Deutsche Bank Natl. Trust Co.

v Ramotar (2011 NY Slip Op 50017(U)) Page 1 of 4

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Deutsche Bank Natl. Trust Co. v Ramotar
2011 NY Slip Op 50017(U)

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Decided on January 10, 2011
Supreme Court, Queens County

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Markey, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law
§ 431.

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This opinion is uncorrected and will not be published in the printed Official
Reports.

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Decided on January 10, 2011
Supreme Court, Queens County

Deutsche Bank National Trust Company, Plaintiff,

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against

Auditya S. Ramotar, et al., Defendants.

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1730/2009
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For the Plaintiff: Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, by Kevin M. Butler,
Esq., 20 West Main St., Bay Shore, New York 11706

For the Defendant: Bachu & Associates, by Darmin T. Bachu, Esq., 127-21 Liberty Ave.,
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Richmond Hill, New York 11419

Charles J. Markey, J.
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Plaintiff Deutsche Bank National Trust Company ("Deutsche Bank") moves for
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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").
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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
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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

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Deutsche Bank Natl. Trust Co. v Ramotar (2011 NY Slip Op 50017(U)) Page 2 of 4

motion, that the request is amply supported by facts asserted and is not some stalling
device.

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Specifically, Ramotar has alleged sufficient facts that would raise a strong basis that
[*2]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

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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

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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.

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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,
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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-
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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.
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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
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have used so-called robo-signers to process 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
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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,
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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
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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
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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.

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Deutsche Bank Natl. Trust Co. v Ramotar (2011 NY Slip Op 50017(U)) Page 3 of 4

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 [*3]

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127[A], 2010 WL 4813782, 2010 NY Slip Op 52034[U] [Sup Ct Kings County 2010]
[Schack, J.].

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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

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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],

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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
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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
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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,
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___ 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
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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
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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.
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After the service and filing of the pleadings, the Court orders that the Mortgage
Foreclosure Conference part hold a conference in this case. See, CPLR 3408 and the
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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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[*4]

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,

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Deutsche Bank Natl. Trust Co. v Ramotar (2011 NY Slip Op 50017(U)) Page 4 of 4

may serve another motion for relief based upon proper papers.

The foregoing constitutes the decision, order, and opinion of the Court.

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______________________________Hon. Charles J. Markey

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Justice, Supreme Court, Queens County

Dated: Long Island City, New York

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January 10, 2011

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