Chomicki v Bank of Am., N.A.

Annotate this Case

Download PDF

Chomicki v Bank of Am., N.A. 2013 NY Slip Op 30601(U) March 21, 2013 Supreme Court, New York County Docket Number: 100481/2012 Judge: Donna M. Mills Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] natcc2: 3 2( /3 / [* 2] SUPH15ME COURT OF T l l E STATE OF NEW YORK COUNTY O NEW YORK W PART 58 ROBRR'f CllOMlC:Kl, PI ai nt iff, -against- INDEX NUMHI-3K 100481/2012 Mot. Seq. 001,002 & 003 DECISION dk ORDER BANK OF AMERICA, N.A., MERSCORP, JNC'. (a/k/a MERS, Mortgage Electronic Kegistration Systems, TIIC.), JPMORGAN CI IASE BANK, N.A., And J O H N DOES I-100,000, representing any persons (other than govcrnincnt agencies) claiming any interest in (i) thc rcal propei-iy located in Westclicstcr County, Ncw York, with an address ol' 28 Country Club Lane South, Hriarcliff Manor, NY 105 10, or (ii) any iiote or mortgage signed by Robert Chomicki and secured by such real property, or (iii) any sccuritics sccurcd in wliolc or in part by any interests in such real property, D e h d a n ts. DONNA MILLS, J.: Motions bearing the seqiiencc niunbcrs 001 , 002 and 003 are hereby coiisolidated lor decision. I n this action challciigiiig a hypothetical residential forcclosurc, def'endant JPMnrgaii Chase Bank, N.A. (Chase) moves to disrniss the coniplaiiit, pursuant to CPLR 321 1 (a) (3) arid (7), or, in the alternative, to chaiigc the vciiuc of thc action to Westchester County, pursuant to CPLR 507 (Mot. Seq. 00 1). Defendants Bank of America, N.A. (BANA)', and Mortgage Electronic Registration Systems, Inc. (MEW), sued here as M l ~ K S U ) f WInc., move, pursuant , to Cl'Li< 32 12, for suininary judgmciit dismissing the cornplaint as against them (Mot. Seq. 002). Plaintiff Robcrt Choiniclti cross-tnovcs f'or a conlinuaiicc of Mot. Seq. 002 and a grant of tinic to conduct limitcd discovcry. Plaintiff also IIIOVCS, by ordcr to show cause, fix leave to iile an affirination and memoraiiduiii of law in opposition to Mot. Seq. 001, or, in thc altcrnativc, for [* 3] leave to file and serve an aniciidcci complainl, pursitairt to CPLK 3025 (b) (Mot. Seq. 003). . I hc action has been discotitiiiued as against MERS, by stipulation of the parties, leaving BANA as tlic sole riiovarit in Mot. Seq. 002. l hc logical path in dccidiiig these motions does not follow their sequencc numbers. Jnstcad, thcy will bc examined as follows: Plaintifl s motion for leave to file an affirmation and inenioraiiduiii of law in opposition to Mot. Seq. 00 1, or, in the alternative, for lcavc to file and serve an amended complaint, pursuant to CPLR 3025 (b) (Mot. Seq. 003). Chase s niotion to dismiss the complaint, pursuant to CPLR 321 1 (a) (3) and (7), or, in the alternative, to change the vcnuc of tlic action to Weslchcstcr County, pursuant to CPLR SO7 (Mol. Scq. 001). Plaintill s cross motion for a continuance of Mot. Seq. 002 and a grant of time to conduct limited discovery. BANA s motion, pursuant to CPI,R 32 12, for suilvnary judgment dismissing the complaint as against it (Mot. Scq. 002). Background l laintifl. purchased ;I residence at 28 Country Club Lane South, Briarcliff Manor, NY 105 10 (the Property), in or about June 2005, with a riiortgagc from Countrywide Ilomc h a n s , lnc. (Countrywide), in thc amount of $1.3 million, sccurcd by a promissory note. I his note had an adjustable interest ratc, initially at 5.25%, idjustable to a maximum of C).c)5%. At the lower interest rate, iiioiiMy debt service lor interest oiily w s allegedly about $20,000, with the entire a priiicipal due at the eiid of 30 years. BANA eventually acquired Countrywide s asscts. The mortgage W;IS registered with MERS, which was identilied as the mortgagcc of rccord. Sonictiimc thcrcaftcr, the mortgagc and note wcrc allegedly sold to onc or iiiore 3olm Does. In January 2007, plaintiff obtriincd a lionic equity liiic of crcdit ( I IE1,OC) with Chase, in the aiiioLiiit of $300,000. Plaintjff also owned property at 30 Country Club Imic South, Briarcliff Manor, two doors away, which entailed monthly cxpcnscs of about $5,000 Cor mortgage interest, taxes and insurancc. The instant action coiiiiiieiiccd on January 13, 20 12 with the complaint asserting causcs 2 [* 4] of action f'or a declaratory judgment that defendants 13ANA, MERS, and John Does have no riglit to foreclose on tlie Property (fjrst); a declaratory judgment that all defendants have engaged in predatory lcndiiig practiccs (second); a declaratory j iidgment that all defendants lack standing to dcniand mortgage payments or to loreclose on llie mortgage (third); breach of contract as against all dcfciidants (fourth); h i i d as against defendants BANA, MERS and Chase (fifth); violation o l New York General Business Law (GBI,) 3 349 as against dcfciidants BANA, MERS and Chase (sixth); creating a financial hardship f'or plainliff by iiianipilatiiig securities aid real cstate inarlcets as against all dcfendants (seventh); aid qiiieting o r title as against all dcfciidants (eighth). Parker