Assante v. EASTERN SAVINGS BANK, FSB

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UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK 	FOR PUBLICATION
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In re:
ANTHONY ARMAND ASSANTE, 	Chapter 11
No. 11-37823 (CGM)
Debtor.
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ANTHONY ARMAND ASSANTE,
Plaintiff,
v. 	Adv. Pro. No. 12-09018 (CGM)
EASTERN SAVINGS BANK,
Defendant.
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APPEARANCES:
McElroy, Deutsch, Mulvaney & Carpenter LLP
88 Pine Street, 24th Floor
New York, NY 10005
By: Elina Chechelnitsky
Attorney for Plaintiff, Anthony Armand Assante
Kriss & Feuerstein LLP
360 Lexington Avenue, Suite 1200
New York, NY 10017
By: Lori J. Gilmore-Morris, Of Counsel
Attorney for Defendant, Eastern Savings Bank
MEMORANDUM DECISION GRANTING DEFENDANT’S
MOTION TO DISMISS ADVERSARY COMPLAINT
The Plaintiff brings this adversary proceeding to subordinate Defendant’s mortgage to the
claims of all other creditors and to vacate Defendant’s lien based on frustration of contract. The
Court holds that the claims in Plaintiff’s adversary complaint are barred by collateral estoppel
because the issues in this proceeding were necessarily decided by the Supreme Court of New
York, Orange County in a prior foreclosure proceeding, and the parties had a full and fair
opportunity to litigate the issues.
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Background
The Plaintiff, Anthony Armand Assante, who is also the Debtor in the underlying
Chapter 11 proceeding, owns three properties in Campbell Hall, New York. See Pl.’s Adversary
Compl. ¶¶ 5, 8. Prior to obtaining a loan from Defendant, Plaintiff was indebted to pay five
mortgage notes with the total sum of $1,303,863.29, each of which was secured by one or more
of Plaintiff’s properties. Id. ¶ 8. In May 2005, Plaintiff’s financial advisors, Nugent & Haeusler,
P.C., advised him that it would be in his best interest to consolidate his five mortgages into one
loan that would have an overall consolidated interest rate, which would have the effect of
reducing the monthly cumulative payment he had been paying to service all five mortgages. Id. ¶
9. Plaintiff’s financial advisors retained Superior Mortgage, Inc. (“Superior”) to act as agent for
Plaintiff in locating mortgage financing opportunities. Id. ¶ 11. Superior identified Eastern
Savings Bank (“Eastern”) to implement the refinancing plan recommended by Plaintiff’s
financial advisors. Id. ¶ 12.
Through arrangements made by Superior, Eastern and Plaintiff’s financial advisors,
Pepper Sheeley, a licensed real estate appraiser in the State of New York, was retained to
conduct appraisals of Plaintiff’s three properties for purposes of valuing potential collateral to
support a loan. Id. ¶ 33. Ms. Sheeley valued Plaintiff’s principal residence at 451 Hulsetown
Road at $2,000,000, 435 Hulsetown Road at $320,000, and 467 Hulsetown Road at $680,000. Id.
¶ 34.
On September 22, 2005, Plaintiff attended a closing where he executed a Note in favor of
Eastern in the principal sum of $1,500,000.00. Def.’s Mot. Dismiss Ex. B-2, at 1 (Note). Plaintiff
also executed a Mortgage in favor of Eastern in the principal sum of $1,500,000.00, which
encumbered the three properties owned by Plaintiff located at 435 Hulsetown Road, 451
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Hulsetown Road, and 467 Hulsetown Road. Def.’s Mot. Dismiss Ex. B-1, at 2-3 (Mortgage).
From the proceeds of the loan, the sum of $1,303,863.29 was used to pay off the existing five
mortgages on Plaintiff’s properties. Pl.’s Adversary Compl. ¶ 35. Additionally, Plaintiff received
$90,321.53 in cash, and $15,216 of the loan proceeds was paid to Superior in consideration for
its work. Id. ¶¶ 37, 53.
