Pride Acquisitions, LLC v. Osagie

Filing 69

RULING granting in part as to liability on the contract claim (Count I) and denying in part as to liability on the FCRA claim (Count III) re 51 Motion for Summary Judgment, 62 Motion for Summary Judgment; denying on all counts re 55 Motion for Summary Judgment. Liability remains to be determined on Counts II, III, IV, and V, and damages on Count I. Signed by Judge Janet C. Hall on 9/29/2014. (Malone, P.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

PRIDE ACQUISITIONS, LLC,
Plaintiff,
v.
ABEL OSAGIE,
Defendant, Third-Party Plaintiff,
v.
JPMORGAN CHASE BANK, N.A.,
Third-Party Defendant.

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CIVIL ACTION NO.
3:12-cv-639 (JCH)

SEPTEMBER 29, 2014

RULING RE: MOTIONS FOR SUMMARY JUDGMENT (Docs. No. 51, 55-1, 62)
On March 30, 2012, third-party plaintiff Abel Osagie filed a First Amended Third
Party Complaint (the “Complaint”) (Doc. No. 1 at 71–90) against third-party defendant
JPMorgan Chase Bank, N.A. (“JPMC”) in the Superior Court, Judicial District of
Danbury, State of Connecticut. He asserts that JPMC is liable for: breach of contract
(Count I), violation of the covenant of good faith and fair dealing (Count II), violation of
the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. (Count III), negligence
(Count IV), and violation of the Connecticut Unfair Trade Practices Act (CUTPA) (Count
V). On April 27, 2012, invoking this court’s jurisdiction to hear cases involving a federallaw claim, JPMC removed the action to this court. See Notice of Removal (Doc. No. 1);
28 U.S.C. § 1441. The parties have submitted a series of pleadings in which Osagie
moves for summary judgment on Counts I and III and JPMC moves for summary
judgment on all counts.

1

I.

FACTS1
A.

The Account; JPMC requests that Osagie re-sign agreement

This case revolves around a $184,500 home equity line of credit (the “Account”)
that JPMC extended to Osagie with a loan modification agreement (the “Modified
Agreement”) (Doc. No. 53 at 33–35) executed on May 30, 2007.2 See Nauman Affidavit
(Doc. No. 59-1) ¶ 7; JPMC L.R. 56(a)(1) Stmt. (Doc. No. 57-1) ¶ 9; Osagie L.R. 56(a)(2)
Stmt. (Doc. No. 66-1) ¶ 9; Osagie L.R. 56(a)(1) Stmt. (Doc. No. 53) ¶ 4; JPMC L.R.
56(a)(2) Stmt. (Doc. No. 64-1) ¶ 4.3 Before that time, Osagie had had an “open-end
mortgage” loan (the “Open-End Mortgage Agreement”) (Doc. No. 53 at 36–38; Doc. No.
53-1 at 1–3) for $82,000, originally executed on May 2, 2003. See Nauman Affidavit ¶
6; Osagie L.R. 56(a)(1) Stmt. ¶ 5; JPMC L.R. 56(a)(1) Stmt. ¶ 6.

1

The facts as stated for the purposes of this Motion for Summary Judgment correspond to the
undisputed facts in the parties’ Local Rule 56(a) Statements except as noted.
The court notes that much of this recitation of facts is taken entirely from Osagie’s description of
events in his pro se submissions because JPMC—which is, needless to say, represented by counsel—
provides no evidence of any kind to controvert much of the sworn statements and other evidence that
Osagie proffers and to which he provides numerous citations. Frequently it only flatly denies or states an
inability to admit or deny the facts that Osagie gives in the statement of material facts that is among the
papers submitted to the court. This nonresponse by JPMC constitutes a failure to comply with the rules
governing summary judgment motions, including Local Rule 56(a)(2), (3). The latter requires that, in
denying facts asserted in connection with a motion for summary judgment, “each denial . . . must be
followed by a specific citation to (1) the affidavit of a witness competent to testify as to the facts at trial
and/or (2) evidence that would be admissible at trial.” District of Connecticut Local Rule 56(a)(3).
“[F]ailure to provide specific citations to evidence in the record as required by this Local Rule may result
in the Court deeming certain facts that are supported by the evidence admitted.” Id. It does not, for
example, cite to any affidavit by a representative who spoke with Osagie. The court deems this failure to
respond an admission, for purposes of the present motions, of the allegations that Osagie supports with
admissible evidence.
2

The account is jointly held by Osagie and his wife Alaba. She is not, however, a party to the
present action. In this Ruling, references are to Abel Osagie alone.
3

With each subsequent citation to a Local Rule 56(a)(1) Statement, the court implies a
corresponding reference to the respective paragraph(s) of the other party’s responsive Local Rule
56(a)(2) Statement.

