Indymac Bank v. Yano-Horoski

Decision Date19 November 2009
Docket NumberNo. 2005-17926,2005-17926
Citation890 N.Y.S.2d 313,26 Misc.3d 717,2009 NY Slip Op 29491
PartiesINDYMAC BANK F.S.B., Plaintiff, v. DIANA YANO-HOROSKI et al., Defendants.
CourtNew York Supreme Court
26 Misc.3d 717
890 N.Y.S.2d 313
2009 NY Slip Op 29491
INDYMAC BANK F.S.B., Plaintiff,
v.
DIANA YANO-HOROSKI et al., Defendants.
No. 2005-17926
Supreme Court, Suffolk County.
Decided November 19, 2009.

Steven J. Baum, P.C., Buffalo, for plaintiff.

Diana Yano-Horoski, defendant pro se.

[26 Misc.3d 718]

OPINION OF THE COURT

JEFFREY ARLEN SPINNER, J.


This is an action wherein the plaintiff claims foreclosure of a mortgage dated August 4, 2004 in the original principal amount of $292,500 recorded with the Clerk of Suffolk County, New York in Liber 20826 of Mortgages at page 285. The mortgage secures an adjustable rate note of the same amount with an initial interest rate of 10.375%. The mortgage encumbers real property commonly known as 8 Oakland Street, East Patchogue, Town of Brookhaven, New York and described as district 0200, section 979.50, block 05.00, lot 001.000 on the Tax Map of Suffolk County. Plaintiff commenced this action by filing a summons, verified complaint and notice of pendency on July 27, 2005. The notice of pendency was extended by order dated September 2, 2008 and a judgment of foreclosure and sale was granted on January 12, 2009.

Thereafter and in accordance with Laws of 2008, chapter 472, § 3-a, and in view of the fact that the loan at issue was deemed to be "subprime" or "high-cost" in nature, defendant seasonably requested that the court convene a settlement conference. That request was granted and a conference was commenced on February 24, 2009, which was continued five times in a series of unsuccessful attempts by the court to obtain meaningful cooperation from plaintiff. In view of plaintiff's intransigence in its continuing failure and refusal to cooperate, both with the court and with defendant's multiple and reasonable requests, the court directed that plaintiff produce an officer of the bank at the adjourned conference scheduled for September 22, 2009.

At the conference held on September 22, 2009, Karen Dickinson, regional manager of loss mitigation for IndyMac Mortgage Services, a division of OneWest Bank F.S.B. (IndyMac) appeared on behalf of plaintiff. IndyMac purports to be the servicer of the loan for the benefit of Deutsche Bank which, it is claimed, is the owner and holder of the note and mortgage (though the record holder is IndyMac Bank F.S.B., an entity which no longer is in existence). At that conference, it was celeritously made clear to the court that plaintiff had no good faith intention whatsoever of resolving this matter in any manner other than a complete and forcible devolution of title from defendant. Although IndyMac had prepared a two-page document entitled "Mediation Yano-Horoski" which contained what purported to be a financial analysis, Ms. Dickinson's affirmative statements made it abundantly clear that no form of mediation, resolution or settlement

