Wednesday, February 3, 2016

CPLR 3408 and negotiating in good faith.

Practice point:  CPLR 3408 is a remedial statute, enacted in response to the 2008 mortgage crisis, which requires that the parties enter into and conduct negotiations in good faith. In this mortgage foreclosure action, the Appellate Division affirmed the denial of defendant's motion to dismiss  as a sanction for plaintiff's alleged failure to negotiate in good faith. The Appellate Division determined that the documentation defendant submitted in support of her motion did not establish that plaintiff failed to negotiate in good faith by refusing to accept defendant's proposal of a lump sum payment of in full satisfaction of the outstanding loan balance.

Student note:  The issue of whether a party failed to negotiate in good faith' within the meaning of CPLR 3408(f) will be determined by considering whether the totality of the circumstances demonstrates that the party's conduct did not constitute a meaningful effort at reaching a resolution.

Case:  Deutsche Bank Natl. Trust Co. v. Twersky, NY Slip Op 00473 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  A double-parked vehicle, negligence, and proximate cause.