Motion-Secondary: Deutsche Bank National Trust Company As Trustee For American Home Mortgage Assets Trust 2006-6 Mortgage-Backed Pass-Through Certificates, Series 2006-6 v. Royal Blue Realty Holdings, Inc., The Board Of Managers Of 130 Barrow Street Condominium Homeowners Association, Sing Yu International, Inc. D/B/A Sy Marble And Granite Importers And Distributors, New York State Department Of Taxation And Finance, The State Of New York, The City Of New York, City Of New York Environmental Control Board, City Of New York Parking Violations Bureau, John Doe #1 Through John Doe #10,, The Last Ten Names Being Fictitious And Unknown To The Plaintiff, The Person Or Parties Intended Being The Person Or Parties, If Any, Having Or Claiming An Interest In Or Lien Upon The Mortgaged Premises Described In The Complaint,

On September 28, 2009 a Motion-Secondary was filed involving a dispute between Deutsche Bank National Trust Company As Trustee For American Home Mortgage Assets Trust 2006-6 Mortgage-Backed Pass-Through Certificates, Series 2006-6, and City Of New York Environmental Control Board, City Of New York Parking Violations Bureau, John Doe #1 Through John Doe #10,, New York State Department Of Taxation And Finance, Royal Blue Realty Holdings, Inc., Sing Yu International, Inc. D B A Sy Marble And Granite Importers And Distributors, The Board Of Managers Of 130 Barrow Street Condominium Homeowners Association, The City Of New York, The Last Ten Names Being Fictitious And Unknown To The Plaintiff, The Person Or Parties Intended Being The Person Or Parties, If Any, Having Or Claiming An Interest In Or Lien Upon The Mortgaged Premises Described In The Complaint,, The State Of New York, for Torts - Other (Conversion) in the District Court of New York County.

Preview
FILED: NEW YORK COUNTY CLERK 08/29/2019 04:45 PM INDEX NO. 105818/2009
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/29/2019

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------- - -- - - -- - -- --- - -- - - -- -------- ----- - --x

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS :

TRUSTEE FOR AMERICAN HOME MORTGAGE ASSET :

TRUST 2006-6, MORTGAGE-BACKED PASS-THROUGH
Index No. 105818/2009
CERTIFICATES SERIES 2006-6,
:

Plaintiff, :
:
-against- :

ROYAL BLUE REALTY HOLDINGS, INC.; THE BOARD OF :

MANAGERS OF 130 BARROW STREET CONDOMINIUM :
HOMEOWNERS ASSOCIATION; SING YU :

INTERNATIONAL, INC. D/B/A/ SY MARBLE AND :

GRANITE IMPORTERS AND DISTRIBUTORS; ET. AL., :
:
Defendants. :
- ----- - - -- - --- - -- - --- ---- --- - -- ------- ---- -- -x :

ROYAL BLUE REALTY HOLDINGS, :

Third Party Plaintiff, :

-against- :
:

NEW YORK STATE ATTORNEY GENERAL AND OCWEN :

LOAN SERVICING, LLC :
:
Third Party Defendants. :
----- --- --------------------- --- - --- - --------x :

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT OCWEN
LOAN SERVICING LLC'S MOTION TO DISMISS THE THIRD-PARTY COMPLAINT

BRYAN CAVE LEIGHTON PAISNER LLP
1290 Avenue of the Americas

New York, New York 10104

(212) 541-2000
Attorneys for Third-Party Defendant

Ocwen Loan Servicing, LLC
(now known as PHH Mortgage Services, successor

to Ocwen Loan Servicing, LLC)

1 of 20
FILED: NEW YORK COUNTY CLERK 08/29/2019 04:45 PM INDEX NO. 105818/2009
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/29/2019

TABLEOF CONTENTS

Pag

PRELIMINARY STATEMENT....................................................................................................
1

SUMMARY OF THE THIRD-PARTY PLAINTIFF'S ALLEGATIONS.................................... 2

ARGUMENT..................................................................................................................................
4

POINT I ROYAL BLUE'S CLAIM IS PRECLUDED BY
THE LAW OF THE CASE DOCTRINE......................................................
4