2

On numerous dates in 2007 and 2008, JPMC, apparently having lost the original
documents, sent letters or other contact to Osagie explaining the need for him to re-sign
the relevant loan documents. See Osagie L.R. 56(a)(1) Stmt. ¶ 7 (JPMC kept the
original document); JPMC L.R. 56(a)(1) Stmt. ¶¶ 10–25 (contacts via mail). From the
submissions of the parties, JPMC claims to have sent numerous letters, at least some
of them warning that, if Osagie did not sign such documents, JPMC would put a block
on his account; that Osagie responded to the contacts in at least some cases, at least
once explained that he was out of the country, at least once refused—for security
reasons—to send documents while he was out of the country; and eventually told JPMC
that he would not re-sign the loan documents. Osagie attests that he sent the redocumentation multiple times and presents return receipts for a package sent via the
United Parcel Service. See Osagie Affidavit (“Osagie Aff.”) (Doc. No. 53 at 14) ¶ 20;
Package Return Receipts (Doc. No. 53-1 at 6–7).
B.

The block on the Account and fallout

On June 30, 2008, JPMC put a block on Osagie’s account. See JPMC L.R.
56(a)(1) Stmt. ¶ 27. The record does not reflect, and JPMC does not claim, let alone
point to any evidence, that it took any steps to notify Osagie of the block at that time.
An account statement that Osagie presents reflect that, as of that date, the balance on
the Account was $170,731.62. See Home Equity Line of Credit Statement as of
7/21/2008 (Doc. No. 53-1 at 10). On July 18, JPMC accepted from Osagie $1,707.31,
which paid off part of the month’s accrued interest and part of the principal of the loan,
much as it had one month prior. See id. With that and an interest charge of $612.64,
as of the next statement date, July 21, the Account’s balance was $169,656.14. See id.

3

On July 15, 2008, Osagie wrote a check on the Account for $4,000 and
deposited it with Bank of America. See JPMC L.R. 56(a)(1) Stmt. ¶ 28. JPMC declined
to honor the check. See id. ¶ 29. On July 16, 2008, Osagie called JPMC to inquire why
the check was not honored; JPMC refused to give Osagie an answer on the phone and
told him that he would receive a reply through the mail. See Osagie L.R. 56(a)(1) Stmt.
¶ 24. Osagie notified JPMC of the urgency of his situation, explaining that he needed
the money to complete a project by a certain date and that, if he did not timely complete
it, he would breach the contract, lose a great deal of money that he had invested, lose
his entitlement to future profits, and be unable to repay the money borrowed from
JPMC. See Osagie Aff. ¶ 31. JPMC mailed a Notice dated July 16, 2008 to Osagie
notifying him that the check would not be honored “because the check amount would
exceed the available credit limit on your account.” See Osagie L.R. 56(a)(1) Stmt. ¶ 25.
Osagie called JPMC on July 24, 2008 (the same day that he received the letter,
see Osagie L.R. 56(a)(1) Stmt. ¶ 25) for an explanation, telling JPMC that the given
explanation—that he had exceeded his credit limit—was inaccurate. See id. ¶ 28. The
JPMC representative excused himself, then returned to the phone and said there was “a
block” on the account, and that JPMC would send him an explanation in writing. See id.
¶ 28. As before, Osagie notified JPMC of the urgency and details of his situation,
including that, if JPMC did not act immediately, he stood to lose a great deal of money.
See Osagie Aff. ¶ 33; Osagie L.R. 56(a)(1) Stmt. ¶ 33. He complained of JPMC’s
lackadaisical attitude respecting his situation. See Osagie L.R. 56(a)(1) Stmt. ¶ 33.
Osagie proffers among his motion papers a five-phase, five-year agreement
between himself and the Zembe-Arinze Company (“Zembe-Arinze”), signed on

