CIT Bank, N.A. v. Nwanganga

328 F.Supp.3d 189

CIT BANK, N.A., Plaintiff,

v.Oluchi NWANGANGA a/k/a Oluchi Nwokocha, Defendant.

No. 17-CV-874 (KMK)

United States District Court, S.D. New York.

Signed September 13, 2018

Allison J. Schoenthal, Esq., Courtney L. Colligan, Esq., Nicole E. Schiavo, Esq., Hogan Lovells US LLP, New York, NY, Counsel for Plaintiff

Allen A. Kolber, Esq., Law Offices of Allen A. Kolber, Esq., White Plains, NY, Counsel for Defendant

OPINION & ORDER

KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE

Plaintiff CIT Bank, N.A. ("Plaintiff") brought this Action against Oluchi Nwanganga ("Defendant") to foreclose a residential mortgage. (Compl. (Dkt. No. 1).)¹ Defendant counterclaimed for economic damages, fraud and misrepresentation, violation of the Deceptive Practices Act, N.Y. Gen. Bus Law § 349, estoppel, and costs and fees. (Answer (Dkt. No. 18).) Before the Court is Plaintiff's Motion for Summary Judgment, fees and costs, appointment of a referee to effectuate a sale and dispersal of the resulting funds, and dismissal of the counterclaims (the "Motion"). (Notice of Mot. For Summ. J. (Dkt. No. 37).) For the following reasons, the Motion is granted.

I. Background

A. Factual Background

The following facts are taken from Plaintiff's statement pursuant to Local Civil Rule 56.1, (Pl.'s Rule 56.1 Statement ("Pl.'s 56.1") (Dkt. No. 39) ), and "are uncontested and admissible," T.Y. v. New York City Dep't of Educ. , 584 F.3d 412, 418 (2d Cir. 2009).²

Plaintiff CIT was previously a federal savings bank known as OneWest Bank, FSB. (Pl.'s 56.1 ¶ 1.) On February 28, 2014, it changed its charter to become a national banking association and changed its name to OneWest Bank N.A. (Id. ) On August 3, 2015, OneWest Bank N.A. changed its name to CIT Bank, N.A.—Plaintiff's current name. (Id. )

On July 17, 2017, Defendant obtained a mortgage loan from IndyMac Bank, F.S.B., a federally chartered savings bank, in the original principal amount of $468,000.00, as memorialized in a note executed by Defendant (the "Note"), (Aff. of Rebecca Marks in Supp. of Mot. for Summ. J. ("Marks Aff.") Ex. A ("Note") (Dkt. No. 40) ), and secured by a mortgage executed by Defendant and non-appearing Defendant Nwokocha (the "Mortgage" and collectively with the Note, the "Loan") on real property located at 41 Summit Park Road, Spring Valley, NY 10977 (the "Property"), (id. Ex. B ("Mortgage") ). (Pl.'s 56.1 ¶¶ 2–3.) On March 19, 2009, Plaintiff, as OneWest Bank, FSB, acquired substantially all assets and mortgage servicing rights of IndyMac Federal from the Federal DepositInsurance Corporation ("FDIC"), including the Loan. (Id. ¶ 4.) Specifically, substantially all of the assets of IndyMac Federal were transferred to Plaintiff pursuant to a Master Purchase Agreement, under which the FDIC, as its receiver, entered into a Loan Sale Agreement with Plaintiff that included Defendant's Loan. (Marks Aff. ¶¶ 6–8; id. Exs. C–E.)

Plaintiff obtained physical possession of the Note with Allonges, and was the holder of the indorsed Note, through its counsel, on February 6, 2017, when this Action was commenced. (Pl.'s 56.1 ¶ 5.) IndyMac indorsed the Note in blank. (Marks Aff. ¶ 9; id. Ex. A at 5.) Additionally, two Allonges were affixed to the Note: (1) one by the FDIC "as Receiver for IndyMac Federal Bank, FSB, successor to IndyMac Bank, F.S.B.," indorsing the Note specifically to OneWest Bank, FSB, (id. Ex. A at 7); and (2) one by OneWest Bank, FSB in blank, (id. at 8). Plaintiff, through its counsel, obtained physical possession of the original indorsed Note beginning on January 13, 2017, and currently still holds the Note. (Pl.'s 56.1 ¶¶ 5–6.)

On August 1, 2013, certain terms of the Loan were modified pursuant to a Modification Agreement. (Pl.'s 56.1 ¶ 7 (citing Marks Aff. Ex. F ("Modification") ).) Specifically, past due arrears were capitalized to create a new principal balance of $475,696.69, and the interest rate was reduced for different time periods through the new maturity date of July 1, 2053. (Modification 2–3.) However, Defendant defaulted on the Loan by failing to timely make the payment due June 1, 2016 and all payments due thereafter. (Pl.'s 56.1 ¶ 8.) On August 11, 2016, Plaintiff mailed 90-day notices as required by New York Real Property Actions and Proceedings Law § 1304 to Defendant and Nwokocha at the Property, by certified mail and first class mail. (Id. ¶ 9.) Plaintiff filed proof of these mailings with the New York State Department of Financial Services on August 15, 2016. (Id. ¶ 10.) On August 12, 2016, pursuant to paragraphs 15 and 22 of the Mortgage, Plaintiff, through its servicing division, mailed notice of default dated August 10, 2016 to Defendant and Nwokocha at the Property by first class mail and certified mail. (Id. ¶ 11.) However, Defendant failed to cure the default. (Id. ¶ 12.) Plaintiff therefore invoked its right to accelerate the Mortgage. (Id. ) As of the date the Complaint was filed, an unpaid principal balance of $454,483.46, plus interest and fees, remained due and owing to Plaintiff on the Loan. (Id. ¶ 13.)

