Opinion
No. 1730/2009.
2011-01-10
DEUTSCHE BANK NATIONAL TRUST COMPANY, Plaintiff, v. Auditya S. RAMOTAR, et al., Defendants.
Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, by Kevin M. Butler, Esq., Bay Shore, for the Plaintiff. Bachu & Associates, by Darmin T. Bachu, Esq., Richmond Hill, for the Defendant.
Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, by Kevin M. Butler, Esq., Bay Shore, for the Plaintiff. Bachu & Associates, by Darmin T. Bachu, Esq., Richmond Hill, for the Defendant.
CHARLES J. MARKEY, J.
Plaintiff Deutsche Bank National Trust Company (“Deutsche Bank”) moves for summary judgment, to strike the answer, to appoint a referee, and for other relief, in this mortgage foreclosure case, against the borrower Mr. Auditya S. Ramotar (“Ramotar”).
Ramotar explains in his fact-filled affidavit in opposition to the plaintiff's motion that he had submitted his answer as a pro se litigant. Ramotar continues that he had since retained the services of Darmin T. Bachu, Esq., of Bachu & Associates, who diligently worked with him in preparing the thorough affidavit in opposition.
Ramotar's affidavit requests the opportunity for leave to serve and file an amended answer now that Mr. Bachu is representing Ramotar. The undersigned, having read through all the papers, is convinced that although the request is not accompanied by a notice of cross motion, that the request is amply supported by facts asserted and is not some stalling device.
Specifically, Ramotar has alleged sufficient facts that would raise a strong basis that triable issues do exist that warrant denial of a motion for summary judgment. Ramotar's loan was with Argent Mortgage Company, LC. It appears that the note was transferred or assigned to a few other enterprises. There are sufficient questions concerning standing, “robo-signing,” the alleged amount due, along with other issues. The opposing affirmation prepared by Mr. Bachu for Ramotar's review and signature is not the garden variety opposition, but is fact-filled with specific allegations that trouble this Court.
Recently, courts that routinely granted summary judgment to plaintiff financial enterprises and banks in mortgage foreclosure cases are taking a much closer look. Justice F. Dana Winslow, of Supreme Court, Nassau County, testified before the U.S. House of Representatives, on December 2, 2010, as to widespread abuses by plaintiffs in mortgage foreclosure cases. See Ellen Yan, “Taking home issues to the Hill,” Newsday, Dec. 1, 2010, at A35; Ellen Yan, “LI Judge testifies in federal foreclosure hearing,” Newsday, Dec. 2, 2010.
Just recently, Massachusetts's highest court, its Supreme Judicial Court, in U.S. Bank National Association v. Ibanez, 941 N.E.2d 40, 2011 WL 2011 WL 38071 (Jan. 7, 2011) [6–0 decision, with majority and concurring opinions] unanimously held that two banks, U .S. Bank and Wells Fargo, failed to prove that they owned the mortgages when they foreclosed on the homes. See, id. The fact that the homeowners owed a lot of money on the mortgages was conceded in the Court's ruling that the banks did not properly prove ownership.
An excellent article discussing the abuses of the banks in foreclosure cases is by David Streitfeld, writing for The New York Times, in “Facing Scrutiny, Banks Slow Pace of Foreclosures,” N.Y. Times, Jan. 8, 2011 [some mortgage lenders and banks “were revealed to have used so-called robo-signers to process thousands of foreclosures without verifying the accuracy of the data.”]. Mr. Streitfeld's insightful article is particularly apt given the irregularities contained and elaborated upon in Ramotar's well-organized affidavit in opposition, prepared with the assistance of his new counsel, Mr. Bachu.