26 Misc.3d 719

would be acceptable to plaintiff. IndyMac asserts the total amount due it to be in excess of $525,000 and freely concedes that the property securing the loan is worth no more than $275,000. Although Ms. Dickinson insisted that Ms. Yano-Horoski had been offered a "Forbearance Agreement" in the recent past upon which she quickly defaulted, it was only after substantial prodding by the court that Ms. Dickinson conceded, with great reluctance, that it had not been sent to defendant until after its stated first payment due date and hence, defendant could not have consummated it under any circumstances (defendant, through plaintiff's duplicity, found herself to be in the unique and uncomfortable position of being placed in default of the "agreement" even before she had received it). Plaintiff flatly rejected an offer by defendant's daughter to purchase the house for its fair market value (a so-called "short sale") with third-party financing. Plaintiff refused to consider a loan modification utilizing any more than 25% of the income of defendant's husband and daughter (both of whom reside in the premises with her), the excuse being that "[w]e can't control what non-obligors do with their money" (the logical follow up to this statement is, how does the bank control what the obligor does with her money?). The court found IndyMac's position to be deeply troubling, especially since a plethora of subprime loans in this county's Foreclosure Conference Part have been successfully modified with the lender's reliance upon the income of nonobligors who reside in the premises under foreclosure. The plaintiff also summarily rejected an offer by both defendant's husband and daughter to voluntarily obligate themselves for payment upon the full indebtedness, thus committing their individual incomes expressly to the purpose of a loan modification. It should be noted here that defendant did not even request any waiver or "forgiveness" of the indebtedness aside from some tinkering with the interest rate, just a modification of terms so as to enable her to repay the same. It was evident from Ms. Dickinson's opprobrious demeanor and condescending attitude that no proffer by defendant (short of consent to foreclosure and ejectment of defendant and her family) would be acceptable to plaintiff. Even a final and desperate offer of a deed in lieu of foreclosure was met with bland equivocation. In short, each and every proposal by defendant, no matter how reasonable, was soundly rebuffed by plaintiff. Viewed objectively, it is apparent that plaintiff's conduct in this matter falls within the definitions set forth in 22 NYCRR 130-1.1 (c) (2), which might well warrant the imposition of monetary sanctions.

26 Misc.3d 720

On the court's own motion, a hearing was held on November 18, 2009 in order to explore the issues herein. At the hearing, Ms. Dickinson appeared as well as Mr. Horoski. IndyMac claimed a balance due, as of September 22, 2009, of $527,437.73, which included an escrow overdraft of $46,627.88 for taxes advanced since the date of default, but did not include attorney's fees and costs. Plaintiff was unable to tell the court the amount of the principal balance owed. Mr. Horoski advised the court that according to two letters received from plaintiff, the principal balance was said to be $285,381.70 as of February 9, 2009 and $283,992.48 as of August 10, 2009. Plaintiff stated that defendant must have made payments though it was conceded that in fact no payment had been made. Plaintiff insisted that it had remained in regular contact with defendant in an effort to reach an amicable resolution, that it had extended two modification offers to defendant which she did not accept and further, that due to her financial status she was not qualified for any modification, even under the Federal Home Affordable Modification Program guidelines. Plaintiff denied that it had "singled out" defendant, simply stating that her...

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  • CitiMortgage, Inc. v. Sultan
    • United States
    • New York Supreme Court
    • October 29, 2014
    ...Slip Op. 50871[U] ), and a plaintiff's blatant refusal to consider any alternatives except foreclosure (IndyMac Bank F.S.B. v. Yano–Horoski, 26 Misc.3d 717, 718, 890 N.Y.S.2d 313 [Sup.Ct., Suffolk County 2009], rev'd on other grounds 78 A.D.3d 895, 912 N.Y.S.2d 239 [2d Dept.2010] ). Notably......
  • HSBC Bank USA, Nat'l Ass'n v. McKenna
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    ...because they do not explicitly address the good faith requirement of CPLR 3408(f), the opinions in IndyMac Bank, F.S.B. v. Yano–Horoski, 26 Misc.3d 717, 890 N.Y.S.2d 313 [Sup. Ct. Suffolk County 2009],rev'd as to sanction78 A.D.3d 895, 912 N.Y.S.2d 239 [2d Dept.2010] are informative. The tr......
  • U.S. Bank Nat'l Ass'n v. Kimball
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    ...2010 WL 1856016 (N.Y.Sup.Ct. May 11, 2010), reversed by 83 A.D.3d 1047, 921 N.Y.S.2d 320 (2011); IndyMac Bank F.S.B. v. Yano–Horoski, 26 Misc.3d 717, 890 N.Y.S.2d 313 (Sup.Ct.2009), reversed by 78 A.D.3d 895, 912 N.Y.S.2d 239 ...
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    ...897 N.Y.S.2d 605), and vacated the judgment of foreclosure and sale and cancelled the note and mortgage ( IndyMac Bank F.S.B. v. Yano–Horoski, 26 Misc.3d 717, 718, 890 N.Y.S.2d 313 [Sup. Ct., Suffolk County], revd.78 A.D.3d 895, 912 N.Y.S.2d 239). In IndyMac, we determined that the “severe ......
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