currently fixed at 4.875 percent. A copy of the loan modification agreement is annexed hereto as Exhibit B. 4. The instant foreclosure action was commenced on November 8, 2018. A copy of the summons, complaint and certificate of merit filed in this case are annexed hereto as Exhibit V. 5. The first seven (7) foreclosure settlement conferences held pursuant to CPLR 3408 in this case were held between February 22, 2019 and February 21, 2020. At those conferences, Plaintiff was represented by counsel and Ms. Beersingh appeared pro se. A copy of the WebCivil Supreme — Appearance Detail from ecourts is annexed hereto as Exhibit C. 6. At the first foreclosure settlement conference, Plaintiff’s counsel informed Ms. Beersingh that Mr. Burns would need to execute a quitclaim deed if she wanted to modify her mortgage loan. 7. At some point before July 24, 2019, Ms. Beersingh submitted a loan modification application to Rushmore Loan Management Services, LLC (“Rushmore”), the prior mortgage servicer for Ms. Beersingh’s loan. 8. Rushmore subsequently issued a missing documents letter dated July 24, 2019, which requested additional documentation to complete Ms. Beersingh’s loan modification application, including a recorded quitclaim deed. A copy of the Rushmore missing documents letter dated July 24, 2019 is annexed hereto as Exhibit D. 9. On August 23, 2019, current counsel for Plaintiff, Knuckles Komosinski & Manfro, e-filed with the Court a consent to change attorney and began representing Plaintiff. The consent to change attorney is e-filed as NYSCEF Doc # 22. 10. Rushmore later sent Ms. Beersingh a loan modification denial letter dated October 11, 2019. The denial letter stated that the home retention package was incomplete and the document submission deadline had passed. A copy of the denial letter dated October 11, 2019 is annexed hereto as Exhibit E. 11. At the October 18, 2019 and February 21, 2020 foreclosure settlement conferences, the Court directed Ms. Beersingh to send a copy of the quitclaim deed to Plaintiff once it was recorded. A copy of the foreclosure settlement conference status forms from October 18, 2019 and February 21, 2020 are annexed hereto as Exhibit F. 12. On December 4, 2019, Plaintiff received a new loan modification application from Ms. Beersingh. A copy of the cover page from Ms. Beersingh’s loan modification application is annexed hereto as Exhibit G. 13. From December 6, 2019 to July 7, 2021, Plaintiff’s counsel exchanged no less than twenty-three (23) emails with Olivia Canlas (the “housing counselor”), a housing counselor from Margert Community Corporation, who was assisting Ms. Beersingh with her loan modification application, in which Plaintiff requested a copy of the recorded quitclaim deed in order to proceed with Ms. Beersingh’s loan modification application review. Those emails are annexed hereto as Exhibit H. 14. At the settlement conference held on July 22, 2021, Ms. Beersingh appeared with an attorney from Queens Legal Services, who provided notice that Queens Legal Services was appearing on behalf of Ms. Beersingh for the limited purpose of the foreclosure settlement conferences. A Limited Notice of Appearance by Queens Legal Services was e-filed that same day as NYSCEF Doc #25. 15. On July 26, 2021, Ms. Beersingh’s attorneys informed Plaintiff’s counsel by email that a quitclaim deed was not necessary because Euron Burns had already executed a bargain and sale deed conveying his interest in the home to Ms. Beersingh as sole titleholder, on April 23, 2014. The bargain and sale deed was recorded in the NYC Department of Finance Office of the City Register on May 29, 2014. A copy of the bargain and sale deed is annexed hereto as Exhibit I. A copy of the email accompanying the bargain and sale deed is annexed hereto as Exhibit J. 16. On August 25, 2021, Ms. Beersingh sent a Mortgagor’s Declaration of COVID-19 hardship form to Plaintiff and the Court. Ms. Beersingh’s mortgagor’s declaration of COVID-19 hardship form is e-filed as NYSCEF Doc #26. 