POINT II THE COMPLAINT AGAINST OCWEN SHOULD BE
DISMISSED BECAUSE ROYAL BLUE LACKS STANDING
TO ENFORCE THE CONSENT JUDGMENT............................................
6

POINT III ROYAL BLUE'S CLAIM AGAINST OCWEN IS TIME
BARRED.....................................................................................................
12

POINT IV ROYAL BLUE HAS NOT ADEQUATELY PLED A CAUSE
OF ACTION AGAINST OCWEN..............................................................
13

CONCLUSION.............................................................................................................................
15

600876996. I

2 of 20
FILED: NEW YORK COUNTY CLERK 08/29/2019 04:45 PM INDEX NO. 105818/2009
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/29/2019

TABLE OF AUTHORITIES

Page(s)

Cases

Ahrorgulova v. Mann,
144 A.D.3d 953 (2d Dep't 2016)...............................................................................................5

Benjamin v. Fremont Inv.t & Loan.
2018 WL 4017595 (D. Mass. Aug. 22. 2018).........................................................................1O

Blue Chip Stamps v. Manor Drug Stores.
421 U.S. 723 (1975).................................................................................................................1
1

Briggs v. Chapman,
53 A.D.3d 900............................................................................................................................5

Brownrigg v. New York City Hous. Auth..
29 A.D.3d 721 (2d Dep't 2006).................................................................................................5

Caniglia v. Chicago Tribune-New York News Syndicate. Inc..
204 A.D.2d 233 (1994)..............................................................................................................8

Cruz v. NYNEX Info. Res..
263 A.D.2d 285 (1st Dep't 2000)..............................................................................................8

Douglas v. Southstar Funding LLC.
2018 WL 6136793 (N.D. Ga. Oct. 18, 2018)............................................................................9

FG Harriman Commons. LLC, et al. v. FBG Owners, LLC. et al..
75 A.D.3d 527 (2d Dep't 8
2010).............................................................................................7,

Harvin v. Nationwide Title Clearing.
632 Fed. App'x 599 (11th Cir. 2016).......................................................................................1O

J-Mar Serv. Ctr., Inc. v Mahoney. Connor & Hussey.
45 A.D.3d 809 (2d Dep't 2007).................................................................................................4

Jones v. Archibald.
45 A.D.2d 532 (4th Dep't 1974)................................................................................................6

Jones v. Bank of Am. Nat. Ass'n.
2013 WL 4017344 (Sup. Ct. Kings Cnty. July 29, 2013)........................................................13

Jurewitz v. Bank of Am.. N.A.,
938 F. Supp. 2d 994 (S.D. Cal. 2013)......................................................................................11

600876996.1

3 of 20
FILED: NEW YORK COUNTY CLERK 08/29/2019 04:45 PM INDEX NO. 105818/2009
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/29/2019

Karmol v. Ocwen Loan Servicing, LLC,
2017 WL 3071496 (W.D. Mich. July 19, 2017)......................................................................10

Keyama-Joy El v. Ocwen Loan Servicing, 2016 WL 4224972 at *l
(N.D. Ga. Jan. 27, 2016), report and recommendation adopted as modified
sub nom. 2016 WL 4257771 (N.D. Ga. Mar. 29, 2016)............................................................9

Martin v. City of Cohoes,
37 N.Y.2d 162 (1975)................................................................................................................4

News Am. Mltg, Inc. v. LePage Bakeries, Inc.,
16 A.D.3d 146 (1st Dep't 2005)................................................................................................6

NYP Holdings, Inc. v. McClier Corp.,
83 A.D.3d 426 (1st Dep't 2011)................................................................................................5

O'Donnell, Fox & Gartner v. R-2000 Corp..
198 A.D.2d 154 (lst Dep't 8
1993)...........................................................................................7,

Performance Comercial Importadora E Exportadora Ltda v. Sewa Int'l.Fashions Pvt. Ltd.
79 A.D.3d 673 (1st Dep't 2010)................................................................................................6

Rehbein v. CitiMortgage, Inc..
937 F. Supp. 2d 753 (E.D. Va. Apr. 4, 2013)..........................................................................11

S.E.C. v. Dollar Gen. Corp.,
378 F. App'x 511 (6th Cir.2010)..............................................................................................11

