McAnaney v. Astoria Financial Corp., No. 04-CV-1101 (JFB)(WDW).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtJoseph F. Bianco
Citation665 F.Supp.2d 132
PartiesDavid McANANEY, Carolyn McAnaney, John Reilly, Constance Reilly, Philip Russo, Cynthia Russo, and Geoffrey Horn, individually and on behalf of all others similarly situated, Plaintiffs, v. ASTORIA FINANCIAL CORP., Astoria Federal Savings Loan Assoc., Astoria Federal Mortgage Corp., Long Island Bancorp, Inc., and Long Island Savings Bank, FSB, Defendants.
Decision Date29 September 2009
Docket NumberNo. 04-CV-1101 (JFB)(WDW).
665 F.Supp.2d 132
David McANANEY, Carolyn McAnaney, John Reilly, Constance Reilly, Philip Russo, Cynthia Russo, and Geoffrey Horn, individually and on behalf of all others similarly situated, Plaintiffs,
v.
ASTORIA FINANCIAL CORP., Astoria Federal Savings Loan Assoc., Astoria Federal Mortgage Corp., Long Island Bancorp, Inc., and Long Island Savings Bank, FSB, Defendants.
No. 04-CV-1101 (JFB)(WDW).
United States District Court, E.D. New York.
September 29, 2009.

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Joseph S. Tusa, Esq., and Paul C. Whalen, Esq., of Whalen & Tusa, New York, NY, and G. Oliver Koppell, Esq., of G. Oliver Koppell & Associates, New York, NY, for Plaintiffs.

Alfred W.J. Marks, Esq., Rosemary Q. Barry, Esq., and Lisa Pepe Whittaker, Esq., of Day Pitney LLP, New York, NY, for Defendants.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:


Plaintiffs brought this class action against defendants Astoria Financial Corporation (hereinafter, "Astoria Financial"), Astoria Federal Savings and Loan Association (hereinafter, "Astoria Federal"), Astoria Federal Mortgage Corporation (hereinafter, "Astoria Mortgage"), Long Island Bancorp, Inc. (hereinafter "LIB"), and Long Island Savings Bank, FSB (hereinafter, "LISB") (collectively, "defendants"), alleging violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601, et seq., state consumer protection statutes, New York Real Property Law § 274-a, New York Real Property Actions & Proceedings Law 1921, and common law claims for breach of contract, fraud and unjust enrichment. Previously, this Court certified the following class of plaintiffs under Rules 23(b)(2) and (b)(3) of the Federal Rules of Civil Procedure:

All consumers or borrowers in the United States who had or currently have a mortgage or residential loan originated or purchased by any of the defendants and who wrongfully paid or will be demanded to pay closing fees, satisfaction fees, discharge fees, prepayment fees (or penalties), refinance fees (or penalties), attorney document preparation fees, facsimile fees, recording fees and any other fees, charges, false debts or finance charges in contravention of their mortgage or loan contracts or applicable laws.

Currently before the Court are the parties' renewed cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and plaintiffs'

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motion for costs and fees. For the reasons set forth below, defendants' motion for summary judgment is granted with respect to defendants Astoria Financial and LIB, and, accordingly, those two parties are terminated as defendants from this case. In addition, defendants' motion for summary judgment as to the remaining defendants is partially granted with respect to the claim brought by named plaintiff Geoffrey Horn under the Home Ownership and Equity Protection Act of 1994 ("HOEPA"), 15 U.S.C. § 1639, and generally with respect to class plaintiffs' claims under New York Real Property Law § 274-a, New York Real Property Actions & Proceedings Law § 1921, and the common law claims for unjust enrichment and fraud. However, the Court denies defendants' motion for summary judgment as to plaintiffs' claims brought under TILA, breach of contract, and New York General Business Law § 349. Plaintiffs' motion for summary judgment is denied in its entirety. Finally, the Court defers plaintiffs' motion for costs, without prejudice for renewal following trial.

