Bank of Am., N.A. v. Spencer

• Decision Date: 09 November 2018
• Docket Number: CA 17–01441,1063
• Citation: 166 A.D.3d 1514,86 N.Y.S.3d 692
• Parties: BANK OF AMERICA, N.A., Successor by Merger To BAC Home Loans Servicing, LP, Formerly Known as Countrywide Home Loans Servicing, LP, Plaintiff–Respondent, v. Patrick J. SPENCER, Also Known as Patrick Spencer, et al., Defendants, and Sandra B. Spencer, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1514

86 N.Y.S.3d 692

BANK OF AMERICA, N.A., Successor by Merger To BAC Home Loans Servicing, LP, Formerly Known as Countrywide Home Loans Servicing, LP, Plaintiff–Respondent,

v. Patrick J. SPENCER, Also Known as Patrick Spencer, et al., Defendants,and Sandra B. Spencer, Defendant–Appellant.

1063

CA 17–01441

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: November 9, 2018

LEGAL ASSISTANCE OF WESTERN NEW YORK, INC., GENEVA (AMARIS ELLIOTT–ENGEL OF COUNSEL), FOR DEFENDANT–APPELLANT.

DAVIDSON FINK LLP, ROCHESTER (RICHARD FRANCO OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, those parts of the motion seeking summary judgment on the amended complaint, seeking to strike the answer of defendant Sandra B. Spencer, and seeking appointment of a referee are denied, and the fifth through ninth ordering paragraphs are vacated.

Memorandum: Plaintiff commenced this action seeking to foreclose a mortgage secured by residential property owned by Sandra B. Spencer (defendant). We conclude that Supreme Court erred in granting plaintiff's motion seeking, inter alia, summary judgment on its amended complaint against defendant. In her pro se answer to the amended complaint, defendant alleged that the loan was subject to Federal Housing Administration guidelines and that plaintiff failed to comply with the regulations of the Department of Housing and Urban Development requiring the mortgagee to undertake certain pre-foreclosure measures, including a face-to-face meeting with the mortgagor, with respect to such loans. Although defendant did not specifically cite 24 CFR 203.604, the regulation establishing the face-to-face meeting requirement, in her answer, we afford the pro se answer a liberal reading (see generally HSBC Mtge. Corp. [USA] v. Johnston, 145 A.D.3d 1240, 1241, 43 N.Y.S.3d 575 [3d Dept. 2016] ; Wells Fargo Bank, N.A. v. Erobobo, 127 A.D.3d 1176, 1177, 9 N.Y.S.3d 312 [2d Dept. 2015], lv dismissed 25 N.Y.3d 1221, 16 N.Y.S.3d 514, 37 N.E.3d 1158 [2015] ), and conclude that defendant "sufficiently apprise[d] plaintiff" that she was challenging plaintiff's compliance with the requirements of that regulation ( Johnston, 145 A.D.3d at 1241, 43 N.Y.S.3d 575 ).

Plaintiff failed to establish that it complied with the requirements of 24 CFR 203.604 and thus failed to establish that it was entitled to...