Under the terms of the Note, Plaintiff was required to make monthly payments of
principal and interest to Defendant by the first of the month. Def.’s Mot. Dismiss Ex. B-2, at 1.
Plaintiff made all required monthly payments from the closing of the loan on September 22,
2005 through and including March 1, 2009. Pl.’s Adversary Compl. ¶ 43; see also Def.’s Mot.
Dismiss 6. Plaintiff failed to make the April 1, 2009 payment and all subsequent payments. Pl.’s
Adversary Compl. ¶ 41; see also Def.’s Mot. Dismiss 6.
U.S. District Court Proceeding
On August 7, 2009, Plaintiff commenced an action against Defendant in the United States
District Court for the Southern District of New York. See Def.’s Mot. Dismiss Ex. B-4 (First
Amended Complaint in District Court action). The Plaintiff asserted a total of six claims against
Eastern: a RICO claim; a General Business Law § 349 claim; a claim for breach of covenant of
good faith and fair dealing; claim for fraud; claim seeking recission of the Mortgage; and a claim
for violation of the Truth-in-Lending Act. See id. In response, Defendant filed a Motion to
Dismiss and Plaintiff voluntarily discontinued the case on December 21, 2009 without prejudice
to Defendant. See Def.’s Mot. Dismiss Ex. B-5 (Motion to Dismiss in District Court case); see
also Def.’s Mot. to Dismiss 7.
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Supreme Court of New York Foreclosure Proceeding
On September 4, 2009, Defendant commenced a foreclosure action against Plaintiff in the
Supreme Court of New York, Orange County. See Def.’s Mot. Dismiss Ex. B-3 (Complaint in
foreclosure action). In Plaintiff’s Amended Answer, he raised affirmative defenses of fraud and
unclean hands, as well as four counterclaims against Eastern. See Def.’s Mot. Dismiss Ex. B-20
(Amended Answer in foreclosure action). Plaintiff’s counterclaims were as follows: Count 1 -
Fraud as a Defense to the Contract between Eastern and Mr. Assante; Count II - Fraud Against
Eastern; Count III - Violation of New York Banking Law § 590-b(2); and Count IV -
Declaratory Judgment of Invalidity of the Promissory Note dated September 22, 2005. Id. at 8.
The Defendant moved to strike Plaintiff’s Amended Answer, counterclaims and defenses, and
for summary judgment. Def.’s Mot. Dismiss Ex. B-5, at 2 (Attorney Affirmation of Motion to
Dismiss in District Court case). The state court entered an order on February 9, 2011, dismissing
Plaintiff’s affirmative defenses and counterclaims, and granting Defendant summary judgment
on its cause of action to foreclose the mortgage. Def.’s Mot. Dismiss Ex. A, at 19-20 (February
9, 2011 Order). On August 17, 2011, the Orange County Supreme Court entered a Judgment of
Foreclosure on Plaintiff’s three properties. See Def.’s Mot. Dismiss Ex. C (Judgment of
Foreclosure).
U.S. Bankruptcy Court Proceeding
On October 7, 2011, before foreclosure of Plaintiff’s properties could take place, Plaintiff
filed a Chapter 11 petition with this Court. Plaintiff subsequently brought this Adversary
Proceeding on March 7, 2012 by filing a Complaint against Defendant seeking equitable
subordination of Eastern’s mortgage and frustration of contract. See Pl.’s Adversary Compl ¶¶
67-82. Plantiff argued Eastern’s lien should be subordinated to the claims of all other creditors
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pursuant to section 510(c) of the Bankruptcy Code. Id. ¶ 74. Plaintiff alleged that Eastern,
through its agent Superior Mortgage, directed Ms. Sheeley to falsely under-appraise his three
properties in order to justify the presentation of an unfavorable sub-prime loan, and to secure the
loan through a mortgage on all three properties when it only needed his primary residence to
receive a favorable loan-to-value ratio. Id. ¶ 71. Plaintiff further alleged that Eastern’s lien
should be vacated because it frustrated the contract between the parties by issuing a Note with
significantly worse terms than his previous mortgages, even though it knew of his financial
goals. Id. ¶¶ 75-82.