B. Procedural History

Plaintiff filed the Complaint on February 6, 2017. (Compl.) After service was attempted three times, Defendant was served on March 4, 2017 by affixing a copy of the Complaint on the door of the Premises. (Dkt. No. 10.) On May 11, 2017, Defendant's counsel filed a notice of appearance on her behalf. (Dkt. No. 16.) Defendant filed an Answer, including her affirmative defenses and counterclaims, on May 25, 2017. (Answer.) Defendant also filed a Rule 26 disclosure on August 31, 2017. (Dkt. No. 26.)

The Court held an initial conference on September 12, 2017 and adopted a case management and scheduling order. (Dkt. No. 28; Dkt. (entry for Sept. 12, 2017).) However, neither Party served any discovery requests; indeed, both Parties indicated they did not intend to conduct any discovery in this Action during a telephone status conference with Magistrate Judge Davison on November 3, 2017. (Dkt. No. 31; see also Dkt. No. 33.) Therefore, on November 27, 2017, Plaintiff filed a pre-motion letter indicating the grounds on which it would move for summary judgment. (Letter from Courtney Colligan, Esq. to Court (Nov. 27, 2017) (Dkt. No. 33).) Defendant filed a letter indicating she "ha[d] no objection" to Plaintiff's request for a pre-motion conference. (Letter from Allen A. Kolber, Esq. to Court (Dec. 11, 2017) (Dkt. No. 35).) The Court then set a briefing schedule. (Dkt. No. 36.)

Plaintiff filed the instant Motion and accompanying papers on January 11, 2018. (Not. of Mot.; Mem. of Law in Supp. of Mot. for Summ. J. ("Pl.'s Mem.") (Dkt. No. 38); Pl.'s 56.1; Marks Aff.; Decl. of Courtney Colligan in Supp. of Mot. for Summ. J. ("Colligan Decl.") (Dkt. No. 41); Decl. of Marc J. Gross in Supp. of Mot. for Summ. J. ("Gross Decl.") (Dkt. No. 42); Pl.'s Aff. of Sums Due ("Pl.'s Aff") (Dkt. No. 43).) Defendant filed a letter requesting an adjournment of the conference scheduled before the Court on January 31, 2018, (Letter from Allen A. Kolber, Esq. to Court (Jan. 24, 2018) (Dkt. No. 44) ), which the Court granted "until the summary judgment motion is decided," (Dkt. No. 45). However, Defendant never filed an opposition to the Motion.

II. Discussion

A. Standard of Review

Summary judgment is appropriate where the movant shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Psihoyos v. John Wiley & Sons, Inc. , 748 F.3d 120, 123–24 (2d Cir. 2014) (same). "In determining whether summary judgment is appropriate," a court must "construe the facts in the light most favorable to the non-moving party and ... resolve all ambiguities and draw all reasonable inferences against the movant." Brod v. Omya, Inc. , 653 F.3d 156, 164 (2d Cir. 2011) (internal quotation marks omitted). "It is the movant's burden to show that no genuine factual dispute exists." Vt. Teddy Bear Co. v. 1-800 Beargram Co. , 373 F.3d 241, 244 (2d Cir. 2004).

"However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim," in which case "the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP , 735 F.3d 114, 123 (2d Cir. 2013) (alteration and internal quotation marks omitted). Further, "[t]o survive a [summary judgment] motion ..., [a nonmovant] need[s] to create more than a ‘metaphysical’ possibility that his allegations were correct; he need[s] to ‘come forward with specific facts showing that there is a genuine issue for trial,’ " Wrobel v. County of Erie , 692 F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ), "and cannot rely on the mere allegations or denials contained in the pleadings," Guardian Life Ins. Co. v. Gilmore , 45 F.Supp.3d 310, 322 (S.D.N.Y. 2014) (internal quotation marks omitted); see also Wright v. Goord , 554 F.3d 255, 266 (2d Cir. 2009) (same).

"On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law." Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene , 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). At this stage, "[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." Brod , 653 F.3d at 164 (internal quotation marks omitted). Thus, a court's goal should be "to isolate and dispose of factually unsupported claims."

Geneva Pharm. Tech. Corp. v. Barr Labs. Inc. , 386 F.3d 485, 495 (2d Cir. 2004) (internal quotation marks omitted) (quoting Celotex Corp. v. Catrett , ...