Affirmation, Exhibit A (Complaint). Plaintiffs Ordcr to Show Cause - Mot. Sey. 003 l'laiiitiff asks lcavc to filc l i s attorney's affirmation and meinoratidutn of law, both dated Novcniber 26, 20 12, in further oppositioii to Chase's suiiiiiinry judgment iiiotion (Mot. Seq. 00 1 ), pursuant to 22 NYCRR 3 202.1 (b), which allows the court, "[flor good caiise shown, and in thc interests ofjusticc," to waive coiiipliaiice with the [Jiiiforin R ~ i l fbr the Supreme Court. In the e~ alternative, plaintiff asks leave to scrve and Gle an aniended complaint, pursuant to CPLR 3025 (b). Plaintifl's application for leave to file papers, pursuant to 22 NYCRR § 202.1 (b), in iiirtlicr opposition to Chase's suiiiiiiary judgment inotioii is denied. Plaintiff has failed to show why it would bc for good cause and in tlie interests ofjustice. On or about October 10,2012, plaintiff filcd an afflrmatioii of counsel i n opposition to Chase's motion. In the first prong of the instant inotioii plaintiff asks leave to serve "a p~St-SUbllli~SiC711 sLipplernentation of the rccord." This malcrial pertains to tlic altcmntc prong of ChaseJsmotion, the change of venue to Westchcstcr. County in tlic cvciit C'hase's iiiotion to dismiss thc coinplaint is dcnicd. Chase rclics upon CPLR 507, which providcs that "Ltllie place of trial of an action in which thejudgment demanded would affcct the title to, or tlie posscssion, use or enjoyment of', real property shall be in the county in which any part of'the sihject of the action is situated." The Property is located who 11y wit hi n We st chc st c I' County , 3 [* 5] Chase maintains that plaintifi's desircd rclief "clearly would affect Borrower's title to, or the possession, use or eiijoymcnt of'the subject propcrty." Cliasc Memorandum of Law at 10 (Mot. Seq. 001); sec Shupiu.cz v Rockville C:ntinlry Cliib, I m . , 22 hD3d 657, 660 (2d Dept 2005) ("Since ihe instant action affects the 'possession, use or enjoyment' of a lcaseliold in real property [CPLR 5071, venue was properly transferred from Ncw Yorlc County to Nassau County, tlie county wlicrc the property is located"); Regal Boy ISntcrs. I d . VI], h c . v MLL) Really Mgt., LLC,', 22 h D 3 d 738, 739 (2d Ilcpt 2005) ( " I 3 e c a ~ tlic relieLsought 'would affect tlie title to, or ~e tlic possession, iise or cii.joynient ol, real propcrty' [C'PLR 507J located in Dutchess County, vciiiie is proper only i n that county"); see ulso 1-1 3 Bergman 011 New York Mortgage Foreclosures 5 13.01 (''the basic rule [CPLK 5071 nonetheless is clearly that tlic location of the real estate, i l within Ncw York State, properly controls the place of trial"). Plaintiffs initial opposition to Chase's contingent rcquest fbr changc of venue focused solely upon principlcs of forum noli conveniens. I le ignored CP1,II 507. Now, plaintiff claims that, weeks aftcr hc subniilted his opposition to Chase's motion, he learned of a New York Stale legislative mctnoratiduiii in support of a bill on forum lion conveniens (Mot. Seq. 003, Exhi bit C), and a New Yorlc County Supreme Court iiitcrini order, datccl November 12, 201 2, dealing with forum iion conveniens in a casc similar to the instant action (ZJ., Exhibit ¬3). Both of thcse documents deal wit11 tlw issue of formi non coiivcniens (CPLR 327), riot C:PJ,II 507, which Chase correctly rclics upon. 'There is no reason to consider additional papcrs when h e y fail to address tlie issue in dispirte. Further, an intcriiii order of a sister court, aclually issued as a11alternative to signing an ordcr to show cause, would have no authority, even if on point. Finally, the lcgislative menioranduni plaintiiI.:isks to be considcrcd not only addresses the iion-issuc of forum noli conveniens, it was issued in 1984. I'resumably, it was as available for iiiclusioii in plaintiffs papcrs in early Octobcr 2012 as it was in late Noveniber 2012. Plaintifl's motion ibr leave to amend his complaint is also denied. Leave to anictid pleadings "sliall be Ireely given ~ipon such tcims as may 13cjust,11 according to C'PLR 3025 (b). 4 [* 6] However, "[a] motion fbr lcave to amend the coinplaint pursuant to CPLR 3025 (b) should be freely granted unless the proposed amciidrncnt is palpably insulficient to state a cause of action or is patcntly devoid of merit." Bishop v Mcrwer, 83 AD3d 483, 485 (1st Ilcpt 201 1) (internal quotation marks and citation omitted); Weingarten 11 S & R A4cddliun ('or/>.,87 hD3d 947, 947 (1st Dept 201 1 ) (motion to amend coinplaint dcnicd because it "is clearly devoid olmerit"). Plaintifl's attorney's allirniation here states that the "proposed amended plcading locuses on ownership or lack of ownership o l the negotiable crcdit agrccnieiit (hereinnftcr, the 'Note') under the Ncw Yorlc Uniform Commcrcial Codc, and . . . adds a substantial section entitled 'Venuc Sclcction Allegations."' Person Aff., T[ 4. The venue section actually attempts to answer tlie venue prong of Chase's motion to dismiss, as did the proposcd "post-submission