4

February 14, 2007. In that agreement, he was entitled to fees and recovery of his costs
at each phase, including $200,000 in fees for the first phase, which was scheduled to
end July 20, 2008. See Zembe-Arinze Contract (Doc. No. 53 at 27–30); Osagie L.R.
56(a)(1) Stmt. ¶ 5. Osagie had incurred $285,850.86 in costs at the time of JPMC’s
refusal to honor the $4,000 check. See Deposition of Abel Osagie (“Osagie Depo.”)
(Doc. No. 60-1 at 4) at 44:10–14. The agreement provides that it shall be “automatically
voided” if Osagie fails to perform at the end of any phase. See Zembe-Arinze Contract
at ¶ 6 (Doc. No. 53 at 27).
JPMC maintained that it would only send a response by mail. Osagie L.R.
56(a)(1) Stmt. ¶ 33. All communications between Osagie and JPMC related to the
signing of the Modified Agreement had been through phone, fax, or email. See Osagie
L.R. 56(a)(1) Stmt. ¶ 10.
For the first time since it refused to honor the check, JPMC stated in a letter
dated July 25, 2008, the reason for the refusal: “Chase had not received the needed
signed documentation from you to record collateral document.” See JPMC L.R.
56(a)(1) Stmt. ¶ 30.
Osagie did not go to his friends or elsewhere to seek the $4,000 in funds that he
had sought to transfer to the Bank of America account; he attests that he could not find
an alternative source for these funds. See Osagie L.R. 56(a)(1) Stmt. ¶¶ 38, 39. He
also attests that, because JPMC did not honor the check and because he was unable to
obtain the money needed for his project elsewhere, he failed to complete his
responsibilities for the phase of the agreement with Zembe-Arinze then in effect. See
Osagie L.R. 56(a)(1) Stmt. ¶ 40.

5

Via letter dated August 15, 2008, Zembe-Arinze voided its contract with Osagie
because of Osagie’s failure to perform. See id.; Letter from Peter H. Idemudia to Abel
Osagie dated 8/15/2008 (Doc. No. 53 at 31). As a consequence, Osagie lost his
entitlement to recoup his expenses ($285,850.86 at that point, see Osagie Depo. at
44:10–14) and to earn his fee for that phase’s completion ($200,000), and also lost the
opportunity to earn fees for the remaining four phases of the contract (each in the same
amount, in all totaling $800,000). See Zembe-Arinze Contract.
On October 17, 2008, Osagie informed JPMC of losses that he alleged that he
had incurred as a consequence of JPMC’s failure to honor the $4,000 check; JPMC
refused to provide Osagie with the money that he claimed to have lost. See Complaint
¶ 28; Osagie Aff. ¶ 42.
In one phone conversation during which Osagie sought to resolve his grievances
with JPMC, a JPMC representative told Osagie that, if he did not continue to pay JPMC,
JPMC would change the Account’s type to “Revolving” and report it to credit reporting
agencies as “Past Due.” See id. ¶ 43. On October 20, 2008, JPMC initiated foreclosure
proceedings upon the home subject to the mortgage associated with the Account. See
id. ¶ 59.
C.

Changes in the Account’s description to credit reporting agencies

In November or December 2008, in reporting to credit reporting agencies
Equifax, Experian, and Transunion, JPMC changed the Account’s type from “Mortgage”
or “Home Equity Line of Credit,” etc. to “Revolving Line of Credit” or “Line of Credit” or
“Revolving.” See Osagie L.R. 56(a)(1) Stmt. ¶ 41; Osagie Aff. ¶ 45. It also reported the
Account as “past due.” See Osagie L.R. 56(a)(1) Stmt. ¶ 41; Osagie Aff. ¶ 45. Osagie

