REISS v. DEUTSCHE BANK NATIONAL TRUST COMPANY 2005 AR 18 2005 AR 18 2005

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Francine REISS and Gary A. Reiss, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee of the Indymac Indx Mortgage Loan Trust 2005–AR 18, Mortgage Pass–Through Certificates, Series 2005–AR 18 Under the Pooling and Servicing Agreement Dated September 1, 2005, Defendants.

No. 68845/15.

Decided: August 11, 2016

Clair & Gjertsen, Esqs., White Plains, Attorneys for Plaintiffs. Greenberg Traurig LLP by Shan P. Massand, Esq., New York, Attorney for Defendant.

Plaintiffs, owners of the residential premises known as 13 Sunset Drive, Yonkers, New York, commenced this RPAPL Article 15 action seeking judgment declaring that the mortgage of record presently held by defendant and which is recorded at reel 1602, page 1591, as thereafter assigned and re-assigned, is invalid and unenforceable as forever barred from any claim by virtue of the expiration of the six year statute of limitations applicable to mortgage foreclosures as calculated from the date of acceleration of the note upon the July 28, 2009 commencement of the foreclosure action entitled Onewest Bank, FSB Successor in Interest to Indymac Bank, FSB, v. Gary A. Reiss and Francine Reiss (Westchester Count Index No. 16774/09)(the “Foreclosure Action”). By Decision & Order of the Court (DiBella, J.), the Foreclosure Action was dismissed as abandoned.

Defendant now moves to dismiss the complaint in this RPAPL Article 15 action pursuant to CPLR 3211(a)(1), a defense based upon documentary evidence, and 3211(a)(7), failure to state a cause of action, on the grounds that (A) plaintiffs' “Hardship Affidavit” dated August 4, 2010, submitted in connection with their foreclosure related Home Affordable Modification Program (“HAMP”) application, served to re-start the statute of limitations and (B) defendants stopped the running of the statute of limitations upon revoking its election to accelerate plaintiffs' loan by virtue of its de-acceleration letter dated July 8, 2015.

A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that a defense is founded on documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; see Parkoff v. Stavsky, 109 A.D.3d 646, 970 N.Y.S.2d 817; Benson v. Deutsche Bank Natl. Trust, Inc., 109 A.D.3d 495, 970 N.Y.S.2d 794). Further, the evidence submitted in support of a motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that a defense is founded on documentary evidence “must be documentary' or the motion must be denied” (Cives Corp. v. George A. Fuller Co., Inc., 97 A.D.3d 713, 714, 948 N.Y.S.2d 658, quoting Fontanetta v. John Doe 1, 73 A.D.3d 78, 84, 898 N.Y.S.2d 569 [internal quotation marks omitted]; see Rodolico v. Rubin & Licatesi, P.C., 112 A.D.3d at 610, 977 N.Y.S.2d 264). “[N]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)' “ (Cives Corp. v. George A. Fuller Co., Inc., 97 A.D.3d at 714, 948 N.Y.S.2d 658, quoting Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 997, 913 N.Y.S.2d 668; see Rodolico v. Rubin & Licatesi, P.C., 112 A.D.3d at 610, 977 N.Y.S.2d 264; Suchmacher v. Manana Grocery, 73 A.D.3d 1017, 900 N.Y.S.2d 686; Fontanetta v. John Doe 1, 73 A.D.3d at 86, 898 N.Y.S.2d 569).

(Rodolico v. Rubin & Licatesi, P.C., 114 A.D.3d 923, 924–25, 981 N.Y.S.2d 144 [2d Dept 2014] ).

“Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Fontanetta v. John Doe 1, 73 A.D.3d at 84–85, 898 N.Y.S.2d 569 [internal quotation marks omitted] ) ․ At the same time, “[n]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)” (Granada Condominium III Assn. v. Palomino, 78 A.D.3d at 997, 913 N.Y.S.2d 668 [internal quotation marks omitted] ․”

(Cives Corp. v. George A. Fuller Co., Inc., 97 A.D.3d 713, 714, 948 N.Y.S.2d 658 [2d Dept 2012] ).

