You are here: / / Hearing Required to Determine Whether Plaintiff Bank Negotiated in Good...
,

Hearing Required to Determine Whether Plaintiff Bank Negotiated in Good Faith During the Settlement Conference

The Second Department determined defendant homeowner had raised questions of fact whether plaintiff bank negotiated in good faith in a settlement conference pursuant to CPLR 3408 (designed to find a way to avoid foreclosure). The determinative motions heard by Supreme Court were therefore premature. The matter was sent back for a hearing on the “good faith” question:

CPLR 3408 requires the parties to a residential foreclosure action to attend settlement conferences at an early stage of the litigation, at which they must “negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible” (CPLR 3408[f]). During settlement conferences, “[m]otions shall be held in abeyance” (22 NYCRR 202.12-a[c][7]). Here, the defendant submitted evidence that the plaintiff may have failed to exercise good faith during the settlement conference phase of this action with respect to her applications seeking a loan modification pursuant to the federal Home Affordable Modification Program (hereinafter HAMP). Specifically, she presented evidence that the plaintiff may have violated HAMP regulations and guidelines, which would constitute a failure to negotiate in good faith as required by CPLR 3408(f) … . She also presented evidence that the plaintiff engaged in dilatory conduct, such as making piecemeal document requests, providing contradictory information, and repeatedly requesting documents which had already been provided … . Since the defendant’s submissions raise a factual issue as to whether the plaintiff failed to negotiate in good faith, thus depriving her of a meaningful opportunity to resolve this action through loan modification or other potential workout options (see CPLR 3408[a]), the Supreme Court should have held a hearing to determine this issue prior to consideration of the plaintiff’s motion and the defendant’s cross motion. Onewest Bank, FSB v Colace, 2015 NY Slip Op 06321, 2nd Dept 7-29-15

 

You might also like
NO EVIDENCE THE FATAL ACCIDENT WAS CAUSED BY DRIVING TOO FAST FOR THE CONDITIONS; PETITIONER WAS TRAVELLING BELOW THE SPEED LIMIT WHEN HIS CAR STRUCK A POTHOLE, CAUSING A MECHANICAL FAILURE (SECOND DEPT).
Defendant Driver Could Not Avoid Striking Bicyclist Who Did Not Stop at a Stop Sign
PUTATIVE FATHER’S REQUEST FOR A DNA PATERNITY TEST SHOULD NOT HAVE BEEN DENIED 2ND DEPT.
PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE ALLEGED DEFENDANT DRIVER WAS DEFENDANT COMPANY’S EMPLOYEE AND WAS ACTING WITHIN THE SCOPE OF EMPLOYMENT AT THE TIME OF THE ACCIDENT; DEFENDANT COMPANY FAILED TO DEMONSTRATE THE DRIVER WAS AN INDEPENDENT CONTRACTOR, NOT AN EMPLOYEE; THE FACT THAT THE EMPLOYMENT CONTRACT USES THE TERM “INDEPENDENT CONTRACTOR” IS NOT DISPOSITIVE OF THE ISSUE (SECOND DEPT). ​
THE EVIDENCE DID NOT SUPPORT THE TERMINATION OF MOTHER’S PARENTAL RIGHTS; PETITIONER MADE NO EFFORT TO HELP MOTHER MAKE THE TRIAL DISCHARGE WORK (SECOND DEPT).
NO LIABILITY WHERE DRIVER SUFFERED AN UNFORESEEABLE MEDICAL EMERGENCY.
GALLBLADDER SURGERY WAS PERFORMED ON PLAINTIFF, BUT HER GALLBLADDER HAD BEEN REMOVED YEARS BEFORE; THE DOCTORS APPARENTLY DID NOT REVIEW THE AVAIABLE MEDICAL RECORDS; THE RADIOLOGIST DID NOT DISCOVER THAT THE GALLBLADDER WAS ABSENT; THE DOCTORS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
SUPREME COURT SHOULD NOT HAVE DISMISSED THIS DENTAL MALPRACTICE ACTION ON THE GROUND THE PLAINTIFFS’ EXPERT WAS NOT QUALIFIED TO RENDER AN OPINION; ANY WEAKNESSES IN THE EXPERT’S AFFIDAVIT WENT TO ITS WEIGHT NOT ITS ADMISSIBILITY (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Agency’s Failure to Follow Its Own Regulations Renders Determination Arbitrary... The Arbitrator Had the Power to Determine Whether Respondent Insurer Was a Motor...