HSBC Bank USA, N.A. v Ocasio

[*1] HSBC Bank USA, N.A. v Ocasio 2016 NY Slip Op 51904(U) Decided on September 15, 2016 Supreme Court, Orange County Bartlett, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2016
Supreme Court, Orange County

HSBC Bank USA, National Association AS TRUSTEE FOR WELLS FARGO ASSET SECURITIES CORPORATION, MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-PA3, Plaintiff,

against

Vivian Ocasio, and JOHN DOE, Defendants.



10167/2013



Hogan Lovells, New York, NY for Plaintiff, and Drake Loeb PLLC, New Windsor, NY for Defendant
Catherine M. Bartlett, J.

The following papers numbered 1 to 13 were read on Plaintiff's renewed motion for summary judgment, an order of reference and other relief, and Defendant's cross motion for an order dismissing the action or returning it to the foreclosure settlement part:

Notice of Motion - Affirmation / Exhibits - Affidavit / Exhibits - Memorandum 1-4

Notice of Cross Motion - Affirmation / Exhibits - Memorandum . . . . . . . . . . . . . . . . . . . . . . 5-7

Reply Affirmation / Exhibits - Reply Memorandum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8-9

Supp. Affirmation (Plaintiff) / Exhibit - Supp. Affidavit / Exhibits - Supp. Memorandum10-12

Supplemental Affirmation (Defendant) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Upon the foregoing papers, it is ORDERED that the motions are disposed of as follows:

This is a residential mortgage foreclosure action. Plaintiff HSBC Bank USA, N.A. ("HSBC") moves for summary judgment, an order of reference and other relief. Defendant Vivian Ocasio moves for an order dismissing the action or, in the alternative, returning it to the foreclosure settlement part. The primary issue is whether HSBC has complied with its obligation pursuant to CPLR §3408 to negotiate in good faith to reach a mutually agreeable resolution, [*2]including a loan modification, if possible. Ms. Ocasio contends that the absence of good faith is evidenced by HSBC's failure to demonstrate compliance with Home Affordable Modification Program (HAMP) Guidelines.

Ms. Ocasio's Mortgage Loan

On April 3, 2007, Ms. Ocasio executed a promissory note, secured by a mortgage on

her home, in the principal amount of $310,500.00, and agreed to repay the loan in monthly installments of $1,998.17 over the course of thirty (30) years. She defaulted by failing to make the payment due on November 1, 2010 and all payments due thereafter.

The Settlement Conferences

The history of this case begins with a prior action commenced in July 2011 to foreclose Ms. Ocasio's mortgage. Between November 2011 and January 2013, twelve (12) mandatory settlement conferences were held pursuant to CPLR §3408. During these conferences, Ms. Ocasio was denied certain loss mitigation options, and unsuccessfully attempted to pursue a short sale of her property. She was also advised that her loan could not be modified pursuant to the Home Affordable Mortgage Program (HAMP) because of contractually-imposed servicing limitations. Nevertheless, at the direction of foreclosure settlement conference part referee John Lindstrom, HSBC's loan servicer, Wells Fargo Bank, N.A., conducted a "hypothetical" review of Ms. Ocasio's application for a HAMP modification to determine if she would qualify if HAMP were an option. Wells Fargo found that she did not qualify for a "hypothetical" HAMP modification because an affordable target payment of 31% of her income could not be reached. The 2011 action was ultimately dismissed in April 2013 because HSBC did not timely file a motion to proceed with the foreclosure and failed to appear in court to provide an explanation for the delay.

HSBC recommenced the foreclosure action in December 2013. As of December 10, 2013, there was due and owing a principal balance of $297,933.91 together with accrued interest at a rate of 6.625% from October 1, 2010, and charges for inter alia advances permitted and secured by the mortgage — i.e., an amount substantially in excess of the original principal amount of the note. Arrears by this time had accumulated to a sum in excess of $90,000.00.[FN1] Ten (10) more settlement conferences were held between March 2014 and November 2015. Ms. Ocasio was again denied non-HAMP loss mitigation options because her income was deemed insufficient. She refused a short sale or "cash for keys" offer, and wanted to revisit HAMP.

Regarding HAMP, in letters dated December 7, 2013 and April 21, 2014, Wells Fargo, as HSBC's loan servicer, identified "HSBC Bank USA, N.A. WFALT 2007-PA3" as the investor for Ms. Ocasio's mortgage loan and adviser her:

We do not have the contractual authority to modify your loan under HAMP because of limitations in our servicing agreement. Therefore, the investor who owns your mortgage has declined the request to modify your mortgage.

