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Louis Diez v. Washington Mutual Bank

February 23, 2012


The opinion of the court was delivered by: Seybert, District Judge:

Pro se Plaintiff Louis Diez ("Plaintiff" or "Diez") commenced this action on May 27, 2009 against JP Morgan Chase Bank, N.A. s/h/a Washington Mutual Bank ("Defendant" or "Chase") asserting claims arising out of two mortgages he entered into on or about September 23, 2005. Pending before the Court is Defendant's motion for summary judgment. For the reasons that follow, Defendant's motion is GRANTED.



I. Factual Background*fn1

In September 2005, Plaintiff purchased property

located at 25 South 2nd Street, Bethpage, New York. The closing occurred on September 23, 2005, at which time Plaintiff executed and delivered two mortgages and two notes in favor of the lender, Washington Mutual Bank ("WaMu").*fn2 (Def. 56.1 Stmt. ¶¶ 11-12; Capuano Aff. Exs. H, I.) Plaintiff, in his Complaint, asserts that: (1) he was represented by the Bank's attorney at the closing, causing a conflict of interest; (2) "[h]and-written notes on contracts during the closing were not displayed" to him; (3) his "initial lawyer did not obtain permits or certificates of occupancy for improper house additions;" (4) he was under "undue duress" at the closing because the seller arrived late; (5) the appraiser's signatures were forged; (6) he was sold the house "under fraudulent conditions" (without specifying what those conditions were); and (7) he was "repeatedly supplied with false material and oral misrepresentation (fraud) and/or misstatements by Washington Mutual Bank (WaMu) when trying to refinance his current two mortgage loans." (Compl. ¶ III.) Notwithstanding the alleged fraud, Plaintiff made payments under the mortgages for years after the closing. (Def. 56.1 ¶ 41.)

On September 25, 2008, the United States Office of Thrift Supervision ("OTS") seized WaMu and placed it into the receivership of the Federal Deposit Insurance Corporation ("FDIC"). (Def. 56.1 Stmt. ¶ 9; Capuano Aff. Ex. C.) That same day, the FDIC sold the assets and certain liabilities of WaMu to Chase pursuant to a written Purchase and Assumption Agreement (the "Agreement"), which provides, in relevant part:

Borrower Claims. Notwithstanding anything to the contrary in this Agreement, any liability associated with borrower claims for payment of or liability to any borrower for monetary relief, or that provide for any other form of relief to any borrower, whether or not such liability is reduced to judgment, liquidated or unliquidated, fixed or contingent, matured or unmatured, disputed or undisputed, legal or equitable, judicial or extra-judicial, secured or unsecured, whether asserted affirmatively or defensively, related in any way to any loan or commitment to lend made by the Failed Bank [WaMu] prior to failure, or to any loan made by a third party in connection with a loan which is or was held by the Failed Bank, or otherwise arising in connection with the Failed Bank's lending or loan purchase activities are specifically not assumed by the Assuming Bank [Chase]. (Capuano Aff. Ex. D. at 9 (emphasis added).) Then, on February 11, 2010, Chase assigned Plaintiff's mortgages to Deutsche Bank National Trust Company ("Deutsche Bank"). (Def. 56.1 ¶ 7; Capuano Aff. Ex. B.).

Chase was not served with the Summons and Complaint until March 3, 2010, nearly three weeks after it assigned Plaintiff's mortgage to Deutsche Bank. (Docket Entries 11-12.)

II. Procedural Background

Plaintiff filed his Complaint on May 27, 2009 seeking a rescission of the mortgages and $545,000 in monetary relief. (Docket Entry 1.) Defendant filed its Answer on March 19, 2010, asserting as defenses, inter alia, that Plaintiff failed to join a necessary party, that Plaintiff, as a matter of law, cannot obtain the relief he seeks from Chase, and that Plaintiff's damages were caused by third parties over which Chase had no control. (Docket Entry 14.) In response, Plaintiff filed a "[m]otion to join parties (Defendants) with additional complaints at the end."*fn3 (Docket Entry 36.) Plaintiff then filed another proposed amended complaint, titled "Complaint and Summons (piggyback to Civil Action No. 09-cv-02390-JS)." (Docket Entry 51.) Defendant opposed Plaintiff's attempts to amend his Complaint, asserting that the proposed amended complaints violated Rule 8 of the Federal Rules of Civil Procedure. (Docket Entries 38, 55.) While Plaintiff's motions were pending, Defendant moved for summary judgment. (Docket Entry 83.)

On September 21, 2011, this Court denied Plaintiff's motions to amend his Complaint but granted him leave to refile within thirty days. (Docket No. 102.)*fn4 The Court warned Plaintiff that if he "does not move to amend . . . or if his timely motion to amend is denied, his original Complaint will remain the operative Complaint and the Court will address the merits of Defendant's motion for summary judgment." (Docket Entry 108 at 2.) Plaintiff's deadline for filing a new motion to amend was extended through January 9, 2012. (Docket Entries 105, 108.) As Plaintiff has failed to file a new motion to amend, the Court now turns to Defendant's summary judgment motion.


I. Standard of Review "Summary judgment is appropriate where there are no genuine disputes concerning any material facts, and where the moving party is entitled to judgment as a matter of law." Harvis Trien & Beck, P.C. v. Fed. Home Loan Mortg. Corp. (In re Blackwood Assocs., L.P.), 153 F.3d 61, 67 (2d Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); FED. R. CIV. P. ...

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