supplementation of the record." tlcre too, plaintiff rciiiaiiis Iocused on forum lion conveniens, and thc prciposcd additional scctjoii on vciiuc is without merit.' Ownership of the rcspective proiiiissory notes is a key fictor in the proposed amendcd complaint. It asserts causes of action h r a de~laratoryudgrnent that defendants BANA and 6 Chase arc not the holders ol' the promissory notes (first); fraud as against defendants BANA and Chase (second); violation of GBL 5 349 as against defendants BANA and Chase (third); reformation of. the promissory notes as against deIendants BANA and Chase (fourth); a declaratory j udgiiierit that tlic promissory notes are unenforceable by defendants BANA and Chase (fifth); anticipatory breach of contract as against dekndants BANA and Chase (sixth); and a declaratory judgiiient that defendant BANA has no right to enforce its proniissory note (sevcnth). of'fers [lie iiitci-csting arguincnt that c x p o r h g cases froin Ncw Yorlc City has a role "in the present decline of the legal scrviccs industry includ[ingl (i) judgeships, law clerks, clerks, librarians, court officers and other positions in the New York Supreme Court; (ii) jobs in tlic real cstatc iiidustry; (iii) attorneys, partners and associates; (iv) paralegals and legd secretaries and other positions in law firins; (v) information tcchnology pcrsonncl; (vi) librarians and researchers; (vii) prooficadci-s; (viii) mcsscngers; (ix) tilatiaging clerk's office pcrsonncl; (x) appellate judges, law clerks and ollicr appellate-reliited positions; (xi) supplics-rclated jobs; (xii) appellate and fhaiicial printing.jobs; (siii) tclephonc- and broadband-related jobs; (xiv) networking related jobs; (xv) copierlfadscaniier rclatcd jobs; and (svi) subscribers and advertisers for the New York,Lhw Journul and related publications, as well as T h N c w Y w k 7 ' h ~ t . s . ' ' Person A f ' f h i . , 7 1 1 , 5 [* 7] In opposition to the proposed aiiieiided complaint, BANA states that it is still the owncr and scrviccr of plaintifl's iiiortgage loan; the mortgage loan has not bccn securitized; ownership of the promissory tiotc and imrtgagc have not bcen split; therc is no peiiding foreclosure on the Property (plaintiff is current in his payments); and plaintiff was granted a loan modification in 2008. Tliese avowals are important because, throughout his pleadings and papcrs, plaintiff insists the opposite, supported only by an asscrtion or "inforimtion a i d belief," ncver facts. This prong of plaiiitiff's motion, asking leavc to amend the complaint, shall bc denied as devoid ol'merit. Plaintiff providcs no facts particular to his situation in supporl of his broadly-rcstated proposed causes of' action, or countering DANA'S statements abovc, which eviscerate the proposed ainencied complaint. He rclics upon inlomiation and belie1 in alleging, among other things, a "secret securitization process , , [which] created a secrct property interest in Plaintiff's propcrty;" "a fraudulent loan modification program;" "unjust enrichment;" "false representations of material hct;" "various conflicts of interest;" and that Defciidaiils ''arc looking to create a clcfault." Mot. Seq. 003, Exhibit A, 77 16, 25, 34C, 40, 73, and 79 (Amended Complaint). As in the Complaint, plaintiff creates worst-case scenarios bascd on unproven allegations. lic c l a i m that he "is cntitlcd to be treated as if he had applied for and been re-jected by BOA for a loan inodification agreement at all relevant times becausc any such applications if niade would havc bccn futile" (id., 27), cvcn though he succcssfdly negotiated 7 a 30% payment reduction with BANA on the loan at issue. He coiitiiiucs in the guise of an iiiiiocent investor caught in the inaelstroiii of global financial misdeeds, in spitc of' evidence that lie is an experienced real estate investor (see below). Now, without providing aiiy evidence, a writing or even alleging a telephone conversation, plaintif1 charges that "BOA uid Chasc are threatening the Plaintiff with foreclosure." 'I'lic only new claim in the proposcd amended complaint is plaintiff's allegatioii of breacli of'contract based upon a cotiscnt decree signed by BANA and Chasc, aiiiong others, on or about June 6, 2012, to settle IJiiiJed Stuius of Aiiiericn v Bunk of Aniericcr C o y . (Case 6 [* 8] 1: 12-cv-0036 1-RMC, IJS Dist Ct, DC, 20 12). l'laintilf claims that lie "qualifies for thc full $125,000 rcchction" in the principal aniount of his loans in accord with the consent decree. Amended Complaint, l 87. However, he does not attach the consent clccrces for tlic respective l defendants,3nor does he describc how lie clualiiies under citlier conscnt decree, to which he is not a party. He does not explain how thc $125,000 ligurc was arrived at, or identily the amount of relief lo be afrorded to each loan. 'I'hcrc is no privak right of enfbrcemcnt to the conscnt decrees, which "shall be enforceable solely j n tlic IJ.S. District Court for the District of Coluimbia." Settlement Ternis? 