6

discovered these two changes to how JPMC was reporting the Account and, believing
them to be incorrect, contacted the credit reporting agencies to dispute the accuracy,
completeness, and classification of the Account. See Osagie L.R. 56(a)(1) Stmt. ¶¶ 41,
44; Osagie Aff. ¶¶ 45, 47. The credit bureaus contacted JPMC, and JPMC represented
that the Account was not a mortgage but a “line of credit” or “revolving” account,
pointing to the monthly payments received from Osagie to support this representation.
See Osagie L.R. 56(a)(1) Stmt. ¶ 47; Osagie Aff. ¶ 48. JPMC in no way modified its
reporting of the Account after being contacted with respect to the credit bureaus’
investigations, even though it knew that this account was a mortgage loan account, not
a revolving line of credit account. See Osagie L.R. 56(a)(1) Stmt. ¶¶ 43, 46; Osagie Aff.
¶¶ 49, 50. Because the credit bureaus perceived sufficient proof from JPMC, they did
not modify their reporting of the Account in light of Osagie’s contestation of its reporting
except to note that Osagie disputed the way this account was reported. See Osagie
L.R. 56(a)(1) Stmt. ¶ 47; Osagie Aff. ¶¶ 50, 51.
With this JPMC account being the only one with any adverse reporting on
Osagie’s credit records, incidents connected to credit checks of Osagie followed. See
Osagie L.R. 56(a)(1) Stmt. ¶ 48; Osagie Aff. ¶ 52. These included: other creditors
limited or withdrew his lines of credit, see Osagie L.R. 56(a)(1) Stmt. ¶ 49; Osagie Aff.
¶ 53; Osagie tried but was unable enroll his child in nursing school using a line of credit,
see Osagie L.R. 56(a)(1) Stmt. ¶ 53; Osagie Aff. ¶ 58; and Osagie tried but was unable
to complete a Medicare certification of a Home Health Care Agency (an endeavor as to
which he had been investing resources for about a year), see Osagie L.R. 56(a)(1)
Stmt. ¶ 50; Osagie Aff. ¶ 54.

7

D.

Procedural history

On March 30, 2012, Osagie filed the Complaint against JPMC; on April 27, 2012,
JPMC removed the case to this court. See Notice of Removal (Doc. No. 1). Osagie
now moves for partial summary judgment on Counts I and III, see Motion for Partial
Summary Judgment (“Osagie MPSJ”) (Doc. No. 51), Amended Motion for Partial
Summary Judgment (“Osagie Amended MPSJ”) (Doc. No. 62), and JPMC cross-moves
for summary judgment on all counts, see Motion for Summary Judgment (“JPMC MSJ”)
(Doc. No. 55-1).4
II.

STANDARD OF REVIEW
Granting a motion for summary judgment is proper only if “there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law.”
O’Hara v. Nat’l Union Fire Ins. Co., 642 F.3d 110, 116 (2d Cir. 2011). Thus, the court’s
role in deciding such a motion “is to determine whether genuine issues of material fact
exist for trial, not to make findings of fact.” Id. In making this determination, the court
“must resolve all ambiguities and draw all inferences against the moving party.” Garcia
v. Hartford Police Dep’t, 706 F.3d 120, 127 (2d Cir. 2013).
The moving party bears the burden of establishing the absence of genuine
issues of material fact. Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d
Cir. 2010). If the moving party meets that burden, the party opposing the motion will
only prevail if it sets forth “specific facts” that demonstrate the existence of “a genuine

4

Osagie, with his Motion for Partial Summary Judgment unopposed at the time, submitted an
amended motion for partial summary judgment. The court liberally construes Osagie’s pro se motions
together as one motion.

8

issue for trial.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (quoting Fed. R. Civ.
P. 56(e)).
For summary judgment purposes, a genuine issue exists where the evidence is
such that a reasonable jury could decide in the non-moving party's favor. See Rivera v.
Rochester Genesee Reg’l Transp. Auth., 702 F.3d 685, 693 (2d Cir. 2012); see also
Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)) (stating that the non-moving
party must point to more than a mere “scintilla” of evidence in its favor). “However,
reliance upon conclusory statements or mere allegations is not sufficient to defeat a
summary judgment motion.” Davis v. N.Y., 316 F.3d 93, 100 (2d Cir. 2002).
III.

DISCUSSION
A.

Breach of contract (Count I)

Both parties move for summary judgment as to Osagie’s breach of contract
claim. See Osagie Amended MPSJ at 1–2; JPMC MSJ at 1–2. The court grants
Osagie summary judgment as to liability on this claim and denies JPMC the same.
The elements of a breach of contract action are “the formation of an agreement,
performance by one party, breach of the agreement by the other party and damages.”
Rosato v. Mascardo, 82 Conn. App. 396, 411 (2004) (quoting Bouchard v. Sundberg, 80
Conn. App. 180, 189 (2003)). JPMC appears to concede that it did not honor Osagie’s
$4,000 check and that this failure would constitute breach, see JPMC L.R. 56(a)(1)
Stmt. ¶ 29, but argues that Osagie’s contract claim fails nonetheless. First, it argues
that Osagie’s own breach precipitated JPMC’s failure to honor the check, and second,

9

that Osagie failed to mitigate his damages. See JPMC Memorandum in Support of
Motion for Summary Judgment (“JPMC Mem.”) (Doc. No. 56-1) at 5–9.
1.

