This case is not published in a printed volume and its disposition appears in a table in the reporter.
Emily Jane Goodman, J.
In this protracted action that began in 1992, plaintiff Citimortgage, Inc. (Citimortgage) is the current servicer on behalf of Banker's Trust Company of California, N.A. (Banker's Trust), as trustee, in respect of the secured loan on the real property located at 280 Park Avenue South, Apartment 22A, New York City (the Premises). Defendant Tracie Evans (Evans) is the borrower of the loan secured by a mortgage lien on the Premises.
By motion brought via an Order to Show Cause, plaintiff seeks relief (a) vacating and cancelling the prior order dated February 27, 2007 (Heitler, J.); and (b) directing the County Clerk of the County of New York to reinstate the prior order dated June 7, 2002 (Heitler, J.), and the Referee's Deed made between Paul Sklar, Esq., as grantor and plaintiff, as grantee, recorded in the Office of the County Clerk on August 16, 1995 in Reel 2234, Page 937 (the Referee Deed) that was vacated pursuant to the February 27, 2007 order. Defendant filed a cross-motion requesting relief to (1) hold plaintiff liable for its purported breach of the settlement agreement between the parties dated January 31, 2007 (the Settlement Agreement); and (2) require plaintiff to specifically perform the Settlement Agreement by removing or correcting certain allegedly incorrect information contained in Evans' credit report.
For the reasons stated herein, plaintiff's motion is granted, and defendant's cross-motion is denied.
Because the facts for this 15 year-old foreclosure action have been set forth in many prior court decisions, only the relevant background information is described herein for purposes of the current motion and the cross-motion. In 1992, the captioned-plaintiff Security Pacific National Bank commenced a mortgage foreclosure action against Evans. Thereafter, as a result of bank mergers as well as the sale and assignment of the mortgage with respect to the Premises, Citimortgage became the servicer of Banker's Trust in respect of the subject mortgage.
In 1994, plaintiff obtained a Judgment of Foreclosure and Sale against Evans and, in 1995, plaintiff was granted the Referee Deed for the Premises. In 1997, plaintiff obtained a Warrant of Eviction and a Judgment of Possession in housing court against Evans. After numerous unsuccessful challenges by Evans, the Judgment of Foreclosure, the Referee Deed, and the Warrant of Eviction and the Judgment of Possession obtained in housing court were all upheld, and by order dated December 23, 2004 (Heitler, J.), plaintiff's application for a writ of assistance evicting Evans from the Premises was granted. On or about January 11, 2007, the Court of Appeals entered an order dismissing, sua sponte, Evans' appeals.
On January 31, 2007, Citimortgage and Evans, with the assistance of their respective counsel Andrew Roth, Esq. and David Worth, Esq., negotiated and entered into the Settlement Agreement which, provided, among other things, that (1) Evans was to pay $880,000 (the Settlement Funds) to plaintiff within 60 days of January 31, 2007, which was later extended to April 13, 2007 by consent of the parties; (2) starting December 31, 2006 until payment of the Settlement Funds, Evans was to pay plaintiff a monthly sum of $3,000, and such payments (together with prior payments made by Evans pursuant to court orders to the Department of Finance) were to be held in escrow by plaintiff's counsel, to be applied as a credit towards payment of the Settlement Funds; (3) in consideration of the foregoing, plaintiff agreed to sign all documents necessary to vacate the Judgment of Foreclosure and the Referee Deed, and to reconvey title of the Premises to Evans; (4) the parties agreed to execute stipulations dismissing the Summary Proceedings against Evans; and (5) any failure of Evans to timely remit the Settlement Funds would be an event of default under the Settlement Agreement, and in such case, Evans would have 10 days to vacate the Premises, without any right to seek court intervention for injunctive or other forms of relief. The Settlement Agreement was approved by order of the court dated February 27, 2007 (Heitler, J.), and consequently, the Judgment of Foreclosure and the Referee Deed were vacated to facilitate Evans' attempt to procure refinancing.
After signing the Settlement Agreement, Evans sought refinancing for the condominium apartment, and hoped to use the proceeds thereof to pay the Settlement Funds. In her cross-motion, Evans alleges that the sole reason for her difficulty in obtaining refinancing, despite a credit score in the mid-700s, was due to Citimortgage's incorrect listing on her credit report that, since April 2003 (the time when her mortgage loan was taken over by Citimortgage) she had made 45 late payments, even though such payments were not late or owed. Although Evans concedes that Citimortgage's counsel, Andrew Roth (Roth), initially cooperated in trying to resolve the late payment issue, she alleges that Roth later failed or refused to cooperate in getting her credit report fixed. In support of her allegation, Evans submitted affidavits of (a) Jacqueline Decker, a loan officer of First Platinum Capital Corp. (the Decker Affidavit); (b) Nicholas Iannetti, a loan officer of Home Mortgage Desk (the Iannetti Affidavit); and (c) Thomas Trivisani, a mortgage broker (the Trivisani Affidavit), copies of which are attached as exhibits to the cross-motion (collectively, the Brokers' Affidavits). Notably, the Brokers' Affidavits were signed on or about June 8, 2007, almost two months after the April 13, 2007 deadline when Evans was required to pay plaintiff the Settlement Funds. Yet, Evans argues that plaintiff breached the Settlement Agreement, by failing to act in good faith in correcting or removing the late payments listed in her credit report, and that such failure impaired her ability to obtain refinancing and caused her to default under the Settlement Agreement. Evans further argues that plaintiff should be ordered to specifically perform the Settlement Agreement by correcting the credit report, and that she should be allowed more time to complete the refinancing.
By its counsel, plaintiff filed an opposition to Evans' cross-motion. See Roth Affirmation In Opposition to Cross-Motion and In Support of Order to Show Cause (the Roth Affirmation). Attached as exhibits to the Roth Affirmation are (i) letters and correspondence which purport to show that plaintiff cooperated with Evans and assisted her in correcting her credit report; and (ii) letters from Evans' prospective lender (Eastern Savings Bank) and mortgage broker which purport to show that a refinancing loan has been approved for Evans, and that a closing would be scheduled to take place, upon the receipt of an updated payoff letter from plaintiff. Based on the Roth Affirmation and the exhibits annexed thereto, plaintiff contends that it is entitled to the relief sought in the Order to Show Cause, and that Evans' cross-motion should be dismissed as a matter of law.
After a court hearing was held with respect to the Order to Show Cause, defendant's counsel belatedly submitted a reply to the Roth Affirmation. See Worth Reply Affirmation In Support of Defendant's Cross Motion (the Worth Reply). The Worth Reply contends, among other things, that the Roth Affirmation contained "new matters" (i.e. issues not raised in plaintiff's motion and defendant's cross-motion), and that the Roth Affirmation ...