Diez v. Washington Mutual Bank, No. 2:2009cv02390 - Document 110 (E.D.N.Y. 2012)
Court Description: MEMORANDUM AND ORDER granting 83 Motion for Summary Judgment. Because, as a matter of law, Plaintiff cannot obtain the relief he seeks from Defendant for any of his claims, there is no issue of fact requiring trial. Accordingly, the Court GRANT S Defendant's motion for summary judgment. Additionally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. Counsel for Defendant is ORDERED to serve a copy of this Memorandum and Order on the pro se Plaintiff and file proof of service on ECF within seven (7) days of the date of this Order. The Clerk of the Court is directed to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 2/23/2012. C/ECF (Valle, Christine)
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Diez v. Washington Mutual Bank Doc. 110 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------X LOUIS DIEZ, Plaintiff, MEMORANDUM & ORDER 09-CV-2390(JS)(WDW) -againstWASHINGTON MUTUAL BANK, Defendant. ---------------------------------------X APPEARANCES For Plaintiff: Louis Diez, pro se 25 South 2nd Street Bethpage, NY 11714 For Defendant: Justin F. Capuano, Esq. Cullen and Dykman, LLP 100 Quentin Roosevelt Boulevard Garden City, NY 11530 SEYBERT, District Judge: Pro se Plaintiff Louis Diez (“Plaintiff” or “Diez”) commenced this action on May 27, 2009 against JP Morgan Chase Bank, N.A. s/h/a Washington Mutual Bank (“Defendant” or “Chase”) asserting claims arising out of two mortgages he entered into on or about September 23, 2005. Pending Defendant’s motion for summary judgment. before the Court is For the reasons that follow, Defendant’s motion is GRANTED. Dockets.Justia.com BACKGROUND I. Factual Background1 In September 2005, Plaintiff purchased located at 25 South 2nd Street, Bethpage, New York. property The closing occurred on September 23, 2005, at which time Plaintiff executed and delivered two mortgages and two notes lender, Washington Mutual Bank (“WaMu”).2 11-12; Capuano Aff. Exs. H, I.) asserts that: in favor of the (Def. 56.1 Stmt. ¶¶ Plaintiff, in his Complaint, (1) he was represented by the Bank’s attorney at the closing, causing a conflict of interest; (2) “[h]and-written notes on contracts during the closing were not displayed” to him; (3) his “initial lawyer did not obtain permits or certificates of occupancy for improper house additions;” (4) he was under “undue duress” at the closing because the seller arrived late; (5) the appraiser’s signatures were forged; (6) he was sold specifying “repeatedly the house what “under those supplied misrepresentation (fraud) fraudulent conditions with were); false and/or conditions” and (7) material misstatements (without he and by was oral Washington 1 The following facts are drawn from the parties' Local Civil Rule 56.1 Statements (“56.1 Stmt.”) and their evidence in support. Any relevant factual disputes are noted. 2 The lender at the time of the closing was actually Long Beach Mortgage Company, however, WaMu merged with Long Beach Mortgage Company and became the successor-in-interest shortly after the closing. (See Capuano Aff. Ex. B at 2.) 2 Mutual Bank (WaMu) when trying to refinance his current two mortgage loans.” (Compl. ¶ III.) Notwithstanding the alleged fraud, Plaintiff made payments under the mortgages for years after the closing. (Def. 56.1 ¶ 41.) On September 25, 2008, the United States Office of Thrift Supervision (“OTS”) seized WaMu and placed it into the receivership (“FDIC”). of the Federal Deposit Insurance Corporation (Def. 56.1 Stmt. ¶ 9; Capuano Aff. Ex. C.) That same day, the FDIC sold the assets and certain liabilities of WaMu to Chase pursuant to a written Purchase and Assumption Agreement (the “Agreement”), which provides, in relevant part: Borrower Claims. Notwithstanding anything to the contrary in this Agreement, any liability associated with borrower claims for payment of or liability to any borrower for monetary relief, or that provide for any other form of relief to any borrower, whether or not such liability is reduced to judgment, liquidated or unliquidated, fixed or contingent, matured or unmatured, disputed or undisputed, legal or equitable, judicial or extra-judicial, secured or unsecured, whether asserted affirmatively or defensively, related in any way to any loan or commitment to lend made by the Failed Bank [WaMu] prior to failure, or to any loan made by a third party in connection with a loan which is or was held by the Failed Bank, or otherwise arising in connection with the Failed Bank’s lending or loan purchase activities are specifically not