`NYSCEF DOC. NO. 222
`RECEIVED NYSCEF: 03/10/2020
`
`INDEX NO. 61809/2013
`
`the statutory time
`To commence
`period for appeals as of
`right
`(CPLR 5513 [all, you are advised
`to serve a copy of this order, with
`notice of entry, upon all parties.
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF WESTCHESTER
`PRESENT: HON. WILLIAM J. GIACOMO, J.S.C.
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X
`US BANK TRUST, N.A., AS TRUSTEE FOR LSF8
`MASTER PARTICIPATION TRUST,
`
`Plaintiff,
`
`- against-
`
`Index No. 61809/13
`
`DECISION & ORDER
`
`STEVE A. THOMPSON AlKlA STEVE THOMPSON,
`Jp MORGAN CHASE BANK, NA, BONDY & SCHLOSS,
`LLP., JANET SMITH, AIDA FLORES,
`
`______________ ----
`
`--------
`
`Defendants.
`------
`-- ---
`
`----x
`
`papers were considered
`The following
`motion to stay the foreclosure
`sale scheduled
`
`on defendant, Steve A. Thompson's,
`in this matter.
`
`PAPERS CONSIDERED
`1. Order
`to Show Cause/Affidavit
`Thompson/Affidavit
`of Aida
`Esq./Exhibits
`A-B
`2. Affirmation
`In Opposition
`
`of Margaret
`
`a/k/a
`of Steve A. Thompson
`Flores/Affirmation
`of
`Patrick
`J. Cascino, Esq./Exhibits
`
`A-I
`
`Steve
`Binakis,
`
`In this
`
`residential mortgage
`
`foreclosure
`
`action
`
`the defendant,
`
`Steve A.
`
`Thompson, moves to stay the sale on the basis that he submitted
`
`a timely
`
`loss
`
`mitigation
`
`application more than 37 days before the foreclosure
`
`sale scheduled
`
`for February 27, 2020 and the plaintiff
`
`failed to comply with 12 CFR 91024.41 (c)
`
`in reviewing that application.
`
`1 of 3
`
`
`
`FILED: WESTCHESTER COUNTY CLERK 03/10/2020 10:50 AM
`NYSCEF DOC. NO. 222
`RECEIVED NYSCEF: 03/10/2020
`
`INDEX NO. 61809/2013
`
`DISCUSSION
`
`It is well settled that a party seeking a preliminary injunction must establish
`
`by clear and convincing evidence the following:
`
`1) the likelihood
`
`of ultimate
`
`success on the merits; 2) the prospect of irreparable injury if the injunction is not
`
`issued and 3) a balance of the equities in the movant's favor (CPLR6301; Doe v
`
`Axelrod,
`
`73 N.Y.2d 748 [1988]). The decision to grant or deny a preliminary
`
`injunction lies within the sound discretion of the Supreme Court
`
`(Zoller v HSBC
`
`Mortg. Corp. 135 A.D.3d 932 [2d Dept. 2016]).
`
`The sole basis of defendant's motion is that plaintiff allegedly failed to
`
`review and approve or deny Thompson's
`
`request
`
`for a loan modification which
`
`defendant claims was submitted more than 37 days prior to the foreclosure sale
`
`scheduled for February 27, 2020. Upon filing of this Order to Show Cause this
`
`Court exercised its discretion and temporarily stayed the sale pending its review
`
`of the papers.
`
`12 CFR 91024.41 (c) provides that
`
`if a servicer
`
`receives a complete loss
`
`mitigation application more than 37 days before a foreclosure sale, then within
`
`30 days of
`
`receiving a borrower's
`
`loss mitigation
`
`application,
`
`a servicer shall
`
`evaluate the borrower
`
`for all
`
`loss mitigation options available to the borrower
`
`and provide
`
`notice
`
`in writing
`
`stating
`
`the servicer's
`
`determination.
`
`This
`
`requirement
`
`is effective only after a complete
`
`loss mitigation
`
`package is
`
`submitted for review.
`
`Here, the defendant has not established that
`
`the servicer had a complete
`
`loss mitigation application more than 37 days prior to the scheduled foreclosure
`
`sale as required. Moreover, plaintiff's
`
`papers in opposition
`
`to the motion
`
`2
`
`2 of 3
`
`
`
`FILED: WESTCHESTER COUNTY CLERK 03/10/2020 10:50 AM
`NYSCEF DOC. NO. 222
`RECEIVED NYSCEF: 03/10/2020
`
`INDEX NO. 61809/2013
`
`establish that
`
`the defendant has actually been offered 7 prior trial modifications
`
`since August 2014 none of which have been complied with nor acceptable to the
`
`defendant. Further,
`
`in July, 2019 plaintiff offered defendant a cash for keys with
`
`a vacate date of October 15, 2019, which offer was rejected by the defendant.
`
`Thereafter, even after that offer was rejected, plaintiff offered the defendant a 7th
`
`trial modification, which also was not acceptable to the defendant.
`
`In this case defendant has not established his entitlement
`
`to a continued
`
`stay of
`
`the sale nor that he is entitled to a preliminary
`
`injunction. The papers
`
`disclose that
`
`plaintiff
`
`has tried
`
`on numerous
`
`occasions
`
`to accommodate
`
`defendant's
`
`requests for a loan modification,
`
`but none of
`
`them have been
`
`acceptable.
`
`Accordingly,
`
`the defendant's application is DENIED. All stays are lifted. No
`
`further applications in this case may be made without prior Court approval.
`
`Dated: White Plains, New York'
`March 10, 2020
`
`H
`
`J. GIACOMO, J.S.C.
`
`3
`
`3 of 3
`
`
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