SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: IAS Part 3
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FRANCIS E. BAUER, KAREN A. BAUER,
on behalf of themselves and all others
similarly situated,
Plaintiffs,
Index No.:103103/97
SEQ No.:001 and 002
-against-
MELLON MORTGAGE COMPANY and
GE MORTGAGE INSURANCE CORPORATION,
Defendants.
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BARRY A. COZIER, J.:
Motion sequences 001 and 002 are consolidated for disposition. In motion sequence 001, defendant Mellon Mortgage Company ("Mellon") moves pursuant to CPLR 3211(a)(5) and 3211(a)(7) for dismissal of the complaint on the grounds that: (1) plaintiffs are precluded from relitigating their claims by the doctrine of collateral estoppel; and (2) the complaint fails to state a cause of action.
In motion sequence 002, defendant General Electric Mortgage Insurance Corporation ("Gemico") moves, pursuant to CPLR 3212, for summary judgment.
FACTUAL ALLEGATIONS
Plaintiffs Francis Bauer and Karen Bauer purchased a home in Wheatfield, NY on February 18, 1986, for a purchase price of $66,900. The purchase price was paid by a $3,400 down payment together with a $63,500 first mortgage loan provided by Chase Lincoln First Bank, N.A. ("Chase Lincoln"). Effective March 16, 1995, Chase Lincoln (or one of its affiliates) transferred the servicing of the loan to Mellon.
At the time of the purchase, the property was appraised for a value equal to or greater than the purchase price. Plaintiffs allege that, because the LTV ratio exceeded 80%, ChaseLincoln required them to purchase private mortgage insurance ("PMI")1 from an insurer designated by Chase Lincoln, and to pay premiums for the PMI. Gemico issued the PMI policy.
Plaintiffs allege that, under New York law, a lender may not require a mortgagor to carry PMI when the unpaid principal loan amount represents 75% or less of the property’s appraised value. Plaintiffs contend that Mellon, the servicer of their mortgage, did not notify them when the unpaid principal balance fell below 75% of the property’s value so that they could discontinue the PMI. Thus, plaintiffs allege that while their unpaid mortgage balance was, by October 1, 1995, less than 75% of the real estate’s appraised value at the time that the loan was made, they were charged for, and paid, PMI premiums until sometime in June 1996. Plaintiffs allege that this practice violates state law and their own mortgage contracts.
Plaintiffs brought this action on behalf of two proposed classes. The Mellon class consists of all persons who have obtained a first mortgage loan for a home located in New York State, whose loans are or were serviced by Mellon, and who have been billed by Mellon and have paid PMI during periods when the LTV ratio was 75% or less. The Gemico class consists of persons who have obtained a first mortgage loan for a home located in New York State, whose PMI is or was provided by Gemico, and who have paid PMI during periods when the LTV ratio was 75% or less.
Plaintiffs contend that Mellon included amounts for PMI premiums in its bills and or calculations of monthly payments due from the Mellon class members, whose loans have LTV ratios that have fallen below 75% and that Mellon collects those amounts from the classmembers. Plaintiffs contend that Gemico includes notifications or bills for payment of PMI premiums sent to loan servicers for billing to the Gemico class members whose loans have LTV ratios that have fallen below 75%. According to plaintiffs, those notifications or bills misrepresent that such premium amounts are owed. Gemico receives those amounts from class members.
As against Mellon, the complaint contains four causes of action for: (1) breach of contract; (2) money had and received; (3) violation of General Business Law ("GBL") § 349; and (4) breach of fiduciary duty. As against Gemico, the complaint contains three causes of action for: (1) money had and received; (2) violation of GBL § 349; and (3) tortious interference with contractual relations. Although not specified as a separate cause of action, plaintiffs contend that Mellon violated New York Insurance Law § 6503(d).
According to plaintiffs, they properly brought this as a class action because of the following common questions of law: (1) whether defendants billed for and collected PMI premium payments from class members after the class members’ LTV ratios fell to 75% or less; (2) whether that practice violated the terms of the class members’ mortgage loans; (3) whether that practice violates GBL § 349; (4) whether defendants collected money that in equity and good conscience belongs to the class members; (5) whether defendants conspired with other loan servicers and PMI providers to commit the complained of acts; (6) whether Mellon owed a fiduciary duty or other duty to terminate PMI for the Mellon class members in accordance with applicable law; (7) whether Gemico tortiously interfered with the loan contracts of the Gemico class members by continuing to bill for and collect premiums; and (8) whether the class members have been damaged and suffered irreparable harm and, if so, the extent of such damages and the nature of the equitable and injunctive relief to which they are entitled.