3 J (2). In bricf, the consent dccrees did not establish a contract between plaintiff and any of tlic parties to the federal action, and it callnot serve as the ground for a breach of contract causc of action as against BANA and Chase. Plaintiff is riot gratited leave to serve Ihe Aniendcd Complaint bccause it is devoid o f merit, whethcr it rcpeats or parallels the Complaint (sec discussion below) or attempts to introduce a new cause of action. Chase's Motion to Dismiss - Mot. Seq. 001 J n his Complaint, plaintiff states that hc "has a financial hardship and is unable to service" the f h t inortgagc and note and the 14ELOC.4 Complainl, 7 41. lle statcs lhat "the Lender lcnew or should havc known" that he was unable to aflord tliesc payments.' Id., 7 36 (U). Plaintiff claims that the large mortgage and the resul tirig liigli nioiithly paymcnts rcsulted from "[tjhc J,cndcr lliaviiig J solicitcd and knowingly accepted artificially high appraisals in support of. loan appljcations," in this inslancc, "20-25% over the real value" of tlic Property. Id., 77 36 (A) and (B). Additionally, plaintiff charges that [tithe originating iiiortgagc broker, uiilcnown to the I' Plaintiff, submilted false ligures lo the 1,endcr." I d . , 7 36 (C). l'he mortgage broker and the 3For Chase, see l i t t p s . / / w w w . b ~ i i i g ; I c l a i m . c o m / p d f / J I ~ M o ~ ~ ~ ~ ~ i - ~ l i ~ s c - N ~ S ~ C o i pdf;i iforJ ~ i d ~ i ~ i e ~ i t ise tBANA, see h t t ~ ~ ~ : / / ~ ~ ~ . b r ~ ~ i ~ : a c l ~ i ~ ~ i . c o ~ ~ ~ / ~ ~ ~ ~ / B ~ ~ i ~ ~ - o f - h i c ~ - NThe relevant e n t - . l u d g i i ~ c n l . p d f . MS-Cons opcrativc scclion o f both documcnts is fotind at Atidreoli Opp. hf'firni., Exhibit F (Settlement 'I'enns). 'Plaintiff rcfers to the Countiywicie mortga$c and Lhc H13EOC on llie Property as two mortgagcs. The financing of the 30 Country Club Lane South property is not counted as one of the two mortgages. 5Plaint~ff idenlifics Coutitiywidc/BANA\/MERS as "tlic Lcnder." When combined with Chase, plaintiff tcfcrs to "lhc Dcfccndants." 7 [* 9] Lender allegedly shared thc goal of maximizing their profils at plaintill's expcnse. Finally, tlic Lender "at all relevant times has bccii maintaining a Gaudulent loan modification program in wliicli it fails to reasonably process loan modification applications." Id., 7 36 (J). Together, this put plaintifT "in the predictablc position o l n o l beirig able to niake the montlily payments[,] . . . tlzreatencd with foreclosure and the loss 0 1 the Real Propcrty." Id., 7 37. If nol to plaintiff, these bad results werc prcdictable to the Lender "through its own actions in causing the economy and real estate prices to dcclinc." Id., 7 36 (G). The purportcd scheme worked, because "[plredictably, the value of the Real Property decliiicd with the economy." Id., 7 37. In sum, thc Lendcr's conduct "denionstrate[d] a high degt-cc of moral turpitudc and wanton dishonesty as to imply a near criminal indiffcl-ciicc to the civil obligations owcd . . . to the Plaintiff' and millions of other homcowiiers-mortgagors similarly situated." ld., 7 38. Chase notes that thc first cause of action is iiot directed at Chase. It argucs that the secoiid cause o l action regarding al lcgcd predatory lending practices, and the seventh cause of action rcgarding allcgccl manipulation o l securities and red cstate markets, arc not recognized claims in New York. Plaintiff's second causc of action is labeled "Predatory Lending Practice Failure to Oller a I m n Modification Agreement in Principal Amount Equal to Present Value o l the Real Property and Present Market Rate." C'hasc contends that plaintiffs inability to meet his two mortgage payments docs not cxtiiiguish their coiitracl under thc J II:,LC)C. Chase relics on a loiig-established doctrine thal "when a party to a written contract accepts it as a contract he is bound by the stipulalions and conditions cxprcsscd i ti it wlicther he reads them or not. Ignorance through negligciice or iiicxcusable trustfdncss will not relieve a party lrom his contract obligations." A4clzcqerv Artna I m . Co., 227 NY 41 1, 4 16 (1 920). Chase also maintains that its nllegcd failure to offer plaintiff a loan modillcation docs not invalidate the I IlII,OC. It notes that, in his own words, "Plaiiitiffcioes not claim that any principal aniouiit of, or rate olinterest lor, the Chasc loan was predatory." Complaint, TI 1 OS. PlaiixtilYnowliere explains how Chase's alleged hilure to offer him a loan modification 8 [* 10] agreement is ;I predatory lending practice, especially in light of his characterization of his Chasc loan as not predatory. Plaititill's major objection to the mforccability ol'the IIELOC is based on doubts about thc actual ownership ol' the associated promissory note. He claims that "Chase has riiisreprescntcd its ownership ol' the Notc" (Person Opp. Affirmation, Mot. Scq. 001, 1 6), becausc it "sccuritized tlic Note and Mortgagc secured by the Kcal Property by selling thc