Moazed v. First Union Mortg. Corp.
| Decision Date | 07 May 2004 |
| Docket Number | No. 3:02-CV-91 (EBB).,3:02-CV-91 (EBB). |
| Court | U.S. District Court — District of Connecticut |
| Parties | Janet MOAZED, v. FIRST UNION MORTGAGE CORPORATION, n/k/a/ Wachovia Mortgage Corporation, v. Farzad Moazed. |
M. Dean Montgomery, Bentley, Mosher, Babson & Lambert, Greenwich, CT, for Plaintiff.
Geoffrey K. Milne, Patrick Crook, Hunt Leibert Chester & Jacobson, Hartford, CT, for Defendant.
Farzad Moazed, Greenwich, CT, pro se.
Lawrence F. Reilly, Fogarty, Cohen, Selby & Nemiroff, Greenwich, CT, for Movant.
RULING ON PARTIES' MOTIONS FOR SUMMARY JUDGMENT
Decision on a summary judgment motion requires the Court to pierce the pleadings and to assess the proof, reviewing same in the non-movant's favor, in order to see if there is a genuine need for trial.
Local Rule 56(a)1 imposes on the moving party the requirement of annexing to the motion for summary judgment a separate document entitled "Local Rule 56(a)1 Statement", which must set forth in separately numbered paragraphs a concise statement of each material fact as to which the moving party contends there is no genuine issue to be tried. Although Defendant labeled its Statement as "Local Rule 56(a)2 Statement" [Doc.No.114], rather than "Local Rule 56(a)1 Statement", it is beyond cavil that the Statement filed is pursuant to, and in complete compliance with, subsections (a)1 and (a)3. The Statement was filed and served on Plaintiff's counsel on August 8, 2003.
In her opposition to summary judgment, Plaintiff's counsel, in a memorandum of law filed on October 2, 2003, writes: "Plaintiff is unable to respond accurately because there is no Rule 56(a)(1) statement." See Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment at p. 4 [Doc.No.126]. See also Objection to Motion for Summary Judgment [Doc.No.125], also filed on October 2, 2003, in which it states, in pertinent part: These claims are nothing less than Plaintiff's counsel making a transparent attempt to take advantage of a simply mislabeled citation.1 Such attempt is rejected out of hand.
Incredibly, after asserting that Defendant had not complied with Local Rule 56, Plaintiff never filed a Local Rule 56 Statement of any kind with her Objection to Motion for Summary Judgment, although she clearly recognized the mandate that she do so. Even though Local Rule 56(a)1 clearly provides: "All material facts set forth in such statement will be deemed admitted unless controverted by the statement required to be filed and served by the opposing party in accordance with Local Rule 56(a)2", Plaintiff determined to run such risk based upon her assertion that Defendant had not filed a Statement in compliance with Local Rule 56. She did so, regardless of the fact that she was clearly the "opposing party" referred to above. The Court holds that the mandates of Local Rule 56 require that Plaintiff must suffer the repercussions of her risk and summary judgment, firstly, is hereby GRANTED AS TO PLAINTIFF'S COMPLAINT FOR FAILURE TO COMPLY WITH LOCAL RULE 56.
However, with a sense of justice, the Court will briefly address each of the claims and counterclaims in this litigation. Initially, the Court will address the Defendant's unanswered Local Rule 56 Statement, which sets those issues of material fact as to which Defendant claims there is no reason for a trial of this matter. These Local Rule 56 Statements have gone unchallenged by both the Plaintiff and the Third-Party Defendant ("Farzad"). Rather than repeat each Statement, Defendant's entire Local Rule 56 Statement is attached hereto as Exhibit "A" and is incorporated herein in full. The following are, accordingly, the citations as to why Defendant is correct in, and must prevail on, each of its Local Rule 56 Statements.
1) Out of the 13 questions asked in Farzad's Borrowers Declaration, 8 are false. See Affidavit of Lisa Rumple in Support of Motion for Summary Judgment ("Affidavit") at ¶ 3, Exhibit "A" at p. 3. See also Summary Judgment Exhibit (SJE") "AA", unanswered Requests to Admit directed to Farzad. Pursuant to Fed.R.Civ.P. 36(a), each of these unanswered Requests is deemed admitted.
2) See Affidavit at Exhibits "X", "Y".
3) See Unanswered Requests to Admit, Exhibit "AA"; Exhibit "M".
4) See SJE "AA" and "L".
5) See SJE Unanswered Requests to Admit, Exhibits "AA", "P", at p. 2.
6) See SJE "P" at p. 2.
7) See SJE at Exhibit "V".
8) See SJE at Exhibits "B" at pp. 79-80; "Z" at 100; "A" at p. 6; "X", Deposition of Attorney Paul McCullough at pp 24-5: L 23-25; 25 L: 22-25; 26: L 2-9; 26 L 26-29; 27 L 8-12; 28 L: 2-10; 31 L: 16-22; 32 L: 10-14, 23-25; 69 L: 16-25; 70 L: 1-11. Unanswered Requests to Admit at No. 6.
