Deutsche Bank Nat'l Trust Co. v. Bills, No. 1027–09.

CourtUnited States State Supreme Court (New York)
Writing for the CourtRICHARD B. MEYER
Citation961 N.Y.S.2d 357,37 Misc.3d 1209,2012 N.Y. Slip Op. 51943
PartiesDEUTSCHE BANK NATIONAL TRUST COMPANY, As Trustee For Wamu Mortgage Pass–Through Certificates, Series 2005–AR18, Plaintiff, v. David E. BILLS a/k/a David Bills, Bonnie Morris a/k/a Bonnie L. Morris, Cach LLC, Countrywide Home Loans, Inc., First Horizon Home Loans, A Division of First Tennessee Bank National Association Successor by Merger to First Horizon Home Loan Corporation, Paul Evans, and Chris Shucuck, Defendants.
Decision Date15 October 2012
Docket NumberNo. 1027–09.

37 Misc.3d 1209
961 N.Y.S.2d 357
2012 N.Y. Slip Op. 51943

DEUTSCHE BANK NATIONAL TRUST COMPANY, As Trustee For Wamu Mortgage Pass–Through Certificates, Series 2005–AR18, Plaintiff,
v.
David E. BILLS a/k/a David Bills, Bonnie Morris a/k/a Bonnie L. Morris, Cach LLC, Countrywide Home Loans, Inc., First Horizon Home Loans, A Division of First Tennessee Bank National Association Successor by Merger to First Horizon Home Loan Corporation, Paul Evans, and Chris Shucuck, Defendants.

No. 1027–09.

Supreme Court, Essex County, New York.

Oct. 15, 2012.


Phillips Lytle LLP, Albany, New York (Marc H. Goldberg, Esq. of counsel) and Wilson S. Mathias, Esq., Queensbury, New York, for plaintiffs.

RICHARD B. MEYER, J.

Motion for summary judgment by defendant Bonnie Morris a/k/a Bonnie L. Morris (Morris) dismissing the complaint to foreclose a residential mortgage on property located in the town of North Elba, Essex County, New York, or alternatively for leave to amend her answer to assert a new defense and counterclaim; and cross-motion by plaintiff Deutsche Bank National Trust Company (Deutsche Bank) for summary judgment to foreclose the mortgage based upon equitable subrogation 1.

Morris, along with the defendant David E. Bills a/k/a David Bills (Bills), are the owners of certain residential real property located on Riverside Drive in the town of North Elba, Essex County, New York on which there is now a mortgage lien held by plaintiff Deutsche Bank as Trustee for Washington Mutual Bank, F.A. (WAMU). Morris and Bills acquired the property in January 2004 pursuant to a joint venture agreement dated October 24, 2003 2, providing in pertinent part as follows:

“1. David E. Bills and Bonnie Morris (hereinafter referred to as the parties') intend to engage in certain joint venture projects in and around Lake Placid, New York, which will usually involve the purchase, improvement and resale of real property. Properties may be purchased in in the name of either or both parties. If a property is purchased in the name of one party only, and is intended to be governed by this agreement, the parties will sign a joint written statement to the effect that the purchase of the property in question shall be subject to this Joint Venture Agreement dated October 24, 2003.

2. The parties will contribute mutually-agreed amounts of capital to each such project, which amounts may not be equal, and shall borrow moneys in amounts and upon terms as may be mutually agreed, with either or both parties being borrowers.


* * *

4. Each property to be purchased by the parties shall be by mutual agreement of the parties. Each property sale or mortgage shall also be by mutual agreement of the parties (or their attorneys-in-fact), except as provided in Paragraph 6.” 3

On November 16, 2005, the defendant Bills, and purportedly Morris, executed and delivered a note in the principal amount of $975,000.00 to WAMU secured by a mortgage on the North Elba property titled in both Bills and Morris. The loan proceeds were used, in part, to satisfy a then-existing mortgage held by Countrywide Home Loans (Countrywide) in the unpaid principal amount of $760,895.21. Bills and Morris thereafter defaulted on the Deutsche Bank mortgage loan and this action ensued. As a result of discovery proceedings which disclosed that the original WAMU loan file of the mortgage transaction contained no documentary identification evidence (i.e., photo identification) establishing that Morris was present at the mortgage closing and signed the loan and mortgage documents, this Court previously granted Morris' motion to preclude Deutsche Bank from offering any documentary evidence at trial relative to the identification of Morris as being one of the individuals who executed those documents.

In her motion for summary judgment, Morris avers that she did not attend the mortgage loan closing in Rochester and did not sign the loan documents including the mortgage because she was in Lake Placid that day, more than two hundred seventy driving miles, and more than five hours driving time, away. Morris has detailed her whereabouts that date, provided the names of witnesses who can confirm those facts, and submitted affidavits from three such witnesses in support of her motion. Moreover, she claims that the signatures on the mortgage loan documents which purport to be hers are not her signature and were not affixed by her or by someone authorized by her to do so. Morris also challenges the validity of the mortgage assignment from WAMU to Deutsche Bank and, should her motion for summary judgment not be granted, seeks to amend her answer to assert a new defense that Deutsche Bank lacks standing plus two counterclaims for unspecified monetary damages for misrepresenta-tion and outrageous conduct causing emotional distress. Finally, she maintains that Deutsche Bank has “unclean hands” in that the person who conducted the mortgage closing from WAMU was, allegedly, a “robo-signer”.