17. On September 18, 2021, the Court held a settlement conference that was adjourned because of Ms. Beersingh’s COVID-19 related hardship. 18. On November 12, 2021, Ms. Beersingh submitted a loan modification application to Plaintiff. A copy of the cover page of Ms. Beersingh’s loan modification application is annexed hereto as Exhibit K. 19. On December 3, 2021, Plaintiff’s counsel emailed a missing documents letter from Plaintiff’s mortgage servicer Selene Finance LP (“Selene”), which requested the last 2 years of W-2 statements, the divorce decree legal separation agreement, and proof of any household income for each borrower. A copy of the missing documents letter is annexed hereto as Exhibit L. 20. On December 6, 2021, Ms. Beersingh provided Plaintiff with her W-2 from 2019 and a copy of her 2016 loan modification. Ms. Beersingh, through her counsel, further responded that she already provided her 2020 W-2 and a copy of the stipulation of settlement related to her divorce with her November 12, 2021 submission, and stated that Ms. Beersingh already provided proof of all of her income. A copy of the email which attached the documents is annexed hereto as Exhibit M. 21. On December 15, 2021, Plaintiff’s counsel emailed a subsequent missing documents letter again asking for proof of any household income for each borrower. A copy of the missing documents letter is annexed hereto as Exhibit N. 22. On December 23, 2021, Ms. Beersingh submitted a signed letter explaining that she already provided proof of all of her household income. A copy of the email which attached the document is annexed hereto as Exhibit O. 23. On February 3, 2022, Ms. Beersingh’s counsel wrote to Plaintiff’s counsel asking for an update on her application. That same day, Plaintiff’s counsel responded that Ms. Beersingh’s application was submitted to underwriting on January 12, 2022 and a decision on the application was expected no later than February 11, 2022. A copy of the related emails is annexed hereto as Exhibit P. 24. On February 4, 2022, a settlement conference was held. The Court directed “Defendant to put in a written request for tolling of interest and/or balloon due to delays in reviewing package including the requirement that a quitclaim deed be filed which was unnecessary by 2/11/2022.” The Court further directed “Plaintiff to respond to defendant’s request prior to next conference” and “Bank rep to be present at the next conference to explain response and to determine if a good faith hearing is required.” A copy of the foreclosure settlement conference status form from February 4, 2022 is annexed hereto as Exhibit Q. 25. On February 10, 2022, Ms. Beersingh emailed Plaintiff her request for 30 months of interest waiver, and proposed a loan modification with the following terms: unpaid principal balance of $320,000, interest rate of 3 percent, terms of 30 years, $59,000 of arrears in a non-interest bearing balloon, with a monthly payment of $1,697. A copy of the request for interest waiver is annexed hereto as Exhibit R. 26. On February 11, 2022, Plaintiff’s counsel emailed to Ms. Beersingh’s counsel a trial modification offer, from March 1, 2022 to June 1, 2022, with a payment of $2,636.84, which would ultimately convert into a permanent modification with a principal balance of $419,486.62, interest rate of 5.5 percent, $113,039.15 of arrears in non-interest bearing balloon, with a monthly payment of $2,636.84. A copy of the trial offer and related emails is annexed hereto as Exhibit S. 27. On February 17, 2022, Ms. Beersingh’s counsel wrote to Plaintiff’s counsel for an update on Ms. Beersingh’s offer. On February 22, 2022, Plaintiff’s counsel wrote that Selene Finance had completed their review and determined that the offered trial modification would remain unchanged. Ms. Beersingh’s counsel sent an additional email challenging the response. A copy of the emails is annexed hereto as Exhibit T. 28. On March 4, 