Note and Mortgage to an unknown entity, which then resold various iiitcrests or traiichcs in the Note and Mortgage togethcr with thousands ol' other notes and mortgages to iiiaiiy thousands of investors throughout tlic world" (Coniplaint, 1 17). As ;L result, plaintiff asserts that "the owiicrship oCthe Note has been split up froin the ownership of the Mortgage, so that thc Note is no longer secured by the mortgage, resulting in an uiicnforceable mortgage." Complaint, ll 18. Plaintiff provides no speciiic hctual or lcgal support for his position. He cites only c a m where c;iuses olaction for fraud were not dismissed, pursuant to C'PLIC 32 I I . See MBL4 Ins. Cory. v C'ourztiywide H o l m Loans, InMc., 87 A133d 287 (1st Dept 201 1 ) (MBIA);Silver Ocrk Capital L.L.C. v ULr'SAG,82 AD3d 666 (1st Dept 201 1) (Silver. Oak); S/wling Natl. Bank v Ernst & Young, LLP, 9 Misc 3d 1 129(A), 2005 NY Slip 0 1 3 5 1S50(U) (Sup Ct, NY County ZOOS) (S/er*li@. T'hcrc is a serious discoiinect among tlic vcry general lcgal propositions offered in those cases, the Complaint's C ~ L I of~ action for predatory Icndiiig practices, and plaintiffs S opposition to I'hasc's arguments I'or dismissiiig this cause of action. On a motion to dismiss for failure to state a cause of action, pursuant to CPLK 321 1 (a) (7), the pleading is affordcd a liberal construction. "hlthougli con a motjoii to dismiss plaiiitilfs' allcgations are presumed to be true and accorded every favorable iiifcrcmx, conclusory allegations - claims consisting of barc legal conclusions with no l'xtual specificity - arc itisufticiciit l o survive a iiiolioii to dismiss." Godficy v Spmo, 13 NY3d 3 5 8 , 373 (2009); Leon v hhr./inez, 84 NY2d 83, 87-88 (1994). Plaintiff offcrs IIO factual spccificily linking Chase's conduct to tlic second cause of action, and thc second causc of action, therefore, sliall be disiiiissed as against Chase. While plaintiff lias been ineffcctivc in cotinccting the issue of ownership of the iiiortgages to the secoiid cause o ¬ 9 [* 11] action, this issuc will be revisited below whcii examining otlier causes of action. Plaintiffs scvciith cause of action is labelcd "Manipulating Securities and Real Estate Markets Causing Frustration of Plaintiffs' Lsic] Performance undcr the Two Notes and Mortgages." The Complaint alleges that Cliase "participated with othcr mqjor banks and mortgage lenders to lend money to uncl~~ilified borrowers." Complaint, 7 1 00. "Because niaiiy of tlie loans wcrc bad and prcdatory (including BOA'S loan to the Plaintiff), the securities niarket collapsed and the market value of rcal estate also collapscd, causing an economic crisis , . . , and crcakd a Gnaiicial hardship for the Plaintiff and inadc him unable to perform using his own resoiirces on the Two Notes and Mortgages as written." I d , r[ 102. Plaintiff contends that the "activities 01 these Defendants[, in issuing bad loans that causcd a i economic crisis, I aiiiount to a dcfcnsc, or a partial defense, lor the Plaintiff as to any foreclosure actions by lhe Defendants." Id., 7 105. The seventh cause of action shall be dismissed as against Chasc for several reasons. Chase has not initiated foreclosure proceedings against plaintiff. Plaintiff disclaims that the "Chase loan was predatory." Id. He ofl'crs no cvideiice or allegation that the I Il=,I,OCwas inconsistent with New York law. Chase's participation with otlier major banks and niortgage lcnders in the global Giiaiicial crisis, even if substaiitiated in detail, as plaintiff fails to do, does iiot autoiiiatically translate into "a Gnancial hardship lor the Plaintifl." He docs not explain why falling prices for sccuritics and real estate "made him unable to perform," that is, to meet his particular monlhly housing payments. -1-~ I Csixth cause ofaclioii alleges violation of (;HI, 3 349, because of the "deceptive acts and practices in the conduct of' such delendants' busiiiesscs and firiiishing of services in tlic State olNew York." Chiliplaitit, 7 9s. The statute provides lor a private cause of action by "any person who has bccn injured by reason olany violation of'tliis section." GBL 5 349 (h). A successful plaintiff may m o v e r damages and attorney's f'ees. Chase correctly maintains that a violation of tlie statute rcquircs a showing "first, that the challenged act or practice was coiisunw10 [* 12] oriented; second, that it was misleading jii a material way; and third, that the plaintiff suffered injury as a result of the dcccptive act." Stzitrnrxn v Chenzical Bunk, 95 NY2d 24, 29 (2000). Chase contends that plaiutiff'caiiiiot dcnioiistrate that tlic acts or practices have a broader impact on coiisuniers at large. "Privatc contract disputes, uiiique to the parties, for example, would not fdl within the ambit of the statutc." CIJ'w~cgo Lahnrer,s'Locul 214 Peiwion Pzind v Murine Midland Rcmk, 85 NY2d 20, (1995 j. Further, "conclusory allcgatious about defendant's 25 practices with other clients arc insullicient to savc the claim." C;olmb v