Deutsche Bank Nat'l Trust Co. v. Holler
| Decision Date | 03 August 2017 |
| Docket Number | No. 604161/2015.,604161/2015. |
| Parties | DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee in Trust for Registered Holders of Long Beach Mortgage Loan Trust 2004–4, Asset–Backed Certificates, Series 2004–4, Plaintiff, v. Frank HOLLER a/k/a Frank Glen Holler, Teachers Federal Credit Union, and "John Does", and "Jane Does", said names being fictitious, parties intended being possible tenants or occupants of premises or corporations, other entities or persons who have, claim, or may claim, a lien, or other interest in, the premises, Defendants. |
| Court | New York Supreme Court |
Fein, Such & Crane, LLP, Westbury, Attorneys for Plaintiff.
Ronald D. Weiss, P.C., Melville, Attorney for Defendant.
Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the plaintiff, dated April 15, 2016, and supporting papers; (2) Notice of Cross Motion by the defendant Frank Holler, dated June 7, 2016, and supporting papers (e-filed on June 7, 2016); (3) Notice of Cross Motion by the defendant Frank Holler, dated June 7, 2016, and supporting papers (e-filed on June 8, 2016); (4) Opposition to the plaintiff's motion by the defendant Teacher's Federal Credit Union, dated May 18, 2016, and supporting papers; (5) Opposition and Reply by the plaintiff dated June 14, 2016, and supporting papers; (6) Reply by the defendant, Frank Holler dated June 17, 2016; (7) Other: Letter; (and after hearing counsels' oral arguments in support of and opposed to the motion); and now it is
ORDERED that this motion (# 001) by the plaintiff, and the motions (# 002, # 003) by the defendant Frank Holler, which were improperly labeled cross motions, are consolidated for the purposes of this determination and decided herewith; and it is
ORDERED that this motion (# 001) by the plaintiff for, inter alia, an order: (1) pursuant to CPLR 3212 awarding summary judgment in its favor against the defendant Frank Holler, striking his answer, and dismissing the affirmative defenses and counterclaims asserted therein; (2) pursuant to CPLR 3215 fixing the defaults of the non-answering defendants; (3) pursuant to RPAPL § 1321 appointing a referee to (a) compute amounts due under the subject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or multiple parcels; and (4) amending the caption is granted solely to the extent stated below, otherwise denied with leave to renew within 120 days of the date herein, or, in the alternative, the filing of a note of issue within 120 days of the date herein; and it is
ORDERED that the plaintiff is awarded partial summary judgment dismissing the second through thirteenth affirmative defenses, the fifteenth through nineteenth affirmative defenses and the six counterclaims asserted in the defendant Frank Holler's answer, all with prejudice; and it is
ORDERED that the caption is amended by excising the fictitious "JOHN DOES" defendants and by substituting Saretta Holler for the fictitious "JANE DOES" defendants; and it is
ORDERED that the plaintiff shall to serve a copy of this order amending the caption of this action upon the Calendar Clerk of this Court; and it is
ORDERED that the motion (# 002) (e-filed on June 7, 2016) by the defendant Frank Holler, for inter alia, an order granting leave to compel discovery, reschedule foreclosure conferences and denying plaintiff's summary judgment motion is denied as subsumed in the motion (# 003) for the same relief; and it is
ORDERED that the motion (# 003) (e-filed on June 8, 2016) by the defendant Frank Holler, for inter alia, an order granting leave to compel discovery, reschedule foreclosure conferences and denying plaintiff's summary judgment motion is denied; and it is further
ORDERED that the moving parties shall serve a copy of this order with notice of entry by first-class mail upon opposing counsel and upon all appearing defendants that have not waived further notice within thirty (30) days of the date herein, and they shall promptly file the affidavits of service with the Clerk of the Court.
This is an action to foreclose a mortgage on real property known as 10 Park Street, Setauket, New York 11733 ("the property"). On May 18, 2004, the defendant Frank Holler ("the defendant mortgagor") executed a fixed-rate note in favor of United Mortgage Company ("the lender") in the principal sum of $391,500.00. To secure said note, the defendant mortgagor gave the lender a mortgage also dated May 18, 2004 on the property. The mortgage was recorded on August 16, 2004.
By way of, inter alia, an endorsed allonge dated May 18, 2004, the note was allegedly transferred to Long Beach Mortgage Company ("Long Beach"). Thereafter, by way of an undated endorsement in blank, the note was allegedly transferred by Long Beach to Deutsche Bank National Trust Company, as Trustee, In Trust for Registered Holders of Long Beach Mortgage Loan Trust 2004–4, Asset–Backed Certificates, Series 2004–4 ("the plaintiff"), prior to commencement.
