| JP Morgan Chase Bank N.A. v Miodownik |
| 2012 NY Slip Op 00416 [91 AD3d 546] |
| Jnury 24, 2012 |
| Appellate Division, First Department |
| JP Morgan Chase Bank National Association,Respondent, v Hela Miodownik, Appellant, et al.,Defendants. |
—[*1] Parker Ibrahim & Berg LLC, New York (Scott W. Parker of counsel), forrespondent.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered August 12, 2010,which denied defendant Miodownik's motion to dismiss the complaint as against her,unanimously affirmed, without costs.
In this action to foreclose a consolidated mortgage, defendant argues that plaintiff JP MorganChase Bank, N.A. (JPMC) does not own the note it is attempting to foreclose. On September 25,2008, the Office of Thrift Supervision closed Washington Mutual Bank (WAMU) and appointedthe FDIC as Receiver (see Dipaola v JPMorgan Chase Bank, 2011 WL 3501756, *3,2011 US Dist LEXIS 88753, *7 [ND Cal 2011]). On that same date, the bulk of WAMU's assetswere transferred to JPMC pursuant to a Purchase and Assumption Agreement (the P & AAgreement) entered into between FDIC as Receiver, the FDIC in its corporate capacity, andJPMC (see id.). Courts have found that the P & A Agreement evinced that JPMCpurchased all of WAMU's loans and loan commitments, and therefore had the right to forecloseon a defaulting borrower (see e.g. Haynes v JPMorgan Chase Bank, N.A., 2011 WL2581956, 2011 US Dist LEXIS 69703 [MD Ga 2011]).
Defendant's contention that pursuant to sections 2.5 and 3.5 of the P & A Agreement, aborrower's loan is exempt from the P & A Agreement if the borrower is pressing a counterclaimagainst WAMU, is unavailing. Consistent with section 2.1 of the P & A Agreement, JPMC, asthe assuming bank, agreed to continue to service all loans, and agreed to assume the liabilitiesassociated with its ongoing servicing obligations (see Allen v United Fin. Mtge. Corp.,2010 WL 1135787, *3-4, 2010 US Dist LEXIS 26503, *9-10 [ND Cal 2010]). However, section2.5 of the P & A Agreement expressly provides that JPMC did not assume the potential liabilitiesof WAMU associated with claims of defaulting borrowers such as defendant, where the claimsdirectly relate to WAMU's lending practices (see e.g. Yeomalakis v Federal Deposit Ins.Corp., 562 F3d 56, 60 [1st Cir 2009]; Hanaway v JPMorgan Chase Bank, 2011 WL672559, *2, 2011 US Dist LEXIS 21374, *8 [CD Cal 2011]; Cassese v Washington Mut.,Inc., 2008 WL 7022845,[*2]*3, 2008 US Dist LEXIS111709, *7 [ED NY 2008]).
Moreover, defendant's reliance on section 3.5 of the P & A Agreement, is misplaced sincethis provision deals with "assets" of WAMU, and makes clear that the FDIC, as Receiver, wasretaining any interest, right, action, claim, or judgment that WAMU had for itself so that theFDIC as Receiver would retain the benefit of those recoveries, rather than JPMC. Section 3.5expressly excludes loss relating to defaulted loans, such as here, which would obviously be forthe benefit of JPMC, since it acquired all of WAMU's loans and loan commitments.
In light of the foregoing, we need not address defendant's individual defenses, which resultfrom WAMU's conduct at loan origination (see Federici v Monroy, 2010 WL 1345276,*3, 2010 US Dist LEXIS 37736, *10-11 [ND Cal 2010]). Were we to consider these claims, wewould find them unavailing.
Defendant's attempt to thwart JPMC's request for attorney's fees is undermined by paragraph14 of the Consolidation, Extension and Modification Agreement executed by defendant, whichconsolidated her first and second mortgages, and specifically provided that the lender couldcharge defendant for fees for services performed in connection with default, including attorneys'fees. Contrary to defendant's argument, she should not be awarded attorney's fees on the basisthat JPMC failed to attach a copy of the mortgage to its foreclosure papers that were signed bydefendant. Concur—Tom, J.P., Friedman, DeGrasse and Richter, JJ.