In May 2014, HSBC's counsel provided Ms. Ocasio's representative with copies of the PSA

and Servicing Agreement. In response to a request by Referee Lindstrom for evidence that a waiver of investor restrictions on modification had been sought in compliance with the HAMP [*3]Guidelines, HSBC produced a letter dated July 7, 2015 from Wells Fargo to HSBC requesting a "waiver of governing servicing document restrictions" on the modification of Ms. Ocasio's mortgage loan, in response to which an HSBC representative wrote: "The applicable servicing documents must be adhered to." Referee Lindstrom thereupon requested an explanation of the reason(s) for the denial of a waiver. HSBC produced a letter dated November 3, 2015, from HSBC to Wells Fargo, which states in pertinent part as follows: This letter is in response to your letter dated September 15, 2015 to HSBC Bank USA, National Association ("HSBC"), in its capacity as trustee (the "Trustee") of the Wells Fargo Alternative Loan 2007-PA3 Trust (the "Trust") in which you request that the Trustee provide a written explanation as to why it cannot waive certain restrictions on loan modifications contained in the governing Trust documents.....If the governing agreements for a particular trust, however, include provisions which limit the instances in which loan modifications may be offered to borrowers, in its position as Trustee, HSBC is unable to unilaterally waive or remove such limitations.In this case, the Servicing Agreement limits the instances in which the Servicer canagree to loan modifications. These limitations include, for example, restrictions on modifications which reduce the amount of principal owed under a mortgage note and restrictions on modifications which permanently reduce the interest rate on a loan.[Citing Servicing Agreement §3.1.2] The Trustee is not authorized by the Servicing Agreement or the PSA to unilaterally waive these restrictions. Unless a formal amendment of these provisions is obtained in accordance with the requirements of

the governing Trust Documents, the Servicer must continue to comply with theserestrictions and the Servicer's other contractual obligations.

At the final settlement conference on November 3, 2015, Referee Lindstrom determined that Wells Fargo and HSBC had made a good faith effort to seek a waiver of investor restrictions on the HAMP modification of Ms. Ocasio's loan, and released this case from the foreclosure settlement conference part.

CPLR §3408(f) and HAMP

CPLR §3408(f) provides that at a mandatory foreclosure settlement conference, "[b]oth the plaintiff and defendant shall negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible." 22 NYCRR 202.12-a(c)(2) provides,

The conference shall include settlement discussions pertaining to the relative rights and obligations of the parties under the mortgage loan documents, including determining whether the parties can reach a mutually agreeable resolution to help the defendant avoid losing his or her home, and evaluating the potential for a resolution in which payment schedules or amounts may be modified or other workout options may be agreed to.

In U.S. Bank National Association v. Sarmiento, 121 AD3d 187 (2d Dept. 2014), the Second Department held that "the issue of whether a party failed to negotiate in 'good faith' within the meaning of CPLR 3408(f) should be determined by considering whether the totality of the circumstances demonstrates that the party's conduct did not constitute a meaningful effort at [*4]reaching a resolution." Id., at 203. "Where a plaintiff fails to expeditiously review submitted financial information, sends inconsistent and contradictory communications, and denies requests

for a loan modification without adequate grounds ... such conduct could constitute the failure to negotiate in good faith to reach a mutually agreeable resolution." Id., at 204.

In U.S. Bank Nat. Ass'n v. Smith, 123 AD3d 914 (2d Dept. 2014), the Second Department upheld a referee's finding that the plaintiff bank had failed to negotiate in good faith due in part to its failure to follow HAMP Guidelines. The Court wrote:

The applicable guidelines required the plaintiff, as a lender participating in HAMP, to attempt to obtain a waiver of an investor prohibition or restriction in lowering the interest rate and to keep such evidence in the loan file (see Making Home Affordable Program, Handbook for Servicers of Non-GSE Mortgages, version 4.0, ch. 2, §6.5 at 99 (August 17, 2012]). However, despite repeated requests by the referee to produce evidence that the plaintiff attempted to obtain a waiver of the investor's restrictions in the PSA, the plaintiff failed to demonstrate that it followed HAMP regulations and guidelines, which, as several trial courts have concluded, constitutes a failure to negotiate in good faith pursuant to CPLR 3408(f) (see e.g. U.S. Bank, N.A. v. Rodriguez, 41 Misc 3d 656, 664...