The transfer of the note to the plaintiff was memorialized by two written assignments. By the first assignment executed on May 18, 2004, the mortgage "TOGETHER with the bond(s) or note(s) described in said mortgage and the moneys due and to grow due thereon with the interest" was allegedly transferred to Long Beach. The assignment was duly recorded in the Suffolk County Clerk's Office on August 16, 2004. By the second assignment executed on December 14, 2010, and purportedly made retroactive to May 18, 2004, the mortgage "TOGETHER with the bond or note or obligation described in said mortgage, and the moneys due and to grow due thereon with the interest" was allegedly transferred to Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Loan Trust 2004–4 ("the Trust"). Parenthetically, the second assignment was executed by an officer of JPMorgan Chase Bank, N.A. ("JPMorgan"), successor in interest from the Federal Deposit Insurance Corporation ("the FDIC"), as Receiver for Washington Mutual Bank ("WAMU"), successor-in-interest to Long Beach. The second assignment was duly recorded in the Suffolk County Clerk's Office on January 6, 2011.
Thereafter, by Loan Modification Agreement ("the modification agreement") effective May 1, 2013 and made between JPMorgan as "lender" and the defendant mortgagor as borrower, the principal balance owed was increased to approximately $456,003.55, inclusive of taxable accrued interest in the sum of approximately $95,672.49. Pursuant to the modification agreement, the loan was subject to a 2 .7% annual interest rate for the first five years, and a 3.5% annual interest rate for years six through twenty-one. The first monthly payment was due on May 1, 2013, and a balloon payment in the sum of approximately $288,416.46 was due on the maturity date, June 1, 2034.
The modification agreement reflects, among other things, that it was executed by the defendant mortgagor and acknowledged before a notary public on April 23, 2013. The modification agreement also reflects that it modifies the recorded mortgage and the recorded assignments. Further, section "1" of the loan modification agreement includes a representation by the defendant mortgagor that "[he] ha[s] provided documentation for all income that [he] earn [s] ." Paragraph "L" of the said agreement includes and acknowledgment and agreement that "if the [l]ender executing [the same] is not the current holder or owner of the [n]ote and [m]ortgage, that such party is the authorized servicing agent for such holder or owner, or its successor in interest, and has full power and authority to bind itself and such holder and owner to the terms of this modification."
Pursuant to certain Pooling and Servicing Agreements, one of which includes the subject loan/the Trust, made by the Trustee, WAMU, formerly known as Long Beach, and Long Beach Securities Corp., and in accordance with a Purchase and Assumption Agreement ("the purchase agreement") made by and among the FDIC as receiver of WAMU and JPMorgan dated as of September 25, 2008, JPMorgan assumed the servicing obligations of WAMU. Further, by limited power of attorney executed on February 11, 2013, Deutsche Bank National Trust Company, as Trustee ("The Trustee") constituted and appointed JPMorgan, as servicer and attorney-in-fact for the subject mortgage loan.
Thereafter, by limited power of attorney executed on May 3, 2013, JPMorgan as "Master Servicer" constituted and appointed Select Portfolio Servicing, Inc. ("SPS") as "Sub–Servicer" as attorney-in-fact in connection with all mortgage and other loans served by JPMorgan pursuant to certain agreements, one of which includes a Pooling and Servicing Agreement dated as of September 1, 2004, which includes the subject loan/the Trust.
The defendant mortgagor allegedly defaulted on the mortgage, as modified, by failing to make the monthly payment of principal and interest due on or about August 1, 2014, and each month thereafter. After the defendant mortgagor allegedly failed to cure the default in payment, the plaintiff commenced this action by the filing of the lis pendens, summons and complaint on April 22, 2015.
Issue was joined by the interposition of the defendant mortgagor's answer dated June 10, 2015. Thereafter, the defendant mortgagor interposed an amended verified answer dated June 11, 2015, which contains a purported verification allegedly sworn to on May 8, 2015, a date preceding the answer.
By his amended answer, the defendant mortgagor denies all of the allegations in the complaint, and asserts nineteen affirmative defenses, alleging, among other things, fraud and misrepresentation in the loan origination and servicing as well as violations of the Fair Debt Collection Practices Act ("FDCPA") ( 15 USC § 1692 ), the Real Estate Settlement Procedures Act ("RESPA") ( 12 USC § 2601, et seq. ), and the Truth in Lending Act ("TILA") ( 15 USC § 1601, et seq ). The defendant mortgagor also asserts...
To continue reading
Request your trial