Deutsche Bank opposes the award of summary judgment in favor of Morris, cross-moves for summary judgment against all defendants on the theory of equitable subrogation, and opposes Morris' motion to amend her complaint. Deutsche Bank submits affidavits from two assistant vice-presidents of JPMorgan Chase, N.A. (Chase), the loan servicer for Deutsche Bank, based upon their own personal reviews of the books and records maintained by Chase, including the original loan file containing the subject note and mortgage. Deutsche Bank also relies upon the presumption in CPLR R4538 that “[c]ertification of the acknowledgment or proof of a writing, except a will, in the manner prescribed by law for taking and certifying the acknowledgment or proof of a conveyance of real property within the state is prima facie evidence that it was executed by the person who purported to do so.”

A.

It is well-settled that summary judgment “is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Millerton Agway Co-op. v. Briarcliff Farms, 17 N.Y.2d 57, 268 N.Y.S.2d 18, 215 N.E.2d 341)” (Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 133, 320 N.E.2d 853, 854). In order for a party to be entitled to summary judgment, “it must clearly appear that no material and triable issue of fact is presented (Di Menna & Sons v. City of New York, 301 N.Y. 118, 92 N.E.2d 918)” (Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 505, 144 N.E.2d 387, 392). “[I]ssue-finding, rather than issue-determination, is the key to the procedure' (Esteve v. Abad, 271 AppDiv 725, 727, 68 N.Y.S.2d 322, 324)” ( id.;see also, Benizzi v. Bank of Hudson, 50 AD3d 1372, 1373, 855 N.Y.S.2d 764, 765;Gadani v. Dormitory Auth. of State of NY, 43 AD3d 1218, 1219, 841 N.Y.S.2d 709), and summary judgment “should not be granted where there is any doubt as to the existence of such issues, or where the issue is arguable'. (Barrett v. Jacobs, 255 N.Y. 520, 522, 175 NE 275)” (Glick & Dolleck, Inc. v.. Tri–Pac Export Corp., 22 N.Y.2d 439, 441, 293 N.Y.S.2d 93, 94, 239 N.E.2d 725, 726).

“To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd. (b )), and he must do so by tender of evidentiary proof in admissible form” (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc. 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 791–792, 390 N.E.2d 298, 299). “Accordingly, if the movant does not submit sufficient evidence on a particular issue or cause of action to justify judgment as a matter of law, the burden never shifts to the adversary to submit evidence sufficient to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572). Even where there is no opposition to a motion for summary judgment, the court is not relieved of its obligation to ensure that the movant has demonstrated his or her entitlement to the relief requested.” (Zecca v. Riccardelli, 293 A.D.2d 31, 34, 742 N.Y.S.2d 76, 78). Thus, “if, on the record before the court, it cannot be determined that there are no issues of material fact, the motion must be denied ( see, Udoff v. Zipf, 44 N.Y.2d 117, 122, 404 N.Y.S.2d 332, 375 N.E.2d 392)” (Long Island College Hosp. v. Axelrod, 118 A.D.2d 177, 182, 504 N.Y.S.2d 275, 277 [1986] ).

Here, Morris has failed to meet her burden. Whether or not she attended the closing, executed the mortgage loan documents, agreed to the mortgage as provided in paragraph 4 of the Joint Venture Agreement, or authorized someone to sign the mortgage loan documents on her behalf, the joint venture relationship between her and Bills is fatal to her motions and defenses. “It is well settled that [a] joint venture ... is in a sense a partnership for a limited purpose, and it has long been recognized that the legal consequences of a joint venture are equivalent to those of a partnership,' and, as a result, it is proper to look to the Partnership Law to resolve disputes involving joint ventures (Gramercy Equities Corp. v. Dumont, 72 N.Y.2d 560, 565, 534 N.Y.S.2d 908, 531 N.E.2d 629 [1988];Sagus Marine Corp. v. Donald G. Rynne & Co., Inc., 207 A.D.2d 701, 702, 616 N.Y.S.2d 496 [1994] ).” (Eskenazi v. Schapiro, 27 AD3d 312, 314–315, 812 N.Y.S.2d 474, 476–477 [1st Dept., 2006] ). In partnerships, “each partner acts, as to himself, as a principal, having a joint interest in the partnership property, and, as to each other partner, as a general agent.' First National Bank of Ann Arbor, Mich., v. Farson, 226 N.Y. 218, 221, 123 N.E. 490, 491.” (Caplan v. Caplan, 268 N.Y. 445, 450–451, 198 N.E. 23, 26 [1935];see Partnership Law § 20[1]4). A partner may bind the partnership and all other partners by making, endorsing or accepting bills or notes for partnership purposes ( see Chemung Canal Bank v. Bradner, 44 N.Y. 680 [1871] ). “[A]ll partners are liable...