2022, the Court held a settlement conference and referred this case to a good faith hearing. The parties were “directed to contact Judge Evans’ part to schedule the good faith hearing.” The reason for referral is: Defendant alleges that the Plaintiff did not act in good faith due to a delay in reviewing the defendant for a loan modification by asking for a quitclaim deed which was unnecessary. The defendant requested tolling of interst [sic] which Plaintiff did not offfer [sic]. The defendant did not accept the trial modification offered as she says it is unaffordable and raises the interest rate. The Plaintiff states they acted in good faith and all reviews were done properly and the offer and all determinations were done to industry standard and the rate offered is the investor floor interest rate. A copy of the Foreclosure Settlement Conference Status Form from March 4, 2022 and the referral are annexed hereto as Exhibit U. In light of the above conceded set of facts, there is no need for a hearing in this matter. The Bank has conceded the operative facts that justify the Court’s finding. CONCLUSIONS OF LAW II. Plaintiff’s Duty to Negotiate in Good Faith Pursuant to CPLR 3408 (f), the parties at a mandatory foreclosure settlement conference are required to negotiate in good faith to reach a mutually agreeable resolution (see Wells Fargo Bank, N.A. v. Meyers, 108 AD3d 9, 11, 966 NYS2d 108 [2013]). “The purpose of the good faith requirement…is to ensure that both plaintiff and defendant are prepared to participate in a meaningful effort at the settlement conference to reach resolution” (US Bank N.A. v. Sarmiento, 121 AD3d 187, 200, 991 NYS2d 68 [2d Dept. 2014] [internal quotation marks omitted]). Compliance with the good faith requirement is measured by the totality of the circumstances and whether the party’s conduct demonstrates a meaningful effort at reaching a resolution (see id at 203; CPLR 3408 [f]); Aurora Loan Servs., LLC v. Diakite, 148 A.D.3d 662, 663-664, 48 N.Y.S.3d 490, 492, 2017 N.Y. App. Div. LEXIS 1511, *4-5, 2017 NY Slip Op 01528, 2, 2017 WL 776993 [2d Dept. 2017]). CPLR Rule 3408 controls mandatory settlement conference(s) in residential foreclosure actions and sets the statutory requirements of foreclosure scheduling (McKinney’s CPLR 3408). CPLR 3408(f) requires that the parties “…must negotiate in good faith to reach a mutually agreeable resolution…” The concept of “good faith” sounds in equity and is a requirement of negotiation is a residential foreclosure case. Good faith is examined and determined through a totality of the circumstances standard, (U.S. Bank National Association v. Sarmiento, supra at 991 NYS2d 68 [2d Dept 2014]; see PNC Bank National Association v. Campbell, 142 AD3d 1147, 38 NYS3d 234 [2d Dept 2016]; One W. Bank v. Coffey, 2018 N.Y. Misc. LEXIS 3572, *3-4, 2018 NY Slip Op 32012(U) 2-3 [Sup. Ct. Suff. Co. 2018]). In Sarmiento, the Court Attorney Referee reported that over a three (3) year period of time the Plaintiff/Mortgagee had engaged in three (3) unsuccessful settlement conferences. The Referee contended that Plaintiff had failed to negotiate in good faith. (Id. at 195, 73). The Court determined that plaintiff’s communication with defendant “had sown confusion, distress, and doubt, by including, among other things, confusing and vague rejection notices and requests for duplicative documents.” (Id. at 197, 75). Dilatory conduct by making piecemeal document requests, providing contradictory information, and repeatedly requesting documents that had already been provided will not constitute good faith (see LaSalle Bank, N.A. v. Dono, 135 AD3d 827, 829, 24 NYS3d 144 [2d Dept. 2016]; Onewest Bank, FSB v. Colace, 130 AD3d 994, 996, 15 NYS3d 109 [2d. Dept. 2015]; US Bank N.A. v. Sarmiento, supra at 204). III. Cases Dealing With the Failure to Negotiate in Good Faith Notwithstanding the failure of Plaintiff’s counsel to provide even a single case on the specific issue of his client’s duty to negotiate