9) See SJE Exhibit "B", Deposition of Farzad at 79-80; Exhibit "Z", Deposition of Plaintiff at p. 101 L: 2-10; Unanswered Requests to Admit No. 6.
10) See Affidavit at ¶ 7, Exhibit "F".
11) See Affidavit at ¶ 8, Exhibit "G".
12) See Affidavit at ¶ 6, Exhibit "E".
13) See Affidavit at ¶ 9.
14) See Affidavit at ¶ 10.
15) See SJE at Exhibit "J" Deposition of Farzed, at p. 70.
16) See Affidavit at ¶¶ 11, 12, 13, SJE Exhibit "V".
17) See Ruling on Motion for Sanctions, (March 19, 2004) 3:02-CV-91 (EBB) at pp. 9-12.
18) See Affidavit at ¶ 14
19) See Affidavit at ¶ 15; SJE at "W".
20) See Affidavit at ¶ 16.
21) See Affidavit at ¶ 17, Exhibit "J".
22) See Affidavit at ¶ 19.
23) See Plaintiff's Complaint.
24) See SJE Exhibit "EE", Deposition of Farzad at p. 46 L: 15-20.
The Court sets forth only those facts deemed necessary to an understanding of the issues raised in, and the substantive decision rendered on, this Motion.
This action was commenced by Plaintiff Janet Rossman Moazed ("Moazed"), claiming she rescinded an Open-End Mortgage Deed from Mortgage Electronic Registration Systems, Ins. ("MERS"), as nominee for First Union, under Federal and Connecticut truth in lending laws ("TILA" or "CTILA").
The Mortgage secures a Note executed by Farzad in the original principal amount of $535,000 on certain real property known as 367 West Hill Road, Stamford, CT. (the "Property"). Moazed is the record owner of the Property, yet Farzad is the sole obligor on the Note.
Plaintiff's Complaint is in three Counts. The First Count alleges violation of TILA, specifically, the failure of First Union to deliver to Plaintiff two copies of the Notice of Right to Cancel ("Rescission Notice"), in violation of Regulation Z § 226.15(b), § 226.23(b).2 She also asserts that First Union failed to provide the required disclosures prior to the consummation of the transaction at issue in violation of 15 U.S.C. § 1638(b) and Regulation Z § 226.17(b).
The violations as pleaded in the Second Count are identical to the First, except the Count is brought pursuant to the CTILA.
The Third Count alleges a breach of CUTPA.
First Union filed an Answer, Affirmative Defenses, Counterclaims, and Setoff to the Complaint. Moazed filed a Motion to Strike Affirmative Defenses, which Motion was denied by this Court on November 8, 2002.
First Union next filed Amended Counterclaims, dated November 14, 2002, and Amended Defenses dated January 13, 2003. The defenses and counterclaims therein allege negligent and intentional misrepresentation, equitable modification of rescission rights, waiver, estoppel, bad faith, aiding and abetting the submission of incorrect information to First Union, breach of the implied covenant of good faith and fair dealing, equitable subrogation, unfair trade practice, and setoffs.
The present Motion for Summary Judgment is brought against (1) Plaintiff's Complaint and all Counts thereunder, including all cross-claims of Farzad for rescission or violation of TILA, and (2) in support of the Counterclaims-Complaint, seeking summary judgment as to liability only on the First (negligent misrepresentation, as against Plaintiff and Farzad), Second (intentional misrepresentation against Farzad), Third (CUTPA against Farzad), Ninth (foreclosure of the mortgage against Plaintiff and Farzad), and Tenth Count (Declaratory Relief).
"Although the right to rescind is statutorily granted [by TILA], it remains an equitable doctrine subject to equitable considerations." Brown v. Nat. Permanent Fed. Sav. & Loan Association, 683 F.2d 444, 447-48 (D.C.Cir.1982).
As was held by the Fourth Circuit Court of Appeals in Powers v. Sims and Levin, 542 F.2d 1216, 1221 (4thCir.1976):
Rescission is an equitable doctrine, and there is nothing in the statutory provision of the right of rescission or in 1635(b)'s provision of the procedural steps in effecting the right of rescission which limits the power of a court of equity to circumscribe the right of rescission to avoid the perpetration of stark inequity .... The district court, and we, exercising traditional equity powers, may condition the borrowers' continuing right of rescission upon their tender to the lender of all of the funds spent by the lender in discharging the earlier indebtedness of the borrowers....
In this case, it is undisputed that the principal balance cannot be returned to First Union. See Deposition of Farzad, SJE Exhibit EE, at p. 46 L:15-20. Further, Plaintiff submitted no affidavit in her objection to Motion for Summary Judgment, averring that, indeed, the principal balance could be repaid. Nor, in the myriad of papers filed by her in this case, has she ever stated such contention. There is no genuine issue of material fact, based on the...
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