Preceding breach by Osagie

JPMC first argues that its failure to honor the check did not constitute breach of
the contract because Osagie first committed a breach by failing to respond to JPMC’s
request for him to give his signature on new copies of the loan documents. See
Bernstein v. Nemeyer, 213 Conn. 665, 672–73 (1990) (“It follows from an uncured
material failure of performance that the other party to the contract is discharged from
any further duty to render performances yet to be exchanged.”); Restatement (Second)
of Contracts § 237 (1981); JPMC Mem. at 6–8; JPMC Memorandum in Opposition to
Motion for Partial Summary Judgment (“JPMC Opp.”) (Doc. No. 65-1) at 6–8.
JPMC rests this argument on the assumption that it had a contractual right to
require Osagie to re-sign the relevant documents. The court disagrees.
In support of its argument, JPMC claims to quote from two portions of the original
mortgage contract. First, per JPMC’s Memorandum, “under the heading of ‘Errors and
Omissions,’” the Agreement states:
Errors and Omissions Agreement: The undersigned borrower(s), in consideration
of a certain extension of credit by JPMorgan Chase Bank, N.A. the “Lender” to
“Borrower(s)”... agree, if requested by the Lender or its agent, to fully cooperate
in the correction, if necessary in the reasonable discretion of the Lender ; of any
and all closing documents so that all documents accurately describe the
agreement between the undersigned borrower(s) and the Lender and thus allow
the Lender to sell, convey, seek a guaranty or obtain insurance for, or market
said extension of credit to any purchaser. . . The undersigned borrower(s) further
agree to comply with all above noted reasonable requests by the lender within
thirty (30) days from the date of the mailing of the correction request(s) by the
Lender.

10

JPMC Mem. at 7 (reproduced above as set forth in Memorandum); JPMC Opp. at 7–8.
JPMC claims that this clause appears on the third page of the original agreement, but
the court finds no such clause. A copy of the entire text (including page three) of the
Open-End Mortgage Agreement (taken from Osagie’s exhibits because JPMC did not
submit as an exhibit a copy of the document) is attached as Exhibit I to this Ruling.
JPMC, in its Memorandum, cites as the source of this clause Exhibits C and D to the
Nauman Affidavit. Attached as Exhibit II to this Ruling are copies of Exhibits C and D to
the Nauman Affidavit, neither of which is an agreement or contains this language.
Thus, JPMC’s argument in support of its Motion for Summary Judgment and in
opposition to Osagie’s Motion for Partial Summary Judgment on Count I that Osagie
breached the contract by not re-signing documents fails insofar as it is based on this
nonexistent clause.
Even taking at face value JPMC’s factual claim that this term constitutes part of
the loan agreement, the court nonetheless cannot conclude as a matter of law that any
failure by Osagie to respond to JPMC’s satisfaction to requests to re-sign documents—
especially given that JPMC itself lost them, see Osagie L.R. 56(a)(1) Stmt. ¶ 7—
constitutes a breach of this term. The purported term provides that Osagie will “fully
cooperate in the correction, if necessary . . . of any and all closing documents so that all
documents accurately describe the agreement,” with the “necessity” of a given
correction to be “in the reasonable discretion of [JPMC].” JPMC Mem. at 7 (emphasis
added).
Even with the “reasonable discretion” provision, the court cannot conclude that
having a party to an agreement re-sign a document that he already signed is a

11

“correction . . . so that [the] document[ ] accurately describe[s] the agreement.” It
appears to the court that this provision as to “correction” might provide a safety valve if
the contract contains scriveners’ errors—perhaps as to the procedural terms of the
agreements or details such as the precise description of the plot of land relevant to the
agreement. Re-signing a document that was already signed does not constitute a
“correction” of the type that this term describes—to “accurately describe the
agreement.”
JPMC also points to the “FURTHER ASSURANCES; ATTORNEY-IN-FACT”
section of the original agreement. See JPMC Mem. at 6–7. This states:
FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions
relating to further assurances and attorney-in-fact are a part of this Mortgage:
Further Assurances. At any time, and from time to time, upon request of
Lender, Grantor will make, execute and deliver, or will cause to be made,
executed or delivered, to Lender or to Lender’s designee, and when requested
by Lender, cause to be filed, recorded, refiled, or rerecorded, as the case may
be, at such times and in such offices and places as Lender may deem
appropriate, any and all such mortgages, deeds of trust, security deeds, security
agreements, financing statements, continuation statements, instruments of
further assurance, certificates, and other documents as may, in the sole opinion
of Lender, be necessary or desirable in order to effectuate, complete, perfect,
continue, or preserve (1) Grantor’s obligations under the Credit Agreement, this
Mortgage, and the Related Documents, and (2) the liens and security interests
created by this Mortgage on the Property, whether now owned or hereafter
acquired by Grantor. Unless prohibited by law or Lender agrees to the contrary
in writing, Grantor shall reimburse Lender for all costs and expenses incurred in
connection with the matters referred to in this paragraph.
Attorney-In-Fact. If Grantor fails to do any of the things referred to in the
preceding paragraph, Lender may do so for and in the name of Grantor and at
Grantor’s expense. For such purposes, Grantor hereby irrevocably appoints
Lender as Grantor’s attorney-in-fact for the purpose of making, executing,
delivering, filing, recording, and doing all other things as may be necessary or
desirable, in Lender’s sole opinion, to accomplish the matters referred to in the
preceding paragraph.

