Posted on 21 December 2010.
Wells Fargo Bank, N.A. SUCCESSOR BY MERGER TO
WELLS FARGO HOME MORTGAGE INC., Plaintiff,
Paul Meyers, MICHELA MEYERS, DAIMLER CHRYSLER
FINANCIAL SERVICES AMERICAS LLC, FORD MOTOR
CREDIT COMPANY, JP MORGAN CHASE BANK, NA
LVNV FUNDING LLC, NEW YORK STATE DEPARTMENT
OF TAXATION AND FINANCE TOWN SUPERVISOR OF
THE TOWN OF BABYLON, and JOHN DOE, Defendants.
Steven J. Baum P.C.
Attorneys for Plaintiff
900 Merchants Concourse
Westbury, New York 11590
Diana Lozada Ruiz
Attorney for Defendants
PO Box 604
Mineola, New York 11501
Patrick A. Sweeney, J.
Meyers testified that the defendants were not in default but were struggling to pay the mortgage. She claimed that several representatives of the plaintiff told her that she could not apply for a modification until she
was three months late with payments. According to Meyers, she was told to default on the mortgage in order to apply for a modification. Meyers testified that she followed this advice, made a down payment and faxed over a hardship letter along with financial documentation. Meyers claimed that the plaintiff kept losing the documents and that she had to re-fax the information numerous times.
In addition, the plaintiff has provided conflicting information regarding its denial of the
modification. Less than one month after the initial denial, the defendants received another
letter indicating that the plaintiff could not adjust the terms of the mortgage because the
investor on the mortgage declined the requested modification. Within a week, the defendants
were sent additional letters advising them of mortgage options and again directing them to
apply to the Home Affordable Modification Program. This is inconsistent as the plaintiff
takes the position that it cannot modify the loan without the approval of Freddie Mac but
offered no evidence as to whether the initial modification was approved by Freddie Mac
before it was sent to the defendants. Freddie Mac is not a party to this action and is not the
party seeking to foreclose the mortgage. The plaintiff has failed to demonstrate any good
faith basis for refusing to honor the terms of the trial modification or offering another similar
proposal. The defendants complied with the all the requirements of the trial modification
and have appeared at all the conferences in this action. The defendant Paul Meyers is
gainfully employed and the defendants are trying to avoid losing their home. Under these
circumstances, the Court finds that the plaintiff has acted in bad faith. In view of the Court’s
broad equitable powers, the Court finds that the appropriate remedy is to compel specific
performance of the original modification agreement proposed by the plaintiff and accepted
by the defendants (see e.g. EMC Mortgage Co v Gross, 289 AD2d 438 [2d Dept 2001]).
Accordingly, it is
ORDERED that the plaintiff is directed to execute a final modification based upon the
terms of the original modification proposal, and it is further
ORDERED that the complaint to foreclose the mortgage is dismissed.
Read order below…
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