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  • Travelers Prop. Cas. Co. of Am. v. Harleysville Ins. Co. of N.Y., 651812/2017
    • United States
    • United States State Supreme Court (New York)
    • June 5, 2020
    ...liable to third persons for acts of the fellow venturers done in the course of the enterprise ( Deutsche Bank Natl. Tr. Co. v. Bills , 37 Misc 3d 1209[A], 2012 NY Slip Op 51943[U], *4 [Sup Ct, Essex County 2012]; County of Monroe v. Raytheon Co., 156 Misc 2d 445, 455 [Sup Ct, Monroe County ......
  • Bank of N.Y. v. Mungro, INDEX NO.: 33836-10
    • United States
    • United States State Supreme Court (New York)
    • March 3, 2014
    ...1509, 2013 WL 1699251, 2013 NY Slip Op 30755 [U] [Sup Ct, Suffolk County 2013, slip op, at 17]; Deutsche Bank Natl. Trust Co. v Bills, 37 Misc3d 1209 [A], ___ NYS2d ___, 2012 NY Misc LEXIS 4842, 2012 WL 4868108, 2012 NY Slip Op 51943 [U] [Sup Ct, Essex County 2012, slip op, at 5]). The effe......
  • Loancare, of FNF Servicing, Inc. v. Avelin, INDEX NO.: 6226-12
    • United States
    • United States State Supreme Court (New York)
    • March 25, 2014
    ...1509, 2013 WL 1699251, 2013 NY Slip Op 30755 [U] [Sup Ct, Suffolk County 2013, slip op, at 17]; Deutsche Bank Natl. Trust Co. v Bills, 37 Misc3d 1209 [A], ___ NYS2d ___, 2012 NY Misc LEXIS 4842, 2012 WL 4868108, 2012 NY Slip Op 51943 [U] [Sup Ct, Essex County 2012, slip op, at 5]). Furtherm......
  • Jpmorgan Chase Bank v. Federman, INDEX NO.: 16989-09
    • United States
    • United States State Supreme Court (New York)
    • February 18, 2014
    ...1509, 2013 WL 1699251, 2013 NY Slip Op 30755 [U] [Sup Ct, Suffolk County 2013, slip op, at 17]; Deutsche Bank Natl. Trust Co. v Bills, 37 Misc3d 1209 [A], ___NYS2d___, 2012 NY Misc LEXIS 4842, 2012 WL 4868108, 2012 NY Slip Op 51943 [U] [Sup Ct, Essex County 2012, slip op, at 5]). Furthermor......
  • Request a trial to view additional results
6 cases
  • Travelers Prop. Cas. Co. of Am. v. Harleysville Ins. Co. of N.Y., 651812/2017
    • United States
    • United States State Supreme Court (New York)
    • June 5, 2020
    ...liable to third persons for acts of the fellow venturers done in the course of the enterprise ( Deutsche Bank Natl. Tr. Co. v. Bills , 37 Misc 3d 1209[A], 2012 NY Slip Op 51943[U], *4 [Sup Ct, Essex County 2012]; County of Monroe v. Raytheon Co., 156 Misc 2d 445, 455 [Sup Ct, Monroe County ......
  • Bank of N.Y. v. Mungro, INDEX NO.: 33836-10
    • United States
    • United States State Supreme Court (New York)
    • March 3, 2014
    ...1509, 2013 WL 1699251, 2013 NY Slip Op 30755 [U] [Sup Ct, Suffolk County 2013, slip op, at 17]; Deutsche Bank Natl. Trust Co. v Bills, 37 Misc3d 1209 [A], ___ NYS2d ___, 2012 NY Misc LEXIS 4842, 2012 WL 4868108, 2012 NY Slip Op 51943 [U] [Sup Ct, Essex County 2012, slip op, at 5]). The effe......
  • Loancare, of FNF Servicing, Inc. v. Avelin, INDEX NO.: 6226-12
    • United States
    • United States State Supreme Court (New York)
    • March 25, 2014
    ...1509, 2013 WL 1699251, 2013 NY Slip Op 30755 [U] [Sup Ct, Suffolk County 2013, slip op, at 17]; Deutsche Bank Natl. Trust Co. v Bills, 37 Misc3d 1209 [A], ___ NYS2d ___, 2012 NY Misc LEXIS 4842, 2012 WL 4868108, 2012 NY Slip Op 51943 [U] [Sup Ct, Essex County 2012, slip op, at 5]). Furtherm......
  • Jpmorgan Chase Bank v. Federman, INDEX NO.: 16989-09
    • United States
    • United States State Supreme Court (New York)
    • February 18, 2014
    ...1509, 2013 WL 1699251, 2013 NY Slip Op 30755 [U] [Sup Ct, Suffolk County 2013, slip op, at 17]; Deutsche Bank Natl. Trust Co. v Bills, 37 Misc3d 1209 [A], ___NYS2d___, 2012 NY Misc LEXIS 4842, 2012 WL 4868108, 2012 NY Slip Op 51943 [U] [Sup Ct, Essex County 2012, slip op, at 5]). Furthermor......
  • Request a trial to view additional results

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