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Open-End Mortgage Agreement at 3. JPMC argues that the duty to re-sign an
agreement is comprised within the borrower’s duty under this section to “make, execute
and deliver . . . any and all such mortgages . . . as may, in the sole opinion of Lender,
be necessary or desirable . . . to effectuate, complete, perfect, continue, or preserve
[the parties’ interests, duties, etc. under the agreement].” See JPMC Mem. at 7–8.
Any inadequacy that JPMC perceived in Osagie’s responses to JPMC’s requests
to re-sign documents does not excuse JPMC’s failure to honor Osagie’s check.5 The
cited language does not require his action in the kind of circumstance presented in this
case. This provision functions to ensure that the parties execute future agreements
necessary to effectuate the present agreement, not unlike a covenant of good faith and
fair dealing. It does not require the borrower to remedy the lender’s failure, by
incompetence or for whatever other reason, to retain a copy of the originally executed
agreement—certainly not on risk of breach. A “further assurances” clause “addresses
one of the transactional lawyer's primal fears[:] that the agreement may inadvertently fail
to address a step required to consummate the transaction.” Carl Circo, Why Is This
Boilerplate in My Real Estate Contract?, 2005 Ark. L. Notes 1, 8–9 (2005) (quotation
marks omitted). If the agreement contains such an omission from among its terms, a
“further assurances” clause may save one party where there is a “last minute discovery
that transfer of the real restate requires consent of a third-party or the assignment of a
permit or license important for the operation of the property.” Id.; see also Alliance

5

Osagie provides evidence that he mailed a package to JPMC which he attests responded to
JPMC’s request for re-signed documentation. See Package Return Receipts. JPMC asserts that it never
received anything. The court does not need to resolve whether there is a material issue of fact as to
whether Osagie failed to re-sign documents because of its conclusion that Osagie had no obligation to do
so.

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Indus., Inc. v. Longyear Holdings, Inc., 854 F. Supp. 2d 321, 325, 333 (W.D.N.Y. Feb.
28, 2012); In re Winer Family Trust, 2006 WL 3779717, at *3 n.6 (3d Cir. Dec. 22,
2006); One Hundred Pearl Ltd. v. Vantage Securities, Inc., 1995 WL 117609, at *2
(S.D.N.Y. March 16, 1995). This was not such a case.
Moreover, even if the court were to assume arguendo that Osagie breached a
duty under the aforementioned provision, it does not result in a material breach of the
contract. The very next subparagraph, which JPMC omits from its Memorandum, see
JPMC Mem. at 6–7, provides what appears to be a make-whole remedy: the lender has
a power of attorney for the borrower to effectuate and protect the parties’ intent,
interests, and duties under the Agreement.
2.

Failure to mitigate damages

JPMC argues in the alternative that Osagie cannot pursue his breach of contract
claim because he did not fulfill an obligation to mitigate his damages. See Preston v.
Keith, 217 Conn. 12, 15 (1991); JPMC Mem. at 8–9. Specifically, JPMC contends that,
when JPMC declined to honor Osagie’s $4,000 check, Osagie had a duty to seek the
funds elsewhere and that he did not fulfill that duty.
Whether or to what extent an otherwise-prevailing party took steps to mitigate
damages may bear on the damages measurement of a contract claim such as this one.
“[T]he theoretical foundation for the plaintiff's duty to mitigate damages is that the
defendant's negligence is not the proximate, or legal, cause of any damages that could
have been avoided had the plaintiff taken reasonable steps to promote recovery and
avoid aggravating the original injury.” Preston, 217 Conn. at 16. “The burden of proving
that the injured party could have avoided some or all of his or her damages . . . rests on

