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“NOTWITHSTANDING” CLAUSE IN THE ADDENDUM TO THE NOTE CONTROLS, THE ADDENDUM REQUIRED THAT THE MONTHLY PAYMENTS ON THE NOTE START BEFORE THE DATE DESCRIBED IN THE NOTE ITSELF (SECOND DEPT).

The Second Department determined the order and judgment of foreclosure was properly granted. The court explained that an addendum to the note, which included the phrase “notwithstanding anything to the contrary set forth in the Note,” controlled. Based on the language of the addendum, appellants were required to make monthly payments during the construction period. Appellants had argued that, under the terms of the Note, no payments were required until the construction was complete:

“[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” … . “Where the terms of an agreement are unambiguous, interpretation is a question of law for the court” … . “A written contract will be read as a whole, and every part will be interpreted with reference to the whole; and if possible it will be so interpreted as to give effect to its general purpose” … . It is important not to distort the meaning of a writing by placing “excessive emphasis . . . upon particular words or phrases” … .

Here, pursuant to the note, Todd Amus agreed that he would “pay interest beginning on the Permanent Loan Commencement Date,” i.e., January 1, 2010, and would “make these payments every month until [he had] paid all the principal and interest and any other charges” he might owe under the note. However, Todd Amus also executed the note addendum, which was incorporated into and “deemed to amend and supplement the Note,” and in which he agreed to its terms “[n]otwithstanding anything to the contrary set forth in the Note.” IndyMac Venture, LLC v Amus, 2018 NY Slip Op 05920, Second Dept 8-29-18

CONTRACT LAW (“NOTWITHSTANDING” CLAUSE IN THE ADDENDUM TO THE NOTE CONTROLS, THE ADDENDUM REQUIRED THAT THE MONTHLY PAYMENTS ON THE NOTE START BEFORE THE DATE DESCRIBED IN THE NOTE ITSELF (SECOND DEPT))/FORECLOSURE (“NOTWITHSTANDING” CLAUSE IN THE ADDENDUM TO THE NOTE CONTROLS, THE ADDENDUM REQUIRED THAT THE MONTHLY PAYMENTS ON THE NOTE START BEFORE THE DATE DESCRIBED IN THE NOTE ITSELF (SECOND DEPT))/NOTWITHSTANDING CLAUSE (CONTRACT LAW, “NOTWITHSTANDING” CLAUSE IN THE ADDENDUM TO THE NOTE CONTROLS, THE ADDENDUM REQUIRED THAT THE MONTHLY PAYMENTS ON THE NOTE START BEFORE THE DATE DESCRIBED IN THE NOTE ITSELF (SECOND DEPT))

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SUPREME COURT ABUSED ITS DISCRETION IN PRECLUDING PLAINTIFF FROM PRESENTING... LETTER DID NOT ACKNOWLEDGE THE DEBT AND THEREBY REVIVE A TIME-BARRED FORECLOSURE...