Twwdxrum-Hwber (lo., h e . , 88 AD3d 622, 623 ( 1 st Dept 201 1 j. Finally, plaintiff professes no actual harm as a result of Chase's alleged conduct. Injury is a iicccssary element to prosecuting a claim under tiB12§ 349 (h), and its absence here requires dismissal ofthe sixth cause 01 action as against Chase. See Siuinzun, 95 NY2d at 29. Thc i'ourtli ca~ise l action alleges breach of contract because Chase sccuritized the o HELOC's promissory note and mortgage. "I'l'his] amounted to a brcach of contract with the Plaintiff for a variety of reasons including the loss of an entity with an interest in providiiig a reasonablc loan modification agreeinelit to the Plaintiff, thc secret insurance agreements without an insurable interest as allcgcd above, and leaving the Plaintiff unable to ascertain who is in fact the rightful owtier of the Two Notcs and Mortgages, creating the risk that multiple partics, including but not limited to Ikfcndants BOA, Chase and MERS, may pursue multiplc actioiis to collect mortgage payments based on one or inore of the 'I'wo Notcs and Mortgages. This sccuritizatiori or such Two Notes and Mortgagcs also amounts to a breach of contract bccaust: it has resultcd in the Linlawl.ul interference, by Dcfcndaiils BOA, Chase and M HIIS, with I'laintifl's right to peacefd and undisturbed possession and use of the Real Propcrty tlu-ough threats of lawsuits from Joliii Does and their in potentially tliousaiids of S U C C ~ S S O ~ S intcrcst. I' Con~plaint, 69-70. 77 Chase's purported obligation to identify an entity, other than itselt', with an interest in providing a rcasonablc loan modificatioii agreeiiient to plaintifl' is his invention. The "secret insurance agreements" al lcgedly were "credit dehult swaps insuring collateralizcd debt 11 [* 13] obligations or other derivatives [] to niakc it more profitablc for the Defendants to let the mortgaged properties (including the Plaintiffs property) to go into Ioreclosure or short sale." Id., 7 12. There is no evidence linking this theory to tlic actual circumstances of this action. No foreclosure has occurred, and plaintiff providcs 110 proof that one is imminent. It is insuliicicnt for plaintiff to claim that bad things may take place, and requcst reliefjust in case. Another concern of plaintiff is that thcrc is a risk that multiple parties may pursue multiple actions against him. I n reality, tlic basis of such a risk is his possible failure to mect his financial obligations, not the securitization ol'liis debt in itself, evcii assuming that it has occurred. Plaintiff's final concern is the threat 01' lawsuits disturbing his peaceful aiid undisturbed possession and use of the Property. Here again, worst-case speculation does not amount to a cause of action. The fourth cause olaction for breach of contract shall be dismissed because it consists o l no niore than cociclusory allegations. The other three causes of action all arise from plaintift's disputed view of the ownership o l the two mortgages and their promissory notes, the Countrywidc/BANA/MERS mortgage aiid the Chase HELOC. These causes of action deal with lack of standing (third); fraud (fifth); and quieting of title (eighth). "None of these Uefendants has any actionable or enforceable interest in the Real Property because none o l them has produced proof that it owns and/or possesses the original [notes and mortgagcs]." Chase contends that it "has no obligation to demonstrate it is the holder or assignce of tlic Notc and Mortgagc, bccausc Chase has not liled a foreclosure action against tlic Harrower." I-'arker Affirmation, Mot. Seq. 001, 7 18. On the conlrary, Chase argues that plaintiff lacks standing to bring this action itgainst it, because he has not sustained any damages. Until there is a dcclared default and tlic coiniiicnccnient of foreclosure I' proccedings, thcre is no j wticiable controversy." Fcrirhcrven Props. v Gnrden City Plaza, 1 9 AD2d 796, 796 (2d Dept 1986); s w Prushkcr v [Jnited Stntes G i i m . Co., 1 NY2d 584, 592 (1 956) ("The courts do not makc iiicrc hypotlictical adjudications, wlicrc t h e is no presenl Y justiciable controversy bcforc the court, arid wliere the existence of a 'controversy' is dcpcndcnt upon the happening o r fiiturc cvcnts"). 12 [* 14] Plaintiff repeats the allegation in the Coiiiplainl that, II[u]pon information and belief, thc 2"" mortgage Ithe Chase HELOC] is under water, in Ihal the present value of the Real Property, aftcr deducting the amount allegedly due on the Note and Mortgage has tio securily under the 2nd Mortgage." I n his opinion, this is an injury constituting a justiciable controvcrsy. He claims siippoi-t from the cases named above, M B U , Silver Oltk and Reding. Howcver, none of these cases provides a holding that comports with plaintift's position. In M H A , the Court found a causal link between defcndant's alleged fraudulciit conduct and plainlifl's damages, bccause the "allegations are suiticient to show loss causalion siiice it was loreseeable that MHIA would suffer losscs as a rcsult of relying on Idefindant's] alleged misrepreseiitatiotis about the mortgage loans." 