National Sav. Bank v. Hartmann

19 Citing cases

  1. In re Pride Companies, L.P.

    CASE NO. 01-10041-11, ADVERSARY NO. 01-1002 (Bankr. N.D. Tex. Sep. 4, 2001)

    "As a general rule, a tender must include everything to which the creditor is entitled, including interest to the time the tender is made, or else it is not legally effective." Home Sav. of Am. v. Isaacson, 240 A.D.2d 633, 659 N.Y.S.2d 94, 95 (N.Y.App.Div. 199 7) (quoting National Sav. Bank of Albany v. Hartmann, 179 A.D.2d 76, 77, 582 N.Y.S.2d 523 (N.Y.App.Div. 1992)). Only a tender for the full amount due will be an effective tender for the purpose of preventing the accrual of interest.

  2. National Sav. Bank of Albany v. Hartmann

    79 N.Y.2d 759 (N.Y. 1992)

    Decided May 7, 1992 Appeal from (3d Dept: 179 A.D.2d 76) MOTIONS FOR LEAVE TO APPEAL GRANTED OR DENIED

  3. Cardella v. Giancola

    297 A.D.2d 618 (N.Y. App. Div. 2002)   Cited 8 times

    The plaintiffs made a prima facie showing of entitlement to judgment as a matter of law by proving the existence of the subject note and nonpayment according to its terms (see Gregorio v. Gregorio, 234 A.D.2d 512). The burden was therefore on the defendants to establish the existence of a triable issue of fact (see Neuhaus v. McGovern, 293 A.D.2d 727, 728; Gregorio v. Gregorio, supra). Contrary to the defendants' contention, they failed to establish that they made a valid tender in August 1994 of the full amount due plus interest to the time of the tender (see National Sav. Bank v. Hartmann, 179 A.D.2d 76). Furthermore, to stop the running of interest, a tender of payment must be unconditional (see Matter of Jeffrey Towers v. Strauss, 31 A.D.2d 319, 325, affd 26 N.Y.2d 812) . Although the defendants did not dispute that they owed $147,000 of the principal amount, they sought to impose a condition that the plaintiffs place the remaining $8,000 of the principal in escrow pending resolution of a dispute over real estate transfer taxes. As the defendants did not unconditionally tender the full amount due on the note, the Supreme Court erred in concluding that the plaintiffs were not entitled to interest on $147,000 of the principal.

  4. United Companies Lending Corp. v. Hingos

    283 A.D.2d 764 (N.Y. App. Div. 2001)   Cited 57 times

    "It is well settled that a mortgagee is not required to accept an insufficient tender of payment of arrears * * *" (Bankers Trust Co. v. Hoovis, 263 A.D.2d 937, 938-939 [citations omitted]). Stated another way, "[a] valid tender requires an actual proffer of all mortgage arrears" (First Fed. Sav. Bank v. Midura, 264 A.D.2d 407, 407 [emphasis supplied]), which generally encompasses everything to which the mortgagee is entitled, including any interest or late charges (see, National Sav. Bank of Albany v. Hartmann, 179 A.D.2d 76, 77, lv denied 79 N.Y.2d 759). Additionally, once a default has been declared and the debt has been accelerated, the mortgagee is not required to accept anything less than full repayment of the debt (see, First Fed. Sav. Bank v. Midura, supra, at 407-408) and may properly reject partial or full payment of arrears (see, Bankers Trust Co. v. Hoovis, supra, at 939). Applying these principles to the matter before us, it is readily apparent that defendants' assertion of a valid tender must fail, as the record reflects that at no time following their default in January 1999 did defendants tender the full amount of the arrears due. Having failed to timely tender funds sufficient to bring their loan obligation current and fully cure their default, defendants cannot now be heard to complain that plaintiff wrongfully rejected the sums in question (see, id., at 939; Trustco Bank, Natl. Assn. v. Labriola, 246 A.D.2d 735). Moreover, even accepting that plaintiff somehow was obligated to accept the f

  5. Bankers Trust Company v. Hoovis

    263 A.D.2d 937 (N.Y. App. Div. 1999)   Cited 40 times
    Rejecting "defendant's contention that plaintiff lacked standing based on the allegation that plaintiff did not obtain the assignment of mortgage until after the commencement of the action" where defendant did not contradict plaintiff's documentation that the note and mortgage were delivered to the plaintiff prior to the initiation of the action

    Next, defendant maintains that Supreme Court improperly denied his motion for summary judgment. It is well settled that a mortgagee is not required to accept an insufficient tender of payment of arrears (see, Home Sav. of Am. v. Isaacson, 240 A.D.2d 633; National Sav. Bank of Albany v. Hartmann, 179 A.D.2d 76, lv denied 79 N.Y.2d 759) and after issuing notification to the mortgagor of acceleration of the entire debt, a mortgagee has the right to reject payment of partial or full arrears, even where a foreclosure action has not been commenced (see, Home Sav. of Am. v. Isaacson, supra at 633; Marine Midland Bank v. Malmstrom, 186 A.D.2d 722). Based on a review of the record, plaintiff established that defendant was in arrears on his mortgage and failed to tender sufficient payments to fully cure his default. In the absence of admissible evidence to refute these contentions or raise a triable issue of fact, we find no basis to disturb Supreme Court's denial of defendant's motion for summary judgment.

