GE Capital Mtge. Servs., Inc. v Catinella
Annotate this CaseDecided on April 4, 2005
Supreme Court, Suffolk County
GE Capital Mortgage Services, Inc., Plaintiff,
against
Concetta Catinella, Defendant.
002176/2003
John J.J. Jones, J.
ORDERED that that this application by plaintiff, GE Capital Mortgage Services Inc., for a judgment of foreclosure is denied and, on the record before this Court and all proceedings heretofore had herein, on the Court's own motion and in the interests of justice, the order of this Court dated June 16, 2004, and the subsequent order of this Court dated June 30, 2004, are hereby recalled and vacated in their entirety, the answer of the defendant, Concetta Catinella, is reinstated, and the Referee is hereby discharged of his duties, as it appears that the Court misinterpreted the facts and relevant law in making its prior determinations (see CPLR 2001); and it is further
ORDERED that the parties are directed to appear for a hearing before this Court on May 18, 2005, at 9:30 AM to determine a fair and equitable payment schedule so as to allow defendant to account for payments that have not been made and for the payment of insurance premiums, as well as for whatever other payments may be due (see Carver Fed. Sav. & Loan Assn. v Glanzer, 186 AD2d 706, 708, 588 NYS2d 905 [2d Dept 1992]).
A review of the record before this Court in this foreclosure proceeding reveals that an alleged accounting error by plaintiff led to the reasonable belief by both plaintiff [*2]and defendant that the underlying debt evidenced by a note and mortgage dated November 14, 1994, had been paid in full. According to the affidavit dated February 20, 2004 of Robin L. Notnagle, Default Specialist for plaintiff's servicing agent, "on November 1, 2001, a check was received which was applied to the defendants loan and satisfied the instant loan." Plaintiff thereupon returned to defendant the original note and mortgage marked, "Paid in Full." It is claimed by plaintiff that the check it had received was actually intended to satisfy a loan given to borrowers whose last name is similar to that of defendant's, and that upon learning of its mistake, plaintiff demanded payment from defendant by letter dated October 28, 2002. When defendant requested an explanation, however, she received none, and plaintiff continued to insist that payment be made "without any explanation as to why." In fact, plaintiff did not set forth any explanation or disclose documentation relating to the alleged outstanding debt until it submitted the aforementioned affidavit of its Default Specialist.
The Referee appointed by Order dated June 30, 2004 computed the amount allegedly due as of September 15, 2004 to be $18,995.12, exclusive of attorneys' fees. Such amount includes interest from July 18, 2002 to September 15, 2004 at the rate of 9.875%. By letter dated October 19, 2004, defendant tendered a bank check in the amount of $19,089.42, which was rejected by plaintiff, who claimed that the payoff amount was $25,407.64, of which $4,869.25 is for attorneys' fees.
A mortgage lender may be estopped from asserting rights under a mortgage to prevent a fraud or injustice to the person against whom enforcement is sought, who in justifiable reliance upon the lender's words or conduct has been misled to her detriment (see First Union Nat'l Bank v Tecklenburg, 2 AD3d 575, 576-577, 769 NYS2d 573 [2d Dept 2003]). Under the circumstances of this case, the interests of fairness mandate that the plaintiff be estopped from foreclosing on the defendant's property at this time (see Carver Fed. Sav. & Loan Assn. v Glanzer, 186 AD2d 706, 708, 588 NYS2d 905 [2d Dept 1992]; see also Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 436 NE2d 1265, 451 NYS2d 663 [1982]).
DATED: April 4, 2005
HON. JOHN J.J. JONES, JR.
J.S.C.
CHECK ONE: [ ] FINAL DISPOSITION
[X] NON-FINAL DISPOSITION
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