[Sup. Ct. Bronx County]; Flagstar Bank, FWB v. Walker, 37 Misc 3d 312, 316...[Sup. Ct.

Kings County], revd. on other grounds 112 AD3d 885...). Accordingly, the Supreme Court properly concluded that the plaintiff violated CPLR 3408(f) by failing to negotiate in good faith (see U.S. Bank N.A. v. Sarmiento, 121 AD3d 187...; Wells Fargo Bank, N.A. v. Meyers, 108 AD3d at 17...; Bank of Am., N.A. v. Rausher, 43 Misc 3d 488, 492...). Id., 123 AD3d at 916-917 (emphasis added).

The HAMP Program

Relevant background concerning the federal HAMP program and the HAMP Guidelines is laid out in Edwards v. Aurora Loan Services, LLC, 791 F. Supp. 2d 144 (D.D.C. 2011):

[O]n February 18, 2009, Treasury created the Making Home Affordable Program, a comprehensive plan to stabilize the U.S. housing market....HAMP is a component of the Making Home Affordable Program.Treasury entered into contracts with Fannie Mae, as financial agent, and Freddie Mac, as compliance agent, to administer HAMP....Fannie Mae, in turn, entered into contracts with loan servicers, which required the servicers to comply with HAMP Guidelines... Participation by servicers of non-Government-Sponsored Entity ("GSE") loans is

voluntary and if there are future material changes to the HAMP program or guidelines,

servicers have the unilateral right to opt out of HAMP....Treasury encourages loan servicer participation in HAMP by paying financial incentives to servicers and loan owners/investors that are sufficient to make a HAMP modification a better financial outcome than foreclosure for the servicer and investor....Many mortgage loans are held in securitization, which are pools of loans that have been bundled and placed in a trust that issues securities on the pool of loans....Such securitiesare usually held by a disparate pool of investors, and the securities are typically "tranched" into senior and subordinate securities. The related securitization agreement —generally known as a "pooling and servicing agreement" or "PSA" — typically imposes restrictions on modifications. These restrictions are usually in place to protect subordinate security holders, whose interests are more at risk from mortgage loan modifications than senior security holders. The HAMP SPAs recognize that loan servicers are bound by these pre-existing agreements with the investors....

Therefore, HAMP Guidelines do not require servicers to consider loans for HAMPmodification where prohibited by the rules of the applicable PSA and/or otherinvestor servicing agreements.... Id., 791 F. Supp. 2d at 148 (emphasis added). See also, JP Morgan Chase Bank, NA v. Ilardo, 36 Misc 3d 359, 367 (Sup. Ct. Suffolk Co. 2012).

The Guidelines for Servicers participating in the HAMP program provide in pertinent

part that servicers are not required to consider mortgage loans for HAMP modification where prohibited by a PSA or other investor servicing agreement. However, participating servicers must use reasonable efforts to obtain waivers of investor restrictions on such modification.

Section 1.1 ("Servicer Participation Agreement" [SPA]) provides in pertinent part:

...Participating servicers are required to consider all eligible mortgage loans for Services (as defined in the SPA) unless prohibited by the rules of the applicable PSA and/or other investor servicing agreements. As further described in Section 1.3, participating servicers are required to use reasonable efforts to remove any prohibitions and obtain waivers or approvals from all necessary parties in order to carry out the requirements of the SPA.

Section 1.3 ("Investor Solicitation") provides in pertinent part: Within 90 days of executing a SPA, the servicer must review all servicing agreements to determine investor participation in HAMP. Within 30 days of identifying an investor asa non-participant, or as unwilling to extend its participation in MHA to include any extension or expansion of an MHA program, or identifying a servicing agreement that limits or prohibits a servicer from offering assistance available under MHA, including, but not limited to, HAMP Tier 2 or Streamline HAMP modifications, the servicer must contact the investor in writing at least once, encouraging the investor to permit modifications and other assistance available under the extended and expanded MHA programs....[FN2]

Section 6.5 ("Prohibition on Modification of Waterfall Steps"), the guideline provision on which

the Second Department focused in U.S. Bank Nat. Ass'n v. Smith, supra, states in pertinent part: If a servicing agreement, investor guidelines or applicable law restricts or prohibits a modification step in the standard or alternative HAMP modification waterfalls and the servicer partially performs it or skips it, the modification may still qualify for HAMP. If the servicer is subject to restrictions that make it unfeasible to complete the modification waterfall steps, the servicer should identify this prior to performing the NPV evaluation and not perform an NPV evaluation. Servicers must maintain evidence in the loan file documenting the nature of any deviation from taking any sequential modification step in the modification waterfall and the fact that the applicable servicing agreement, investor guideline or law restricted or prohibited fully performing the modification waterfall step. The documentation must show that the servicer made

a reasonable effort to seek a waiver from the investor and whether that waiver wasapproved or denied.