in good faith, as requested by this Court, there are many cases, holding in different directions, which are germane to the issue. The following cases demonstrate the situations in which the duty to negotiate in good faith has been breached. For example. in Aurora Loan Servs., LLC v. Diakite, 148 A.D.3d 662, 663-664, 48 N.Y.S.3d 490, 492, 2017 N.Y. App. Div. LEXIS 1511, *4, 2017 NY Slip Op 01528, 2, 2017 WL 776993 [2d Dept. 2017], cited by counsel for the defendant-borrower, the Second Department held: Pursuant to CPLR 3408 (f), the parties at a mandatory foreclosure settlement conference are required to negotiate in good faith to reach a mutually agreeable resolution (see Wells Fargo Bank, N.A. v. Meyers, 108 AD3d 9, 11, 966 NYS2d 108 [2013]). “The purpose of the good faith requirement…is to ensure that both plaintiff and defendant are prepared to participate in a meaningful effort at the settlement conference to reach resolution” (US Bank N.A. v. Sarmiento, 121 AD3d 187, 200, 991 NYS2d 68 [2014] [internal quotation marks omitted]). Compliance with the good faith requirement is measured by the totality of the circumstances and whether the party’s conduct demonstrates a meaningful effort at reaching a resolution (see id. at 203; CPLR 3408 [f]). Here, the totality of the circumstances supports the finding that the plaintiff failed to negotiate in good faith. The hearing evidence demonstrated that the plaintiff, among other things, engaged in dilatory conduct by making piecemeal document requests, providing contradictory information, and repeatedly requesting documents that had already been provided (see LaSalle Bank, N.A. v. Dono, 135 AD3d 827, 829, 24 NYS3d 144 [2016]; Onewest Bank, FSB v. Colace, 130 AD3d 994, 996, 15 NYS3d 109 [2015]; US Bank N.A. v. Sarmiento, 121 AD3d at 204) (emphasis supplied). Plaintiff’s argument is that “[i]t is not negotiating in “bad faith” to request industry standard documents for a loan modification application, and follow-up for over 19 months in an attempt to complete the application for review. If anything, it is “bad faith” to avoid producing the required documentation to the servicer in a timely manner all while living in or renting a house while paying none of the carrying costs.” (Memorandum of Christopher M. McKniff, Esq., at page 9). Here, it is uncontested that the Plaintiff requested and insisted upon receiving only a quitclaim deed from the borrower’s former spouse, after the borrower had received a recorded bargain and sale deed from her former spouse assigning to her his interest in the property. The need for a quitclaim deed was obviated because her erstwhile husband, Euron Burns, had already relinquished his interest in the property by bargain and sale deed more than four years prior to the commencement of this foreclosure action. That document was duly recorded and was therefore public notice of her ownership interest in the subject property which could have easily been discovered by the Plaintiff. Characterizing an unnecessary document as “industry standard”2 is specious, and tantamount to saying “we always require that” irrespective of whether it is necessary or not. In addition, the borrower was again requested to provide her W-2 statements, which had already been provided. The Court finds as in Aurora, the insistence upon unnecessary documentation constitutes a dilatory tactic on the plaintiff’s part, in its failure and derogation of plaintiff’s duty to negotiate in good faith. Similarly, in LaSalle Bank, N.A. v. Dono, 135 A.D.3d 827, 829, 24 N.Y.S.3d 144, 147, 2016 N.Y. App. Div. LEXIS 336, *4-5, 2016 NY Slip Op 00340, 2 [2d Dept. 2016]) the Second Department stated: Here, contrary to the Bank’s contention, the totality of the circumstances support the Supreme Court’s conclusion that it failed to negotiate in good faith. The homeowner’s submissions demonstrated that the Bank, among other things, engaged in dilatory conduct by “making piecemeal document requests, providing contradictory