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the party accused of the tortious act.” Id. at 21; see also Morro v. Brockett, 145 A. 659,
661 (Conn. 1929) (“[I]t becomes incumbent upon the defendant, if he seeks to
exonerate himself from responsibility for a portion of the consequences [of an injury], to
show that some of these had their proximate cause in the failure of the plaintiff to act in
good faith in an attempt to promote recovery and avoid aggravation of the initial injury”
(as quoted in Preston, 217 Conn. at 16)). It follows from the reasoning in these cases
that a defendant can only entirely defeat a claim for breach of contract on the basis of
failure to mitigate damages if the defendant shows that there is no material fact in
dispute and that the evidence proffered establishes that the existence of any damages
at all “had [its] proximate cause in the failure of the plaintiff to act in good faith in an
attempt to promote recovery and avoid aggravation of the initial injury.” Morro, 145 A. at
661.
Attempting to meet its burden here, JPMC proffers the following deposition
testimony:
Attorney Rich:
Mr. Osagie:

Attorney Rich:
Mr. Osagie:
Attorney Rich:
Mr. Osagie:

Did you ask anyone for money, the $4,000.00?
Well, there was no one I could ask from. I knew their
situations, you know. I am not going to go ask someone who
has just been fired from his investment banking job to give
me money.
But you did not ask?
No. I didn't ask - - I couldn't ask them.
Well, you could have asked but you chose not to; correct?
Well, I knew their situation. I am not going to exacerbate
their situation by coming with something that is –

Osagie Depo. at 32:14–25. (Attorney Rich then interrupted Mr. Osagie to change the
subject.) Osagie, meanwhile, attests that:
A number of my friends and family were among the [“huge numbers” of newly
unemployed Americans and others] around the world that were out of work and
in financial distress [in 2008]. . . . I could not find an alternative source to replace
15

the funds lost due to the actions of JPMC before July 25, 2008 and therefore
could not complete my project.
Osagie Aff. ¶¶ 39–40.
Given the evidence that the parties present at this juncture, the court concludes
that there is a disputed issue of fact whether Osagie breached his duty “to act in good
faith in an attempt to promote recovery and avoid aggravation of the initial injury,” or to
what extent such a failure reduces JPMC’s damages liability. Accordingly the court
leaves for determination at trial whether Osagie’s mitigation efforts were sufficient—and,
if insufficient, whether such insufficiency eliminates all or only a part of JPMC’s
damages liability.
The court grants Osagie summary judgment as to the breach of contract claim,
leaving the question of what damages, if any, were reasonably foreseeable to “the
parties at the time they made the contract” for proof at trial. Joseph Bernhard & Son v.
Curtis, 54 A. 213, 215–16 (Conn. 1903).6
B.

Negligent or willful violation of the Fair Credit Reporting Act, 15 U.S.C.
§1681s–2(b) (Count III)

Osagie purports to state two claims for violations of the FCRA. The first arises
from JPMC’s willful (or, in the alternative, negligent) failure to correct its reporting of the

6

Given that the determination of damages remains open, the court notes that the Restatement
(Second) of Contracts provides that, in general,
the lender's liability will be limited to the relatively small additional amount that it would ordinarily
cost to get a similar loan from another lender. However, in the less common situation in which the
lender has reason to foresee that the borrower will be unable to borrow elsewhere or will be
delayed in borrowing elsewhere, the lender may be liable for much heavier damages . . . .
Restatement (Second) of Contracts, § 351 cmt. (e). This rule is derived from the familiar principle of
Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 145 (1854), that contract damages are limited to those
reasonably foreseeable to the party in breach. Here, it appears to the court that Osagie could recover the
full losses that he claims on his contract with Zembe-Arinze Company only if he showed that Chase could
reasonably foresee, upon entering the loan contract, that its failure to perform would lead to Osagie’s
breach of the contract he had with Zembe-Arinze Company.

