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  • Deutsche Bank National Trust Company As Trustee For American Home Mortgage Assets Trust 2007-1 Mortgage-Backed Pass-Through Certificates, Series 2007-1 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, Ny State Department Of Taxation And Finance, State Of New York, New York City, 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, Torts - Other (Conversion) document preview
  • Deutsche Bank National Trust Company As Trustee For American Home Mortgage Assets Trust 2007-1 Mortgage-Backed Pass-Through Certificates, Series 2007-1 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, Ny State Department Of Taxation And Finance, State Of New York, New York City, 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, Torts - Other (Conversion) document preview
  • Deutsche Bank National Trust Company As Trustee For American Home Mortgage Assets Trust 2007-1 Mortgage-Backed Pass-Through Certificates, Series 2007-1 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, Ny State Department Of Taxation And Finance, State Of New York, New York City, 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, Torts - Other (Conversion) document preview
  • Deutsche Bank National Trust Company As Trustee For American Home Mortgage Assets Trust 2007-1 Mortgage-Backed Pass-Through Certificates, Series 2007-1 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, Ny State Department Of Taxation And Finance, State Of New York, New York City, 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, Torts - Other (Conversion) document preview
						
                                

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FILED: NEW YORK COUNTY CLERK 08/29/2019 05:43 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 154 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 2007-1, MORTGAGE-BACKED PASS-THROUGH Index No. 107030/2009 CERTIFICATES SERIES 2007-1, : 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 De fendant Ocwen Loan Servicing. LLC (now known as PHH Mortgage Services, successor to Ocwen Loan Servicing, LLC) CO18858/02I7942/12598073.3.7 60088I931.2 1 of 20 FILED: NEW YORK COUNTY CLERK 08/29/2019 05:43 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 08/29/2019 TABLEOFCONTENTS Page 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 600881931.2 2 of 20 FILED: NEW YORK COUNTY CLERK 08/29/2019 05:43 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 154 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).................................................................................................................11 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 (1lth Cir. 2016).......................................................................................10 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 ii 60088I931.2 3 of 20 FILED: NEW YORK COUNTY CLERK 08/29/2019 05:43 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 08/29/2019 Karmol v. Ocwen Loan Servicing. LLC. 2017 WL 3071496 (W.D. Mich. July 19, 2017)......................................................................1O 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. Mlig, 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 (1st 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 (1st 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).........................1O 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 600881931.2 4 of 20 FILED: NEW YORK COUNTY CLERK 08/29/2019 05:43 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 154 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 § 321 6, 12 l(a)(5)........................................................................................................4, N.Y. CPLR § 3211(a)(7)........................................................................................................ passim iv 600881931.2 5 of 20 FILED: NEW YORK COUNTY CLERK 08/29/2019 05:43 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 154 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 2007-1, Mortgage-Backed Pass-Through Certificates Series 2007-1 ("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.' 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 Ocwen - as standing somehow, apparently therewith, 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 initial matter, 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. # 6, NYSCEF # 62) and then again on Royal Blue's motion to reargue the denial of itsmotion to dismiss (Motion Seq. # 8, NYSCEF # 142). 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 this alleged invalidity. 600881931.2 6 of 20 FILED: NEW YORK COUNTY CLERK 08/29/2019 05:43 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 08/29/2019 Second, as discussed in Point 11, 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 ifRoyal Blue's claim against Ocwen was timely, itshould 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 2 60088I931.2 7 of 20 FILED: NEW YORK COUNTY CLERK 08/29/2019 05:43 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 154 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 Judgment')" United States District Court for the District of Columbia, . ..(the 'Consent 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. 3 600881931.2 8 of 20 FILED: NEW YORK COUNTY CLERK 08/29/2019 05:43 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 154 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 concerned." 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 subseqpent 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 4 600881931.2 9 of 20 FILED: NEW YORK COUNTY CLERK 08/29/2019 05:43 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 154 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 #15-20). For example, Royal Blue's motion to dismiss argued that "[blased on the documents presented in the Complaint (i.e.,the very exhibits plaintiff annexed to its Complaint), and the relevant facts set forth in the Complaint, plaintiff did not have standing to commence the action in 2009 as it has not preferred any documentation substantiating that itwas the holder or assignee of the underlying note at the time the action was commenced." (ECF #16 ¶ 28). It also argued that "no documentation has been submitted by " plaintiff regarding the alleged assignment of the loans and underlying loan documents . .. (Id. 5 600881931.2 10 of 20 FILED: NEW YORK COUNTY CLERK 08/29/2019 05:43 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 08/29/2019 ¶ 19). That motion was denied by the Honorable Judith McMahon entered on October 24, 2018. (ECF # 62). Royal Blue then moved to reargue, again raising these same arguments, and that motion too was summarily denied by the Honorable Arlene Bluth entered on July 26, 2019. (ECF #108 & 142). 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 Int'l. 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 § 321l(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 6 60088 193L 2 11 of 20 FILED: NEW YORK COUNTY CLERK 08/29/2019 05:43 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 08/29/2019 language of the Consent Judgment, and case law, shows that Royal Blue has no right to enforce the Consent Judgment. 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 plaintiff's 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 letter agreement conclusively established, as a matter of law, that defendant did not breach the terms of the letteragreement). "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 7 60088I931.2 12 of 20 FILED: NEW YORK COUNTY CLERK 08/29/2019 05:43 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 08/29/2019 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 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. (Id., Ex. D ¶ H at p.14).