On March 28, 2012, before Plaintiff had served the summons and complaint, Defendant
filed the Motion to Dismiss now pending before this Court. The filing of the motion was prior to
the expiration of the 120 day time period a plaintiff is given to serve the summons and complaint
under Bankruptcy Rule 7004(c). Defendant did not raise the defense of lack of personal
jurisdiction in its motion. Instead, it alleged that Plaintiff’s Complaint should be barred by
collateral estoppel as it relied on the same factual allegations Plaintiff asserted in the foreclosure
action, and which were rejected by the Orange County Supreme Court in its February 9, 2011
Order. Def.’s Mot. Dismiss 14. Plaintiff did not respond to the motion prior to the May 1, 2012
hearing on the false assumption that a motion to dismiss could not be heard before he served the
summons and complaint on Defendant.
Statement of Jurisdiction
This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1334(a), 28 U.S.C. §
157(a) and the Amended Standing Order of Reference signed by Chief Judge Loretta A. Preska
dated January 31, 2012. This is a “core proceeding” under 28 U.S.C. § 157(b)(2)(K)
(determinations of the validity, extent, or priority of liens).
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Summary of the Law
Upon filing a complaint in an adversary proceeding, a plaintiff has 120 days to serve the
summons and a copy of the complaint on the defendant. See Fed. R. Bankr. P. 7004(c); Fed. R.
Civ. P. 4(m). If the defendant files a responsive pleading or pre-answer motion to dismiss before
the service of the summons, then the defense of lack of personal jurisdiction must be raised in
defendant’s papers. Fed. R. Civ. P. 12(h)(1). Failure to do so waives the defense and acts as
consent to the court’s personal jurisdiction. See id.; Pardazi v. Cullman Medical Center, 896
F.2d 1313, 1317 (11th Cir. 1990) (holding that defendant waived any objections that it might
have had to the court’s exercise of personal jurisdiction by failing to raise its personal
jurisdiction and service-of-process objections in its pre-answer motion to dismiss).
Federal Rule of Civil Procedure 12(b)(6) permits a party to seek dismissal of a case for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6); see also Fed.
R. Bankr. P. 7012. A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that
would entitle him to relief. Raine v. Lorimar Productions, Inc., 71 B.R. 450, 452-53 (S.D.N.Y.
1987) (citing Conley v. Gibson, 355 U.S. 41, 47-48 (1957)). “For the purpose of a motion to
dismiss, the factual allegations of the complaint must be taken as true and must be taken in the
light most favorable to plaintiff.” Id. at 453 (quoting In re HRT Industries, Inc., 29 B.R. 861, 863
(S.D.N.Y. 1983). The complaint must set forth sufficient information for the court to determine
whether some recognized legal theory exists to permit relief to the plaintiff. 2 Moore’s Federal
Practice § 12.34 (Matthew Bender 3d ed.). Doubt as to a party’s ability to prove their case,
regardless of how unlikely it seems they will be able to prove it, is no reason for dismissing their
pleadings under Federal Rule 12(b)(6). Id.
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In Sira v. Morton, 380 F.3d 57 (2d Cir. 2004), the Second Circuit stated that “[a]
complaint is deemed to include any written instrument attached to it as an exhibit, materials
incorporated in it by reference, and documents that, although not incorporated by reference, are
integral to the complaint.” See also Fed. R. Civ. P. 10(c) (applicable herein pursuant to Fed. R.
