By Notice of Motion dated April 23, 2025, Plaintiff Wells Fargo Bank, N.A., as Trustee for ABFC Asset-Backed Certificates, Series 2004-OPT ("Wells Fargo" or the "Plaintiff") seeks an order of the Court granting summary judgment and dismissing the affirmative defenses asserted by Susan Griffith, granting default judgment against all non-appearing defendants, appointing a referee, and amending the caption (Doc. No. 29). In response, Defendant Susan J. Griffith, pro se ("Griffith" or the "Defendant") submitted a proposed order to show cause and affidavit seeking dismissal of the action (Doc. Nos. 46-47). The Court signed the order to show cause and set an in-person appearance for May 29, 2025 (Doc. No. 48). The Court will address the Defendant's motion first.

Defendant initially filed an answer asserting that in anticipation of a $25,000.00 decrease in annual salary, she contacted Plaintiff to "either refinance or modify the loan" (Doc. No. 17). She was subsequently contacted by the Relationship Manager who advised that the modification was completed. Defendant then states that her mortgage statements noted a modification was done, however it was really a forbearance (ibid). Defendant made three payments, then received a statement in February 2017 indicating that she owed $4,117.78 (ibid). Defendant contacted the [*2]relationship manager who "informed [Defendant] that [Plaintiff] could not do a modification now since [Defendant] now owed for 3 months as they took the 3 payments [Defendant] made and applied it to [Defendant's] November, 2016 payment and [Defendant] currently must pay for 3 months" (ibid). Defendant then took money out of her 401K to catch up, but every time she attempted to make payment, Plaintiff refused the payment alleging she owed yet more money (ibid). Defendant asserts she made attempts to contact Plaintiff and resolve the matter, but she was unable to get ahold of anyone and no one would return her phone calls (ibid). Defendant further notes that in a previous action, Plaintiff failed to appear at the settlement conferences (ibid). Defendant asserts that as she made her last payment some eight years ago, the action is time-barred (ibid). Defendant included a mortgage statement indicating that her last full payment was made towards the November 1, 2016 installment. Defendant's affidavit in support of the order to show cause reiterates her argument concerning the statute of limitations and states that the loan was accelerated by Plaintiff in 2016 (Doc. No. 47).

Plaintiff filed an attorney affirmation in opposition to Defendant's motion (Doc. No. 51).Plaintiff's Counsel disputes the date of acceleration and asserts when one accounts for the COVID era tolling, the instant action is timely (ibid, ¶8). Plaintiff's Counsel asserts that Defendant's allegations of failing to negotiate in good faith are without merit as the Court released the matter from the settlement part (ibid, ¶11).

On May 29, 2025, the Court heard arguments and took testimony. Plaintiff was represented by local counsel who was unfamiliar with the facts of the case. This is no reflection on the attorney as the attorney regularly appears before the Court on his own matters, but is a reflection on Plaintiff's regular attorney who seemingly did not take this matter seriously. Defendant appeared pro se, gave testimony mirroring and amplifying her statements in her answer and affidavit. For example, Defendant testified that when she initially learned of her salary decrease, she contacted Plaintiff for a modification, but was instructed not to make her payment pending the application process.Plaintiff's Counsel declined to cross-examine her or otherwise call any witnesses.

Discussion:

Defendant initially asserts that the statute of limitations has run. CPLR §213 provides a six-year limitation on foreclosure actions and states, in part:

"In any action on an instrument described under this subdivision, if the statute of limitations is raised as a defense, and if that defense is based on a claim that the instrument at issue was accelerated prior to, or by way of commencement of a prior action, a plaintiff shall be estopped from asserting that the instrument was not validly accelerated, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated" (CPLR §213[4][a]).

"Following the dismissal of the Prior Action, Plaintiff waived two years of missed [*3]payments, thereby advancing the default date to November 1, 2018. Plaintiff then commenced the instant action on September 13, 2024, which is within six years of the default date, and Plaintiff is not seeking to collect on missed payments that predate November 1, 2018" (see Memorandum of Law, Doc. No. 45, p. 6).

