Brown v Nationstar Mtge., LLC

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Brown v Nationstar Mtge., LLC 2015 NY Slip Op 31090(U) June 26, 2015 Supreme Court, Wayne County Docket Number: 75016/2012 Judge: Daniel G. Barrett Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] At a Term of he Supreme Court held in and fo the County of Wayne at the fan of Justice in the Village of Lyons, New York on the 4thday of february, 2015. PRESENT: Honorable Daniel G. Barrett Acting Supreme Court Justice STATE OF NEW YORK SUPREME COURT COUNTY OF WA YNE WAYNE BROWN, Petitioner, DECISION Index No. 75016 -vsNATIONSTAR MORTGAGE, LLC, Respondent Petitioner Wayne Brown initiated this proceeding by filing an prder to Show Cause which requested the following forms of relief: 1. Staying the enforcement of the Judgment of Foreclosur , staying the Petition for Removal after Foreclosure Sale set for a herring on July 9, 2014, in the Macedon Town Court and enjoining Respondent, Nationstar, from commencing further eviction proceedings againstlpetitioner pending the disposition of an action t be filed by Petitioner agai st Respondent; I 2. Declaring, nunc pro tunc, the Modification Agreement fO be a legally binding contract and permitting Petitioner to pay the arrears dating back to February 1,2014; 3. Vacating and relieving Petitioner from the Judgment o~Foreclosure, rescinding the foreclosure sale to Respondent, dismissing the Petition for Removal after Foreclosure Sale set for hearing on July 2014, at Macedon Town Court, and permitting Petitioner to redeem the pn perty by reinstating the terms of the Modification Agreement; I p, 4. Awarding Petitioner legal fees and costs for making thj instant application. -1- [* 2] The Order provided that service of this proceeding on the Res ondent be made by serving the Margolin & Weinreb Law Group, LLP by regular mail Service of this proceeding was 'properly made and jurisdiction was acquired over the Respondent. In a prior Order dated October 17, 2014, this Court has ruled n all the outstanding issues except for the relief regarding the Modification Agreement. A hearing on this issue was conducted on February 4, 2015. t the hearing the Petitioner testified. As with all other aspects of this application, Res ondent defaulted. At the conclusion of this hearing the Court had contact with counsel rom Margolin & Weinreb Law Group, LLP who advised the Court that his firm was r tained by the Aldridge Connors firm in Atlanta, Georgia to conduct the eviction 0 the Petitioner from his premises but had not been retained to represent the Respondent i the matter involving the Order to Show Cause. Counsel assured the Court that all the ple dings germane to the Order to Show Cause were forwarded to the Aldridge Connors fi counsel for Margolin & Weinreb provided a letter from the REO m . In addition, ager of the Respondent who upon learning of the dispute with Petitioner instruct d their supervising attorneys, identified as Aldridge Connors, to notify the Margolin & einreb firm to cease all eviction activities and to close its file. The Court finds the Respondent had ample notice of these pro eedings and is somewhat perplexed by its inactivity concerning this matter. Petitioner testified he received a letter dated December 13,20 3, addressed to him from the Respondent bearing the label "Letter Acknowledgment". T is letter recited the enclosure of a "Modification Agreement". The letter explained that y signing the Letter Acknowledgment and the Modification Agreement, Petitioner is agr ing to make a qualifying payment of $1,891.14 for the Modification Agreement to ecome effective. -2- [* 3] The Petitioner also received a letter dated December 13,201 , from the Respondent which apprised him that he had been pre-approved for temporary modification of this mortgage loan that will lower his monthly pay with the complete terms set forth in the Modification Agreement. is letter explained that the basis terms of his modification are as follows: Beginning on February 1,2014, his loan will be modi to temporarily lower his payments to $176.41. The m dification will be in effect for two years, during which time all p yments will be applied to the interest only. After that time yo r payment will return to t e original terms of the loan. To take advantage of this opportunity the letter directed the P titioner to take the enclosed Modification Agreement to a notary public. Sign the Modi ication Agreement in front of the notary public and have the notary notarize your signa reo Return the original, signed and notarized