87 AD3d at 296. In the instant action, plaintiff oilers no cxamplc of misrepresentations by Chase in providing him a loan that was admittedly not predatory. Chasc's purported bad conduct was not in inisrepresenting the tll<i,o(', but cithcr in offering it to plaintill in the iirst placc and/or sccuritjzing it subsequently. The MBIA opinion, in hct, steps away from thc conclusion plaintiff searchcs for. "It cannot be said, on this pre-answer motion to dismiss, that MBIA's losses were causcd, as a matter of law, by the 2007 housing and credit crisis." Id. By contrast, plaintiff argucs for a niacroeconomic explanation of' his anticipated woes, rather than examining his specific clcalings with Chase. I n Silver C h k , "plaintin's suIliciently allcgc loss causation siiicc it was foreseeable that they would sustain a pecuniary loss as a result of' relying on [defendant's] alleged niisrepresenlatioiis" to invest in a dishonest scl~cme latcr collapsed. 82 AD3d at 667. Only that the measure of plaintiffs' loss was undetermincd when the Silver Oak action commenced. In the instant action, not even thc first shoe has dropped. I n Sterling, plaintiff sucd a company 's auditor for fraud and abcttiiig fraud after the conipaiiy's principals pleaded guilty to bank fraud. The U.S. httoriiey charged that the company "engagcd in a sclieime of fictitious metal trades that clcfraudccl major international hanks and iiiiaiicial institutions of'$h00 millioii." 9 Misc 3d 1 I29(A), "2. 'l'he injuries were realized; they were well beyond foreseeable. 13 [* 15] Plaintiff's conjuring up the threat of foreclosure does riot make the third, fifth and eight causes o l action into justiciablc controversies. They shall be dismissed, pursuant to CPLK 32 1 1 (a) (3.) and (7). In all, tlic complaint shall bc dismisscd in its entirety. Had the complaint not bccln dismissed in its entirety, Chase's application [or a chaiigc of vcnue to Westclicstcr County froin New Yorlc County would be granted. 'I'lic Property is locatcd wholly within Wcstchcstcr County. CPLR 507 provides that I'Lt]hc place of trial o l a n action in which the judgmcnt demanded would affect the title to, or the posscssion, use o r enjoyment of, real property shall be in tlic county i n wliicli any part of thc sub.ject of the action is situatcd." Chase rnaintaiiis tliat plaintiffs dcsired rclicf "clcarly would affect Borrower's title to, or thc possession, w e or enjoyment of llie subject property." C h s c Memorandum of Law at 10 (Mot. Seq. 001); scc Shupiiw, 22 AD3d at 660; Regrrl Boy, 22 A113d at 739. Plaintiff opposes tlie contingent request lor change of' venue on the ground of forum iioii conveniens. He argues thorouglily on this basis. However, Chase's motion is made pursuant to the statutory directive of CPI ,I< 507. 'I'hcrefore, an analysis of possibly influential factors for vcnue, appropriate to the issue of forum noii coiivcnicns, is uiiwan-anted, and liad the motion to dismiss the coiiiplaiiit in its eiitirety not bccii granted, a change of venue to Wcstchester County would have been granted. BANA's Summary Judgmcnt Motion and Plaintiffs Cross Motion- Mot. Seq. 002 On June 5 , 2008, tlie then-Countrywide loan was modified, reducing plaintiffs montlnly payrncnt to $10,808.40 from $ 1 5,460.14, a fact omitted lrom the Complaint. Chibnik Support Aff., l<xhibit 3 (Mot. Scq. 002). HANA states that it is the current owner of plaintifi's mortgage and note. Andreoli SLtpport Affirm., 7 3. As of the filing of BANA's motion, plaintiff' was current in his payments, and there was no pending fc7rcclosure proceeding on this mortgage. Id., 7 5. H A N A attaches its reqiiest for documcnts, ditted June 29, 2012, aiid plaintiff's rcsponsc, datcd Scptcriiber 17, 20 12. I d , Exhibits 3 and 4. Plaintiff subniittcd only a copy oi'a Department of Justice press releasc, clatcd after CC)iiiiiieiiCciiiciitof thc instant action, as the 14 [* 16] I I I evidence of BANA's p u r p l e d predatory lciiding practices, fraucluleiit loan modification program, and intention to not grant loan modifications, as well as the {utility of plaintiff subniitling a loail iiioditication application. Plaintiff answered almost every other requcst by BANA for documciitation regarding the Complaint's causes of action with the assertion that "the information requcstcd is not in Plaintifi's possession, custody or control." in turn, BANA responded to plaintiff's discovery dcmands, dated September 17,2012, by iiling the instant summary judgment motion. Plailitiff; in opposition to the motion and in support of his cross motion, asks for additioiial time to conduct discovery Yo bc ablc to prove that BANA is not the owner of the Nole and Mortgage, . . . to prove that BANA lias bcen engaged in loaii niodificalion liaud, . . to prove that such activities by HANA [as selling real estate interests at inflatcd priccs] ciititlc