Thursday, July 17, 2014

JPMorgan Chase Bank NA v. Michael Porzio: Memorandum of Decision


Superior Court of Connecticut.

JP Morgan Chase Bank, National Association v. Michael Porzio et al.

FSTCV095010388S

Decided: October 31, 2013

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
DATED OCTOBER 26, 2012 (# 239.00)


9.  Judge Mintz is not the first Judge to be critical concerning the litigation acts of JP Morgan Chase, National Association.   JP Morgan Chase Bank v. Butler, Superior Court of the State of New York, Kings County, 2013 N.Y. Slip Op 51050(U) docket number 1686/10 (7–5–2013) decided on July 5, 2013.   Judge Arthur M. Schack in a detailed decision castigated the JP Morgan Chase Bank, National Association lawsuit that involved the distribution of the proceeds of a sale of real property, a small 5,000 square foot residential lot in Brooklyn, New York that had been the subject of a $490,000 first mortgage issued in 2007 by Washington Mutual Bank, FA. Judge Schack found that JP Morgan Chase Bank, National Association and its litigation team furnished misrepresentations to the court, and engaged in continued subterfuge, and bad faith in violation of C.P.L.R. Rule 3408 including lost note claims by counsel for Chase.   The defendant, Butler, on January 30, 2007 refinanced his home by executing a note and mortgage with Washington Mutual Bank, FA for $450,000 which was duly recorded in the office of City Register of the City of New York on March 7, 2007.   In 2008 there was a dispute between Washington Mutual and the defendant, Butler, about a $10 late payment, which precipitated a series of correspondence and miscommunications between the parties.   JP Morgan Chase Bank, National Association alleged that it was the owner of the Butler note and mortgage having acquired the rights by a September 25, 2008 Purchase and Assumption Agreement from the FDIC when Washington Mutual Bank, FA failed.   Foreclosure litigation commenced.   The Butlers were eventually able to sell the property privately without completing the foreclosure procedure with court approval, they deposited $490,000 with the Clerk of the Supreme Court for a determination in the foreclosure action as to who was entitled to those funds.   The plaintiff was JP Morgan Chase Bank, National Association and the defendants were Frederick Butler et a -


11.  The court has examined the September 25, 2008 Purchase and Assumption Agreement.   Ex. 5 There is no specific chronological date for the closing.   Bank Closing is defined on page 2 as “the close of business of the Failed Bank on the date which the Chartering Authority closed such institution.”   The date of that event closing the institution had to have been known prior to September 25, 2008, the date of the Purchase and Assumption Agreement, and must have occurred prior to September 25, 2008.   Despite the fact that the Bank Closing date was known, no chronological Bank Closing date is contained in the Purchase and Assumption Agreement.“Settlement Date” is defined on page 7 as “the first Business Day immediately prior to the day which is one hundred eighty (180) days after Bank Closing, or such other date prior thereto as may be agreed by the Receiver and the Assuming Bank. The Receiver, in its discretion may extend the Settlement Date.” This creates a material issue of fact as to whether, if ever, the transaction set forth in the Purchase and Assumption Agreement ever closed and title to whatever assets existed passed to JP Morgan Chase Bank, National Association.
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12.  The court notes that there is no exhibit or schedule attached to the Purchase and Assumption Agreement in which any mortgage or any asset of Washington Mutual Bank is set forth.   This $2,500,000 mortgage is not included anywhere within the Purchase and Assumption Agreement.   There is no place for any specific investment or mortgage asset to be included as an Exhibit or Schedule within the body of the Purchase and Assumption Agreement.   There is no computer printout, listing Quicken type program, or spreadsheet attached to the Purchase and Assumption Agreement.   There is no specific description or nature of assets that are being sold and conveyed.   The agreement itself is silent on the exact nature of the assets of Washington Mutual and the related rights that were being sold and conveyed.   Certain assets were to be listed in Schedule 3.1.a. There is no such Schedule 3.1.a. Ex. 5, page 9, paragraph 3.1.   The only assets sold were the “right, title and interest of the Receiver,” which assets are not further described in the Purchase and Assumption Agreements.   Ex. 5, page 9, paragraph 3.1.   There is a material issue of fact as to whether this March 1, 2007 $2,500,000 mortgage and note was an asset sold to JP Morgan Chase Bank, National Association by the FDIC pursuant to the September 25, 2008 Purchase and Assumption Agreement. - See more at: http://caselaw.findlaw.com/ct-superior-court/1650807.html#sthash.wcBHLidT.dpuf

13.  The salient portions of the Lawrence Nardi deposition discloses that he has not been able to locate any assignment of any mortgage whatsoever from Washington Mutual Bank through the FDIC and/or from the FDIC to JP Morgan Chase Bank, National Association for the Florida mortgage in question.   So too in that Florida foreclosure no such assignment has been furnished to the court.   No list of assets, affidavits, bill of sale, or in any other documentary form that refers to this March 1, 2007 $2,500,000 mortgage on 2 Angora Road, Westport, Connecticut has been furnished to this court.   This too is a material issue of fact.

This court is disturbed by the limited information that it has in this file concerning Washington Mutual Bank, FA, its change of name from and to Washington Mutual Bank, the receivership by FDIC, the take over thereafter by JP Morgan Chase Bank, National Association, and the effect of the Purchase and Assumption Agreement.   Judge Schack expressed those concerns more vocally.   A trial is the opportunity for all of the facts to be presented to a court.   This court believes that the light of day should shine on every single fact.   This matter should be tried.

The court believes that the errors that have been made by the plaintiff, its predecessors in title, and its litigation team are sufficient to qualify as a material issue of fact in addition to the other material issues of fact already found by this court.

The plaintiff's Motion for Summary Judgment dated October 26, 2012 (# 239.00) is hereby denied.

BY THE COURT
Hon. Kevin Tierney
Judge Trial Referee
Tierney, Kevin, J.T.R.
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