Westfallv.Chase Lincoln First Bank

Appellate Division of the Supreme Court of New York, First DepartmentFeb 9, 1999
685 N.Y.S.2d 181 (N.Y. App. Div. 1999)
685 N.Y.S.2d 181258 A.D.2d 299

February 9, 1999

Appeal from the Supreme Court, New York County (Carol Huff, J.).


In connection with the discharge of a mortgage upon plaintiffs' home, defendants charged plaintiffs a fee for recording the discharge that exceeded the actual costs of such recording by $8.50, and a $5 fee for sending plaintiffs two one-page "payoff statements" by facsimile, at plaintiffs' specific request. The terms of the mortgage provided that plaintiffs would not be charged any fee for its discharge beyond the actual costs of recording the discharge in the proper official records. After paying the subject charges without protest, plaintiffs commenced this putative class action, alleging that defendants' charging of the above-cost portion of the recording fee and the facsimile fee constituted breach of the mortgage agreement, a violation of General Business Law § 349 Gen. Bus., unjust enrichment, and conversion.

We agree with the motion court that, on this record, all of plaintiffs' causes of action are barred by the voluntary payment doctrine, inasmuch as plaintiffs paid the subject charges without protest or even inquiry, and were not laboring under any material mistake of fact when they did so ( Gimbel Bros. v. Brook Shopping Ctrs., 118 A.D.2d 532, 535). Plaintiffs admit that they never actually gave any thought to the recording fee, or to defendants' basis for charging it, prior to paying off their mortgage, and they therefore cannot claim to have been misled by any implicit representation that the actual cost of recording the discharge was the same as the amount of the recording fee charged by defendants. Nor was plaintiffs' payment of the subject charges coerced, inasmuch as plaintiffs never protested such charges, or even made any inquiries concerning them, prior to payment, although plaintiffs had known of the recording fee for 11 days, and of the facsimile fee for 8 days, prior to the closing of their refinancing. We note that under paragraph 21 of plaintiffs' mortgage, the debtor will pay all costs of recording the discharge. With regard to the facsimile fee, nothing in plaintiffs' mortgage prohibited defendants to charge such a fee, plaintiffs do not allege that they paid the facsimile fee as the result of any mistake of fact relating thereto, and the facsimile fee charge itself was neither false nor misleading.

Concur — Williams, J. P., Wallach, Tom and Mazzarelli, JJ.