the Plaintiff to a decrcase in the montlily amount he is paying BANA, . . . Land] to obtain evidence showing that the activitics of Couiitrywidc in providing the terms of nolc and mortgage lor the fiiiancing transaction wcrc ui~suitablefor the Plaintiff and should not have been givcn." I Pcrson Afliriii., 77 13-16 (Mot. Scq. 002). Plaintiff' states tliat he needs this inforination bccausc "Dcfciiclants liavc a history oi denying rcasonable loan modification applications nierely because they can, . . . HANA gencrally docs not review loan applications with m y objective standards . . . [and] to ciiablc mc lo try l o avoid litigation by direct dealiiig with thc owner of tlic Notc and Mortgage." Choinicki hff., 7 2 (Mot. Seq. 002). Plaintiff acknowledges the June 5 , 2008 loan inodification for the first time in his affidavit, but clescribes it as "providling] only temporary reliel'." Id., 7 9. That trailsactioil lowered his monthly payiiicnt on the BANA mortgage to $10,808.40 from $15,460.14, a 30% reduction. He claims that he cannot af'fol-d even this adjusted amount, and asscrts that, in spite of 13ANA's previous willingncss to ncgotiate with him, "it has become ltiiown that BANA was orily pretending to coiisidcr loan applications and required a homeowner to bc in dehult before BANA would even pcrinit aiid application." Id Plaintiff tluoughoul claims that hc "never liad Ihc fliiancial capability of harzdliiig a inonthly payiiicnt ol' this magnitude and this was lciiown to Countrywide at the time the loan was 15 [* 17] made" (Memorandum of Law in Support of Cross Motion at 15), putting him in "the predictablc position of not being able to make thc imontlily payments" (Complaint, 7 37). Plaintiff's posture of not recognizing the financial burden he was assuming in 2005, in the face of thc knowledge and predictability he attributes to his lender, is belied by his record in rcal estate transactions, which hc fails to acknowledge. BANA claims that "Plaintiff cntcrcd into no less than fiftcen (1 5 ) mortgages prior to the mortgage at issue in this action," and attaches documents pertaining to each. Andreoli hlfiriii. in Further Support, 7 IO and Exhibit 3 (Mot. Seq. 002). These transactions include a $1 15,000 lorn dated April 7, 1995, a $160,000 loan dated March 6, 1998, a $330,000 loan dated September 12,2003, and a $767,000 loan dated Novcinber 10, 2003. "'l'hc proponcnt of a motion for suimiiary judgmcnt must dctiioiistrate that therc arc no iiiatcrial issucs of fact in dispute, atid that it is entitled to judgment as a matter of law." D u l l u s - S t ~ ~ ~ h ~ v i Wnismnn, 39 AD3d 303, 306 (1 St l k p t 2007), citing Winegrad v New York i son Univ. A4t.d. C f r . , NY2d 85 1, 853 (1985). BANA's motioii f i x summary judgment shall be 64 grantcd and plaintiff's cross motion for a continuance and time for limitcd discovery shall be denied, bccausc plaintiff offcrs no facts to accoinpnny thc Complaint's allegations. Plaintiff alleges that "1)cfendaiits have a history," "L3ANA does not gencrally," and "it has become known that BANA was only prctcnditig," without offering onc namc, datc, place or transaction in support. Ironically, the only undisputed hcts here are BANA's reduction of his monthly loan payment by 30%, and plaintifl's extensive record of real estate transactions and Gnancing. Plaintiff iievcr asserts that hc iiiadc a inore recent e f h t to modify his debt service, rather hc relies on his pessimistic imagiiiiiigs to claim the fiitility of any such approach. Adding to the confusion is plaintiffs unwilljngncss to accept BANA as the owner of his mortgage and note, in spite of its avowal ol'owncrsliip, whcn it has offered him r e l i d i n the past, whilc he sccks a secret owner to bargain with. Accordingly, it is ORDIiRGD that dele'endant 9PMorgan Chasc f h k , N.A.'s inotion to dismiss thc complaint, pursuant to CPLR 321 1 (a) (3) and (71, is grantcd, arid the complaint is dismissed 16 [* 18] with costs and disburscmcnts to said dekndant as taxed by the Clerk of the Court upon subinissioii of a n appropriate bill of' costs (Mot. Seq. 00 1); aiid it is further ORDERED that derendant Bank of Amcrica, N.A.'s motion, pursuant to CPLR 3212, for summary judgmeiit dismissing the complaint as against it, is granled, and the complaint is dismissed with costs and disbursements to said dekiidant as taxed by the Clerk of the Court upon submission of an appropriate bill olcosts (Mot. Seq. 002); and it is further ORDEREL) that plaintiff Robcrt Chomicki's cross motion for a continuance of Mot. Scq. 002, and a grant of tiinc to conduct limited discovery, is denied; and it is further ORDERED that plaintiffs inotion for Icave to i l e an aftirination and iiieinoranduni of law in opposition to Mot. Seq. 001 , or, in thc altcrsative, for leave to file and serve an amcndcd complaint, pursuant to CPLR 3025 (b), is dcnicd in its entirety (Mot. Seq. 003). DATED: March L , 20 13 ! ENTER: J.S.C. 17

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.