assumed by the Assuming Bank [Chase]. (Capuano Aff. Ex. D. at 9 (emphasis added).) Then, on February 11, 2010, Chase assigned Plaintiff’s mortgages to Deutsche Bank 3 National Trust Company (“Deutsche Bank”). (Def. 56.1 ¶ 7; Capuano Aff. Ex. B.). Chase was not served with the Summons and Complaint until March 3, 2010, nearly three Plaintiff’s mortgage to Deutsche Bank. II. weeks after it assigned (Docket Entries 11-12.) Procedural Background Plaintiff filed his Complaint on May 27, 2009 seeking a rescission of the mortgages and $545,000 in monetary relief. (Docket Entry 1.) Defendant filed its Answer on March 19, 2010, asserting as defenses, inter alia, that Plaintiff failed to join a necessary party, that Plaintiff, as a matter of law, cannot obtain the relief he seeks from Chase, and that Plaintiff’s damages were caused by third parties over which Chase had no control. (Docket Entry 14.) “[m]otion to join In response, Plaintiff filed a parties complaints at the end.”3 (Defendants) (Docket Entry 36.) with additional Plaintiff then filed another proposed amended complaint, titled “Complaint and Summons (piggyback (Docket Entry 51.) amend his to Civil Action No. 09-cv-02390-JS).” Defendant opposed Plaintiff’s attempts to Complaint, asserting Rule 8 of that complaints violated Procedure. (Docket Entries 38, 55.) 3 the the proposed Federal Rules amended of Civil While Plaintiff’s motions Although labeled as a motion, the filing contained only the proposed amended complaint, with no accompanying motion or memorandum in support. 4 were pending, Defendant moved for summary judgment. (Docket Entry 83.) On September 21, 2011, this Court denied Plaintiff’s motions to amend his Complaint but granted him leave to refile within thirty days. (Docket No. 102.)4 The Court warned Plaintiff that if he “does not move to amend . . . or if his timely motion to amend is denied, his original Complaint will remain the operative Complaint and the Court will address the merits of Defendant’s motion for summary judgment.” Entry 108 at 2.) Plaintiff’s deadline for filing a new motion to amend was extended through January 9, 2012. 105, 108.) amend, the (Docket (Docket Entries As Plaintiff has failed to file a new motion to Court now turns to Defendant’s summary judgment motion. DISCUSSION I. Standard of Review “Summary judgment is appropriate where there are no genuine disputes concerning any material facts, and where the moving party is entitled to judgment as a matter of law.” Harvis Trien & Beck, P.C. v. Fed. Home Loan Mortg. Corp. (In re 4 In that Memorandum and Order, the Court also ordered Plaintiff to show cause why leave-to-file sanctions should not be imposed for Plaintiff’s repeated and flagrant disregard of the Court’s orders regarding filing motions to consolidate. Plaintiff never responded to the Court’s Order to show cause; however, since the Court is granting summary judgment in favor of Defendant, the issue is now moot. 5 Blackwood Assocs., L.P.), 153 F.3d 61, 67 (2d Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); FED. R. CIV. P. 56(c)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). “The burden of showing the absence of any genuine dispute as to a material fact rests on the party seeking summary McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. judgment.” 1997); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). “In assessing the record to determine whether there is a genuine issue to be tried as to any material fact, the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” McLee, 109 F.3d at 134. “Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must ‘set forth specific facts showing that there is a trial.’” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 256). genuine issue for Where, as here, the non-moving party is proceeding pro se, the Court should “read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that 6 Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. they suggest.” 