Related Federal Action
The Bauers were two of the named plaintiffs in a federal action in the Northern District of Alabama against the owners of their mortgage, the Federal Home Loan Mortgage Corporation ("FHLMC") entitled Deerman v Federal Home Mortgage Corp., 955 F.Supp 1393 (ND Ala. 1997), aff’d 140 F.3d 1043 (11th Cir 1998).
DETERMINATION
Mellon’s motion is granted to the extent that plaintiff’s breach of fiduciary duty cause of action is dismissed. Gemico’s motion for summary judgment is granted to the extent that summary judgment is granted with respect to plaintiff’s violation of GBL § 349 and tortious interference with contract causes of action.
DISCUSSION
Motion 001 (Mellon)
Mellon seeks dismissal of the complaint on the grounds that (1) plaintiffs are collaterally estopped from re-litigating their claims based on the Deerman decision and (2) none of the causes of action are validly stated.
Collateral estoppel, an equitable doctrine, is based upon the general principal that a party should not be permitted to relitigate an issue decided against it. D’Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659 (1990). Generally, Mellon, the defendant in a state action, is entitled to rely upon this doctrine to bar relitigation of the issues determined in the federal district decision of Deerman. SeeMatter of Kramer, 235 A.D.2d 87 (1st Dep’t 1997), lv to appeal denied 91 NY2d 805 (1998).
However, to utilize this doctrine, the following two requirements must be satisfied: First, the party seeking the benefit of collateral estoppel must prove that the identical issue wasnecessarily decided in the prior action and is decisive in the present action. Second, the party to be precluded from relitigating an issue must have had a full and fair opportunity to contest the prior determination. D’Arata v. New York Cent. Mut. Fire Ins. Co., supra. As discussed below, Mellon has not demonstrated the applicability of this doctrine to bar plaintiffs’ claims.
1. Insurance Law § 6503
Although not specified as a separate cause of action, plaintiffs contend that Mellon violated New York Insurance Law § 6503(d) as a basis for its causes of action.Under New York law, a lender may not require a mortgagor to carry PMI when the unpaid principal loan amount represents 75% or less of the property’s appraised value. New York Insurance Law § 6503(d) provides in relevant part:
[A] mortgagor shall not be required to pay, directly or indirectly, the cost of continuing mortgage guaranty insurance on a loan secured by a first lien on real estate when the unpaid principal amount of the real estate loan represents seventy-five percent or less of the real estate’s appraised value at the time the loan was made or such higher percentage of such appraised value as may be established from time to time by general regulation of the banking board ....
Plaintiffs contend that Mellon violated this statute because it required them to maintain PMI after the LTV ratio fell below 75% of the appraised value of the property at the time that the loan was made. Plaintiffs states that, by continuing to bill for and collect the PMI premiums, they were, in effect, required to continue the PMI policy. Mellon argues that § 6503 does not provide for a private cause of action.
The parties agree that no New York court has addressed the issue of whether § 6503 permits a private right of action. In Deerman v. Federal Home Mortgage Corp., supra at 1401, apparently the only decision to interpret § 6503, the Alabama federal district court held that the Bauers did not have a private right of action under this provision of the New York Insurance Lawand that neither their contract nor any New York statute required the bank to provide notice to the Bauers about how or when the mortgage insurance might be canceled. Id.
As a preliminary matter, collateral estoppel does not apply to pure questions of law and, consequently, the doctrine of collateral estoppel does not preclude plaintiffs from litigating this issue. American Home Assur. Co. v. International Ins. Co., 90 N.Y.2d 433 (1997). However, this court concurs with the decision in Deerman, as to § 6503 and a private right of action, and adopts its reasoning.
Section 6503 does not expressly provide for a private right of action. Typically, courts do not construe the Insurance Law as providing for a private right of action, in the absence of express language authorizing such enforcement. See, e.g., Rocanova v. Equitable Life Assur. Society, 83 N.Y.2d 603 (1994)(no private right of action under Insurance Law 2601); Kurras v. CNA Ins. Co., 115 A.D.2d 593 (2d Dep’t 1985).