Sandaler v. Wells Fargo Bank, N.A.,
2017 WL 5443149 (M.D. Fla. Nov. 14, 2017)........................................................................10

Schwatka v. Super Millwork. Inc.,
106 A.D.3d 897 (2d Dep't 2013)..............................................................................................13

Travelers Ins. Co. v. Ferco. Inc.,
122 A.D.2d 718 (lst Dep't 1986).............................................................................................13

U.S. Bank. N.A. as Tr.for Registered Holders of AEGIS v. Richardson.
2018 WL 5722680 at *4 (N.D. Tex. July 30, 2018), report and
recommendation adopted sub nom. 2018 WL 3868701 (N.D. Tex. Aug. 14,

2018), objections overruled, 2018 WL 5722672 (N.D. Tex. Aug. 22, 2018).........................10

Wilson v. HSBC Mortg. Servs. Inc.,
744 F.3d 1 (1st Cir. 2014)........................................................................................................11

Matter of Yeampierre v Gutman,
57 A.D.2d 898 (4th Dep't 1977)................................................................................................4

iii

600876996.1

4 of 20
FILED: NEW YORK COUNTY CLERK 08/29/2019 04:45 PM INDEX NO. 105818/2009
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/29/2019

Zanett Lombardier, Ltd. v. Maslow.
29 A.D.3d 495 (1st Dep't 8
2006).............................................................................................7.

Statutes

15 U.S.C. § 1602(i)..........................................................................................................................9

15 U.S.C. § 1692 (a) ........................................................................................................................9

N.Y. Gen. Bus. L. § 399-e...............................................................................................................9

N.Y. Gen. Bus. L. § 399-p(1)(c)......................................................................................................9

N.Y. Gen. Oblig. L. § 5-327(1)(a)...................................................................................................9

N.Y. UCC § 9-109(1) ......................................................................................................................9

Rules

N.Y. CPLR § 105(f).........................................................................................................................9

N.Y. CPLR § 3016(b)....................................................................................................................13

N.Y. CPLR § 8, 12
3211(a)(1)........................................................................................................6,

N.Y. CPLR § 6. 12
321l(a)(5)........................................................................................................4,

N.Y. CPLR § 3211(a)(7)........................................................................................................
passim

600876996.1

5 of 20
FILED: NEW YORK COUNTY CLERK 08/29/2019 04:45 PM INDEX NO. 105818/2009
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/29/2019

PRELIMINARY STATEMENT

Defendant/Third-Party Plaintiff Royal Blue Realty Holdings ("Royal Blue") repeats a

baseless claim made against Plaintiff Deutsche Bank National Trust Company, as Trustee For

American Home Mortgage Asset Trust 2006-6, Mortgage-Backed Pass-Through Certificates

Series 2006-6 ("Plaintiff") in a seeming attempt to further derail the foreclosure of the subject

property. Here, Royal Blue asserts a single cause of action against Ocwen Loan Servicing. LLC

("Ocwen") contending that Ocwen's alleged misconduct should void the mortgages being

action.¹
foreclosed herein in the main

The purported basis for relief against Ocwen is that Plaintiff did not sufficiently allege its

to foreclose and that in connection therewith, Ocwen - as
standing somehow, apparently

Plaintiff's loan servicer - violated a consent judgment unspecified false statements in
by making

Court.2
unspecified affidavits and submissions to the

Royal Blue's claim against Ocwen should be dismissed. As an initialmatter, as discussed

in Point I, this Court already twice heard and rejected Royal Blue's argument that Plaintiff did

not allege - first on Royal Blue's motion to dismiss the Amended
sufficiently standing

Complaint (Motion Seq. # 5, NYSCEF # 13) and then again on Royal Blue's motion to reargue

the denial of its motion to dismiss (Motion Seq. # 7, NYSCEF # 114). The law of the case

doctrine precludes Royal Blue from this same argument - this time against Ocwen.
repackaging

Ocwen Financial Corporation acquired PHH Mortgage Corporation, dba PHH Mortgage

Services. PHH Mortgage Services is the successor to Ocwen Loan Servicing, LLC and
should have been named in this action. See Berger Aff. ¶ 2.
2
Royal Blue also brings two claims against the New York State Attorney General seeking
a declaration that the mortgages are not secured by a lawfully formed residential
condominium unit and that this real property cannot be mortgaged, foreclosed or sold.
Royal Blue cause of action against Ocwen is not premised on thisalleged invalidity.

