Opinion
2014-08-28
Rodney H. BROWN, Plaintiff–Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., et al., Defendants–Respondents.
Carl E. Person, New York, for appellant. Bryan Cave LLP, New York (Scott H. Kaiser of counsel), for respondents.
Carl E. Person, New York, for appellant. Bryan Cave LLP, New York (Scott H. Kaiser of counsel), for respondents.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered January 14, 2013, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.
The motion court properly rejected plaintiff's claim that securitization of his mortgage notes was improper ( see Stafford v. Mortgage Elec. Registration Sys., Inc., 2012 WL 1564701, *4, 2012 U.S. Dist. LEXIS 61413, *13 [E.D.Mich.2012]; Rodenhurst v. Bank of Am., 773 F.Supp.2d 886, 898 [D.Haw.2011] ), and aptly discerned that plaintiff's contention that defendants lack standing to enforce the notes was a mere semantic variation of that claim. To the extent plaintiff claimed that the securitization was procedurally improper, and to the extent that such a claim is cognizable ( see Johnson v. HSBC Bank USA, NA, 2012 WL 928433, *2, 2012 U.S. Dist. LEXIS 36798, *6–7 [S.D.Cal.2012] ), his allegations were conclusory.
Plaintiff's allegations of improper increased mortgage payments and improper notices of such increases were flatly contradicted by provisions in the loan documents ( see Simkin v. Blank, 19 N.Y.3d 46, 52, 945 N.Y.S.2d 222, 968 N.E.2d 459 [2012] ). The motion court correctly found that plaintiff had failed to allege that his next mortgage payments of the minimum amount authorized under the loan documents would not have triggered defendants' right to increase his monthly payment obligations; his assertion that he had not triggered such right at the time of the notices avoided the issue.
The loan documents lacked any provision imposing on defendants a duty to modify the notes or negotiate a workout ( see New York City Educ. Constr. Fund v. Verizon N.Y. Inc., 114 A.D.3d 529, 981 N.Y.S.2d 11 [1st Dept.] ), and such terms cannot be added pursuant to the covenant of good faith ( see D & L Holdings v. Goldman Co., 287 A.D.2d 65, 73, 734 N.Y.S.2d 25 [1st Dept.2001], lv. denied97 N.Y.2d 611, 742 N.Y.S.2d 604, 769 N.E.2d 351 [2002] ).
Plaintiff's cause of action for violation of General Business Law § 349 was properly held untimely, as it accrued upon defendants' first notice of mortgage payment increases in April 2009, more than three years before the July 2012 service of the pleadings in this action ( see CPLR 214).
We have considered plaintiff's other contentions and find them unavailing.
The Decision and Order of this Court entered herein on April 3, 2014 is hereby recalled and vacated ( see M–2140, 2014 WL 4234092 decided simultaneously herewith).
TOM, J.P., ACOSTA, SAXE, DeGRASSE, FREEDMAN, JJ., concur.