Moreover, whether a statute gives rise to a private right of action for civil damages involves a tripartite test: (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purposes; and (3) whether creation of such a right would be consistent with the legislative scheme. Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 633 (1989), citingBurns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 329-331 (1983).
Arguably, plaintiffs’ allegations satisfy the first two prongs of this test. However, the third prong is the most important [Brian Hoxie’s Painting Co. v. Cato Meridian Cent. Sch. Dist., 76 N.Y.2d 207 (1990)], in that a private right of action should not be judicially sanctioned where it is incompatible with the enforcement mechanism chosen by the legislature or with some other aspect of the overall statutory scheme. Izzo v. Manhattan Med. Group, 164 A.D.2d 13 (1stDep’t 1990), lv to appeal dismissed 77 N.Y.2d 989 (1991). The legislature has provided express administrative remedies.2 Thus, enforcement is more appropriate within the province and jurisdiction of the State Superintendent of Insurance. Kurras v. CNA Ins. Co., supra.
Furthermore, plaintiffs do not allege that they were actually required to, or in any way coerced into continuing the PMI policy in violation of the statute. Rather, plaintiffs contend that, by continuing to bill them, Mellon, in effect, caused them to continue the insurance by failing to apprise them of their rights. There is pending legislation to address this issue and require appropriate notification. See Senate Bill S5343, 220th Legis. Sess., N.Y. (May 19, 1997).
2. Breach of Contract
Plaintiffs are not collaterally estopped from asserting the breach of contract claim, because that claim was not raised in Deerman. SeeD’Arata v. New York Cent. Mut. Fire Ins. Co., supra.
In Deerman, plaintiffs alleged (1) a violation of GBL § 349 (which prohibits deceptive acts and practices) and (2) a violation of Insurance Law § 6503. Plaintiffs also sought a declaratory judgment on the right of the borrowers concerning cancellation of and notice about PMI under the mortgage contract. In Deerman, plaintiffs alleged that the relevant mortgage contracts gave them the right to automatic cancellation of the insurance. That claim is not asserted here. Moreover, in Deerman, the court stated:
Arguably, the Bauers might assert a claim for breach of contract for failure to cancel their mortgage insurance if and when New York law required such cancellation. The court is confident that this is not the proper forum for the Bauers to state a claim for breach of contract under New York law. 955 F.Supp at 1402, fn. 10.
A valid breach of contract claim requires allegations setting forth: (1) the terms of the agreement; (2) consideration; (3) performance by plaintiffs; and (4) the basis of the alleged breach. Furia v. Furia, 116 A.D.2d 694, 695 (2d Dep’t 1986). The sufficiency of the allegations as to the first three elements are not in dispute and plaintiffs have adequately set forth the basis of the alleged breach. The mortgage contract provides:
I will pay to Lender all amounts necessary to pay for taxes, assessments, leasehold payments or ground rents (if any), and hazard insurance on the Property and mortgage insurance (if any). I will pay those amounts to Lender unless Lender tells me, in writing that I do not have to do so, unless the law requires otherwise. I will make those payments on the same day that my monthly payments of principal and interest are due under the Note.
If Lender required mortgage insurance as a condition of making the loan that I promise to pay under the Note, I will pay the premiums for that mortgage insurance. I will pay the premiums until the requirement for mortgage insurance ends according to my written agreement with lender or according to law. Lender may require me to pay the premiums in the manner described in paragraph 2 [which describes borrowers monthly mortgage loan payment to the lender] above. (Emphasis added).
Plaintiffs assert that, in violation of the above referenced provisions, they were charged for PMI premiums after the requirement ended. Arguably, this violated the provision that obligated them to pay the premiums only until the mortgage insurance requirement ended, pursuant to the lender’s written agreement or according to law. As previously discussed, § 6503 may require a lender to accept a cancellation when the operative LTV percentage is reached. According to Mellon, under the mortgage contract, plaintiffs must continue mortgage insurance until the note is paid in full. Notwithstanding the potential merit to this assertion, to successfully withstand a CPLR 3211(a)(7) motion, plaintiffs, as the proponent of the pleading, needdemonstrate only that they have a cause of action, not actually prove it. See, Leon v. Martinez, 84 N.Y.2d 83 (1994).