600876996. 1

6 of 20
FILED: NEW YORK COUNTY CLERK 08/29/2019 04:45 PM INDEX NO. 105818/2009
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/29/2019

Second, as discussed in Point II, infra, the Third-Party Complaint should be dismissed

based on documentary evidence. Royal Blue's claim against Ocwen is premised on Ocwen's

alleged violation of a December 2014 Consent Judgment to which the New York State Attorney

General ("NY AG") and others were a party. Royal Blue was not a party to the Consent

Judgment and does not have the right to enforce it.

Third, as shown by the Consent Judgment, Royal Blue's claim against Ocwen is not

timely. The Consent Judgment had a three year sunset period that expired over two years ago.

See Point III, infra.

Finally, as discussed in Point IV, infra, even if Royal Blue's claim against Ocwen was

timely, it should be dismissed because it should be governed by a heightened pleading standard.

The claim is based on alleged fraudulent statements and misrepresentations but does not contain

the requisite particularity for that cause of action.

SUMMARY OF THE THIRD-PARTY PLAINTIFF'S ALLEGATIONS

Royal Blue alleges that it owns a commercial condominium unit "located at 162-174

Street"
Christopher Street, a/k/a 130-132 Barrow in Manhattan "contain[ing] 12 separate

apartments."
(Third-Party Complaint ("TPC") ¶ 5). Royal Blue acknowledges that, in 2006, it

Inc."
"secured a mortgage from American Home Mortgage Servicing, and that the instant

foreclosure action is based on an alleged payment default on that mortgage. ( Id.¶¶ 6-7).

Much of the Third-Party Complaint is devoted to Royal Blue's contention that the

unit"
mortgaged premises "is not a separate and distinct condominium but one of twelve

unit"
"apartments comprising the commercial condominium and, therefore, the mortgage liens

sought to be foreclosed are void. ( Id. ¶¶ 9 & 11). Royal Blue admits in the Third-Party

Complaint that it raised this same issue as a defense in the foreclosure action brought by

600876996. I

7 of 20
FILED: NEW YORK COUNTY CLERK 08/29/2019 04:45 PM INDEX NO. 105818/2009
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/29/2019

Plaintiff. (Id. 10). while pertinent to Royal Blue's claims against co-
¶ However, seemingly

defendant, NY AG, these allegations do not form the basis for Royal Blue's claim against

Ocwen.

Against Ocwen, Royal Blue also seeks to have the mortgages declared void based on

Ocwen's alleged violation of a consent judgment "filed on or about February 26, 2014 in the

United States District Court for the District of Columbia, . ..(the Consent Judgment') because

belief"
"upon information and it "provided affidavits, sworn statements and Declarations that

contain information that is false or unsubstantiated or that is materially inaccurate in order to

sale." 40).3
obtain a judgment of foreclosure and (Id. ¶¶ 36-37 &

Royal Blue does not identify any specific affidavits or declarations, let alone any specific

statements or speakers, or explain how they were purportedly false. Royal Blue's only other

factual allegations in its cause of action against Ocwen are that Royal Blue's answer to the

complaint asserted that Plaintiff's complaint "fails to allege the date itobtained ownership of the

mortgages"
notes and being foreclosed upon and that Plaintiff has failed to "allege the facts

necessary to prove its claim that there were valid assignments of the notes and mortgages and

unbroken]."
that [the mortgage chain was (Id. ¶¶ 34 & 36).

