M & T Bank v. Goldthwait

• Decision Date: 19 December 2016
• Docket Number: No. 2016–672.,2016–672.
• Parties: M & T BANK, Plaintiff, v. Paul R. GOLDTHWAIT a/k/a Paul R. Goldthwait, Sr. a/k/a Paul Goldthwait; Roberta M. Goldthwait, a/k/a Roberta Goldthwait; Paul R. Goldthwait, Jr. a/k/a P.R. Goldthwait, Jr.; et al., Defendants.
• Court: New York Supreme Court

57 N.Y.S.3d 675 (Table)

M & T BANK, Plaintiff,

v.Paul R. GOLDTHWAIT a/k/a Paul R. Goldthwait, Sr. a/k/a Paul Goldthwait; Roberta M. Goldthwait, a/k/a Roberta Goldthwait; Paul R. Goldthwait, Jr. a/k/a P.R. Goldthwait, Jr.; et al., Defendants.

No. 2016–672.

Supreme Court, Onondaga County, New York.

Dec. 19, 2016.

Schiller, Knapp, Lefkowitz & Hertzel, LLP, by: Gregory J. Sanda, Esq., Latham, Attorneys for Plaintiff.

Hiscock Legal Aid Society by: Joseph G. Murray, Esq., Syracuse, Attorneys for Goldthwait Defendants.

JAMES P. MURPHY, J.

In this action commenced by Plaintiff M & T Bank (the "Bank"), by the filing of a Summons and Complaint dated May 31, 2016, seeking to foreclose a Note and Mortgage dated January 25, 1990, made between Defendants Paul R. Goldthwait, Roberta Goldthwait and Paul R. Goldthwait, Jr. (the "Goldthwaits") and the Dale Mortgage Bankers Corp., the Goldthwaits, by Notice of Motion dated August 2, 2016, seeks to dismiss the Bank's Complaint pursuant to C.P.L.R. § 3211(a)(1). The Goldthwaits further seek an Order compelling the Bank to comply with a certain Loan Modification Agreement ("loan modification") entered into between the parties on September 23, 2015, and further compelling the Bank to place the Goldthwaits' mortgage account to the same position as if the Bank had not declined accepting their payments. Finally, the Goldthwaits seek an Order barring the Bank from charging any fees or costs, including attorneys' fees for any events or actions taken since the permanent loan modification. See, Affidavit of Roberta M. Goldthwait, sworn to on August 8, 2016, Exhibit D, Loan Modification Agreement.

The undisputed facts show that the Goldthwaits executed a Note and Mortgage dated January 25, 1990, in favor of Dale Mortgage Bankers Corp. in the sum of $37,350.00 relating to the premises located at 7929 Owasco Road, Clay, N.Y. 13041. Dale Mortgage Bankers Corp. gave an Assignment dated April 14, 1997, of the Note and Mortgage to M & T Mortgage Corporation. See, Affirmation of Joseph G. Murray, Esq., dated August 2, 2016, Exhibit L, Foreclosure Complaint filed in Index No.2013–5512, Schedule E, Assignment of Mortgage.

Subsequently, pursuant to an alleged default of the Goldthwaits on the Note and Mortgage, the Bank commenced a prior foreclosure action against the Goldthwaits by the filing of a Summons and Complaint in the Onondaga County Clerk's Office on October 22, 2013 (Index No.2013–5512). During the pendency of the 2013 foreclosure, the Bank by letter dated May 29, 2015, advised the Goldthwaits that they would be considered by the Bank to participate in a HUD pre-foreclosure sale program. The Bank stated that the Goldthwaits were "approved to enter into a trial period plan under the FHA's Home Affordable Modification Program ("FHA–HAMP). See, Goldthwait Aff., Exhibit A.

By letter dated September 17, 2015, the Bank informed the Goldthwaits that their application for a loan modification has been granted ... subject to various terms. The parties executed a permanent modification on September 23, 2015, providing that "as of the first day of November, 2015, the amount payable under the Note and Security Instrument ... is U.S. $50,015.50 consisting of the unpaid amount(s) loaned to Borrower by Lender, plus any interest and other amounts capitalized." A payment schedule for the loan modification set forth a term of 30 years, or 360 payments, with the principal and interest due and owing per month amounted to $253.42, together with escrow of $280.64 for a total payment of $534.06 commencing on November 1, 2015. In consideration of the above, the Bank discontinued the 2013 mortgage foreclosure action against the Goldthwaits, and the Goldthwaits executed a Release dated November 19, 2015, releasing the Bank on the Goldthwaits' counterclaims. A Stipulation to discontinue the above action was filed in the Onondaga County Clerk's Office on April 15, 2016.

The Goldthwaits commenced making payments in the sum of $534.06 for November 1, 2015; December 1, 2015; January 1, 2016; and on February 1, 2016. See, Goldthwait Aff., Exhibit B. The Goldthwaits then received a letter from the Bank dated February 3, 2016, notifying them that their request for a workout assistance "has been removed because there are liens or judgments that must be satisfied. Final review of your qualifications will be made upon receipt of the satisfaction of the liens and/or judgments." Id., Exhibit F. The Bank followed up with correspondence to the Goldthwaits dated February 8, 2016, returning a check in the amount of $207.74, stating that the payment did not represent the total amount due on the loan. Id., Exhibit G. Also, on February 8, 2016, the Bank sent correspondence to the Goldthwaits stating that as of February 8, 2016, their home loan was 1,378 days in default. Id., Exhibit H. The Bank commenced the above action (Index No.2016–672) on May 31, 2016, seeking to foreclose on the Note and Mortgage dated January 25, 1990, relating to the subject premises at 7929 Owasco Road, Clay, NY.

The Court now considers the Goldthwaits' motion to dismiss pursuant to C.P.L.R. § 3211(a)(1). The law is well established that under C.P.L.R. § 3211(a)(1), a dismissal is warranted if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law. See, Leon v. Martinez, 84...