  6. Home Savings of America v. Isaacson

    240 A.D.2d 633 (N.Y. App. Div. 1997)   Cited 88 times

    Contrary to the appellants' contentions, in response to the plaintiff's prima facie showing of entitlement to summary judgment, the appellants failed to demonstrate the existence of any genuine issues of fact in support of their claimed affirmative defense of tender and payment. "`As a general rule, a tender must include everything to which the creditor is entitled, including interest to the time the tender is made, or else it is not legally effective'" ( National Sav. Bank v. Hartmann, 179 A.D.2d 76, 77, quoting 83 N.Y. Jur 2d, Payment and Tender, § 151, at 38). A valid tender requires an actual proffer of all mortgage arrears ( see, Bank of N.Y. v. Midland Ave. Dev., 193 A.D.2d 641). The tender of arrears will cure a default only prior to notice of acceleration ( Dime Sav. Bank v. Dooley, 84 A.D.2d 804; see also, Dime Sav. Bank v. Glavey, 214 A.D.2d 419, cert denied 517 U.S. 1221).

  7. David v. Szwalla

    234 A.D.2d 638 (N.Y. App. Div. 1996)   Cited 6 times

    Defendant's unsubstantiated claim that plaintiffs' attorney orally assured him that his late monthly payments were not a problem contradicts the terms of the note and mortgage and is insufficient to create an issue of fact ( see, Cityof New York v Grosfeld Realty Co., 173 AD2d 436, 437). Further, his claim of tender is deficient in that it is not supported by an affidavit detailing the amount and form of the funds that were purportedly tendered ( see, National Sav. Bank v Hartmann, 179 AD2d 76, 78, lv denied 79 NY2d 759). Lastly, defendant's contention that plaintiffs fraudulently induced him to enter into the mortgage transaction by falsely representing that the roof on the premises was adequate lacks merit since he cannot claim reliance on plaintiffs' representation as he was aware of the roofs condition and should have decided for himself if the representation was accurate ( see, Sudul v Computer Outsourcing Servs., 868 F Supp 59, 61). Moreover, even without such knowledge, defendant cannot claim reliance inasmuch as he could have discovered the truth with due diligence ( see, Sado v Ellis, 882 F Supp 1401, 1407; East 15360 Corp. v Provident Loan Socy., 177 AD2d 280, 281). Defendant's remaining arguments have been considered and rejected as being without merit.

  8. Factory Point National Bank v. Wooden Indian

    198 A.D.2d 563 (N.Y. App. Div. 1993)   Cited 7 times

    Consequently, that dismissal does not bar the instant action despite the fact that it involves many of the same issues (see, Kret v Brookdale Hosp. Med. Ctr., 93 A.D.2d 449, 453, affd 61 N.Y.2d 861; see also, CPLR 205 [a]). Defendants also contend that regardless of the applicability of the doctrine of res judicata, the absence of any triable issue of fact renders summary judgment appropriate. It is axiomatic, however, that a party moving for summary judgment bears the initial burden of coming forward with proof, in admissible form, to support its claim of entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). Defendants failed to meet their burden; in support of their motion they submitted the affidavit of an attorney who has no personal knowledge of the underlying facts (see, National Sav. Bank v Hartmann, 179 A.D.2d 76, 77, lv denied 79 N.Y.2d 759; Wilder v Rensselaer Polytechnic Inst., 175 A.D.2d 534). And to the extent that defendants rely solely on the asserted failure of the complaint to state a cause of action, we find their claim meritless; the allegations of the complaint adequately state causes of action sounding in, inter alia, negligence, fraud and conversion. It is also urged by defendants that plaintiff improperly joined O'Connor, the Shalits' counsel, as a party defendant.

  9. Albany Sav. Bank v. Seventy-Nine Columbia St.

    197 A.D.2d 816 (N.Y. App. Div. 1993)   Cited 18 times

    Turning first to the grant of summary judgment in favor of plaintiff, we disagree with the claim that plaintiff improperly rejected defendants' March 15, 1991 tender of past-due payments. In view of defendants' undisputed prior receipt of notice of plaintiff's election to accelerate the obligation, plaintiff was not required to accept less than the entire balance due (see, Albertina Realty Co. v. Rosbro Realty Corp., 258 N.Y. 472; National Sav. Bank v. Hartmann, 179 A.D.2d 76, lv denied 79 N.Y.2d 759; cf., Sherwood v. Greene, 41 A.D.2d 881). Further, we conclude that defendants failed to come forward with competent evidence raising a legitimate factual issue on their claim that plaintiff conspired with McGinn to bring about the foreclosure.

  10. First Am. Bank of New York v. L.V. Lowden

    197 A.D.2d 774 (N.Y. App. Div. 1993)   Cited 11 times

    As this Court recently held, absent supporting documentary evidence or an explanation as to how the total amount of debt was calculated, "the conclusory allegations of plaintiff's employees as to the total amount of outstanding debt arising out of plaintiff's extensions of credit * * * are insufficient to satisfy [its initial] burden" (Transamerica Commercial Fin. Corp. v. Matthews of Scotia, 178 A.D.2d 691, 694; see, Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Further, we conclude that defendants raised a factual issue concerning the Lowdens' execution of the guarantees with their verified amended answer, wherein they "specifically [deny] the authenticity of the signatures on [the guarantees]" (see, CPLR 105 [t]; Bethlehem Steel Corp. v. Solow, 51 N.Y.2d 870, 872; National Sav. Bank v Hartmann, 179 A.D.2d 76, lv denied 79 N.Y.2d 759). Mikoll, J.P., Yesawich Jr., Crew III and Mahoney, JJ., concur.