While Royal Blue does not attach it,the referenced Consent Judgment was entered to
settle a case captioned Consumer Financial Protection Bureau. et. al.v. Ocwen Financial

Corporation and Ocwen Loan Servicing. LLC. As alleged in the Third-Party Complaint,
that case was under Index Number 13-cv-2025 (RMC). A copy of the Consent Judgment,
with all exhibits other than D, is attached to the accompanying Affirmation of Suzanne

Berger, sworn to August 29, 2019, as Exhibit 4 ("Berger Aff."). Exhibit D is attached as
Exhibit 5 to the Berger Aff. As stated in the Consent Judgment, the "intention of the
Consumer Financial Protection Bureau and the [participating] States in effecting [the]
settlement [was] to remediate harms allegedly resulting from the alleged unlawful
Defendant."
conduct of the See Berger Aff., Ex. 4, Whereas Clauses at p.8. However, as
also set forth in the Consent Judgment, "Defendant, by entering into this Consent
Complaint"
Judgment, [did] not admit the allegations of the beyond facts necessary to
establish jurisdiction. Id.

6008 76996. I

8 of 20
FILED: NEW YORK COUNTY CLERK 08/29/2019 04:45 PM INDEX NO. 105818/2009
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/29/2019

ARGUMENT

POINT I

ROYAL BLUE'S CLAIM IS PRECLUDED BY THE LAW OF THE CASE DOCTRINE

Royal Blue's Complaint against Ocwen should be dismissed pursuant to CPLR

§§ 3211(a)(5) and (a)(7) because itis barred by the law of the case doctrine.

The only factual allegations made by Royal Blue (beyond the common allegation that the

mortgaged premises are not an individual unit) in support of the cause of action against Ocwen,

which asserts that Ocwen violated the Consent Judgment, are that Plaintiff s complaint does not

mortgages"
allege "the date itobtained ownership of the notes and being foreclosed upon and

that Plaintiff has failed to "allege the facts necessary to prove its claim that there were valid

unbroken]."
assignments of the notes and mortgages and that [the mortgage chain was (TPC

¶¶ 33 -35). These questions have already been decided.

Royal Blue has previously raised the sufficiency of Plaintiff s amended complaint with

respect to the standing allegations on two motions. The Court rejected Royal Blue's arguments

both times.

case"
The "law of the doctrine provides that "when an issue is once judicially

determined, that should be the end of the matter as far as Judges and courts of co-ordinate

concemed."
jurisdiction are Martin v. City of Cohoes, 37 N.Y.2d 162, 165 (1975) (citations

case'
omitted). "[T]he 'law of the operates to foreclose re-examination of [the] question absent a

law."
showing of subsequent evidence or change of Matter of Yeampierre v Gutman, 57 A.D.2d

898, 899 (4th Dep't 1977); see also, J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45

A.D.3d 809 (2d Dep't 2007). "The doctrine of the law of the case seeks to prevent relitigation of

600876996.1

9 of 20
FILED: NEW YORK COUNTY CLERK 08/29/2019 04:45 PM INDEX NO. 105818/2009
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/29/2019

proceeding."
issues of law that have already been determined at an earlier stage of the

Brownrigg v. New York City Hous. Auth, 29 A.D.3d 721, 722 (2d Dep't 2006).

Even in this procedural context, law of the case applies. Law of the case precludes

parties'
relitigation of issues previously decided. Law of the case applies to the privies and is

also applicable with respect to third party actions, See Briggs v. Chapman, 53 A.D.3d 900 (3d

Dep't 2008 ("Under the law of the case doctrine, parties or their privies are "preclude[d from]

relitigating an issue decided in an ongoing action where there previously was a full and fair

opportunity to address the issue") (citations omitted); see also Ahrorgulova v. Mann, 144 A.D.3d

953 (2d Dep't 2016) (determination in third party action was law of the case in the principle

action); NYP Holdings, Inc. v. McClier Corp., 83 A.D.3d 426 (1st Dep't 2011) (determination as

to one third party defendant was law of the case as to other third party defendant who were in

privity).

Here, Royal Blue fully already litigated the issue of the sufficiency of Plaintiff's

complaint with respect to the allegations. Its claim now against Ocwen - premised on
standing

Ocwen's role as Plaintiff's loan servicer - based on this same alleged is barred
insufficiency by

law of the case. Specifically, Royal Blue moved to dismiss the complaint in this action based on,

inter alia, this same argument. (ECF #13). For example, Royal Blue's motion to dismiss argued

that "plaintiff's Complaint fails to allege the date itallegedly obtained ownership of the note and

mortgages that were consolidated and extended in 2006 that are the documents underlying this

action."
(ECF #14 ¶ 15). It also argued that "no documentation has been submitted by plaintiff

and no facts have been alleged by plaintiff regarding the alleged assignment of the loans and

"
underlying loan documents . . . (Id. ¶ 16). That motion was denied by the Honorable Judith

McMahon entered on October 24, 2018. (ECF #63). Royal Blue then moved to reargue, again

600876996, I

10 of 20
FILED: NEW YORK COUNTY CLERK 08/29/2019 04:45 PM INDEX NO. 105818/2009
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/29/2019

raising these same arguments, and that motion too was summarily denied by the Honorable

Arlene Bluth entered on July 26, 2019. (ECF #114 & 148).

