On August 27, 2009 a
Motion-Secondary
was filed
involving a dispute between
Deutsche Bank National Trust Company As Trustee For American Home Mortgage Assets Trust 2007-1 Mortgage-Backed Pass-Through Certificates, Series 2007-1,
and
City Of New York Environmental Control Board,
City Of New York Parking Violations Bureau,
John Doe #1 Through John Doe #10,,
New York City,
Ny 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,
State Of New York,
The Board Of Managers Of 130 Barrow Street Condominium Homeowners Association,
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,,
for Torts - Other (Conversion)
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 10/31/2019 06:03 PM INDEX NO. 107030/2009
NYSCEF DOC. NO. 174 RECEIVED NYSCEF: 10/31/2019
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 2007-1, MORTGAGE-BACKED PASS-THROUGH
CERTIFICATES SERIES index No. 107030/2009
2007-1,
Plaintiff.
-against. AFFIRMATION OF
SUZANNEBERGER
ROYAL BLUE HOLDINGS. INC., NEW YORK STATE
DEPARTMENT OF TAXATION AND FINANCE, THE BOARD :
OF MANAGERS OF 130 BARROW STREET CONDOMINIUM. :
SING YU INTERNATIONAL. INC. D/B/A SY MARBLE & :
GRANITE IMPORTERS AND DISTRIBUTORS, NEW YORK :
CITY DEPARTMENT OF FINANCE, NEW YORK CITY :
ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY :
PARKING VIOLATIONS BUREAU. NEW YORK CITY :
#1"
TRANSIT ADJUD1CATION BUREAU, AND "JOHN DOE
THROUGH "JOHN DOE #10". THE LAST TEN NAMES BElNG
FICTITIOUS AND UNKNOWN TO THE PLAINTlFF, THE :
PERSON OR PARTIES INTENDED BEING THE PERSONS OR :
PARTIES, IF ANY. HAVING OR CLAIMING AN INTEREST IN :
OR LIEN UPON THE MORTGAGED PREMISES DESCRIBED :
IN THE COMPLAINT, :
:
Defendants. ::
ROYAL BLUE REALTY HOLDINGS. :
:
Third Party Plaintiff. :
-against-
NEW YORK STATE ATTORNEY GENERAL AND OCWEN
LOAN SERVICING. LLC ::
Third Party Defendants. :
------------------ - ------ __ ____ __ .
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NYSCEF DOC. NO. 174 RECEIVED NYSCEF: 10/31/2019
Suzanne Berger, an attorney duly admitted to practice in the Courts of the State of New
York, affirms the following to be true, upon information and belief, under penalties of perjury:
1. I am Counsel at Bryan Cave Leighton Paisner, LLP, the attorneys for third-party
defendant Ocwen Loan Servicing, LLC, now known as PHH Mortgage Services, successor to
Ocwen Loan Servicing, LLC ("Ocwen") in the above entitled action, and as such I am fully
familiar with the facts and circumstances herein by virtue of my review of the file and as an
attorney for Ocwen.
2. I respectfully submit this affirmation in further support of Ocwen's motion to
dismiss the Third-Party Complaint, pursuant to CPLR § 321l(a), against Ocwen, with prejudice.
3. As set forth in more detail in the moving papers and the accompanying
memorandum of law in further support of this motion to dismiss (the "Reply Memorandum"),
Holdings'
Royal Blue Realty ("Royal Blue") sole cause of action against Ocwen should be
dismissed because (i)the law of the case doctrine precludes relitigation of the sufficiency of the
foreclosure complaint; (ii)Royal Blue lacks standing to enforce the federal court Consent
Judgment on which the claim against Ocwen is based entered in an action to which it was not a
party; (iii) the period within which claims could have been brought under the Consent Judgment
expired more than two years ago; and (iv) the claim is not pleaded with sufficient particularity.
4. Royal Blue's opposition to this motion does not contest that it cannot bring a
claim for violation of the Consent Judgment. Instead, Royal Blue disingenuously argues that it
was not asserting a claim for violation of the Consent Judgment but that Ocwen is liable for its
own acts of negligence, fraud and breach of contract. Not only is this assertion belied by the fact
that the Third-Party Complaint specifically alleges that Ocwen has failed to comply with the
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Consent Judgment, itdoes not state a claim for any of those causes of action. It does not even
use those words or phrases.
5. Royal Blue does not allege that there ever was a contract between itand Ocwen or
how itperformed under that non-existent contract..
6. As to negligence, Ocwen has not alleged the existence of any duty owed by
Ocwen to it as a matter of Ocwen - as Plaintiff's servicer - owed Royal
and, law, Blue,
Plaintiff s borrower, no such duty. As a duty is a necessary element of a negligence cause of
action, this cause of action must be dismissed.
7. Finally, Royal Blue does not allege all the necessary elements of fraud or allege
the elements with the requisite specificity. Royal Blue's complaint nowhere alleges that itrelied
on Ocwen's alleged misstatements or that itwas damaged by such misstatements. Thus, the fraud
claim should be dismissed for this reason alone. Further, Royal Blue does not state the alleged
misrepresentations with the requisite specificity. It does not identify who at Ocwen supposedly
made these false statements, in what affidavits or statements these were made, or what was
allegedly false about such statements
8. Thus, the Third Party Complaint does not state a claim for any of those three
newly added legal theories, nor does itstate a claim for any other cognizable legal theory. As set
forth in the accompany Reply Memorandum, New York law provides that a party cannot
maintain a claim against a witness for false testimony.