Plaintiff asserts that the loan was accelerated on February 8, 2018 by the filing of the summons and complaint (ibid, ¶5) and due to the COVID tolling the statute of limitations expired on September 24, 2024 (ibid, ¶8). Plaintiff states the instant action was commenced with the filing of the summons and complaint on September 13, 2024 (ibid, ¶9). Plaintiff included a copy of the 2018 action previously filed under Index No. 001445/2018 and is dated January 23, 2018 (Doc. No. 52). The 2018 complaint specifically states: "That by reason of the aforementioned default(s), Plaintiff hereby declares the balance of the principal indebtedness to be immediately due and owing" (ibid, ¶19). If the January 23, 2018 date of the complaint and declaration of acceleration is used, then the statute of limitations, inclusive of COVID tolling, expired on Saturday, September 7, 2024, and is thus shifted to the next business day, Monday, September 9, 2024. The Court finds that the statute of limitations expired prior to the commencement of this action based upon the date Plaintiff declared the loan accelerated.

Alternatively, Defendant asserted that Plaintiff failed to negotiate in good faith. CPLR §3408, entitled "Mandatory settlement conference in residential foreclosure actions", requires the parties to "negotiate in good faith to reach a mutually agreeable resolution" (CPLR §3408[f]).

"Compliance with the obligation to negotiate in good faith pursuant to this section shall be measured by the totality of the circumstances, including but not limited to the following factors:

1. Compliance with the requirements of this rule and applicable court rules, court orders, and directives by the court or its designee pertaining to the settlement conference process;

2. Compliance with applicable mortgage servicing laws, rules, regulations, investor directives, and loss mitigation standards or options concerning loan modifications, short sales, and deeds in lieu of foreclosure; and

3. Conduct consistent with efforts to reach a mutually agreeable resolution, including but not limited to, avoiding unreasonable delay, appearing at the settlement conference with authority to fully dispose of the case, avoiding prosecution of foreclosure proceedings while loss mitigation applications are pending, and providing accurate information to the court and parties" (CPLR §3408[f]).

When reviewing the "totality of the circumstances", Plaintiff has clearly not negotiated in [*4]good faith. The unrebutted testimony of Defendant is that when her loan was still in good standing in 2016 and faced with an imminent loss of income, she proactively sought a modification. She states that she was told not to pay her regular payment while seeking the modification. Defendant was initially told she was approved for one modification program and subsequently told that was an error resulting in the trial payments going towards her November 2016 payment instead of her trial modification payments. Plaintiff's initial Notice of Default was dated March 1, 2017 (Doc. No. 52, p. 57/101) and a subsequent notice dated October 6, 2017 advising her of her default was mailed to her (ibid, p. 63/101). Plaintiff's original summons and complaint, dated January 23, 2018, was filed on February 8, 2018. By order dated August 28, 2019, Justice Greenwood dismissed the 2018 action because "a representative of the plaintiff bank having been directed to appear and having failed to appear on April 16, 2019, May 21, 2019, and August 27, 2019" (see Order of Dismissal, Doc. No. 53). Some two and a half years later, Plaintiff moved to vacate the dismissal (see Notice of Motion, Index No. 001445/2018, Doc. No. 23). In the denial of Plaintiff's motion, the Court specifically noted the missed appearances, and noted that the motion was untimely due to the time elapsed (Doc. No. 53). Plaintiff's dilatory conduct in delaying the action has resulted in virtually insurmountable interest, costs, and fees which would wipe away any equity Defendant had at the time she sought modification of the subject loan in 2016. When viewing the totality of the circumstances, not just the one settlement conference Plaintiff attended in 2025, the Court is left with inescapable conclusion that Plaintiff failed to negotiate in good faith.

Upon such a finding, CPLR §3408, the Court is required to, at a minimum, toll interests and costs during the delay, and may:

"1. Compel production of any documents requested by the court pursuant to subdivision (e) of this section or the court's designee during the settlement conference;

2. Impose a civil penalty payable to the state that is sufficient to deter repetition of the conduct and in an amount not to exceed twenty-five thousand dollars;

3. The court may award actual damages, fees, including attorney fees and expenses to the defendant as a result of plaintiff's failure to negotiate in good faith; or

4. Award any other relief that the court deems just and proper" (CPLR §3408[j]).

Having dismissed the action pursuant to Defendant's motion, consideration of Plaintiff's motion is moot and therefore denied.

NOW, THEREFORE, upon reading and filing the papers with respect to the Motion and due deliberation having been had thereon, it is hereby

ORDERED, that Defendant's motion to dismiss the action is GRANTED; and it is further

ORDERED, that Plaintiff's motion for summary judgment and an order of reference is moot and therefore DENIED; and it is further

ORDERED, that the subject mortgage, note, and notice of pendency be canceled and [*5]discharged.