Editor: David Reiss
Brooklyn Law School

July 19, 2013

Bad Faith Remedies for Loan Modification Negotiations

By David Reiss

New York Supreme Court Justice Torres (Bronx) issued a Decision and Order in Citibank, N.A. v. Barclay et al., No. 381649-09 (June 21, 2013), in which he evaluated what the appropriate remedies were for failing to negotiate in “good faith” as required by CPLR section 3408(f). Like other cases, it recites a litany of facts that make the owner of the note look comically (darkly comically) incompetent or even malevolent.

In an earlier decision, the Court “found that the plaintiff had failed to act in good faith.” (3) In particular, the Court found that Citibank “made it impossible for Barclay to comply with its conflicting ever changing, never written requests for documentation.  Moreover, the plaintiff refused to review applications that were complete and it never took a clear position on the defendant’s loan modification application.” (3) The details in the decision add Dickensian color to this summary.

CPLR section 3408(f) requires that both “the plaintiff and defendant shall negotiate in good faith to reach a mutually agreeable conclusion, including a loan modification, if possible.” As NY courts have noted, the CPLR does not offer up any remedies for a party’s failure to negotiate in good faith, thereby leaving the appropriate sanction up to “judicial discretion.” (6)

Other cases have granted remedies such as barring “banks and loan servicers from collecting interest, legal fees, and expenses.  Other penalties have included exemplary damages and staying the foreclosure proceeding.” (6, citations omitted) The Court notes that remedies such as dismissal of the foreclosure, cancelling the note and mortgage, or ordering “a specific judicially imposed loan modification agreement.” (6) The court’s remedy in this case “is a bar on the collection of any arrears, including interest, costs and fees” from the date Barclay “received the unsupported HAMP denial.” (6)

On the one hand, this seems like a measured remedy because it punishes Citibank for the time period that it was not acting in good faith. But given how common this behavior seems to be, one wonders if it will deter future bad faith negotiations.

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