information, and repeatedly requesting documents which had already been provided” (Onewest Bank, FSB v. Colace, 130 AD3d 994, 996, 15 NYS3d 109 [2015]; see US Bank N.A. v. Sarmiento, 121 AD3d at 204). The Bank failed to offer any evidence in opposition to the homeowner’s motion and did not controvert the homeowner’s account of the mandatory settlement negotiations. Accordingly, under the circumstances, the Supreme Court properly concluded that the Bank violated CPLR 3408 (f) by failing to negotiate in good faith (see U.S. Bank N.A. v. Smith, 123 AD3d at 916; US Bank N.A. v. Williams, 121 AD3d 1098, 1102, 995 NYS2d 172 [2014]; US Bank N.A. v. Sarmiento, 121 AD3d at 204-205; see also Onewest Bank, FSB v. Colace, 130 AD3d 994, 996, 15 NYS3d 109 [2015])… Here, the Supreme Court providently exercised its discretion in imposing a sanction that abated all interest, disbursements, costs, and attorney’s fees that had accrued during the period between October 1, 2010, and August 12, 2014, the date of the order, since that period corresponds to the period during w hich the Supreme Court concluded that the Bank had failed to negotiate in good faith (see U.S. Bank N.A. v. Smith, 123 AD3d at 917; US Bank N.A. v. Williams, 121 AD3d at 1102) (emphasis supplied). Presently, there was apparently an approximately 30-month delay during which the unnecessary quitclaim deed along with salary information, which had been provided, was requested again — needlessly. There was a recorded bargain and sale deed which was easily accessible to the plaintiff, which they fail to address in their papers. Under the totality of the circumstances, it can hardly be gainsaid that the plaintiff’s conduct demonstrated a lack of good faith. Likewise, U.S. Bank N.A. v. Smith, 123 A.D.3d 914, 916-917, 999 N.Y.S.2d 468, 470, 2014 N.Y. App. Div. LEXIS 8747, *5-6, 2014 NY Slip Op 08832, 2-3 [2d Dept. 2014]), the Second Department found that: Here, the totality of the circumstances supports the referee’s finding that the plaintiff failed to negotiate in good faith. The referee’s finding was based, in part, upon the plaintiff’s failure to follow guidelines pursuant to the federal Home Affordable Mortgage Program (hereinafter HAMP)… Courts are authorized to impose sanctions for violations of CPLR 3408 (f) (see US Bank N.A. v. Sarmiento, 121 AD3d 187, 991 NYS2d 68 [2014]). However, “CPLR 3408 (f) does not set forth any specific remedy for a party’s failure to negotiate in good faith” (Wells Fargo Bank, N.A. v. Meyers, 108 AD3d at 19). In such absence, “courts have resorted to a variety of alternatives in an effort to enforce the statutory mandate to negotiate in good faith” (id. at 20). The sanction imposed in this case, to wit, barring the plaintiff from collecting interest on the mortgage loan for the period between October 5, 2012, and July 5, 2013, was a provident exercise of the Supreme Court’s discretion (see US Bank N.A. v. Williams, 121 AD3d 1098, 995 NYS2d 172 [2014]; see generally Norw est Bank Minn., NA v. E.M.V. Realty Corp., 94 AD3d 835, 837, 943 NYS2d 113 [2012]; Deutsche Bank Trust Co., Ams. v. Stathakis, 90 AD3d 983, 984, 935 NYS2d 651 [2011]; Preferred Group of Manhattan, Inc. v. Fabius Maximus, Inc., 51 AD3d 889, 890, 859 NYS2d 236 [2008]) [emphasis added]). The same outcomes were reached in US Bank v. Gottlieb, 2019 Misc LEXIS 1002 *; 2019 NY Slip Op 30586 (U) ** [Sup. Ct. Suffolk Co. 2019]), (the plaintiff failed to act reasonably and make a meaningful effort to reach resolution); One W. Bank v. Coffey, 2018 NY Misc LEXIS 3572 *; 2018 NY Slip Op 32012(U) ** [Sup. Ct. Suffolk Co. 2018]) (plaintiff offers only excuses, not reasons for its inordinate delay in processing the aspects of the case which were within its power)] IV. Cases Cited By Plaintiff’s Counsel Plaintiff’s counsel submitted five cases in response to this Court’s direction that apposite case law be provided: (1) Bankers Trust Co. v. Hoovis, 263 A.D.2d 937, 694 N.Y.S.2d 245, 1999 N.Y. App. Div. LEXIS 