328 F. Supp. 3d 189
S.D. Ill.2018Background
- Plaintiff (CIT Bank, N.A., successor by charter/name changes to OneWest) holds a mortgage loan originally made to Defendant Nwanganga secured by 41 Summit Park Rd, Spring Valley, NY.
- The loan (original principal $468,000) was assigned to Plaintiff via an FDIC Loan Sale/Master Purchase Agreement; the original note bears endorsements and allonges showing transfer to OneWest/CIT, and Plaintiff possessed the indorsed original note when suit commenced.
- Defendant defaulted (missed payment due June 1, 2016 and thereafter); Plaintiff sent required NY 90‑day and default notices in August 2016, accelerated the mortgage after non‑payment, and filed this foreclosure complaint on February 6, 2017.
- Defendant answered and asserted affirmative defenses and five counterclaims (standing, fraud/misrepresentation, NY Gen. Bus. Law § 349, estoppel, and attorneys’ fees/costs) but filed no discovery and did not oppose Plaintiff’s summary judgment motion.
- Plaintiff moved for summary judgment and dismissal of counterclaims; the Court treated Plaintiff’s 56.1 statement as uncontested, reviewed the record evidence (note, mortgage, modification, affidavits, notices), and considered Defendant’s pleaded defenses and counterclaims on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / ownership of the note | Plaintiff is assignee and holder of the indorsed original note (FDIC transfer; physical possession at filing) | Plaintiff lacks standing and is not holder/holder in due course | Held for Plaintiff: written assignment + possession established standing; holder‑in‑due‑course status unnecessary and not challenged with evidence |
| Service of process | Service by affixing and mailing under CPLR §308(4) was properly effected after multiple attempts | Service improper; court lacks personal jurisdiction | Held for Plaintiff: affidavit of service unrebutted; presumption of proper service stands |
| Statute of limitations / acceleration | Notices and acceleration pre‑petition (late 2016/early 2017); suit timely under six‑year rule | Suit time‑barred under 6‑year statute | Held for Plaintiff: acceleration occurred and suit was timely |
| Merits of affirmative defenses and counterclaims (fraud, §349, estoppel, mitigation, amount due, fiduciary breach) | Plaintiff produced note, mortgage, modification, default/notice proofs; no evidence rebutting debt, standing, or defenses | Allegations of fraud, deceptive practices, estoppel, mitigation, payment application, fiduciary duty, and fee entitlement | Held for Plaintiff: summary judgment granted; defenses fail for lack of evidence or legal insufficiency; counterclaims dismissed (fraud/estoppel/§349 inadequately pleaded or time‑barred); disputes about exact sums reserved for referee/reference |
Key Cases Cited
- T.Y. v. New York City Dep't of Educ., 584 F.3d 412 (2d Cir. 2009) (treating uncontested Rule 56.1 facts as admitted)
- Melina v. OneWest Bank, N.A., 827 F.3d 214 (2d Cir. 2016) (assignment/possession establishes standing to foreclose)
- Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355 (N.Y. 2015) (possession proof suffices even without detailed chain explanation)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment burden and allocation)
- Jackson v. Fed. Exp., 766 F.3d 189 (2d Cir. 2014) (court must confirm record support before granting unopposed summary judgment)
- Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980 (N.Y. App. Div.) (acceleration begins statute of limitations run when holder elects and gives clear notice)