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D v. R

D v. R

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Published by DinSFLA

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Published by: DinSFLA on Jan 19, 2011
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[*1] Decided on January 10, 2011
Supreme Court, Queens County
 1730/2009For the Plaintiff: Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, by Kevin M. Butler,Esq., 20 West Main St., Bay Shore, New York 11706For the Defendant: Bachu & Associates, by Darmin T. Bachu, Esq., 127-21 Liberty Ave.,Richmond Hill, New York 11419Charles J. Markey, J.Plaintiff Deutsche Bank National Trust Company ("Deutsche Bank") moves forsummary judgment, to strike the answer, to appoint a referee, and for other relief, in thismortgage foreclosure case, against the borrower Mr. Auditya S. Ramotar ("Ramotar").Ramotar explains in his fact-filled affidavit in opposition to the plaintiff's motion thathe had submitted his answer as a pro se litigant. Ramotar continues that he had sinceretained the services of Darmin T. Bachu, Esq., of Bachu & Associates, who diligentlyworked with him in preparing the thorough affidavit in opposition.Ramotar's affidavit requests the opportunity for leave to serve and file an amendedanswer now that Mr. Bachu is representing Ramotar. The undersigned, having read throughall the papers, is convinced that although the request is not accompanied by a notice of cross
Deutsche Bank Natl. Trust Co. v Ramotar
2011 NY Slip Op 50017(U)Decided on January 10, 2011Supreme Court, Queens CountyMarkey, J.Published byNew York State Law Reporting Bureaupursuant to Judiciary Law§ 431.This opinion is uncorrected and will not be published in the printed OfficialReports. 
Deutsche Bank National Trust Company, Plaintiff,againstAuditya S. Ramotar, et al., Defendants.
Page 1 of 4Deutsche Bank Natl. Trust Co. v Ramotar (2011 NY Slip Op 50017(U))1/18/2011http://www.nycourts.gov/reporter/3dseries/2011/2011_50017.htm
motion, that the request is amply supported by facts asserted and is not some stallingdevice.Specifically, Ramotar has alleged sufficient facts that would raise a strong basis that[*2]triable issues do exist that warrant denial of a motion for summary judgment. Ramotar'sloan was with Argent Mortgage Company, LC. It appears that the note was transferred orassigned to a few other enterprises. There are sufficient questions concerning standing,"robo-signing," the alleged amount due, along with other issues. The opposing affirmationprepared by Mr. Bachu for Ramotar's review and signature is not the garden varietyopposition, but is fact-filled with specific allegations that trouble this Court.Recently, courts that routinely granted summary judgment to plaintiff financialenterprises 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 mortgageforeclosure 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
, ___ NE2d ____, 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 foreclosedon the homes.
. The fact that the homeowners owed a lot of money on the mortgageswas 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 DavidStreitfeld, writing for
The New York Times
, in "Facing Scrutiny, Banks Slow Pace of Foreclosures," NY Times, Jan. 8, 2011 [some mortgage lenders and banks "were revealed tohave used so-called robo-signers to process thousands of foreclosures without verifying theaccuracy of the data."]. Mr. Streitfeld's insightful article is particularly apt given theirregularities contained and elaborated upon in Ramotar's well-organized affidavit inopposition, 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 inreviewing mortgage foreclosure cases, instituted new rules designed to curb widespreaddeficiencies in "robo-signing" of documents. Robo-signing is the act of employees of plaintiff-institutions signing en masse mortgage foreclosure documents without a carefulevaluation of the merits of each case. Examples of such abuses are found in the testimonyrecited in the opinion in
Washington Mutual Bank v Phillip
, 20 Misc 3d 127[A], 2010 WL4813782, 2010 NY 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, includingwww.4closurefraud.org.
Page 2 of 4Deutsche Bank Natl. Trust Co. v Ramotar (2011 NY Slip Op 50017(U))1/18/2011http://www.nycourts.gov/reporter/3dseries/2011/2011_50017.htm
Chief Judge Lippman has stated that the New York court system should not stand byidly, during a tough economic crisis, where the integrity of the determination of homeownership is at stake. See discussion in
Washington Mutual Bank v Phillip
, 20 Misc 3d[*3]127[A], 2010 WL 4813782, 2010 NY 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 eachmortgage foreclosure case individually, has been criticized by the courts in:
 Deutsche Bank  Nat. Trust Co. v Harris
, 2008 WL 620756, 2008 NY Slip Op 30308[U] [Sup Ct KingsCounty 2008];
 Deutsche Bank 
, 18 Misc 3d 1123(A), 2008 WL 253926, 2008 NYSlip Op 50176 [Sup Ct Kings County 2008];
 Deutsche Bank Nat. Trust Co. v Lewis
, 14 Misc3d 1201(A), 2006 WL 3593431, 2006 NY Slip Op 52368[U] [Sup Ct Suffolk County 2006],all of those decisions denying the plaintiff's motion for relief without prejudice upon thesubmission of proper papers. See also discussion in
Onewest Bank, F.S.B. v Drayton
, 29Misc 3d 1021[Sup Ct Kings County 2010].The possible abuses that Ramotar contends occurred in the processing of the papers onhis mortgage by the plaintiff warrants that the Court permit Ramotar a period of time toelaborate upon those defenses through further pleading. Ramotar's initial pleading was donepro se. Now that he has recently retained the services of Mr. Bachu, who assisted Ramotarwith the affidavit in opposition, Ramotar deserves that his informal request to serve anamended 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, theMassachusetts Supreme Judicial Court's opinion in
U.S. Bank National Association v Ibanez
,___ NE2d ____, 2011 WL 2011 WL 38071, Chief Judge Lippman's direction to the NewYork courts for greater scrutiny, and Justice Winslow's congressional testimony, this Courtrejects the effort by Deutsche Bank and its counsel to move this Court into grantingsummary judgment precipitously. Ramotar's fact-filled affidavit thus amply warrants thatMr. 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 byhim 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, toserve 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 MortgageForeclosure Conference part hold a conference in this case.
CPLR 3408 and theundersigned's decision in
Countrywide Home Loan Servicing, L.P. v Willacy
, 29 Misc 3d1233(A), 2010 WL 5071770, 2010 NY Slip Op 52134[U] [Sup Ct Queens County 2010].[*4] 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 laterstage of the litigation, upon proper papers. After the pleadings have been served and theMortgage Foreclosure part of this Court has held a conference, the plaintiff, if so advised,
Page 3 of 4Deutsche Bank Natl. Trust Co. v Ramotar (2011 NY Slip Op 50017(U))1/18/2011http://www.nycourts.gov/reporter/3dseries/2011/2011_50017.htm

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