US Bank Nation Assn. v Hancy

[*1] US Bank Nation Assn. v Hancy 2006 NY Slip Op 51746(U) [13 Misc 3d 1209(A)] Decided on September 18, 2006 Supreme Court, Yates County Falvey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 18, 2006
Supreme Court, Yates County

US Bank Nation Association f/k/a First Bank National Association Trust As Trustee for EQCC Home Equity Loan Trust 1997-2, Plaintiff

against

Timothy A. Hancy and Amy J. Hancy, First Bank National Association, Beneficial Homeowner Service Corporation, Defendants.



03-338



Jordan S. Katz, P.C.,

(Leslie Wong, Esq., of counsel)

Attorneys for Plaintiff,

Alexandra Burkett, Esq.,

Referee

W. Patrick Falvey, J.

MEMORANDUM-DECISION AND ORDER

The referee in this mortgage foreclosure proceeding seeks additional fees, in excess of the $500.00 statutory fee, for services rendered as referee. CPLR §8003. The foreclosure proceedings at bar involved a situation where the third party buyer did not close because of title issues causing the buyer to bring a motion before this court requesting return of the deposit, asserting that the plaintiff did not clear up the title. This court allowed the buyer the return of his money and vacated the sale.

The referee's motion was returnable June 13, 2006, at which time Ms. Burkett appeared, but plaintiff's counsel did not, instead making a written submission to the court. The Court granted the referee's motion, for a total fee of $1420, plus $45 for the cost of the motion. The plaintiff then moved to re-open the motion for oral argument, with counsel arguing that she did not realize that there would be oral argument on the return date. The Court then determined that it would consider the application to re-argue, on submissions, with no oral argument required.

Turning first to the motion to reargue, the Court notes that the answering papers submitted by the plaintiff regarding the June 13, 2006, return date were not received by the Court directly from the plaintiff. The Court received a copy of same from Ms. Burkett at the June 13, 2006 return date. Given the assertions of plaintiff's counsel in support of the motion to reargue, it is appropriate and fair for the Court to revisit the initial motion. Therefore, the Court hereby [*2]grants the plaintiff's motion to reargue.

Referee Burkett's affidavit in support of additional fees argues that CPLR §8003 requires the fee to be paid upon the sale, that is at the time of the auction. She argues that a referee is entitled to fees even if the closing never occurs, such as the case at bar. Furthermore, she asserts that a referee may receive such additional compensation as the court deems proper if the property sold for $50,000 or more, which is applicable herein, since the auction purchase price was $57,500.

The referee argues that the plaintiff as the party seeking relief originally has the burden to pay for all costs of litigation. RPAPL §1371(2) then allows the Court, after sale, to allow the plaintiff to take, as a credit, the referee fees as a cost and add same to a deficiency judgment. The referee here asserts that it was due to the plaintiff's actions in this case, that the deed was not transferred. Therefore, the cost of litigation is the plaintiff's sole responsibility.

The referee asserts that the court should order additional fees due to egregious conduct of the plaintiff, which substantially increased the referee's time on the file, and resulted in the bidder not receiving the property, as well as dissipation of the property by way of tax sale.

In seeking additional fees, the referee tried to reach a settlement with plaintiff's counsel, but plaintiff's counsel did not respond to her letter. The referee's hourly rate is $175 and she seeks a fee of $2485 based on time spent to date. However, this amount does not include the time and filing fees for bringing the instant motion or Court appearances on same.

The plaintiff opposes the referee's motion. Plaintiff notes that the referee accepted the appointment with the expectation that she would be paid the statutory fee, and it is not unusual for there to be issues that arise, and she was aware that issues might arise at the time she took the appointment. Plaintiff cites CPLR §8003(b) and U.S. Mortgage v Almeida, 8 Misc 3d 694 .

Plaintiff also argues that any additional compensation that might be ordered would be limited to $50 per day. CPLR §8003(a). "A referee's compensation, including commissions, upon a sale pursuant to a judgment in any action cannot exceed five hundred dollars, unless the property sold for fifty thousand dollars or more, in which event the referee may receive such additional compensation as to the court may seem proper." CPLR §8003(b).

The sale is the auction, and since the referee did hold the auction, she is entitled to her fee. The property was sold for $57,500, so the Court may consider awarding additional referee fees.

In determining a request for an additional referee fee, the court should find that the referee was put to unusual trouble or was required to perform unusual services. Bergman on New York Mortgage Foreclosures, §27.03[2], citing Osborn v De Graaf Bldg, 236 AD 172.

The factors include amount of time spent, total amount at issue, complexity of the facts, difficultly of the legal issues, level of cooperation, or lack thereof, of the parties and their counsel. Bergman on New York Mortgage Foreclosures, §27.03[2], citing Hufnagle v Bruns, 148 M 2d 362. When the referee is required to perform services substantially exceeding typical duties of a referee, she is entitled to an increased fee. Bergman on New York Mortgage Foreclosures, § 27.03[2] , citing Barclays Bank v Bayport, NYLJ May 18, 1994 at 26, col 4. states:

"In that instance, a referee should both substantiate the hours expended and detail the particular services averred to justify the added compensation. The fee can then be awarded on the basis of [*3]a reasonable hourly fee; $100 per hour having been authorized in one case, $200 per hour in another."

Here, the referee's affidavit sets forth in detail the dates, times and reasons for services she performed over 14.20 hours in regard to her duties as referee.

The Court concludes that the referee herein is entitled to increased fees and that $100 per hour is an appropriate and reasonable rate, for total fees of $1420. Additionally, the Court will award her $45.00 for the cost of bringing this motion. The referee is also directed to comply with all filing and certification requirements of Rule 36 of the Chief Judge.

This constitutes the Judgement, Decision and Order of the Court.

SO ORDERED.

Dated: September ___ , 2006.

____________________________________

W. Patrick Falvey

Acting Supreme Court Justice