Deutsche Bank Nat'l Trust Co. v. Ramotar, 2011 NY Slip Op 50017 (N.Y. Sup. Ct.
, 2011)
2011 NY Slip Op 50017
Deutsche Bank National Trust Company, Plaintiff,
v.
Auditya S. Ramotar, et al., Defendants.
1730/2009
Supreme Court Of The State Of New York
Queens County
Decided on January 10, 2011
For the Plaintiff: Frenkel, Lambert, Weiss,
Weisman & Gordon, LLP, by Kevin M. Butler,
Esq.
For the Defendant: Bachu & Associates, by
Darmin T. Bachu, Esq.
Charles J. Markey, J.
Plaintiff Deutsche Bank National Trust
Company ("Deutsche Bank") moves for
summary judgment, to strike the answer, to
appoint a referee, and for other relief, in this
mortgage foreclosure case, against the borrower
Mr. Auditya S. Ramotar ("Ramotar").
Ramotar explains in his fact-filled affidavit
in opposition to the plaintiff's motion that he had
submitted his answer as a pro se litigant.
Ramotar continues that he had since retained the
services of Darmin T. Bachu, Esq., of Bachu &
Associates, who diligently worked with him in
preparing the thorough affidavit in opposition.
Ramotar's affidavit requests the opportunity
for leave to serve and file an amended answer
now that Mr. Bachu is representing Ramotar.
The undersigned, having read through all the
papers, is convinced that although the request is
not accompanied by a notice of cross motion,
that the request is amply supported by facts
asserted and is not some stalling device.
Specifically, Ramotar has alleged sufficient
facts that would raise a strong basis that
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triable issues do exist that warrant denial of a
motion for summary judgment. Ramotar's loan
was with Argent Mortgage Company, LC. It
appears that the note was transferred or assigned
to a few other enterprises. There are sufficient
questions concerning standing, "robo-signing,"
the alleged amount due, along with other issues.
The opposing affirmation prepared by Mr.
Bachu for Ramotar's review and signature is not
the garden variety opposition, but is fact-filled
with specific allegations that trouble this Court.
Recently, courts that routinely granted
summary judgment to plaintiff financial
enterprises and banks in mortgage foreclosure
cases are taking a much closer look. Justice F.
Dana Winslow, of Supreme Court, Nassau
County, testified before the U.S. House of
Representatives, on December 2, 2010, as to
widespread abuses by plaintiffs in mortgage
foreclosure cases. See Ellen Yan, "Taking home
issues to the Hill," Newsday, Dec. 1, 2010, at
A35; Ellen Yan, "LI Judge testifies in federal
foreclosure hearing," Newsday, Dec. 2, 2010.
Just recently, Massachusetts's highest court,
its Supreme Judicial Court, in U.S. Bank
National Association v Ibanez, ___ NE2d ____,
2011 WL 2011 WL 38071 (Jan. 7, 2011) [6-0
decision, with majority and concurring opinions]
unanimously held that two banks, U.S. Bank and
Wells Fargo, failed to prove that they owned the
mortgages when they foreclosed on the homes.
See, id. The fact that the homeowners owed a lot
of money on the mortgages was conceded in the
Court's ruling that the banks did not properly
prove ownership.
An excellent article discussing the abuses
of the banks in foreclosure cases is by David
Streitfeld, writing for The New York Times, in
"Facing Scrutiny, Banks Slow Pace of
Foreclosures," NY Times, Jan. 8, 2011 [some
mortgage lenders and banks "were revealed to
have used so-called robo-signers to process
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 Deutsche Bank Nat'l Trust Co. v. Ramotar, 2011 NY Slip Op 50017 (N.Y. Sup. Ct., 2011)
thousands of foreclosures without verifying the
accuracy of the data."]. Mr. Streitfeld's insightful
article is particularly apt given the irregularities
contained and elaborated upon in Ramotar's
well-organized affidavit in opposition, prepared
with the assistance of his new counsel, Mr.
Bachu.
