Nationwide Equities Corp. v Bauco

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Nationwide Equities Corp. v Bauco 2014 NY Slip Op 33471(U) May 30, 2014 Supreme Court, Westchester County Docket Number: 60161/13 Judge: Linda S. Jamieson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. of right (CPLR § 55U LaJJ, you are aav1sea ro servi: a copy of this order, with notice of entry, upon all parties. [* 1] Disp __ Dec_x_ Seq. #s 1-3 Type _misc._ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PRESENT: HON. LINDA S. JAMIESON -------------------------------------x NATIONWIDE EQUITIES CORP., Index No. 60161/13 Plaintiff, DECISION AND ORDER -againstANTOINETTE BAUCO, MARIA CIULLO, ONE WEST BANK, N.A., INDYMAC MORTGAGE SERVICES, a Division of One West Bank, N.A., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, Inc., as nominee for INDYMACK BANK, F.S.B., SHEBA TRUST COMPANY, et al., Defendants. -------------------------------------~x The following papers numbered 1 to 9 were read on these motions: Number Paper Notice of Motion, Affidavits, Affirmation and Exhibits 1 1 Memorandum of Law 2 Notice of Cross-Motion, Affidavit and Exhibits 3 Memorandum of Law 4 Memorandum of Law 5 Notice of Cross-Motion, Affirmation and Exhibits 6 Affirmation and Exhibits in Opposition 7 Memorandum of Law 8 Reply Affirmation and Exhibits 9 1 Exhibits must be tabbed. Rules. Counsel is directed to review the Part [* 2] The Court has three motions before it in this action to quiet title. There are two lenders involved in this case: plaintiff, and defendant OneWest Bank, FSB 2 and Mortgage Electronic Registration Systems, Inc. IndyMac Bank, F.S.B. ("IndyMac"). ( "MERS") as nominee for There are two borrowers involved in this case: defendants Bauco and Ciullo. It is not clear from these papers what the relationship between Bauco and Ciullo is, if any. case. There are also two loans involved in this The first loan was made by MERS as nominee for IndyMac to Bauco in 2006. The second loan was made by plaintiff to defendant Ciullo in 2012. This action by plaintiff, the second lender, seeks to determine that the 2006 mortgage made by defendant Bauco was validly satisfied and discharged. The first motion before the Court is filed by OneWest Bank, FSB and MERS as nominee for IndyMac (collectively, the "Bauco Mortgage Holders") .. It seeks to dismiss the complaint or, in the alternative, summary judgment dismissing the complaint. The second motion, filed by plaintiff, seeks (1) to deny the motion filed by the Bauco Mortgage Holders (which is not a proper subject for a motion) and (2) leave to amend the complaint. The third motion, filed by defendants Bauco and Ciullo, seeks only to r have both motions denied without prejudice to renewal after the 2 This entity was erroneously sued as One West Bank, N.A. and IndyMac Mortgage Services, a Division of One West Bank, N.A. 2 [* 3] completion of discovery. (Again, this is not a proper basis for relief in a motion.) The following facts are und:i,sputed. Bauco borrowed $320,000 in November 2006 from IndyMac and gave it a mortgage on her home (the "Bauco Mortgage"). In 2008, the Office of Thrift Supervision closed IndyMac and all of its assets were eventually transferred to OneWest Bank. In April 2012, Ciullo bought the property from Bauco, borrowed over $260,000 from plaintiff, and issued plaintiff a reverse mortgage encumbering the premises. It is also undisputed that in March 2012, just before Ciullo's transaction with plaintiff, a purported Discharge of the Bauco Mortgage by IndyMac - which, at that point, no longer existed - signed by a man named Bruce A. Lewis, and dated February 14, 2012, was recorded with the Westchester County Clerk. The Bauco Mortgage Holders swear, in no uncertain terms, that Lewis did not have, and never had, any position with them, or with any company or entity affiliated with them. In short, the Bauco Mortgage Holders swear that Lewis was an imposter 3 with no binding authority whatever to execute the Discharge. {They also point out numerous flaws in the purported Discharge of Mortgage, recitation of which is not necessary here.) 3 There does This appears to be a pattern for Lewis. The Bauco mortgage holders point to another Westchester County Supreme Court action in which Lewis forged similar Discharge of Mortgage documents. In that case, the Court vacated those documents. Moreover, a cursory Google search discloses that at least one title company has put out a warning memorn.nnum n.bout: Lewis n.nn his ilk. [* 4] not appear to be any dispute that the Bauco Mortgage was never paid off. The.Bauco Mortgage Holders argue that because the Discharge of the Bauco Mortgage was fraudulent, the Bauco Mortgage was never actually discharged. They thus conclude that plaintiff, which is seeking a judgment that the Bauco Mortgage was satisfied and discharged, cannot succeed in this action under any circumstances and, accordingly, that the complaint should be dismissed. Plaintiff asserts that it relied on the Discharge of Mortgage, as set forth in a title report, and only made the loan to Ciullo because it believed that the Bauco Mortgage had been discharged. Whether it was'reasonable for plaintiff to have done so or not is a question of fact that cannot be ignored on these motions. While the Bauco Mortgage Holders may ultimately be ' correct that the Discharge was indeed fraudulent (and thus the Bauco Mortgage will be reinstated) , the Court cannot make that determination at this juncture. Accordingly, the Court denies the Bauco Mortgage Holders' motion, and grants plaintiff's motion to amend the complaint. Lui v. Town of East Hampton, (2d Dept. May 7, 2014). --- N.Y.S.2d ----, 2014 WL 1797660 Plaintiff must serve its amended complaint within five business days of receipt of this Decision and Order. The Court notes that although the company that Lewis 4 [* 5] may be affiliated with, Sheba Trust Company, is a defendant, Lewis himself is not. The parties are directed to appear for a Preliminary Conference in the Preliminary Conference Part on July 14, 2014 at 9:30 a.m. The foregoing constitutes the decision and order of the Court. Dated: White Plains, New York May fP_, 2014 ; To: ~ , 'AJ~ .~LIN A . JAMIESON Justice OftheSUP=t:court DelBello Donnellan et al. Attorneys for Plaintiff l N. Lexington Ave. White Plains, NY 10601 Bryan Cave LLP Attorneys for the Bauco Mortgage Holders 1290 Ave. of the Americas New York, NY 10104 Cardenas Islam & Associates Attorneys for Bauco and Ciullo 175-61 Hillside Ave. Jamaica, NY 11432 5

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