Moreover, Ocwen is not the plaintiff in this action. Royal Blue fails to allege a basis for

which Ocwen, as Plaintiff's agent, should be held liable for itsprincipal's pleading. Performance

Comercial Importadora E Exportadora Ltda v. Sewa Int7. Fashions Pvt. Ltd., 79 A.D.3d 673

(1st Dep't 2010) ("An agent for a disclosed principal will not be personally bound unless there is

clear and explicit evidence of the agent's intention to substitute or superadd his or her personal

liability for, or to, that of the principal"); News Am. Mltg. Inc. v. LePage Bakeries. Inc., 16

A.D.3d 146 (1st Dep't 2005) (same); Jones v. Archibald, 45 A.D.2d 532, 534 (4th Dep't 1974)

(same).

Royal Blue now seeks a third bite of the apple, this time couched as a claim against

Ocwen. The alleged of the has been decided - and found to lack
insufficiency pleading already

merit - the Court and cannot be relitigated under the guise of a it is
by third-party pleading;

barred by the law of the case doctrine. Accordingly, Royal Blue's Third-Party Complaint against

Ocwen should be dismissed.

POINT II

THE COMPLAINT AGAINST OCWEN SHOULD BE DISMISSED BECAUSE ROYAL
BLUE LACKS STANDING TO ENFORCE THE CONSENT JUDGMENT

The Third Party Complaint against Ocwen should also be dismissed pursuant to CPLR

§ 321 l(a)(1), (a)(5) and (a)(7) for the independent reason that Royal Blue's sole claim against

Ocwen is based on Ocwen's alleged non-compliance with the Consent Judgment. The plain

language of the Consent Judgment, and case law, shows that Royal Blue has no right to enforce

the Consent Judgment.

600876996.1

11 of 20
FILED: NEW YORK COUNTY CLERK 08/29/2019 04:45 PM INDEX NO. 105818/2009
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/29/2019

A motion to dismiss pursuant to CPLR §3211 (a)(1), on the ground that the action is

barred by documentary evidence. may be granted "where the documentary evidence utterly

law."
refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of FG

Harriman Commons. LLC. et al. v. FBG Owners. LLC. et al.,75 A.D.3d 527. 527-528 (2d Dep·t

2010) (citations omitted) (affirming a motion to dismiss when the letteragreement conclusively

established, as a matter of law, that defendant did not breach the terms of the letter agreement).

"It is well settled that bare legal conclusions and factual claims, which are either inherently

incredible or flatly contradicted by documentary evidence, as in the case at bar. are not presumed

insufficiency."
to be true on a motion to dismiss for legal O'Donnell, Fox & Gartner v. R-2000

Corp., 198 A.D.2d 154. 154 (1st Dep't 1993) (citations omitted). The court is not required to

accept factual allegations that are contradicted by documentary evidence or legal conclusions

that are unsupported in the face of undisputed facts. Zanett Lombardier, Ltd. v. Maslow, 29

A.D.3d 495, 496 (1st Dep't 2006).

Similarly, on a motion to dismiss for failure to state a cause of action under CPLR

§ 3211(a)(7), while "the facts pleaded are presumed to be true and are accorded every favorable

inference . . . factual claims [which are] inherently incredible or flatly contradicted by

consideration."
documentary evidence are not entitled to such Caniglia v. Chicago Tribune-New

York News Syndicate, Inc.. 204 A.D.2d 233, 233-34 (1994) (citations omitted).

