Opinion
Index No. 21014/2008
12-21-2021
CITIBANK, N.A., AS TRUSTEE FOR the MLMI TRUST SERIES 2006-HE, Plaintiff, v. Heather P. BOYCE a/k/a Heather Boyce, Sherwood L. Boyce a/k/a Sherwood Boyce, Peoples Alliance Federal Credit Union, Defendant(s).
GROSS POLOWY, LLC, Attorneys for Plaintiff, 1775 Wehrle Drive, Suite 100, Williamsville, New York 14221 JEFFREY HERZBERG, P.C, Attorney for Defendants Boyce, 300 Rabro Drive, Suite 114, Hauppauge, New York 11788
GROSS POLOWY, LLC, Attorneys for Plaintiff, 1775 Wehrle Drive, Suite 100, Williamsville, New York 14221
JEFFREY HERZBERG, P.C, Attorney for Defendants Boyce, 300 Rabro Drive, Suite 114, Hauppauge, New York 11788
Robert F. Quinlan, J.
UPON the papers submitted (notice of motion with supporting papers, opposition and reply) it is
ORDERED that plaintiff's motion for leave to renew is granted, and it is further
ORDERED that upon renewal, defendants’ motion for an order requiring the plaintiff to establish standing and granting summary judgment in accordance with RPAPL § 1302-a is denied.
By decision and order of this Court, dated September 17, 2021, it was determined that the issue of standing raised by defendants’ motion required a hearing. Plaintiff's counsel indicates that in preparation for the hearing he discovered two stipulations, which he states negate the need for a hearing. Thereafter, after a conference with the parties, the hearing was adjourned to allow plaintiff to take any appropriate avenue.
Plaintiff has now moved to leave to renew. Plaintiff notes that the two stipulations, one in 2008 and one in 2009, provide the basis to grant renewal as the reason not raising these in the prior motion was that the issue of standing had been deemed waived prior to the Judgement of Foreclosure and Sale being granted on June 25, 2019, which was prior to the enactment of RPAPL § 1302-a. Defendant argues that the plaintiff has failed to establish that it exercised due diligence in opposition to their motion (Motion Seq. #007), so that leave to renew should not be granted.
A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination ... and ... shall contain reasonable justification for the failure to present such facts on the prior motion" ( CPLR 2221[e][2], [3] ). "The requirement that a motion for leave to renew must be based on new facts is a flexible one" ( Rakha v. Pinnacle Bus Servs. , 98 AD3d 657, 658 [2nd Dept. 2012] ). Here, in light of this case pending for 13 years, through several courts including an appeal, plus the change of law which, in effect vitiated the waiver of standing, there is reasonable justification for plaintiff having overlooked the two stipulations entered into over a decade ago in preparing their opposition to defendant's motion.
As plaintiff notes, their law firm was not involved in the defendants’ bankruptcy, so that the firm was not aware of the stipulations.
Addressing the issue of whether such new facts would change the prior determination, the stipulations state that plaintiff is "the owner and holder of the mortgage (the "Mortgage") which is being foreclosed ..." Furthermore, the stipulations state that defendants, Heather and Sherwood Boyce "acknowledges they have no defense to this action and therefore agree to waive any claim or defense ..." As standing, at the time of the these stipulations was waivable, such statement is further evidence of acknowledgment of plaintiff's standing, i.e. that plaintiff was the holder of the note and mortgage at the commencement of this action. Moreover, the stipulations state that upon completing initial payments the "the Defendants will resume regular monthly payments pursuant to the terms of the Note and Mortgage." Therefore, the plain language of the two stipulations establish plaintiff's standing.
Defendants argue that even if the stipulations establish standing, they are unenforceable for several reasons and therefore should not be utilized. "A stipulation is in the nature of a contract and is subject to the rules governing contracts" (Kleinberg v. Ambassador Assoc. , 103 AD2d 437,437 [1st Dept.] affd , 64 NY2d 733 [1984] ). Initially, defendants argue that the stipulations were not enforceable based upon lack of consideration. However, the stipulations indicate that upon payment, plaintiff will reinstate the mortgage and discontinue the action . Clearly, such actions provide consideration for the stipulations, as the plaintiff was giving up a right to proceed with the foreclosure. "[F]orbearance is valuable consideration supporting the enforcement of an obligation" ( Lebedev v. Blavatnik , 193 AD3d 175 [1st Dept. 2021] (cite omitted). Next the defendants argue that the stipulations are contracts of adhesion or unconscionable. Defendants argue that plaintiff knew that the they were desperate to keep their house, so the terms were unfair. An unconscionable contract is "one which is so grossly unreasonable or unconscionable in the light of the mores and business practices of the time and place as to be unenforceable according to its literal term." ( Gillman v. Chase Manhattan Bank, N.A. , 73 NY2d 1, 10 [1988] ). "In general, an unconscionable contract has been defined as one which is so grossly unreasonable as to be unenforceable because of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party" ( King v. Fox, 7 NY3d 181, 191 [2006] ). Here, it is clear that the offering of a reasonable loan modification does not raise the to level of an unconscionable contract nor a contract of adhesion (see Estates NY Real Estate Services LLC v. City of New York , 184 AD3d 56 [1st Dept. 2020] ). Nor is there evidence of a breach of the implied covenant of good faith (see Laskaratos v. Bay Ridge Hoyt Lender, LLC , 185 AD3d 90 [2nd Dept. 2021]). Furthermore, there is no evidence of fraud in the inducement based upon a claim that plaintiff knew that it had misplaced the note at the time of the stipulations, therefore there is no misrepresentation of a material fact, which is required for fraud in the inducement (see Orchid Const. Corp. v. Gottbetter , 89 AD3d 708 [2nd Dept. 2011] ). Moreover, the stipulations are enforceable against defendants, the party to be charged, so the failure of plaintiff to execute the stipulations does not make them unenforceable (see Sabetfard v. Djavaheri Realty Corp. , 18 AD3d 640 [2nd Dept. 2005] ).
Plaintiff notes that defendants failed to make a payment required under the 2008 stipulations so the action was not discontinued.
Defendant presents no evidence nor analysis that the rate was usury.
Based upon a finding that the stipulations are valid, that they provide new facts, i.e. defendants stipulated that plaintiff was the holder of the note and mortgage at the commencement of the action, which would change the prior determination, plaintiff has provided a basis to grant leave to renew. Therefore, in the exercise of discretion, noting that the rule is a flexible one, the motion for leave to renew is granted and the defendants motion is denied.
This determination is in harmony with the jurisprudence that "stipulations of settlement promote judicial economy and predictability in litigation, they are favored by the courts and are generally binding on parties that have legal capacity to negotiate, do in fact freely negotiate their agreement and either reduce their stipulation to a properly subscribed writing or enter the stipulation orally on the record in open court" (Matter of Badruddin , 152 AD3d 1010, 1013—1014 [3rd Dept. 2017] ). Moreover, stipulations of settlement "are favored by the courts and are not lightly cast aside" (Hallock v State of New York ,64 NY2d 224, 230 [1984] ).
It is noted that the prior decision and order did not decide defendant's motion but referred it to a hearing. At the hearing, plaintiff could offer the stipulations into evidence on the issue of standing. Therefore, in the interest of judicial economy, allowing the motion to renew is proper.
The foregoing constitutes the decision and order of the Court.