Here, defendant improperly seeks to rely upon the July 8, 2015 de-acceleration letter (Exhibit “F” to Affirmation of Shan P. Massand in Support of Motion to Dismiss). A letter is not “documentary evidence” within the meaning of the statute (see Granada Condominium III Assn. v. Palomino, supra ). In any event, the Court is not persuaded that it conclusively establishes a defense as a matter of law.

Defendant's reliance on the “Hardship Affidavit” also fails. The Hardship Affidavit does not conclusively establish a defense to this Article 15 action, i.e., it does not conclusively establish that the Foreclosure Action is not barred by the statue of limitations.

Section 17–101 of the General Obligations Law provides:

An acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take an action out of the operation of the provisions of limitations of time for commencing actions under the civil practice law and rules other than an action for the recovery of real property. This section does not alter the effect of a payment of principal or interest.

Such a written acknowledgment of a debt “must recognize an existing debt and contain nothing inconsistent with an intention on the part of the debtor to pay it” (Knoll v. Datek Sec. Corp., 2 A.D.3d 594, 594, 769 N.Y.S.2d 581 [2d Dept 2003] citing Lew Morris Demolition Co. v. Board of Educ. of City of NY, 40 N.Y.2d 516, 521, 387 N.Y.S.2d 409, 355 N.E.2d 369).

Plaintiffs' “Hardship Affidavit” was drafted in connection with plaintiffs' application for “review [of their] eligibility for a loan modification or alternative solution to help prevent foreclosure” (Exhibit “E” to Affirmation of Shan P. Massand in Support of Motion to Dismiss). As such, it constitutes a “document[ ] reflecting [an] out-of-court transaction[ ] ․, the contents of which are essentially undeniable ․” (Fontanetta v. Doe, 73 A.D.3d 78, 84–85, 898 N.Y.S.2d 569 [2d Dept 2010][internal quotations omitted] ).

Nonetheless, although plaintiffs acknowledge the debt in their “Hardship Affidavit”, it is nothing more than “a conditional promise to pay” (Lorenzo v. Bussin, 7 A.D.2d 731, 732 [1958] ) if and when plaintiffs are approved for a loan modification and they agree to such terms. Since the documentary evidence does not contain sufficient facts to determine as a matter of law whether and when plaintiffs could have performed their obligations under the note, if and when modified, the Court cannot determine the date on which defendant's claim upon the underlying note or mortgage can be said to re-accrue for statute of limitations purposes (see Volpe v. Volpe, 16 A.D.3d 1176, 1177–78, 792 N.Y.S.2d 269 [4th Dept 2005] Spagna v. Licht, 87 A.D.2d 626, 627 [1982] ). It makes no difference that the Hardship Affidavit contains plaintiffs' assertion, “We feel with the HAMP Program, once again we pay for a new mortgage.” This is simply part of their prayer for relief and does not otherwise establish anything other than a conditional promise to pay a modified loan if and when approved for a modification upon terms acceptable by plaintiffs.

Since the “Hardship Affidavit” does not “utterly refute” plaintiffs' contention that any effort by defendant to foreclose plaintiffs' underlying mortgage obligation would be barred by the statute of limitations, defendant has failed to establish a defense as a matter of law warranting the dismissal of the complaint (Mendelovitz v. Cohen, 37 A.D.3d 670, 670, 830 N.Y.S.2d 577; see Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190).

The cross-motion to amend the complaint is granted as unopposed.

Based upon the foregoing, it is hereby

ORDERED, that defendant's motion to dismiss is denied; and, it is further

ORDERED, that plaintiffs' cross-motion to amend the complaint in the form annexed to the cross-motion as Exhibit “D” is granted and is hereby deemed served; and, it is further

ORDERED, that defendant shall answer the amended complaint by September 2, 2016; and, it is further

ORDERED, that the parties are directed to appear on Monday, September 19, 2016, at 9:30 a.m., in the Preliminary Conference Part, Courtroom 811, Westchester County Supreme Court, 111 Dr. Martin Luther King, Jr. Boulevard, White Plains, New York, prepared to conduct a preliminary conference.

The foregoing constitutes the Opinion, Decision, and Order of the Court.

The following papers were considered in connection with Motion Sequence No.1 by defendant for an Order dismissing plaintiffs' complaint and Motion Sequence # 2 by plaintiffs for an Order pursuant to CPLR 3025 granting leave to serve an amended complaint:

LEWIS J. LUBELL, J.

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