In sum, HAMP imposes on mortgage loan servicers who agree to participate in the HAMP program an obligation to consider all eligible mortgage loans for HAMP modification unless prohibited by the rules of the applicable PSA and/or other investor servicing agreements, and to make reasonable, documented efforts to secure from mortgage investors a waiver of PSA or servicing agreement restrictions on loan modification, while concomitantly recognizing that such restrictions are contractually binding, and imposing no obligation on investors to waive or even consider waiving contractual protection against loan modification.

Investor Restrictions On HAMP Modification Of Ms. Ocasio's Loan

Ms. Ocasio's mortgage loan is owned and held by the Wells Fargo Asset Securities Corporation, Mortgage Asset-Backed Pass-Through Certificates, Series 2007-PA3 (the "Trust").

Wells Fargo Bank, N.A. ("Wells Fargo") services Ms. Ocasio's mortgage loan on behalf of plaintiff HSBC, the Trustee for the Trust. The relationship between Wells Fargo, HSBC and the Trust with respect to mortgage loans, including Ms. Ocasio's, owned by the Trust is governed by

(1) a "Pooling and Servicing Agreement" ("PSA") dated June 27, 2007 between Wells Fargo Asset Securities Corporation (Depositor) and Wells Fargo Bank, N.A. (Master Servicer) and HSBC Bank USA, National Association (Trustee); and (2) a "Servicing Agreement" dated June 27, 2007 between Wells Fargo Bank, N.A. (Master Servicer) and Wells Fargo Bank, N.A. (Servicer).

The Servicing Agreement and PSA permit certain modifications of mortgage loans

owned by the Trust, and prohibit other modifications. See, Servicing Agreement, Article 12 (Delinquency Management), Section 12.3 (Relief of Borrowers); PSA, Article III, Section 3.08.

Section 12.3.7 of the Servicing Agreement provides:

Accommodation Limitations. No modification, recast, extension, or capitalization of delinquent payments of a Mortgage Loan other than as provided in Section 12.3.6 hereof shall be permitted with respect to a Mortgage Loan.

Section 12.3.6(b) of the Servicing Agreement provides: The Servicer may modify the payment terms of Mortgage Loans that are in default, oras to which default is reasonably foreseeable; provided that no such modification shall reduce the Unpaid Balance of such Mortgage Loan or permanently reduce the MortgageInterest Rate of such Mortgage Loan; and provided further that prior to entering into any such modification the Servicer and the Master Servicer shall determine that such modifi-cation is likely to increase the proceeds of such Mortgage Loan over the amount expected to be collected pursuant to a foreclosure or other similar procedure....

Section 3.08 of the PSA, concerning the Master Servicer's "Oversight of Servicing", provides in

pertinent part:

For the purposes of determining whether any modification of a Mortgage Loan shall be permitted by the Master Servicer, such modification shall be construed as a substitution of the modified Mortgage Loan for the Mortgage Loan originally deposited in the Trust Estate if it would be a "significant modification" within the meaning of Section 1.860G-2(b) of the regulations of the U.S. Department of the Treasury. No modification shall be approved unless (i) the modified Mortgage Loan would qualify as a Substitute Mortgage Loan under Section 2.02...

Concerning "Substitute Mortgage Loans", Section 2.02 of the PSA provides in pertinent part: In no event shall any Substitute Mortgage Loan have an unpaid principal balance, as of the date of substitution, greater than the Scheduled Principal Balance (reduced by the scheduled payment of principal due on the Due Date in the month of substitution) of the Mortgage Loan for which it is substituted. In addition, such Substitute Mortgage Loan shall have a Loan-to-Value Ration less than or equal to and a Net Mortgage Interest Rate equal to that of the Mortgage Loan for which it is substituted.

HSBC asserts, and Ms. Ocasio does not deny, that the net effect of the foregoing provisions of the PSA and Servicing Agreement is to preclude any loan modification involving

(1) capitalization of arrears, (2) reduction of loan principal, or (3) permanent reduction of the interest rate — three of the four HAMP modification "waterfalls". Ms. Ocasio asserts, and HSBC does not deny, that the PSA and Servicing Agreement would under certain circumstances permit a modification whereby the term of Ms. Ocasio's mortgage loan was extended (the fourth HAMP modification waterfall).

