CPLR R. 2104 Stipulations
Deutsche Bank Natl. Trust Co. v Williams, 2009 NY Slip Op 04023 (App. Div., 2nd, 2009)
Contrary to the determination of the Supreme Court, a forbearance
agreement does not constitute a settlement of the foreclosure action.
As a result, the provisions of CPLR 2104 regarding stipulations of
settlement have no relevance to the forbearance agreement. Rather, a
mortgagee that enters into a forbearance agreement merely refrains from
immediately exercising the remedies it may have and grants the
mortgagor an extension of time for the repayment of his or her debt (cf. Matter of Delafield 246 Corp. v City of New York, 11 AD3d 268, 272).Here, the forbearance agreement is clear and unambiguous. As
with any such unambiguous contract, the plaintiff was entitled to the
enforcement of the agreement according to its terms (see Ross v Sherman, 57 AD3d 758; Novelty Crystal Corp. v PSA Institutional Partners, L.P., 49 AD3d 113, 118; Roscar Realty Northeast, Inc. v Jefferson Val. Mall Ltd. Partnership, 38 AD3d 744,
746) and, when Williams defaulted under the terms of that agreement,
the plaintiff was entitled to proceed with the foreclosure action (see Option One Mtge. Corp. v Corman, 39 AD3d 724).
The payments made by Williams under the forbearance agreement
must, however, be considered as part of the referee's calculation of
the amounts owed and credited, as of the date of the foreclosure sale,
in determining the proper disposition of the proceeds of the sale (see RPAPL
1355). Accordingly, we remit the matter to the Supreme Court, Kings
County, for the entry of an appropriate amended judgment that credits
the payments made by Williams in calculating the sum to be awarded to
the plaintiff.
The bold is mine.
bruteforcelawyer.com 