Bankr. P. 7010). The Court may also consider matters of which the judge may take judicial
notice. Hirsch v. Arthur Andersen & Co., 72 F.3d 1085 (2d Cir. 1995) (“General, conclusory
allegations need not be credited, however, when they are belied by more specific allegations of
the complaint. We may consider all papers and exhibits appended to the complaint, as well as
any matters of which judicial notice may be taken.”) (citations omitted); Brass v. American Film
Technologies, Inc., 987 F.2d 142 (2d Cir. 1993); 2 Moore’s Federal Practice § 12.34[2]
(Matthew Bender 3d ed.).
Generally, the defense of collateral estoppel asserted by the Defendant in this adversary
proceeding is an affirmative defense to be asserted in an answer pursuant to Federal Rule of Civil
Procedure 8(c). See 9281 Shore Rd. Owners Corp. v. Seminole Realty Co. (In re 9281 Shore Rd.
Owners Corp.), 214 B.R. 676, 684 (Bankr. E.D.N.Y. 1997). “However, when all relevant facts
are shown by the court’s own records, of which the court takes notice, the defense may be upheld
on a Rule 12(b)(6) motion without requiring an answer.” Id. at 684 (quoting Day v. Moscow, 955
F.2d 807, 811 (2d Cir. 1992)). The Court may take judicial notice of all the documents that make
up the record before it, as well as those contained in the record before the Orange County
Supreme Court, without needing to convert the motion to one for summary judgment. Id. at 684.
This Court finds that all relevant facts necessary to determine the present motion to dismiss are
contained in the record before it. Accordingly, the Defendant’s motion to dismiss is properly
before the Court.
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The Defendant argues that this Court should apply the doctrine of collateral estoppel to
dismiss Plaintiff’s complaint. Collateral estoppel is used by courts to prevent “a party from
relitigating an issue clearly raised in a prior action and decided against that party . . . .” Id.
(quoting Conte v. Justice, 996 F.2d 1398, 1400 (2d Cir. 1993)). There is a two-step test for
determining whether collateral estoppel applies: “(1) was the issue ‘necessarily decided’ by the
court; and (2) did the litigant have a ‘full and fair opportunity’ to litigate the issue.” Id. at 684-
85. If the party seeking application of collateral estoppel can prove that the issue sought to be
litigated is identical to an issue necessarily decided in the prior action, then the burden shifts to
the party seeking to avoid the use of collateral estoppel to demonstrate that it did not have a full
and fair opportunity to litigate the issue. Conte, 996 F.2d at 1400; 9281 Shore Rd. Owners Corp.,
214 B.R. at 685. There are several non-exclusive factors the Court may consider in determining
whether issues have been ‘fully and fairly litigated,’ including “the size of the claim, the extent
of the litigation, and the foreseeability of future litigation.” 9281 Shore Rd. Owners Corp., 214
B.R. at 685.
The Plaintiff’s first cause of action in his adversary complaint seeks equitable
subordination of Defendant’s lien to the claims of all other creditors, pursuant to section 510(c)
of the Bankruptcy Code. “In order to succeed on a claim for equitable subordination, the movant
must show that: (1) the claimant engaged in some type of inequitable or fraudulent conduct; (2)
the misconduct resulted in injury to creditors; and (3) equitable subordination would be
consistent with other bankruptcy law.” 9281 Shore Rd. Owners Corp., 214 B.R. at 689 (citing In
re Mobile Steel Co., 563 F.2d 692, 699-700 (5th Cir. 1977); In re Poughkeepsie Hotel Associates
Joint Venture, 132 B.R. 287, 292 (Bankr. S.D.N.Y. 1991)).
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Federal courts in the Second Circuit have held that “where the same allegations of
misconduct were raised as affirmative defenses and decided against a debtor, the same factual
allegations cannot be used in a subsequent proceeding in Bankruptcy Court to subordinate the
creditor’s claims or otherwise attack the validity of the creditor’s lien.” Id. at 689. In 9281 Shore
Rd. Owners Corp. v. Seminole Realty Co. (In re 9281 Shore Rd. Owners Corp.), debtor sought to
relitigate claims that were identical to its affirmative defenses and counterclaims in a state
foreclosure action. 214 B.R. 676 (Bankr. E.D.N.Y. 1997). Although the debtor alleged different
legal theories in the bankruptcy action, the underlying facts were the same as in the state court
action. One such legal theory alleged by debtor was equitable subordination of the mortgage held
by defendant to the claims of all creditors, pursuant to section 510(c) of the Bankruptcy Code.