The Chief Judge of the Court of Appeals, the Honorable Jonathan Lippman, in 2010, aware of growing abuses in the documents relied upon by New York state courts in reviewing mortgage foreclosure cases, instituted new rules designed to curb widespread deficiencies in “robo-signing” of documents. Robo-signing is the act of employees of plaintiff-institutions signing en masse mortgage foreclosure documents without a careful evaluation of the merits of each case. Examples of such abuses are found in the testimony recited in the opinion in Washington Mutual Bank v. Phillip, 20 Misc.3d 127[A], 2010 WL 4813782, 2010 N.Y. Slip Op 52034[U] [Sup Ct Kings County 2010] [Schack, J.]. Robo-signing and other abuses by plaintiff institutions are discussed in the written testimony of Justice Winslow to Congress, on December 2, 2010, available at several web sites, including www.4closurefraud.org.
Chief Judge Lippman has stated that the New York court system should not stand by idly, during a tough economic crisis, where the integrity of the determination of home ownership is at stake. See discussion in Washington Mutual Bank v. Phillip, 20 Misc.3d 127[A], 2010 WL 4813782, 2010 N.Y. Slip Op 52034[U] [Sup Ct Kings County 2010] [Schack, J.].
The practices of the plaintiff in this case, in not carefully evaluating the merits of each mortgage foreclosure case individually, has been criticized by the courts in: Deutsche Bank Nat. Trust Co. v. Harris, 2008 WL 620756, 2008 N.Y. Slip Op 30308[U] [Sup Ct Kings County 2008]; Deutsche Bank v. Maraj, 18 Misc.3d 1123(A), 2008 WL 253926, 2008 N.Y. Slip Op 50176 [Sup Ct Kings County 2008]; Deutsche Bank Nat. Trust Co. v. Lewis, 14 Misc.3d 1201(A), 2006 WL 3593431, 2006 N.Y. Slip Op 52368[U] [Sup Ct Suffolk County 2006], all of those decisions denying the plaintiff's motion for relief without prejudice upon the submission of proper papers. See also discussion in Onewest Bank, F.S.B. v. Drayton, 29 Misc.3d 1021 [Sup Ct Kings County 2010].
The possible abuses that Ramotar contends occurred in the processing of the papers on his mortgage by the plaintiff warrants that the Court permit Ramotar a period of time to elaborate upon those defenses through further pleading. Ramotar's initial pleading was done pro se. Now that he has recently retained the services of Mr. Bachu, who assisted Ramotar with the affidavit in opposition, Ramotar deserves that his informal request to serve an amended answer be granted, although it was not accompanied by a notice of cross motion.
In light of the well-articulated concerns contained in Ramotar's opposing affidavit, the Massachusetts Supreme Judicial Court's opinion in U.S. Bank National Association v. Ibanez, 941 N.E.2d 40, 2011 WL 2011 WL 38071, Chief Judge Lippman's direction to the New York courts for greater scrutiny, and Justice Winslow's congressional testimony, this Court rejects the effort by Deutsche Bank and its counsel to move this Court into granting summary judgment precipitously. Ramotar's fact-filled affidavit thus amply warrants that Mr. Bachu be permitted time to study the case and prepare an amended answer.
Based on Ramotar's request in the opposing affirmation, and the recent retention by him of Mr. Bachu in the preparation of the opposing affidavit, the Court, on its own motion, grants leave to defendant Ramotar and his wife, co-defendant Bhogewattie Ramotar, to serve and file an amended answer to the complaint until and including June 2, 2011.
After the service and filing of the pleadings, the Court orders that the Mortgage Foreclosure Conference part hold a conference in this case. See,CPLR 3408 and the undersigned's decision in Countrywide Home Loan Servicing, L.P. v. Willacy, 29 Misc.3d 1233(A), 2010 WL 5071770, 2010 N.Y. Slip Op 52134[U] [Sup Ct Queens County 2010].
Ramotar's fact-filled opposing affidavit, therefore, compels the denial of the plaintiff bank's present motion for summary judgment without prejudice to submission at a later stage of the litigation, upon proper papers. After the pleadings have been served and the Mortgage Foreclosure part of this Court has held a conference, the plaintiff, if so advised, may serve another motion for relief based upon proper papers.
The foregoing constitutes the decision, order, and opinion of the Court.