Here, Royal Blue alleges that Ocwen has violated the Consent Judgment because "upon

information and belief, [Ocwen] has provided affidavits, sworn statements and Declarations that

contain information that is false or unsubstantiated or that is materially inaccurate in order to

action."
attempt to obtain a judgment of foreclosure in this (TPC at ¶ 40). The Consent Judgment

was entered into between Ocwen on the one hand. and the Consumer Financial Protection

600876996.1

12 of 20
FILED: NEW YORK COUNTY CLERK 08/29/2019 04:45 PM INDEX NO. 105818/2009
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/29/2019

Bureau ("CFPB") and 49 states and the District of Columbia on the other hand. A copy of that

5.4
Judgment is attached to the accompanying Affirmation of Suzanne Berger as Exhibits 4 &

Royal Blue - which is and does not claim to a to the Consent Judgment - does not
not, be, party

have standing to bring a claim to enforce it.

State"
Under the Consent Judgment, a "Plaintiff can seek to enforce the Judgment in state

court. (Berger Aff., Ex. 4 (Consent Judgment) at ¶ 13, p.11). Pursuant to the "Enforcement

Terms,"
set forth in Exhibit D to the Consent Judgment, a Monitoring Committee and Monitor

are to monitor Ocwen's compliance with the Consent Judgment. (Berger Aff., Ex. 5 (Ex. D) ¶¶ B

& C at pp. 2-9). The Enforcement Terms set forth how disputes among Ocwen, the Monitor and

Monitoring Committee are to be resolved and further provide that "[a]n enforcement action ...

Committee."
may be brought by any Party to this Consent Judgment or the Monitoring (Id., Ex.

D ¶ G & I(1) & (2) at pp.14-15). However, it nowhere grants such a right to third parties.

"consumers"
Instead, redress is limited to "existing consumer complaint resolution processes".

i.e. not claims for enforcement of the Consent Judgment, including that they can make

complaints to the Attorney General or the CFPB in the normal course. (1d.,Ex. D ¶ H at p.14).

"consumer"
The Third-Party Plaintiff here is not even a referenced by the resolution

process in the Consent Judgment. Consumers are natural persons. See Cruz v. NYNEX Info.

"consumer"
Res., 263 A.D.2d 285

Case Info

Judge

Francis A Kahn Iii Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

August 29, 2019

Case Filing Date

September 28, 2009

County

Parties

BERGER, SUZANNE M Attorney for the Plaintiff
BERMAN, MARK ARTHUR Attorney for the Plaintiff
CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD Defendant
CITY OF NEW YORK PARKING VIOLATIONS BUREAU Defendant
DEUTSCHE BANK NATIONAL TRUST COMPANY as trustee for AMERICAN HOME MORTGAGE ASSETS TRUST 2006-6 MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-6 Plaintiff
GARY, CHARLES EDWARD Attorney for the Defendants
GOLDBERG, ELIZABETH J. Attorney for the Plaintiff
JOHN DOE #1 THROUGH JOHN DOE #10, Defendant
KAUFMAN, STANLEY M Attorney for the Defendants
KRAPF, JAMIE C Attorney for the Plaintiff
LASKIN, KAYLA SHAY Attorney for the Defendants
NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE Defendant
ROYAL BLUE REALTY HOLDINGS, INC. Defendant
SHAW, MARTIN Attorney for the Defendants
SING YU INTERNATIONAL, INC. d/b/a SY MARBLE and GRANITE IMPORTERS and DISTRIBUTORS Defendant
SPOSATO, MELISSA A. Attorney for the Plaintiff
THE BOARD OF MANAGERS OF 130 BARROW STREET CONDOMINIUM HOMEOWNERS ASSOCIATION Defendant
THE CITY OF NEW YORK Defendant
the last ten names being fictitious and unknown to the Plaintiff, the person or parties intended being the person or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendant
THE STATE OF NEW YORK Defendant
TOBIAS, MATTHEW NORMAN Attorney for the Plaintiff
WILSON, DAWN MARIE Attorney for the Plaintiff
HEINO MULLER Attorneys for Plaintiffs
MATTHEW LIZOTTE Attorneys for Plaintiffs
MARK ANGELOV Attorney
KENNETH DEMARIO Attorney

For full print and download access, please subscribe at https://www.trellis.law/.

Preview

Related Topics

Case Info

Parties