8452, a 1999 Third Department case, which held “where plaintiff was the assignee of a mortgage at the time of service of the complaint, plaintiff had standing and was entitled to commence a proceeding in its own name. Further, a mortgagee was not required to accept an insufficient tender of payment of arrears and after issuing notification to the mortgagor of acceleration of the entire debt, a mortgagee had the right to reject payment of partial or full arrears, even where a foreclosure action had not been commenced. Denial of defendant’s motion for summary judgment was affirmed;” (2) EMC Mortg. Corp. v. Stewart, 2 A.D.3d 772, 769 N.Y.S.2d 408, 2003 N.Y. App. Div. LEXIS 14187, a 2003 Second Department case holding that the borrower “failed to demonstrate the existence of a triable issue of fact. The appellant’s pleadings not only raised no valid defenses, but acknowledged the default and debt owed. It is well settled that once a mortgagor defaults on loan payments, a mortgagee is not required to accept less than the full repayment as demanded;” (3) Home Sav. of Am. v. Isaacson, 240 A.D.2d 633, 659 N.Y.S.2d 94, 1997 N.Y. App. Div. LEXIS 6798 in which the Second Department, in 1997, held that “the appellants did not tender sufficient sums within the relevant time parameters so as to stave off foreclosure. Prior to the effective date of the notice of default and acceleration, they did not tender all arrears plus interest and late charges, and after acceleration they did not tender the entire balance due. Thus, clearly they have no defense of tender as would warrant denial of the plaintiff’s summary judgment motion;” (4) Levine v. Infidelity, Inc., 285 A.D.2d 629, 728 N.Y.S.2d 670, 2001 N.Y. App. Div. LEXIS 7688, a 2001 Second Department decision, in which the court held that “[t]he Supreme Court properly granted the plaintiff’s motion for summary judgment upon reargument;” (5) Nassau Trust Co. v. Montrose Concrete Products Corp., 56 N.Y.2d 175, 436 N.E.2d 1265, 451 N.Y.S.2d 663, 1982 N.Y. LEXIS 3327, a 1982 Court of Appeals case that held in principal part that “in a mortgage foreclosure action based upon nonpayment, an alleged oral waiver by the mortgagee of the right to accelerate the principal and foreclose in order to give the delinquent mortgagor a reasonable opportunity to negotiate an unforced sale of the mortgaged premises, constitutes a valid affirmative defense to foreclosure.” In this Court’s reading, none of the above decisions discusses the issue of the bank’s duty to negotiate in good faith under CPLR 3408 (f). Given the rich variety of case law which is on point, disclosed by the Court’s research, and the nature of the jointly agreed-upon facts which point to delays on the part of the Plaintiff in seeking unnecessary documents, this Court is surprised at the unwillingness of Plaintiff”s counsel to make a yeoman’s effort, or at least a minimally sincere effort when requested to negotiate this matter to avoid a punitive outcome to his client. It is with displeasure that this Court is constrained to make findings of a lack of good faith from the time of the original settlement conferences in this matter to present. Moreover, the Court is dismayed at Plaintiff’s counsel’s failure to follow simple instructions requiring the submission of factually apposite case law. CONCLUSION Accordingly, the sanction that shall be imposed in this case shall be to toll all interest, disbursements, costs, and attorney’s fees that have accrued during the period between February 22, 2019 and May 12, 2022, the date of this order. That period corresponds to the period during which the bank has failed to negotiate in good faith. While the Court finds that Plaintiff’s counsel’s efforts to resolve this matter without court intervention as directed were unspecified and insufficient, it declines to impose any personal sanction upon him, since any damage that occurred resulted to his own client. This is the Decision and Order of the Court. Dated: May 12, 2022