1994). “However, a pro se party's ‘bald assertion,’ completely unsupported by evidence, is not sufficient to overcome a motion Lee v. Coughlin, 902 F. Supp. 424, 429 for summary judgment.” (S.D.N.Y. 1995) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)); accord Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986) (“Mere conclusory allegations or denials will not suffice.” (citation omitted)); Weinstock, 224 F.3d at 41 (“[U]nsupported allegations do not create a material issue of fact.” (citing Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995))). II. Defendant’s Motion Defendant argues that Plaintiff’s Complaint must be dismissed because, Plaintiff seeks can as a be matter of obtained law, from none of Defendant. the The relief Court agrees. A. Rescission Plaintiff seeks to have his mortgages rescinded by Chase on the grounds of fraud and other alleged misconduct that occurred at the closing. (Compl. ¶ IV(a).) However, on February 11, 2011, Defendant assigned Plaintiff’s mortgages to Deutsche Bank. (Capuano Aff. Ex. B.) Courts in the Second Circuit have consistently held that “[a]n assignor who has assigned all right and interest to 7 another . . . has no interest to protect” and thus is not a proper party. Ltd., 443 Fed. Deposit Ins. Corp. v. Huntington Towers, F. Supp. 316, 319-20 (E.D.N.Y. 1977) (collecting cases); see also Durant v. Traditional Invs., Ltd., 135 F.R.D. 42, 45 (S.D.N.Y. 1991) (“[A]n assignor is not an indispensable party and would not even be a [party] to be joined if feasible.” (internal cases). has quotation marks and citation omitted) (collecting Because Defendant is not the holder of the mortgage, it no power Funding, to L.L.C., rescind. 794 F. Hayrioglu Cf. Supp. 2d 405, v. 416 Granite Capital (E.D.N.Y. 2011). Accordingly, Plaintiff’s claims against Chase for rescission are DISMISSED. B. Monetary Relief Plaintiff’s claims for monetary relief against Chase similarly fail. Defendant argues that although it purchased Plaintiff’s mortgages from WaMu, the FDIC, not Chase, is the proper party. interpreted Chase the arising The Court agrees. same out Agreement of WaMu’s Several federal courts have and loan dismissed claims agreements against because “in purchasing WaMu’s assets and liabilities from the FDIC under the [Agreement], Chase did not assume liability for WaMu’s alleged misconduct in procuring the loans.” Mazur v. Wash. Mut. Bank, F.A., No. 09-CV-13371, 2011 WL 108926, at *5 (E.D. Mich. Jan. 10, 2011) (collecting cases); see also Yeomalakis v. F.D.I.C., 8 562 F.3d 56, 60 (1st Cir. 2009); Cassese v. Wash. Mut., Inc., No. 05-CV-2724, 2008 WL 7022845, at *2-3 (E.D.N.Y. Dec. 22, 2008); Dipaola v. JPMorgan Chase Bank, No. 11-CV-2605, 2011 WL 3501756, *3 (N.D. Cal. Aug. 10, 2011); Hanaway v. JPMorgan Chase Bank, No. 10-CV-1809, 2011 WL 672559, *2 (C.D. Cal. Feb. 15, 2011); McCann v. Quality Loan Serv. Corp., 729 F. Supp. 2d 1238, 1241-42 (W.D. Wash. 2010). Therefore, Plaintiff’s claims against Chase fail as a matter of law and are hereby DISMISSED. III. Plaintiff’s Opposition In opposition, Plaintiff argues, inter alia,5 that Defendant’s “motion should be denied because the summary for judgment [sic] was not filed on a timely basis as required by law (30 days after close of discovery).” (Docket Entry 90 ¶ 3.) Here, discovery closed on March 3, 2011, and Defendant did not file its motion until May 13, 2011--more than 30 days after the close of discovery. While Rule 56 of the Federal Rules of Civil Procedure provides that “a party may file a motion for summary judgment at any time until 30 days after the close discovery,” a different time may be set by court order. of FED. R. CIV. P. 56(b). 5 Most of the arguments in Plaintiff’s opposition are irrelevant and non-responsive to the arguments raised by Defendant (i.e., Plaintiff devotes most of his opposition to the alleged wrongdoing of the appraiser), so the Court will not address them. 9 Magistrate Judge William D. Wall set a deadline of April 15, 2011 to (Docket Entry 71.) Practices, a party “begin the dispositive motion practice.” Pursuant to the undersigned’s Individual begins the dispositive motion serving a 56.1 Statement on its opponent. process by Defendant complied with Judge Wall’s Order, serving its 56.1 Statement on Plaintiff on March 25, 2011. Defendant’s letter Then, on May 10, 2011, after receiving request for a pre-motion conference, the Court granted Defendant leave to move for summary judgment “when it wishes.” Thus, Defendant’s motion for summary judgment, filed on May 13, 2011, was timely. CONCLUSION Because, as a matter of law, Plaintiff cannot obtain the relief he seeks from Defendant for any of his claims, there is no issue of fact requiring trial. Accordingly, the Court GRANTS Defendant’s motion for summary judgment. Additionally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962). Counsel for Defendant is ORDERED to serve a copy of this Memorandum and Order on the pro se Plaintiff and file proof of service on ECF within seven (7) days of the date of this 10 Order. The Clerk of the Court is directed to mark this matter CLOSED. SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: February 23, 2012 Central Islip, New York 11
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