Deutsche v Ramotar

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Deutsche Bank Nat'l Trust Co. v. Ramotar, 2011 NY Slip Op 50017 (N.Y. Sup. Ct., 2011)

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2011 NY Slip Op 50017

Deutsche Bank National Trust Company, Plaintiff,

v.Auditya S. Ramotar, et al., Defendants.

1730/2009

Supreme Court Of The State Of New York

Queens CountyDecided on January 10, 2011

For the Plaintiff: Frenkel, Lambert, Weiss,

Weisman & Gordon, LLP, by Kevin M. Butler,

Esq.

For the Defendant: Bachu & Associates, by

Darmin T. Bachu, Esq.

Charles J. Markey, J.

Plaintiff Deutsche Bank National TrustCompany ("Deutsche Bank") moves for

summary judgment, to strike the answer, to

appoint a referee, and for other relief, in this

mortgage foreclosure case, against the borrowerMr. Auditya S. Ramotar ("Ramotar").

Ramotar explains in his fact-filled affidavit

in opposition to the plaintiff's motion that he had

submitted his answer as a pro se litigant.

Ramotar continues that he had since retained the

services of Darmin T. Bachu, Esq., of Bachu &

Associates, who diligently worked with him inpreparing the thorough affidavit in opposition.

Ramotar's affidavit requests the opportunity

for leave to serve and file an amended answernow that Mr. Bachu is representing Ramotar.

The undersigned, having read through all the

papers, is convinced that although the request is

not accompanied by a notice of cross motion,

that the request is amply supported by factsasserted and is not some stalling device.

Specifically, Ramotar has alleged sufficient

facts that would raise a strong basis that

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triable issues do exist that warrant denial of a

motion for summary judgment. Ramotar's loan

was with Argent Mortgage Company, LC. It

appears that the note was transferred or assigned

to a few other enterprises. There are sufficient

questions concerning standing, "robo-signing,"

the alleged amount due, along with other issues.

The opposing affirmation prepared by Mr.

Bachu for Ramotar's review and signature is not

the garden variety opposition, but is fact-filledwith specific allegations that trouble this Court.

Recently, courts that routinely grantedsummary judgment to plaintiff financial

enterprises 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 mortgage

foreclosure 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 foreclosed on the homes.

See, id. The fact that the homeowners owed a lot

of money on the mortgages was 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 David

Streitfeld, 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 to

have used so-called robo-signers to process


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thousands of foreclosures without verifying the

accuracy of the data."]. Mr. Streitfeld's insightful

article is particularly apt given the irregularities

contained and elaborated upon in Ramotar's

well-organized affidavit in opposition, 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 in reviewing

mortgage foreclosure cases, instituted new rules

designed to curb widespread deficiencies in

"robo-signing" of documents. Robo-signing is

the act of employees of plaintiff-institutionssigning en masse mortgage foreclosure

documents without a careful evaluation of the

merits of each case. Examples of such abuses arefound in the testimony recited in the opinion in

Washington Mutual Bank v Phillip, 20 Misc 3d127[A], 2010 WL 4813782, 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, including www.4closurefraud.org.

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 home

ownership is at stake. See discussion in

Washington Mutual Bank v Phillip, 20 Misc 3d

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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 Kings County 2008];

Deutsche Bank v Maraj, 18 Misc 3d 1123(A),

2008 WL 253926, 2008 NY Slip Op 50176 [Sup

Ct Kings County 2008]; Deutsche Bank Nat.

Trust Co. v Lewis, 14 Misc 3d 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 the submission of proper papers.

See also discussion in Onewest Bank, F.S.B. vDrayton, 29 Misc 3d 1021 [Sup Ct Kings

County 2010].

The possible abuses that Ramotar contends

occurred in the processing of the papers on his

mortgage by the plaintiff warrants that the Court

permit Ramotar a period of time to elaborate

upon those defenses through further pleading.

Ramotar's initial pleading was done pro se. Nowthat he has recently retained the services of Mr.

Bachu, who assisted Ramotar with the affidavit

in opposition, Ramotar deserves that hisinformal request to serve an amended answer be

granted, although it was not accompanied by anotice of cross motion.

In light of the well-articulated concerns

contained in Ramotar's opposing affidavit, the

Massachusetts 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 New York

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 granting

summary judgment precipitously. Ramotar's

fact-filled affidavit thus amply warrants that Mr.

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 by him 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, to serve andfile 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 Mortgage

Foreclosure Conference part hold a conference


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in this case. See, CPLR 3408 and the

undersigned's decision in Countrywide Home

Loan Servicing, L.P. v Willacy, 29 Misc 3d

1233(A), 2010 WL 5071770, 2010 NY Slip Op

52134[U] [Sup Ct Queens County 2010].

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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 later stage

of the litigation, upon proper papers. After the

pleadings have been served and the Mortgage

Foreclosure part of this Court has held a

conference, the plaintiff, if so advised, may

serve another motion for relief based upon

proper papers.

The foregoing constitutes the decision,

order, and opinion of the Court.

______________________________

Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

January 10, 2011

Deutsche v Ramotar

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