| Brown v Deutsche Bank Natl. Trust Co. |
| 2014 NY Slip Op 06009 |
| Decided on August 28, 2014 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on August 28, 2014
Tom, J.P., Acosta, Saxe, DeGrasse, Freedman, JJ.
12129 153803/12
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.
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 US Dist LEXIS 61413, *13 [ED Mich 2012]; Rodenhurst v Bank of Am., 773 F Supp2d 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 US Dist LEXIS 36798, *6-7 [SD 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 NY3d 46, 52 [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 AD3d 529, [1st Dept]), and such terms cannot be added pursuant to the covenant of good faith (see D & L Holdings v Goldman Co., 287 AD2d 65, 73 [1ST Dept 2001], lv denied 97 NY2d 611 [2002]).
Plaintiff's cause of action for violation of General Business Law § 349 was properly held [*2]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 decided simultaneously herewith).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: AUGUST 28, 2014
DEPUTY CLERK