The Chief Judge of the Court of Appeals,
the Honorable Jonathan Lippman, in 2010,
aware of growing abuses in the documents relied
upon by New York state courts in reviewing
mortgage foreclosure cases, instituted new rules
designed to curb widespread deficiencies in
"robo-signing" of documents. Robo-signing is
the act of employees of plaintiff-institutions
signing en masse mortgage foreclosure
documents without a careful evaluation of the
merits of each case. Examples of such abuses are
found in the testimony recited in the opinion in
Washington Mutual Bank v Phillip, 20 Misc 3d
127[A], 2010 WL 4813782, 2010 NY Slip Op
52034[U] [Sup Ct Kings County 2010] [Schack,
J.]. Robo-signing and other abuses by plaintiff
institutions are discussed in the written
testimony of Justice Winslow to Congress, on
December 2, 2010, available at several web
sites, including www.4closurefraud.org.
Chief Judge Lippman has stated that the
New York court system should not stand by
idly, during a tough economic crisis, where the
integrity of the determination of home
ownership is at stake. See discussion in
Washington Mutual Bank v Phillip, 20 Misc 3d
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127[A], 2010 WL 4813782, 2010 NY Slip
Op 52034[U] [Sup Ct Kings County 2010]
[Schack, J.].
The practices of the plaintiff in this case, in
not carefully evaluating the merits of each
mortgage foreclosure case individually, has been
criticized by the courts in: Deutsche Bank Nat.
Trust Co. v Harris, 2008 WL 620756, 2008 NY
Slip Op 30308[U] [Sup Ct Kings County 2008];
Deutsche Bank v Maraj, 18 Misc 3d 1123(A),
2008 WL 253926, 2008 NY Slip Op 50176 [Sup
Ct Kings County 2008]; Deutsche Bank Nat.
Trust Co. v Lewis, 14 Misc 3d 1201(A), 2006
WL 3593431, 2006 NY Slip Op 52368[U] [Sup
Ct Suffolk County 2006], all of those decisions
denying the plaintiff's motion for relief without
prejudice upon the submission of proper papers.
See also discussion in Onewest Bank, F.S.B. v
Drayton, 29 Misc 3d 1021 [Sup Ct Kings
County 2010].
The possible abuses that Ramotar contends
occurred in the processing of the papers on his
mortgage by the plaintiff warrants that the Court
permit Ramotar a period of time to elaborate
upon those defenses through further pleading.
Ramotar's initial pleading was done pro se. Now
that he has recently retained the services of Mr.
Bachu, who assisted Ramotar with the affidavit
in opposition, Ramotar deserves that his
informal request to serve an amended answer be
granted, although it was not accompanied by a
notice of cross motion.
In light of the well-articulated concerns
contained in Ramotar's opposing affidavit, the
Massachusetts Supreme Judicial Court's opinion
in U.S. Bank National Association v Ibanez, ___
NE2d ____, 2011 WL 2011 WL 38071, Chief
Judge Lippman's direction to the New York
courts for greater scrutiny, and Justice
Winslow's congressional testimony, this Court
rejects the effort by Deutsche Bank and its
counsel to move this Court into granting
summary judgment precipitously. Ramotar's
fact-filled affidavit thus amply warrants that Mr.
Bachu be permitted time to study the case and
prepare an amended answer.
Based on Ramotar's request in the opposing
affirmation, and the recent retention by him of
Mr. Bachu in the preparation of the opposing
affidavit, the Court, on its own motion, grants
leave to defendant Ramotar and his wife, co-
defendant Bhogewattie Ramotar, to serve and
file an amended answer to the complaint until
and including June 2, 2011.
After the service and filing of the
pleadings, the Court orders that the Mortgage
Foreclosure Conference part hold a conference
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 Deutsche Bank Nat'l Trust Co. v. Ramotar, 2011 NY Slip Op 50017 (N.Y. Sup. Ct., 2011)
in this case. See, CPLR 3408 and the
undersigned's decision in Countrywide Home
Loan Servicing, L.P. v Willacy, 29 Misc 3d
1233(A), 2010 WL 5071770, 2010 NY Slip Op
52134[U] [Sup Ct Queens County 2010].
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Ramotar's fact-filled opposing affidavit,
therefore, compels the denial of the plaintiff
bank's present motion for summary judgment
without prejudice to submission at a later stage
of the litigation, upon proper papers. After the
pleadings have been served and the Mortgage
Foreclosure part of this Court has held a
conference, the plaintiff, if so advised, may
serve another motion for relief based upon
proper papers.
The foregoing constitutes the decision,
order, and opinion of the Court.
______________________________
Hon. Charles J. Markey
Justice, Supreme Court, Queens County
Dated: Long Island City, New York
January 10, 2011
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