I. BACKGROUND AND PROCEDURAL HISTORY
A. Background

The underlying facts giving rise to this litigation are comprehensively described by the Honorable Arthur D. Spatt, United States District Judge, in a prior decision addressing defendants' motion to dismiss (hereinafter, "McAnaney I"), and by the undersigned in prior decisions granting plaintiffs' motion for class certification (hereinafter, "McAnaney II") and an earlier motion for summary judgment (hereinafter, "McAnaney III"). See McAnaney v. Astoria Fin. Corp., 357 F.Supp.2d 578 (E.D.N.Y.2005) ("McAnaney I"); McAnaney v. Astoria Fin. Corp., No. 04-CV-1101 (JFB), 2006 WL 2689621 (E.D.N.Y. Sept. 19, 2006) ("McAnaney II"); McAnaney v. Astoria Fin. Corp., No. 04-CV-1101 (JFB), 2007 WL 2702348 (E.D.N.Y. Sept. 12, 2007) ("McAnaney III"). As such, the Court presumes familiarity with the facts of this case, and only briefly recites within this section basic background facts adduced during discovery regarding the loan agreements of the named plaintiffs and the basic dispute. Additional facts that are relevant to the instant motions are set forth in further detail in the Discussion section infra, taken from the parties' depositions, affidavits, exhibits, and from the parties' respective Local Rule 56.1 statements of facts. Upon consideration of each motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. N.Y., 422 F.3d 47, 50 n. 1 (2d Cir.2005).

1. The McAnaneys

On February 4, 1993, David and Carolyn McAnaney ("the McAnaneys") obtained a residential loan relating to their residence located in Belle Terre, New York, in the form of a mortgage from LISB (hereinafter, "the McAnaneys' First Loan").1 (Pls.' 56.1 ¶ 1.)2 The McAnaneys' First Loan was serviced by defendant LISB until that entity was acquired by defendant Astoria

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Federal and/or defendant Astoria Financial (Id. ¶ 3; Defs.' Am. Resp. 56.1 ¶ 3.)3 Thereafter, Astoria Federal serviced the McAnaneys' First Loan until it was sold to the Federal National Mortgage Association ("Fannie Mae"). (Pls.' 56.1 ¶ 5.)

On November 18, 2002, Astoria Federal sent the McAnaneys a "payoff letter" via facsimile, which listed several fees to be paid by the McAnaneys which were "necessary to satisfy" the McAnaneys' First Loan. (Id. ¶ 6.) The amount listed on the payoff letter included: (1) an "Atty. Doc. Prep. Fee" of $125; (2) a "Facsimile Fee" of $25; and (3) a "Recording Fee" of $64.50.4 (Id. ¶¶ 7, 14, 16; Pls.' Resp. 56.1 ¶¶ 67-69.)

It is undisputed that the McAnaneys should not have been charged the Atty. Doc. Prep. Fee by Astoria Federal with regard to the McAnaneys' First Loan. (Pls.' 56.1 ¶ 11; Defs.' Am. Resp. 56.1 ¶ 11.) According to defendants, Astoria Federal improperly demanded the Atty. Doc. Prep. Fee from the McAnaneys due to a "programming error" in an automated computer system used by Astoria Federal. (Pls.' 56.1 ¶ 9.)

Regardless of the reason for the error, plaintiffs assert that the McAnaneys paid the Atty. Doc. Prep. Fee to Astoria Federal, and that Astoria Federal retained the fee. (Defs.' Am. Resp. 56.1 ¶ 8.) However, defendants assert that, upon discovery of its error, Astoria refunded the fee to an escrow account held by the McAnaneys. (Id. ¶ 12; Defs.' 56.1 ¶ 61; Pls.' Resp. 56.1 ¶ 61.) In any event, it is undisputed that Astoria Federal did not inform the McAnaneys that it had improperly demanded or collected the Atty. Doc. Prep. Fee, or that it had refunded such a fee to the McAnaneys' escrow account. (Pls.' 56.1 ¶ 13; Defs.' Am. Resp. 56.1 ¶ 13; Pls.' Resp. 56.1 ¶ 76.) It is further undisputed that the McAnaneys paid the Facsimile Fee and the Recording Fee to Astoria Federal. (Pls.' 56.1 ¶¶ 15, 17.)

