IYARE v. LITTON LOAN SERVICING LP (2006)

Appeal from an order of the Civil Court of the City of New York, Queens County (Stephen S. Gottlieb, J.), entered March 31, 2005.   The order, insofar as appealed from, denied defendant's motion for summary judgment.

Order, insofar as appealed from, reversed without costs, defendant's motion for summary judgment granted and complaint dismissed.

In order to show entitlement to damages pursuant to the Real Estate Settlement Procedures Act (RESPA) for alleged improper late charges during the transfer period of his loan from his prior servicer to defendant, plaintiff had to show that he was charged even though his payment had been “received by the transferor servicer (rather than the transferee servicer who should properly receive payment) before the due date applicable to such payment ” (12 USC § 2605[d] [emphasis supplied] ).   The uncontroverted documentary evidence submitted by both plaintiff and defendant establishes that none of plaintiff's payments during the relevant period, December 1, 2003 to February 1, 2004, was made in a timely fashion to either the outgoing or incoming loan servicer.   The one late fee appearing on his account during the applicable 60-day period was removed by defendant, and plaintiff did not pay the charge.   Although his account was eventually reported to credit bureaus as delinquent, it was because he failed to make timely payments.   Accordingly, plaintiff had no cause of action pursuant to RESPA.   As defendant established these facts and its entitlement to judgment as a matter of law upon its motion, and plaintiff failed to raise any issue of material fact in response, defendant should have been granted summary judgment (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).