3. Money had and received.
Mellon’s motion to dismiss plaintiff’s cause of action for money had and received must also fail, as plaintiffs have adequately set forth the basis this cause of action.
Plaintiffs allege that Mellon, through its practice of billing for and collecting PMI from borrowers whose LTV ratios have fallen below 75%, is obtaining money that it is not entitled to receive and that in equity it should not retain.
A cause of action for money had and received is one of quasi-contract or of contract implied-in-law. The law recognizes such a cause of action "in the absence of an agreement when one party possesses money that in equity and good conscience [it] ought not to retain and that belongs to another." Board of Ed. of Cold Spring Harbor Cent. School Dist. v. Rettaliata, 78 N.Y.2d 128, 138 (1991). "It allows [a] plaintiff to recover money which has come into the hands of the defendant 'impressed with a species of trust because under the circumstances it is' against good conscience for the defendant to keep the money." Id.
Plaintiffs maintain that Mellon received the PMI payments, placed the funds in escrow accounts, and benefitted from the receipt of the payments and in good equity and conscience should not retain the funds. Arguably, the PMI payments made to Mellon were based upon a mistaken interpretation of the mortgage contract and the insurance statute. Payment by mistake is a sufficient basis to support this claim. Manufacturer’s Hanover Trust Co. v. Chemical Bank, 160 A.D.2d 113 (1st Dep’t 1990), appeal denied 77 N.Y.2d 803 (1991).
An essential element is that defendant received and retained money rightfully belonging to plaintiff. Calisch Assoc. Inc. v. Manufacturers Hanover Trust Co., 151 A.D.2d 446 (1st Dep’t1996). Plaintiffs allege that Mellon received the funds and placed them into an escrow account under its control, albeit for eventual payment to Gemico.
4. Violation of GBL § 349.
Plaintiffs allege that Mellon’s conduct in continuing to bill and collect PMI premium payments from the class members constitutes unfair, unconscionable, and deceptive commercial acts or practices in violation of GBL § 349.
GBL § 349 provides in relevant part:
(a) Deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.
Plaintiffs allege that the mortgage contract provided that their obligation to continue to pay PMI will continue so long as required by law. Thus, plaintiffs assert that, by continuing to bill them for PMI, Mellon reasonably led plaintiffs to believe that they were required to continue the insurance.
To establish a Section 349 violation, the conduct must be consumer-oriented and have a broad impact on consumers at large. Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20 (1995). A prima facie case also requires a showing that defendant is engaging in an act or practice that is deceptive or misleading in a material way and that plaintiff has been injured by reason thereof. Id. Plaintiffs claim that their contract provides that they pay PMI only until their obligation ends and that Mellon’s actions were intentionally designed to make them believe that their obligation continued. At this stage of the litigation, the pleadings are sufficient to require an answer to the allegations.
Since plaintiffs have met this threshold, their prima facie case may then be established by proving that defendant Mellon is engaging in an act or practice that is deceptive in a materialway and that plaintiffs have been injured by it. New York University v. Continental Ins. Co., 87 NY2d 308 (1995). Furthermore, since Mellon required the PMI, and because it handled the billing and the payments and premiums, it could be deemed to have a knowledge superior to that of its customers regarding the terms of their own contractual arrangements; thereby, giving it a legal duty to disclose information pertaining to the PMI. See, Super Glue Corp. v. Avis Rent-A-Car Sys. Inc., 159 A.D.2d 68 (2d Dep’t 1990), appeal denied, 77 N.Y.2d 801 (1991).
Moreover, plaintiffs are not collaterally estopped from asserting this claim because it was not adjudicated in Deerman. D’Arata v. New York Cent. Mut. Fire Ins. Co., supra. The sole defendant in Deerman was FHLMC. The court ruled that, as a federal instrumentality, FHLMC was not bound by the unauthorized acts of its seller/servicers. Deerman, supra at 1400, citingFederal Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947). Furthermore, in Deerman, the court indicated that plaintiff might have a claim under the statute stating that "to the extent that New York law, including [GBL § 349], would require disclosure of the cancellation provisions, the servicers are required to follow that law." Id.