The McAnaneys obtained a second residential loan from LISB concerning a property located in Port Jefferson, New York (hereinafter, "the McAnaneys' Second Loan"). (Pls.' 56.1 ¶ 25.) On November 18, 2002, Astoria Federal sent the McAnaneys a "payoff letter" relating to the McAnaneys' Second Loan, which listed several fees to be paid by the McAnaneys which were "necessary to satisfy" the loan. (Id. ¶ 29.) The amount listed on the payoff letter included: (1) an "Atty. Doc. Prep. Fee" of $125; (2) a "Facsimile Fee" of $25; and (3) a "Recording Fee" of $64.50. (Id. ¶¶ 30, 36, 38.) It is undisputed that the McAnaneys paid each of these fees to Astoria Federal. (Id. ¶¶ 31, 37, 39.)

2. The Reillys

On or about March 28, 2002, John and Constance Reilly ("the Reillys") obtained a residential loan in the form of a mortgage from Astoria Federal (hereinafter, "the Reilly Loan").5 (Pls.' 56.1 ¶ 47.) The Reilly Loan was serviced by Astoria Federal until the time it was repaid. (Id. ¶ 49.) On April 16, 2004, and April 19, 2004, respectively, Astoria Federal sent the Reillys two "payoff letters" which listed several fees to be paid by the Reillys that were

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"necessary to satisfy" the loan, including: (1) an "Atty. Doc. Prep. Fee" of $125; (2) "Facsimile Fees" of $25 and $50; and (3) a "Recording Fee" of $44.50. (Id. ¶¶ 51, 53, 59, 62; Defs.' 56.1 ¶¶ 97-98.)

It is undisputed that the Reillys paid the Facsimile Fee to Astoria Federal, and that Astoria Federal deducted the Recording Fee from funds held in escrow by Astoria Federal for the Reillys. (Pls.' 56.1 ¶¶ 56, 61, 64; Defs.' Am. Resp. 56.1 ¶¶ 56, 61, 64; Defs.' 56.1 ¶¶ 46-47, 103; Pls.' Resp. 56.1 ¶¶ 46-47, 103.) Plaintiffs claim that they paid the Atty. Doc. Prep. Fee to Astoria Federal, but defendants dispute that and claim that the fee was never collected. (Pls.' 56.1 ¶ 55; Defs.' Am. Resp. 56.1 ¶ 55; Defs.' 56.1 ¶ 103; Pls.' Resp. 56.1 ¶ 103.) Defendants further dispute plaintiffs' contention that any collection of the Disputed Fees was in breach of the loan agreement. (Defs.' Resp. 56.1 ¶¶ 54-57.)

3. The Russos

On or about November 12, 1993, Philip and Cynthia Russo ("the Russos") obtained a residential loan from LISB in the form of a mortgage (hereinafter, "the Russo Loan").6 (Pls.' 56.1 ¶ 72.) The Russo loan was serviced by LISB until the bank was acquired by Astoria Federal; thereafter, the loan was serviced by Astoria Federal until it was repaid. (Id. ¶¶ 74-75.) On June 2, 2004, Astoria Federal sent to the Russos a "payoff letter" which listed several fees to be paid by the Russos that were "necessary to satisfy" the Russo Loan, including: (1) an "Atty. Doc. Prep. Fee" of $125; (2) a "Facsimile Fee" of $25; and (3) a...

