Investors Bank v. Brooks
| Decision Date | 21 December 2022 |
| Docket Number | 2019–13855,Index No. 2813/17 |
| Citation | 211 A.D.3d 921,181 N.Y.S.3d 294 |
| Parties | INVESTORS BANK, respondent, v. Michael BROOKS, also known as Michael Ossam, et al., appellants, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
Charles Wallshein, Melville, NY, for appellants.
Frenkel Lambert Weiss Weisman & Gordon, LLP (Akerman LLP, New York, NY [Jordan M. Smith and Stefan M. Canizares ], of counsel), for respondent.
BETSY BARROS, J.P., JOSEPH A. ZAYAS, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Michael Brooks, also known as Michael Ossam, and Juliet Brooks, also known as Juliet Ossam, appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered July 31, 2019. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against those defendants, to strike those defendants’ answer, and for an order of reference, and denied those defendants’ cross motion for a hearing to determine whether sanctions should be imposed upon the plaintiff for failing to negotiate in good faith pursuant to CPLR 3408(f).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the cross motion of the defendants Michael Brooks, also known as Michael Ossam, and Juliet Brooks, also known as Juliet Ossam, for a hearing to determine whether sanctions should be imposed upon the plaintiff for failing to negotiate in good faith pursuant to CPLR 3408(f) is granted, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against those defendants, to strike those defendants’ answer, and for an order of reference are denied with leave to renew after a hearing and determination as to whether sanctions should be imposed upon the plaintiff for failing to negotiate in good faith pursuant to CPLR 3408(f), and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.
On September 28, 2006, the defendant Michael Brooks, also known as Michael Ossam (hereinafter Michael), obtained a loan in the amount of $661,000 from ABN AMRO Mortgage Group, Inc., and executed a promissory note accordingly. The note was secured by a mortgage on residential property located in Rockville Centre, executed by Michael and the defendant Juliet Brooks, also known as Juliet Ossam (hereinafter together the defendants). Michael defaulted on the loan by failing to make the monthly payment due on July 1, 2016. The mortgage was subsequently assigned to the plaintiff, and the mortgage loan was serviced by CitiMortgage, Inc. (hereinafter Citi).
On August 9, 2016, Citi sent Michael a 90–day pre-foreclosure notice, advising that he was 39 days in default, after which he applied to Citi for a loan modification. By letter dated August 16, 2016, Citi advised Michael that the application was incomplete and that Citi needed additional documents by October 29, 2016. By letter dated September 19, 2016, Citi indicated that it had finished reviewing Michael's documents, but it needed more documents by October 19, 2016. Citi did not explain why it advanced the deadline by 10 days. From September 28, 2016, to October 24, 2016, Michael and a Citi representative exchanged multiple emails in which they disputed the extent to which Michael had complied with additional document requests. The email exchange ended with Michael's emails sent on October 21, 2016, and October 24, 2016, in which he insisted that he had provided everything that had been asked of him, expressed confusion as to why Citi insisted otherwise, and asked the Citi representative to call him to discuss matters. On October 28, 2016, the Citi representative emailed Michael and informed him that Citi had closed its file on his loan modification application "due to the length of time it has taken to return the requested documents," and that he would have to reapply if he still wished to pursue a loan modification.
The defendants subsequently retained counsel, who submitted a second loan modification application to Citi on their behalf on or about January 12, 2017, and followed with a request for information on March 15, 2017. Citi responded by two separate letters, both dated March 31, 2017, one of which provided some of the requested information but objected to other requests, and the other advised that the application was incomplete and requested additional materials by April 30, 2017. The parties dispute whether the defendants ever provided the additional documents requested by Citi, and the defendants maintain that they had previously transmitted these documents with the application in January 2017. The record does not indicate that Citi ever issued a formal denial of the defendants’ second loan modification application.
On June 7, 2017, the plaintiff commenced this action against the defendants and others to foreclose the mortgage. The defendants thereafter interposed an answer. From January 2018 to July 2018, the Supreme Court held four settlement conferences, but the parties did not reach a resolution. Shortly after the first conference, the defendants submitted a third loan modification application to Citi on January 17, 2018. The parties corresponded over the next two months concerning whether the defendants had provided all of the...
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