Modification Agreement along with t e initial payment of $1,891.14. The letter specified that the offer to modify the terms of the ortgage expires on December 31,2013. Petitioner specified that he fully complied with the requireme ts set forth in both letters dated December 13,2013. He mailed the appropriate notariz d paperwork to the Respondent including two postal orders totaling $1,891.14. On or a out December 27, 2013, Petitioner sent these items by Federal Express. Proof was sub itted showing the Respondent received these items on December 30,2013. Petitioner never received acknowledgment from Respondent egarding receipt of the executed documents and the money orders totaling $1,891.14. On January 14,2014, without Petitioner's knowledge a forecl sure sale was conducted and the Respondent was the buyer. -3- [* 4] In March, 2014, Petitioner received a 90 Day Notice to Quit f om the attorneys for the Respondent. This was Petitioner's first notice that a foreclosure ale had been conducted and the Respondent was the purchaser. Initially Petitione attempted to contact the Respondent, then he retained an attorney to contact the Responde t. Despite contacting the Respondent, no meaningful response was received fro the Respondent. On June 26, 2014, Petitioner was served with a Notice of Peti ion for removal from his residence which lead to the filing of the Order to Show Cau e in this matter. The purpose of this hearing is to determine if the Loan Modification Agreement is enforceable. Though not dispositive, despite ample notice to the Res ondent, there is no opposition to this application. The Petitioner signed the Loan Modification Agreement consi tent with the written instructions of the Respondent. Respondent never provided the Petit oner with a copy of the Loan Modification Agreement the Petitioner signed. Des ite the fact that the contract provided in evidence did not contain the signature of the Re pondent, it is enforceable because there is objective evidence that the parties inten ed to be bound. (Gallagher v. Long Island Plastic Surgical Group, P.C., 113 A.D. 3d 52, 978 N.Y.S. 2d 334). Respondent prepared the terms of the written contract and pro ided it to the Petitioner with instructions to sign the contract and return to the Res ondent by the end of December with a payment of$1,891.14. Petitioner provided prooft Loan Modification Agreement, sent the Agreement with tow postal at he signed the oney orders totaling $1,891.14. In addition, Petitioner provided proof that the Loan Modi fication Agreement and the funds were received by the Respondent on December 31,20 3. The Petitioner has requested that the Court compel the Respo dent to abide by its agreement. Equity is available to place a party to a contract in the le al position it would have occupied if the agreement had been performed. (Monclova v. A ett, 3 N.Y. 2d 33, 143 N.E. 2d 375, 163 N.Y.S. 2d 652). -4- [* 5] In an action involving specific performance, it is the court's d , in so far as possible, to place the parties in the same situation they would have be n in if the contract had been performed according to its terms. (,~C::..>:o=lo=n=i=e-",-M=o=t=o~rs~~:.....!...!.~=~::::......:::~~~ New York, 61 A.D. 2d 1105,403 N.Y.S. 2d 574). Specific performance is an equitable remedy whereby the cou ,by its decree, compels a party to do precisely what it ought to have done without be ng coerced. (Crumb v. Lintem, 4 Misc. 2d 624, 158 N.Y.S. 2d 824). It is the finding of this Court that the Loan Modification Agree ent is an enforceable Agreement. To place the parties in the position they wou d occupy had the Agreement been performed according 1.0 its terms, this Court is direct g that the Agreement be performed according to its terms with the two year inte est free period commencing on September 1,2015, with monthly payments of$176. 1. Consistent with the Loan Modification Agreement the payments during these two ye s will be applied to interest only. After that time the payment will return to the original t rms of the loan. The Court is not awarding attorney fees to the Petitioner on thi application. Until an attorney is identified as representing the Respondents in this matter, papers may be served on the John Hudson, REO manager for Solutio s Servicing, the REO manager of Nations tar Mortgage, LLC at Solution Star, 760 Hi way 121 BYP, STE 100, Lewisville, Texas 75067. Counsel for Petitioner to prepare an Order consistent with this ecision. Dated: June 26, 2015 Lyons, New York 8t: 2d 92 NOr ~t e Court Justice -5-
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