The further statement by the court that "even if the Bauers could allege an act or practice by the FHLMC in New York, they cannot demonstrate that such an act or practice was deceptive," does not bar this claim because it constitutes dictum and was unnecessary to the court’s ruling. Sahn v. Afco Industries, 192 A.D.2d 480 (1st Dep’t 1993); Town of Easthampton v. Omabuild USA No. 1, Inc., 215 A.D.2d 746 (2d Dep’t 1995).
5. Breach of fiduciary duty.
Plaintiffs allege that each member of the Mellon class relied upon and placed their trust in Mellon to obtain PMI, select the insurer that they would be required to use, renew or cancel PMI, provide proper advice concerning PMI and properly bill for PMI premium payments, as requiredby applicable law. Plaintiffs also allege that Mellon did not provide the members with copies of their policies, consult them regarding the selection of their PMI insurers, and provide them with information about policy terms including termination requirements. Plaintiffs allege further that by virtue of the relationship of the parties and the superior bargaining position of Mellon, a confidential or fiduciary relationship existed between Mellon and the Mellon class members. According to plaintiffs, Mellon breached its fiduciary duty by continuing to bill for and collect PMI premiums after the requirement for PMI terminated in accordance with New York law.
The "legal relationship between a borrower and a bank is a contractual one of debtor and creditor and does not create a fiduciary relationship between the bank and its borrower or its guarantors." Bank Leumi Trust Co. of N.Y. v. Block 3102 Corp., 180 A.D.2d 588, 589 (1st Dep’t 1992), lv denied 80 N.Y.2d 754 (1992). To be sure, a fiduciary relationship may arise even between a bank and a customer if there is either "a confidence reposed which invests the person trusted with an advantage in treating with the person so confiding" [Manufacturers Hanover Trust v. Yanakas, 7 F.3d 310, 318 (2d Cir 1993), motion to vacate denied, 11 F.3d 381 (1993)] or an assumption of control and responsibility. Gordon v. Bialystoker Center & Bikur Cholim, 45 N.Y.2d 692 (1978). However, the complaint does not allege facts indicating that Mellon’s actions were designed to instill a special relationship apart from the ordinary debtor/creditor relationship. Moreover, plaintiffs’ attempt to create a fiduciary duty based upon the existence of an escrow account is unpersuasive. Plaintiffs do not allege that Mellon in any way misused the funds placed into escrow for payment over to Gemico. Cf., Davis v. Dime Savings Bank of New York, 158 A.D.2d 50 (3d Dep’t 1990)(allegations of fraud in connection with escrow arrangement for the payment of taxes).
Motion 002 (Gemico)
1. Money Had and Received.
Plaintiffs allege that Gemico, through its practice of billing for and collecting PMI from borrowers whose LTV ratios fall below 75%, is obtaining money from plaintiffs that it is not entitled to receive and that in equity it should not retain. As previously discussed, this claim is validly stated. Although Gemico does not bill the borrowers directly, the record indicates that the payments "pass through" to Gemico. Thus, it is not fatal to the claim that Gemico was not in privity with the plaintiffs. See, Friar v. Vanguard Holding Corp., 78 A.D.2d 83 (2d Dep’t 1980). Having money that rightfully belongs to another creates a debt and, where there is no express promise to pay, the law implies a promise. Salisbury v. Salisbury, 175 A.D.2d 462 (3d Dep’t 1991).
2. Violation of GBL § 349
The record supports Gemico’s assertion that it is not liable for unfair trade practices because it had no relationship with plaintiff and thus, did not mislead him.
Gemico asserts that: (1) it sells PMI coverage to lenders not borrowers; (2) borrowers make no renewal premium payments to Gemico; (3) Gemico never sent a bill to plaintiffs and has never received any renewal payment from plaintiffs; (4) a lender may cancel PMI coverage at any time; and (5) neither the mortgage documents signed by the borrowers as exemplified by plaintiffs’ mortgage documents nor the PMI policy issued to plaintiffs give borrowers any right to cancel the lenders’ PMI coverage.