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71 practice notes
  • M & T Mortgage Corp. v. White, Nos. 04-CV-4775 (NGG) (VVP)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 26, 2010
    ...the Rule 12 stage and is not binding on summary judgment. See Council, 2006 WL 2376381, at *9-12; McAnaney v. Astoria Financial Corp., 665 F.Supp.2d 132, 141-43 (S.D.N.Y.2009); Nobel Ins. Co. v. City of New York, No. 00-CV-1328, 2006 WL 2848121, at *4 (S.D.N.Y. Sept. 29, 2006). Other courts......
  • Midouin v. Downey Sav. & Loan Ass'n, F.A., 09-CV-4140 (KAM)(JO)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 28, 2011
    ...her $199 more to record the transaction than they actually paid to public officials to do so. In McAnaney v. Astoria Financial Corp. , 665 F. Supp. 2d 132, 148 n.16 (E.D.N.Y. 2009), the district court noted that a recording fee was "properly excluded from the finance charge to the extent th......
  • Middlesex Ins. Co. v. Mara, No. 3:08-CV-490 (CSH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • March 29, 2010
    ...v. Reynolds, 316 F.3d 351, 354 (2d Cir.2003); Miner v. Glens Falls, 999 F.2d 655, 661 (2d Cir.1993); McAnaney v. Astoria Fin. Corp., 665 F.Supp.2d 132, 141-42 (E.D.N.Y.2009). A dispute regarding a material fact is genuine “if the evidence is such that a reasonable jury could return a verdic......
  • Surlock v. Delaney, 5:11-cv-1121 (MAD/DEP)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • June 8, 2016
    ...denying a motion to dismiss based only on the plaintiff's allegations") (citation omitted); see also McAnaney v. Astoria Fin. Corp., 665 F. Supp. 2d 132, 142-43 (E.D.N.Y. 2009) (holding that if a court first resolves a motion to dismiss and is then presented with the same issues on summary ......
  • Request a trial to view additional results
71 cases
  • M & T Mortgage Corp. v. White, Nos. 04-CV-4775 (NGG) (VVP)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 26, 2010
    ...the Rule 12 stage and is not binding on summary judgment. See Council, 2006 WL 2376381, at *9-12; McAnaney v. Astoria Financial Corp., 665 F.Supp.2d 132, 141-43 (S.D.N.Y.2009); Nobel Ins. Co. v. City of New York, No. 00-CV-1328, 2006 WL 2848121, at *4 (S.D.N.Y. Sept. 29, 2006). Other courts......
  • Midouin v. Downey Sav. & Loan Ass'n, F.A., 09-CV-4140 (KAM)(JO)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 28, 2011
    ...her $199 more to record the transaction than they actually paid to public officials to do so. In McAnaney v. Astoria Financial Corp. , 665 F. Supp. 2d 132, 148 n.16 (E.D.N.Y. 2009), the district court noted that a recording fee was "properly excluded from the finance charge to the extent th......
  • Middlesex Ins. Co. v. Mara, No. 3:08-CV-490 (CSH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • March 29, 2010
    ...v. Reynolds, 316 F.3d 351, 354 (2d Cir.2003); Miner v. Glens Falls, 999 F.2d 655, 661 (2d Cir.1993); McAnaney v. Astoria Fin. Corp., 665 F.Supp.2d 132, 141-42 (E.D.N.Y.2009). A dispute regarding a material fact is genuine “if the evidence is such that a reasonable jury could return a verdic......
  • Surlock v. Delaney, 5:11-cv-1121 (MAD/DEP)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • June 8, 2016
    ...denying a motion to dismiss based only on the plaintiff's allegations") (citation omitted); see also McAnaney v. Astoria Fin. Corp., 665 F. Supp. 2d 132, 142-43 (E.D.N.Y. 2009) (holding that if a court first resolves a motion to dismiss and is then presented with the same issues on summary ......
  • Request a trial to view additional results

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