214 B.R. at 689. In both actions, the debtor claimed the defendant engaged in fraudulent conduct.
Id. at 690. The court found that debtor sought to relitigate the fraud claim under the guise of
equitable subordination. Id. It held that “where the same allegations of misconduct were raised in
the first action and decided against a debtor, the same factual allegations cannot be used in a
subsequent proceeding in Bankruptcy Court to subordinate the creditor’s claim.” Id. Debtor’s
claim seeking equitable subordination was dismissed on the basis that it was precluded by
collateral estoppel. Id. at 691.
Defendant’s Consent to the Court’s Exercise of Personal Jurisdiction
Pursuant to Bankruptcy Rule 7004(a) and Federal Rule of Civil Procedure 4(m), Plaintiff
had 120 days to serve the summons and complaint from the time he commenced this adversary
proceeding on March 7, 2012. Shortly after Defendant received notice of the adversary
proceeding, it filed a pre-answer motion to dismiss under Federal Rule 12(b)(6) for “failure to
state a claim upon which relief can be granted.” Plaintiff did not serve the summons upon
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Defendant as of the hearing date for the motion, although Plaintiff’s 120 day time limit to serve
the summons and complaint had not yet elapsed.
Defendant neglected to raise any objection for lack of personal jurisdiction or insufficent
service of process in its motion papers, thereby waiving Plaintiff’s non-service of the summons.
Lack of personal jurisdiction is a waivable defense if it is not first raised in a defendant’s pre-
answer motion to dismiss or responsive pleading. See Fed. R. Civ. P. 12(h)(1); Pardazi, 896 F.2d
at 1317. According to Rule 12(h)(1), by failing to timely raise an objection, Defendant consented
to the Court’s exercise of personal jurisdiction.
Plaintiff’s Claims of Equitable Subordination and Frustration of Contract are Barred by
Collateral Estoppel
This Court finds that Plaintiff’s claims are barred by collateral estoppel because the
issues he seeks to litigate are identical to the issues necessarily decided by the Orange County
Supreme Court, and these very same issues were already fully and fairly litigated in the
foreclosure action. The Plaintiff now seeks different remedies based on the same factual
allegations set forth in the foreclosure action and under the guise of new legal theories.
The following allegations asserted by the Plaintiff in the Complaint are identical to
allegations he made in his Amended Answer in the Supreme Court of New York foreclosure
action:
 	The Plaintiff alleged that Eastern directed Ms. Sheeley to under-appraise his
properties in order to justify the offer of an unfavorable subprime loan, premised
on a purported insufficient loan-to-value ratio that would allow for cross-
collaterialization of all three properties to secure an onerous, high interest rate
Eastern loan. Compare Pl.’s Adversary Compl. ¶¶ 54, 58, 59, with Def.’s Mot.
Dismiss Ex. B-20 ¶¶ 116, 117, 119.
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 	The Plaintiff alleged that had Eastern properly appraised his properties, either the
primary residence or a combination of the other two properties would provide
sufficient collateral for the $1.5 million loan without the need to cross-
collaterialize all three. Compare Pl.’s Adversary Compl. ¶¶ 55-57, with Def.’s
Mot. Dismiss Ex. B-20 ¶¶ 122-125.