3
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9. As Royal Blue cannot cure these defects, the motion should be granted with
prejudice.
Dated: New York, New York
October 31, 2019
Su M. Berger
4
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Preview
FILED: NEW YORK COUNTY CLERK 10/31/2019 06:03 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 174 RECEIVED NYSCEF: 10/31/2019 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 2007-1, MORTGAGE-BACKED PASS-THROUGH CERTIFICATES SERIES index No. 107030/2009 2007-1, Plaintiff. -against. AFFIRMATION OF SUZANNEBERGER ROYAL BLUE HOLDINGS. INC., NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, THE BOARD : OF MANAGERS OF 130 BARROW STREET CONDOMINIUM. : SING YU INTERNATIONAL. INC. D/B/A SY MARBLE & : GRANITE IMPORTERS AND DISTRIBUTORS, NEW YORK : CITY DEPARTMENT OF FINANCE, NEW YORK CITY : ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY : PARKING VIOLATIONS BUREAU. NEW YORK CITY : #1" TRANSIT ADJUD1CATION BUREAU, AND "JOHN DOE THROUGH "JOHN DOE #10". THE LAST TEN NAMES BElNG FICTITIOUS AND UNKNOWN TO THE PLAINTlFF, THE : PERSON OR PARTIES INTENDED BEING THE PERSONS OR : PARTIES, IF ANY. HAVING OR CLAIMING AN INTEREST IN : OR LIEN UPON THE MORTGAGED PREMISES DESCRIBED : IN THE COMPLAINT, : : Defendants. :: ROYAL BLUE REALTY HOLDINGS. : : Third Party Plaintiff. : -against- NEW YORK STATE ATTORNEY GENERAL AND OCWEN LOAN SERVICING. LLC :: Third Party Defendants. : ------------------ - ------ __ ____ __ . 1 of 4 FILED: NEW YORK COUNTY CLERK 10/31/2019 06:03 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 174 RECEIVED NYSCEF: 10/31/2019 Suzanne Berger, an attorney duly admitted to practice in the Courts of the State of New York, affirms the following to be true, upon information and belief, under penalties of perjury: 1. I am Counsel at Bryan Cave Leighton Paisner, LLP, the attorneys for third-party defendant Ocwen Loan Servicing, LLC, now known as PHH Mortgage Services, successor to Ocwen Loan Servicing, LLC ("Ocwen") in the above entitled action, and as such I am fully familiar with the facts and circumstances herein by virtue of my review of the file and as an attorney for Ocwen. 2. I respectfully submit this affirmation in further support of Ocwen's motion to dismiss the Third-Party Complaint, pursuant to CPLR § 321l(a), against Ocwen, with prejudice. 3. As set forth in more detail in the moving papers and the accompanying memorandum of law in further support of this motion to dismiss (the "Reply Memorandum"), Holdings' Royal Blue Realty ("Royal Blue") sole cause of action against Ocwen should be dismissed because (i)the law of the case doctrine precludes relitigation of the sufficiency of the foreclosure complaint; (ii)Royal Blue lacks standing to enforce the federal court Consent Judgment on which the claim against Ocwen is based entered in an action to which it was not a party; (iii) the period within which claims could have been brought under the Consent Judgment expired more than two years ago; and (iv) the claim is not pleaded with sufficient particularity. 4. Royal Blue's opposition to this motion does not contest that it cannot bring a claim for violation of the Consent Judgment. Instead, Royal Blue disingenuously argues that it was not asserting a claim for violation of the Consent Judgment but that Ocwen is liable for its own acts of negligence, fraud and breach of contract. Not only is this assertion belied by the fact that the Third-Party Complaint specifically alleges that Ocwen has failed to comply with the 2 2 of 4 FILED: NEW YORK COUNTY CLERK 10/31/2019 06:03 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 174 RECEIVED NYSCEF: 10/31/2019 Consent Judgment, itdoes not state a claim for any of those causes of action. It does not even use those words or phrases. 5. Royal Blue does not allege that there ever was a contract between itand Ocwen or how itperformed under that non-existent contract.. 6. As to negligence, Ocwen has not alleged the existence of any duty owed by Ocwen to it as a matter of Ocwen - as Plaintiff's servicer - owed Royal and, law, Blue, Plaintiff s borrower, no such duty. As a duty is a necessary element of a negligence cause of action, this cause of action must be dismissed. 7. Finally, Royal Blue does not allege all the necessary elements of fraud or allege the elements with the requisite specificity. Royal Blue's complaint nowhere alleges that itrelied on Ocwen's alleged misstatements or that itwas damaged by such misstatements. Thus, the fraud claim should be dismissed for this reason alone. Further, Royal Blue does not state the alleged misrepresentations with the requisite specificity. It does not identify who at Ocwen supposedly made these false statements, in what affidavits or statements these were made, or what was allegedly false about such statements 8. Thus, the Third Party Complaint does not state a claim for any of those three newly added legal theories, nor does itstate a claim for any other cognizable legal theory. As set forth in the accompany Reply Memorandum, New York law provides that a party cannot maintain a claim against a witness for false testimony. 3 3 of 4 FILED: NEW YORK COUNTY CLERK 10/31/2019 06:03 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 174 RECEIVED NYSCEF: 10/31/2019 9. As Royal Blue cannot cure these defects, the motion should be granted with prejudice. Dated: New York, New York October 31, 2019 Su M. Berger 4 4 of 4