In support of this assertion, Gemico submitted an affidavit by Frank Mertes, a vice president of Mortgage Insurance Servicer Support Operations of Gemico. According to Mertes, Gemico did not sell PMI to plaintiffs, or to any other borrowers, nor does it prepare or send billsto the borrowers for PMI premiums. Gemico has never sent a bill to plaintiffs or received any renewal payment from plaintiffs. Gemico looks to payment of PMI premiums solely to the lenders whom it insures, or their loan officers. He also stated that Gemico received no information about plaintiffs’ declining loan balance as the loan was being paid down.
To successfully oppose a summary judgment motion, a party must lay bare its affirmative proof. Gilbert Frank Corp v. Federal Ins. Co., 70 N.Y.2d 966 (1988); Corcoran Group, Inc. v. Morris, 107 A.D.2d 622 (1st Dep’t), aff’d 64 N.Y.2d 1034 (1985). Plaintiffs have not submitted any evidence persuasively controverting Gemico’s assertions. Moreover, the PMI policy issued by Gemico requires the lender, not the borrower, to pay the PMI premiums, and the lender is solely responsible regardless of whether the lender is reimbursed by the borrower. 3
Plaintiffs contend that the motion is premature because of the lack of discovery, which is likely to lead to evidence that will support their allegations and seek to invoke CPLR 3212(f). Plaintiffs have not made the "threshold showing that ‘facts essential to justify opposition may exist.’" Pow v. Black, 182 A.D.2d 484, 485 (1st Dep’t 1992). Since the claim is based on alleged misleading statements to plaintiffs, an affidavit by either of them or other evidence is warranted. Yet, plaintiffs have not submitted any evidence by a person with knowledge to raise a material factual issue. Wolf v. Wolf, 26 A.D.2d 529 (1st Dep’t 1966). Plaintiffs’ mere hope that they may uncover some evidence during the discovery process is insufficient to oppose summary judgment. Pow v. Black, supra at 485.
4. Tortious Interference with Contractual Relations
Plaintiffs allege that Gemico intentionally and systematically interfered with the proper performance of the mortgage contracts by continuing to bill for PMI premium payments and by soliciting renewal of PMI policies and causing lenders and servicers to do so after the requirement ended.
Intentional interference with contractual relations is actionable if plaintiffs establish: (1) the existence of a valid contract, (2) defendant's knowledge of that contract, (3) defendant's intentional procuring of a breach of that contract, and (4) an actual breach and damages. Israel v. Wood Dolson Co., 1 N.Y.2d 116, 119 (1956); Kaminski v. United Parcel Serv., 120 A.D.2d 409, 412 (1st Dep’t 1986). Plaintiffs do not allege, nor does the record indicate, that Gemico acted other than out of economic interest, without malice or illegality, in collecting the PMI premiums, thereby making recovery for this cause of action unavailable. Foster v. Churchill, 87 N.Y.2d 744 (1996); Shea v. Hambro Am., 200 A.D.2d 371 (1st Dep’t 1994).
Accordingly, it is
ORDERED that the motion of Mellon Mortgage Company is granted and, as against it, the violation of Insurance Law § 6503, and the breach of fiduciary duty causes of action are severed and dismissed; and it is further
ORDERED that Mellon is directed to serve an answer to the amended complaint within 10 days after service of a copy of this order with notice of entry; and it is further
ORDERED that General Electric Mortgage Insurance Corporation’s motion for summary judgment is granted to the extent that, as against it, the violation of GBL § 349 and the tortious interference with contractual relations causes of action are severed and dismissed; and it is further
ORDERED that the remainder of the action shall continue; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.
Dated:June 24, 1998
ENTER:
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J.S.C.
1 Generally, mortgage lenders require home buyers who obtain first mortgages with down payments representing less than 20% of the purchase price to obtain private mortgage insurance ("PMI"). PMI insures lenders against defaults in the borrower's payments of principal and interest on the loans. According to plaintiff, PMI is not required to be maintained for periods when the loan-to-value ratio ("LTV ratio") on a mortgage loan falls below a specified percentage. In calculating the LTV ratio, the loan amount is the outstanding principal balance on the loan, and the appraised amount is the appraised value of the property at the time the loan was originated.
2 See, e.g., Ins. Law § 6504 (affords the superintendent administrative remedies); § 6508 (affords the superintendent additional powers to adopt regulations necessary to enforce the provisions of Article 65); § 109(c) (administrative remedies applicable to all provisions of the Insurance Law); § 109(d)(civil remedies).