However, even assuming that Ms. Ocasio's mortgage loan was HAMP-eligible to the limited extent of permitting a modification involving a term extension, and assuming further that Wells Fargo as loan servicer failed or refused to consider such a modification, there can be no imputation of bad faith on that ground. In the context of the first foreclosure action, Wells Fargo [*5]at Referee Lindstrom's request conducted a "hypothetical" review of Ms. Ocasio's application for a HAMP modification and found that she did not qualify for a "hypothetical" HAMP modification because an affordable target payment of 31% of her income could not be reached.

In the context of the second foreclosure action, Ms. Ocasio does not explain how a modification limited to a term extension was even remotely a conceivable solution, where (a) the term of the mortgage loan was already 30 years, and (b) arrears had accumulated to the point that the amount due exceeded by a considerable margin the original principal amount of the loan.

It is eminently clear, then, that the PSA and Servicing Agreement prohibited any HAMP modification that might conceivably have worked for the parties. The question remains whether in accordance with HAMP Guidelines a reasonable documented effort was undertaken to obtain a waiver of investor restrictions on HAMP modification.

Amendment of the PSA and Servicing Agreement

HSBC, as Trustee, had no unilateral authority to waive contractual limitations in the

PSA and Servicing Agreement on HAMP loan modification. Section 10.01 of the PSA does, however, provide for the amendment of the PSA in the following terms: This Agreement or the Custodial Agreement may also be amended from time to time by the Depositor, the Master Servicer and the Trustee with the consent of the Holders of Certificates evidencing in the aggregate not less than 66-2/3% of the aggregate Voting Interests of each Class of Certificates affected thereby, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or such Custodial Agreement or of modifying in any manner the rights of the Holders of Certificates of such Class; provided, however, that no such amendment shall

(i) reduce in any manner the amount of, or delay the timing of, payments received on

Mortgage Loans which are required to be distributed on any Certificates without the consent of the Holders of Certificates, (ii) adversely affect in any material respect the interest of the Holders of Certificates of any Class in a manner other than as describedin clause (i) hereof without the consent of Holders of Certificates of such Class evidencing, as to such Class, Voting Interests aggregating not less than 66-2/3% or...Notwithstanding any contrary provision of this Agreement, the Trustee shall not consent to any amendment to this Agreement unless it shall have first received an Opinion of Counsel to the effect that such amendment will not subject any of the Upper-Tier REMIC,[FN3]the Middle-Tier REMIC or the Lower-Tier REMIC to tax or cause any of the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to qualify at any time that any Certificates are outstanding.

Section 3.07 of the PSA further provides for amendment of the Servicing Agreement in the

following terms:

(a) Subject to the prior written consent of the Trustee pursuant to Section 3.07(b) and the prior written consent of the Depositor, the Master Servicer may, from time to time, to the extent permitted by the applicable Servicing Agreement, make such modifications and amendments to such Servicing Agreement as the Master Servicer deems necessary or appropriate to confirm or carry out more fully the intent and purpose of such Servicing Agreement and the duties, responsibilities and obligations to be performed by the applicable Servicer thereunder. Such modifications may only be made if they are consistent with the REMIC Provisions, as evidence by an Opinion of Counsel. Prior to the issuance of any modification or amendment, the Master Servicer shall deliver to the Trustee and the Depositor such Opinion of Counsel and an Officer's Certificate setting forth (i) the provision that is to be modified or amended, (ii) the modification or amendment that the Master Servicer desires to issue and (iii) the reason or reasons for such proposed amendment or modification.

(b) The Trustee shall consent to any amendment or supplement to a Servicing Agreement proposed by the Master Servicer pursuant to Section 3.07(a), which consent and amendment shall not require the consent of any Certificateholder if it is (i) for the purpose of curing any mistake or ambiguity, to further effect or protect the rights of the Certificateholders or (ii) for any other purpose, provided such amendment or supplement for such other purpose cannot reasonably be expected to adversely affect Certificate- holders. The lack of reasonable expectation of an adverse effect on Certificateholders may be established through the delivery to the Trustee of (i) an Opinion of Counsel to such effect or (ii) written notification from each Rating Agency to the effect that such amendment or supplement will not result in reduction of the current rating assigned by that Rating Agency to the Certificates....

