Creditors Rights / Foreclosures

Tuesday, 05 March 2013 04:11 Written by

In Wells Fargo Bank, N.A. v. Van Dyke et al., --N.Y.S.2d--, 101 A.D.3d 638 (N.Y. A.D. 1st Dep’t, December 27, 2012), Defendant mortgagors attempted to have a foreclosure summon and complaint dismissed against them, on the ground that Plaintiff allegedly failed to offer the defendants a loan modification pursuant to CPLR Section 3408 (the statute providing for mandatory foreclosure settlement conferences in New York). The trial court denied the motion to dismiss, and defendants appealed to the Appellate Division, Second Department. The Appellate Division, Second Department, affirmed the decision of the trail court, noting: “”Contrary to defendants’ apparent belief, Plaintiff was not required by CPLR Section 3408 to offer them a settlement. While the aspirational goal of CPLR 3408 negotiations is that the parties “reach a mutually agreeable resolution to help the defendant avoid losing his or her home,”…