JPMorgan Chase Bank, N.A. v Simmons | NYSC - Plaintiff failed to demonstrate that it complied with its CPLR §3408(f) obligation to "negotiate in good faith."

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JPMorgan Chase Bank, N.A. v Simmons | NYSC – Plaintiff failed to demonstrate that it complied with its CPLR §3408(f) obligation to “negotiate in good faith.”

JPMorgan Chase Bank, N.A. v Simmons | NYSC – Plaintiff failed to demonstrate that it complied with its CPLR §3408(f) obligation to “negotiate in good faith.”

STATE OF NEW YORK
SUPREME COURT

COUNTY OF GREENE

JPMORGAN CHASE BANK, N.A.,
Plaintiff,

-against-

BONNIE R SIMMONS; CLIFFORD SIMMONS;
HEATHER A SIMMONS; CAZENOVIA COLLEGE;
NEW YORK STATE DEPARTMENT OF TAXATION
AND FINANCE; “JOHN DOES’ and “JANE DOES”, said
names being fictitious, parties intended being possible tenants
or occupants of premises, and corporations, other entities or
persons who claim, or may claim, an lien against the premises,
Defendants.

Supreme Court Greene County All Purpose Term, November 8, 2013
Assigned to Justice Joseph C. Teresi

APPEARANCES:
Rosicki, Rosicki & Associates
Richard Fay, Esq.
Attorneys for Plaintiff
2 Harvester A venue
Batavia, New York 14020

Tal G. Rappleyea, Esq.
Attorney for Defendant Clifford Simmons
4 Maple Lane, PO Box 793
Valatie, New York 12184

TERESI,J.:

Plaintiff commenced this proceeding to foreclose its mortgage on property located at
12229 State Route 23, Ashland, New York (hereinafter “the property”) and owned, in part, by
Clifford Simmons (hereinafter “Simmons”). On this record it is uncontested that neither
pursue a mutually agreeable resolution. In response, this Court issued a 90 day stay.

After the stay expired, on December 3, 2010 this Court issued a letter to both attorneys
seeking a status update. Simmons’ attorney stated “Defendant Simmons and counsel believe
matter to be settled since all ‘workout’ documents have been completed and executed. But no
response has been received from Plaintiff.” Plaintiff’s attorney did not dispute such account.
Rather, she stated: “following up with our client for affidavit in support as they are currently
reviewing their procedures for executing same.” Plaintiff never updated their status after
“following up with [their] client,” advised this Court that the parties’ settlement negotiations had·
broken down, nor refuted Plaintiff’s allegation that this matter had “settled.”

Now, nearly three years later, Plaintiff makes the instant motion without explaining the
circumstances surrounding the failed settlement negotiations. Instead, Plaintiff’s motion asserts
CPLR §3408 compliance by alleging only that “a conference was held on August 12, 2010
pursuant to the requirements under CPLR 3408. That Plaintiff requests that it be able to proceed
with its action herein as a settlement was unable to be reached.” Such conclusory statement does
not establish Plaintiff’s compliance with its CPLR §3408(f) obligation to “negotiate in good
faith.” Moreover, Plaintiff offered no excuse for their extensive delay.

In addition, Plaintiff failed to controvert Simmons’ proof of Plaintiff’s failure to negotiate
in good faith. Simmons opposed Plaintiff’s motion with an affidavit, in which he recounted his
compliance with Plaintiffs mortgage modification requirements. He alleged that after the
August 12, 2010 conference he “immediately completed and forwarded the required modification
application documents to the Plaintiffs. After not hearing back from the Plaintiffs, I called them
on the phone several times but … never received a return call.” Plaintiff neither denies Simmons’
account nor offers an alternative explanation of the prior negotiations. Conspicuously absent
from Plaintiff’s submission is any justification for its rejection of Simmons’ prior modification
application. Instead, in reply Plaintiff alleges only that “Defendant was given a fair chance to
seek a modification, under the court’s supervision.” Contrary to Plaintiff’s assertion, their failure
to respond to Simmons’ modification application did not give him a “fair chance.” Rather, such
unexplained non-response constitutes a violation of CPLR §3408(f)’s obligation to “negotiate in
good faith.”

Moreover, it is uncontested that Plaintiff recently accepted, and is currently considering,
Simmons’ re-filed modification application.

Accordingly, Plaintiff’s motion is denied without prejudice. Due to Plaintiff’s
demonstrated failure to negotiate in good faith in this action, a new foreclosure settlement
conference must be held at the Albany County Courthouse, located at 16 Eagle Street, Albany,
New York, on December 17, 2013 at 8:30 am.

This Decision and Order is being returned to the attorneys for Simmons. A copy of this
Decision and Order and all other original papers submitted on this motion are being delivered to
the Greene County Clerk for filing. The signing of this Decision and Order shall not constitute
entry or filing under CPLR §2220. Counsel is not relieved from the applicable provision of that
section respecting filing, entry and notice of entry.

So Ordered.

Dated: Albany, New York
November 20, 2013

PAPERS CONSIDERED:
1. Notice of Motion, undated; Affirmation of Richard Fay, dated September 16, 2013;
Affidavit of Darren Ollam, dated May 8, 2013, with attached unnumbered exhibits;
Affirmation of Richard Fay, dated September 16, 2013; Affirmation of Richard Fay,
dated September 16, 2013. .
2. Affidavit of Clifford Simmons, dated October 22, 2013; Affirmation ofTal Rappleya,
dated October 22, 2013, with attached Exhibits A-C.
3. Affirmation of Catherine Gran, dated October 26, 2013, with attached Exhibit A.

footnote
1 Defendants Cazenovia College and New York State Department of Taxation and
Finance both. served only a notice of appearance.

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