Thus, depending on the impact a proposed HAMP modification would have on the Trust's Certificateholders, amending the PSA and/or the Servicing Agreement to permit such modification would require either (1) the agreement of Depositor, Master Servicer and Trustee, the consent of 66-2/3% of the voting interests of the affected class of certificates, and an opinion of counsel, or, at the very least, (2) the prior written consent of both the Depositor and Trustee, an opinion of counsel that the amendment is consistent with federal income tax law governing REMICs, and either a second opinion of counsel establishing the lack of reasonable expectation of an adverse effect on Certificateholders, or written notification from the Rating Agencies that such amendment would not reduce the rating assigned by the Agency to the Certificates.

Findings And Conclusions

The federal HAMP program takes cognizance of the fact that many mortgage loans,

like Ms. Ocasio's, are held in securitization; that they are subject to a pooling and servicing agreements ("PSAs") which impose restrictions on loan modifications to protect the interests of subordinate security holders who are at risk from mortgage loan modifications; and that loan servicers are bound by these pre-existing agreements with the investors. Thus, servicers are

not required to consider loans for HAMP modification where prohibited by the rules of the applicable PSA and/or other investor servicing agreements. See, Edwards v. Aurora Loan Services, LLC, supra; JP Morgan Chase Bank, NA v. Ilardo, supra; HAMP Guidelines §§ 1.1, 1.3, 6.5. The evidence here establishes that the PSA and Servicing Agreement governing the [*6]relationship between Wells Fargo (servicer), HSBC (trustee) and the Trust (owner) with respect to mortgage loans owned by the Trust impose severe contractual limitations on loan modification which effectually prohibited a HAMP modification of Ms. Ocasio's mortgage loan absent an amendment of the PSA and/or Servicing Agreement. Accordingly, Wells Fargo was not required to consider Ms. Ocasio's mortgage loan for a HAMP modification.

The HAMP Guidelines impose no obligation on non-participating investors or lenders to waive or even consider waiving contractual protection against loan modification. A participating servicer, like Wells Fargo, is required (1) to use reasonable efforts to remove any contractual prohibitions and obtain waivers or approvals from all necessary parties in order to carry out the requirements of its HAMP Servicer Participation Agreement, by contacting the investor in writing at least once and encouraging the investor to permit modifications and other assistance available under Making Home Affordable programs, and (2) maintain documentation showing that it made a reasonable effort to seek a waiver from the investor and whether that waiver was approved or denied. See, HAMP Guidelines Sections 1.1, 1.3, 6.5. The record, set forth hereinabove, establishes not only that the requisite communications were made and documented, but also that Ms. Ocasio's counsel was furnished with copies of the agreements which created the contractual limitations on HAMP loan modification, and that HSBC and Wells Fargo complied with Referee Lindstrom's request for an explanation of the reasons why those limitations would not be waived. The court concludes that the record supports Referee Lindstrom's determination that Wells Fargo and HSBC had made a good faith effort to seek a waiver of investor restrictions on the HAMP modification of Ms. Ocasio's loan.

After twenty-two (22) settlement conferences conducted over the course of four years, it has become clear enough that Ms. Ocasio's loan is not eligible for a HAMP modification; that she does not qualify financially for non-HAMP loss mitigation options; and that she has declined

viable settlement options such as a short sale or "cash for keys" offer. Under the circumstances, the court further concludes that HSBC has complied with its obligation under CPLR §3408 to negotiate with Ms. Ocasio in good faith to reach a mutually agreeable resolution.

It is therefore

ORDERED, that Plaintiff's motion for summary judgment, an order of reference and other relief is granted in its entirety, and the proposed Order is issued herewith, and it is furtherORDERED, that Defendant Vivian Ocasio's cross motion for an order dismissing the action or returning to the foreclosure settlement part is denied.

Dated: September 15, 2016

E N T E R

Goshen, New York

HON. CATHERINE M. BARTLETT, A.J.S.C. Footnotes

Footnote 1:A default letter dated August 23, 2013 indicated that as of that date the amount due to cure Ms. Ocasio's default was the sum of $89,673.22.

Footnote 2:Plaintiff has tendered evidence of compliance with HAMP Guidelines Sections 1.1 and 1.3 via a May 11, 2012 letter from Wells Fargo Bank, N.A. to Wells Fargo Corporate Trust Services requesting blanket consent to future Making Home Affordable ("MHA") mortgage loan modifications, and waiving restrictions or limitations that would prohibit modification under the MHA Program. See, Affidavit of Richard L. Penno, ¶5-6, Ex. D.

Footnote 3:"REMIC" is a "real estate mortgage investment conduit" as defined in Internal Revenue Code Section 860D.