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Tina, Lawyer
Category: Legal
Satisfied Customers: 8775
Experience:  JD, BBA Over 25 years legal and business experience.
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For "legal Eagle" Ok the "good faith and fair dealing"

Customer Question

For "legal Eagle"
Ok the "good faith and fair dealing" theory you spoke to in my original question regarding a possible good Samaritan payment is only part and parcel of my issue.History
I have to cooperative loans with a mortgage servicer which had changed hands on several occasion over the years (since 1988)
Both are about to mature (one of which is the one with the possible Samaritan payment)
I have been making payments in full to all holders and holders in due course over the years in a timely fashion.
Last year the cooperative started a NJF (non judicial foreclosure) against both units for alleged arrears of maintenance, assessments, other
The cooperative did not serve proper notices to secured part (bank) but the bank was made aware of such issue (notice of default and notice to terminate and Notice of Sale)
I also served bank with response to notice of default stating I did not owe them anything.
The way the notices were written were as if it was going to be a holdover case (they would seek possession then sale of shares)
The bank did not say anything to me until the notice of sale came.
They called and asked if I knew what was going on and what I was doing.
I informed them that I was moving for a OSC/TRO
I asked them what were they doing.
They stated nothing because they a) have a secured interest in the units by way of UCC, b) if the cooperative prevails then whoever is the successful bidder would have to pay the outstanding loan with the bank, and c) I would still be on the hook for the mortgage(s) in any event until it is paid off.
I asked to speak with their lawyers but I was told it was the lawyers who had the bank call me.
They went on to tell me I'd better hurry up and do it because things could get ugly fast.
I filed the OSC/ TRO in May and the judge signed it after meeting in his chamber with both sides.
It was agreed that the cooperative would provide me with specific information I was seeking and that we would reappear in June.
The cooperative refused to give me any information
We appeared in Court in June and the attorney for cooperative stated they canceled the sale because they got paid by the bank,
The judge dismissed the case as I was in shock.
I called the bank and finally after about five calls they figured out that they did pay the cooperative as two hazard insurance payments
The bank then added each payment to each of my loans as negative escrow demanding that I pay them back.
I refused because the bank stated it would not get involved and I strongly believe I would have prevailed even before we got to the substantive issues but the bank interfered with my right to a lawful adjudication.
in any event I emailed them and called and filed CSFB cases to no avail
The bank acknowledged in writing the conversation I had with them in which they said they would not get involved but it also holds that pursuant to the loan security agreement they had a right to intercede to protect their investment without notice.
This is in my opinion not fair dealing minimally because they paid an amount of money that was not sought in the OSC/TRO, the cooperative attorneys had already conceded in judge chambers that the underlying amount of money sought was a few hundred dollars per unit...which I still disagreed with, and the fact that the reason the cooperative did not respond to me was because they got paid by the bank during the pendency of the stay.
Furthermore the bank (servicing organization - not really a bank) cannot clearly prove it has a right to service the loans or that it lawfully has ownership of same. The UCC's contradict the various documents they sent me showing different banks assigned the loans to them.
Submitted: 10 days ago.
Category: Legal
Customer: replied 10 days ago.
I forgot to say I initiated a OSC/TRO against the bank servicer and then found out who they allege is the true owner of the loans. The other side requested adjournment till middle of May and since the filing I made request for interrogatories which the attorney for other side just blew off, and now is requesting I send her a copy of the OSC. The case was adjourned since February 2017 and now she is asking for this.
Expert:  Legal Eagle replied 10 days ago.

Howdy, hold on one minute, I have a few other customers I'm working with, but I'll review your message momentarily.

Customer: replied 10 days ago.
I'm gonna add this to the mix. The part of the loan security agreement the banks attorney is talking to states this:
Actions by Lender to Prevent Lease Default"
Lender may make any payments on my behalf or perform any acts necessary any prevent any defaults under or violations of the lease. However, Lender shall not be required to do so. If Lender makes any such payments or performs any such acts, I agree to reimburse Lender for such payments or the costs or expenses incurred by he Lender in connection with such acts upon demand,* I believe minimally that because the language is clear "Actions by Lender to Prevent Default" that when the bank received notice of default and cure period back in February 2016 and did nothing even after it was served notice of termination that this codicil did not apply when they made payment in May 2016, as the lease had been in default after the cure period that was enunciated in the notice.
Expert:  Legal Eagle replied 10 days ago.

OK, thanks for catching me up to your situation. Did you have a specific question I could address for you?

Customer: replied 10 days ago.
The first line should read
Lender may make any payments on my behalf or perform any acts necessary to prevent any defaults under or violations of the lease.
Customer: replied 10 days ago.
is the bank estopped from raising any argument that while it stated it would not get involved with the NJF between myself and the coop last year then unceremoniously did so during the pendency of the TRO without notice that their attempts to get the money from me is minimally unjust and unfair and not in good faith
Next that the Loan Security Agreement states as above. If they made two payments after the lease was terminated and before the sale it would seem that the bank has no argument as the codicil they refer to is moot as it relates to what they did. They paid after the lease was defaulted and terminated but before the NJF?
Expert:  Legal Eagle replied 10 days ago.

Paul, thank you for providing me this information, but given the long history of this case and the fact that it's already gone through the courts, it would require much more time for me to research through looking at the loan security agreement; orders; motions, etc. to make enough sense of it to adequately answer you. Accordingly, what I can do is opt out of this question and pose this to our other attorney experts who maybe have more experience in this field or with this question. My apologies.