 	The Plaintiff alleged that “Eastern had an established and deliberate business
pattern and practice in place in 2005 of . . . using false appraisals to induce
persons with valuable properties to borrow money from Eastern under terms that
were likely to place the borrower in default so that Eastern would then profit by
taking and selling those properties in foreclosure.” Compare Pl.’s Adversary
Compl. ¶ 31, with Def.’s Mot. Dismiss Ex. B-20 ¶ 66.1
The Supreme Court of New York has already rejected these allegations in its February 9, 2011
Order, which in part provided as follows:
Here, it is submitted, Eastern demonstrated, prima facie, that it did not engage in
immoral and unconscionable conduct concerning the loan, either concerning
Sheeley’s appraisal or the collateral for the loan. Indeed, given . . . the amount and
interest rates on the loans [Assante] already owed on the properties, the loan at
issue does not appear on its face to be the product of immoral and unconscionable
conduct. Further, there is no evidence that Eastern was in any relevant way
advantaged over Assante. Rather, Eastern and Assante were strangers engaged in
an arm’s length business transaction that was obtained and negotiated for Assante
by his own professional financial advisors. Finally, a party is under an obligation
to read a document before signing it, and cannot generally avoid the effect of the
document on the ground that he or she did not read it or know its contents (see
Augustine v. BankUnited FSB, 75 A.D.3d 596).
. . . .
1 “Finally, it is noted, nothing in the cease and desist order or supporting documents between
Eastern and [the Office of Thrift Supervision] indicates that Eastern was accused of or found to
have been engaged in any conduct related to the influencing of appraisals to obtain any
advantage.” Def.’s Mot. Dismiss Ex. A, at 17.
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In sum, Assante’s affirmative defenses and counterclaims are dismissed, and
Eastern is granted summary judgment as against Assante on its cause of action to
foreclose the mortgage.
Def.’s Mot. Dismiss Ex. A, at 18-20.
While a claim for equitable subordination under section 510(c) of the Bankruptcy Code is
unique to bankruptcy, the underlying issue of a creditor’s conduct is not. See 9281 Shore Rd.
Owners Corp., 214 B.R. at 689. Defendant’s conduct in relation to the entire loan transaction
with Plaintiff was scrutinized by the Orange County Supreme Court and found to be valid. The
state court found that Defendant did not engage in any fraudulent, immoral, or unconscionable
conduct with respect to the transaction in question, nor did it influence the appraisal performed
by Ms. Sheeley. See Def.’s Mot. Dismiss Ex. A, at 14-17. The state court’s decision must be
accorded Full Faith and Credit under 11 U.S.C. § 1738, which provides that state judicial
proceedings “shall have the same full faith and credit in every court within the United States . . .
as they have by law or usage in the courts of such State . . .” 11 U.S.C. § 1738 (2012).
In addition, the motion is granted by default since the Plaintiff failed to respond or even
request an extension of time to prepare a response. While neither the Federal Rules of Civil
Procedure nor the Local Bankruptcy Rules for the Southern District of New York require this
Court to grant a motion by default simply because the Plaintiff failed to respond, a default may
be entered where the Complaint is not sufficient on its own to withstand dismissal. Resolution
Trust Corp. v. 260-68 Elizabeth St. Owners Assocs., 1997 U.S. Dist. LEXIS 5369 (S.D.N.Y. Apr.
23, 1997) (citing Maggette v. Dalsheim, 709 F.2d 800, 802 (2d Cir. 1983)). The Defendant filed
its motion on March 28, 2012, and this Court did not receive a response to the motion prior to the
hearing that was held on May, 1, 2012. Sufficient grounds exist to grant Defendant’s motion by
default as the Complaint alone was not enough to prevent dismissal for collateral estoppel.
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Conclusion
Counts I and II of Plaintiff’s Adversary Complaint are barred by collateral estoppel and
are hereby dismissed. The issues underlying both counts were necessarily decided by the
Supreme Court of New York, Orange County in the foreclosure action, and Plaintiff had a full
and fair opportunity to litigate the issues.
Counsel for Defendant should submit an order consistent with this decision.
Dated: Poughkeepsie, New York
May 22, 2012
/s/ Cecelia G. Morris
Chief United States Bankruptcy Judge
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