Somewhere along the line, people are going to start asking why “the banks” wait so long and they will come up with the answer: that “the banks” make more money by waiting.
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- Just a few months ago in United States Bank National Association v. Martinez, the Kings County Supreme Court addressed whether a borrower’s payments during the HAMP Trial Period renewed the statute of limitations under § 17-101. See 2016 WL 7973961, at *16-17 (Table) (Sup. Ct. Kings Cty. 2016). Relying on Petito and Sichol, among other New York precedents, the court held that “[the borrower’s] execution of the 2009 HAMP Trial was not an acknowledgment of the debt sufficient to toll and renew the Statute of Limitations [under] § 17-101.” Id. at *17. The court reasoned:
The 2009 HAMP Trial does not qualify as an acknowledgment of an existing debt, pursuant to GOL § 17-101, because the 2009 HAMP Trial does not contain [the borrower’s] express acknowledgment of his indebtedness under the … Mortgage and Note [n]or [the borrower’] express promise to pay any of the outstanding debt. Instead, [the borrower] made a conditional promise to make three payments … during the three-month 2009 HAMP Trial period during which [the lender] promised to review [the borrower’s] documented income to determine whether [he] qualified for a final HAMP modification.
Id.; see id. at *16 (“[A] HAMP modification trial is not an agreement for the binding obligations of the parties going forward because it is merely a trial arrangement.” (internal quotation marks omitted) (quoting Meyers, 966 N.Y.S.2d at 116)).
The Court finds that the unique facts of this case are governed by the
Third Department’s reasoning and holding in Clark: Defendants took a calculated risk in continuing to pay the Carrying Costs in order to maintain the Property following Plaintiffs’ December 2007 default.The Third Department — relying on the principle that “the mere fact that the plaintiff’s activities bestowed a benefit on the defendant is insufficient” and that, instead, the plaintiff’s “services [must be] performed for the defendant resulting in [the latter’s] unjust enrichment” — upheld the summary-judgment dismissal of the lenders’ unjust-enrichment claim. Clark, 751 N.Y.S.2d at 623 (emphasis in original) (internal citations omitted). The court recognized that there was “no question” that the lenders’ tax payment “worked to [the borrower’s] benefit by relieving him of that burden.” Id. at 624. Nevertheless, the court found that it was equally clear that plaintiffs operated under no mistake of fact or law but, rather, their sole motivation in making the payment was to protect their own interests.
Filed under: foreclosure |