16

Account as “past due.” See Complaint ¶ 64. The second arises from JPMC’s willful (or
negligent) failure to correct its reporting of the Account as a “Revolving Line of Credit” or
“Line of Credit” or “Revolving” account. See id. Both parties move for summary
judgment as to these claims. See JPMC MSJ at 1–2; Osagie Amended MPSJ at 1–2.
The court denies both parties summary judgment.
“[T]o bring a claim under § 1681s–2(b), a plaintiff must establish three elements:
(1) that he or she notified the consumer reporting agency of the disputed information,
(2) that the consumer reporting agency notified the defendant furnisher of the dispute,
and (3) that the furnisher then failed to investigate and modify the inaccurate
information.” Ausar–El v. Barclay Bank Delaware, 2012 WL 3137151, at *3 (D. Md. July
31, 2012).7 Such failure to investigate and modify the disputed, inaccurate information
results in civil liability if it occurs by actions of the defendant that are negligent, 15
U.S.C. § 1681o, or willful, 15 U.S.C. § 1681n.
Osagie alleges (1) that he notified all three credit reporting agencies that he
disputed (a) the new characterization of the Account as a “revolving,” “revolving line of
credit,” or “line of credit” account rather than a “mortgage” or “home equity line of credit”
account, and (b) that the account was “past due”; (2) that the consumer reporting
agencies notified JPMC of these disputes; (3) that JPMC failed to modify, delete, or
block reporting of the disputed content (which result an adequate investigation would

7

The court notes that JPMC disputes whether the Complaint can be construed to cover a claim
under section 1681s–2(b), given its citations to 1681s–2(a). (JPMC argues that the latter provision does
not provide a private right of action. See JPMC Mem. at 12–13.) Pro se pleadings, such as the
Complaint, are to be read liberally. See Richardson v. United States, 193 F.3d 545, 548–49 (D.C. Cir.
1999) (holding that a district court’s failure to consider a pro se plaintiff’s filing in response to a motion to
dismiss when construing the complaint was an abuse of discretion). The Complaint pleads facts sufficient
to state claims under section 1681s–2(b) and to put JPMC on notice of the same. Accordingly, the court
construes the Complaint to state claims under this subsection.

17

have required); (4) that JPMC’s failure to remedy the relevant disputes in his favor was
willful, or, in the alternative, negligent. See Complaint ¶¶ 62–82. Osagie also proffers
evidence from which a reasonable jury could find for him on all elements of these two
claims, including negligence or willfulness. His Affidavit and the written responses that
he received from credit reporting agencies evidence that he made complaints and that
JPMC received notice of his disputes. See Osagie L.R. 56(a)(1) Stmt. ¶¶ 41–47;
Osagie Aff. ¶¶ 45–50; Equifax Report dated 12/9/2008 (Doc. No. 53-1 at 18) (reflecting
response to investigation from JPMC); Transunion Report dated 12/9/2008 (Doc. No.
53-1 at 19–21); Experian Report dated 1/15/2009 (Doc. No. 53-1 at 22–26). Presented
with the same written responses from credit reporting agencies—reflecting that JPMC
continued to classify Osagie’s account as something other than a mortgage loan and to
report it as past due—as well as the loan documents and Osagie’s sworn statements
about his account type and status, a reasonable jury could conclude that JPMC failed
adequately to investigate and did so negligently or even willfully. See Modified
Agreement; Open-End Mortgage Agreement; see also Osagie Aff. ¶ 43 (JPMC told
Osagie it would change its reporting of the Account’s type as a penalty for Osagie’s
failure to continue paying on the Account).
Moreover, JPMC supports none of its denials of the facts that Osagie proffers
with evidence. Under the Local Rules, the effect of these omissions by JPMC results in
Osagie’s statements of undisputed material fact being taken as true. See District of
Connecticut Local Rule 56(a)(3). In response to Osagie’s statement of facts in pursuit
of summary judgment as to JPMC’s liability under the FCRA, JPMC violates this court’s
Local Rules by only flatly denying the facts that Osagie asserts or, rather implausibly,

18

stating that it has insufficient information to admit or deny the facts that he alleges. See
JPMC L.R. 56(a)(2) Stmt. ¶¶ 41–47; see also supra note 1. It points to no evidence in
the record to dispute Osagie’s view of the facts. It does not dispute the allegation that it
misdescribed Osagie’s account in its reporting to the credit reporting agencies. Notably,
it provides no evidence of any kind to show that it made any investigation—let alone
one that did not constitute one that willfully or negligently violated section 1681s–2(b)’s
requirements—to determine whether Osagie’s complaints had any basis or merited
changing Osagie’s records.
Despite JPMC’s failure to point to any evidence probative of its contentions, the
court is not convinced that trial is unnecessary to determine whether JPMC is liable to
Osagie under the FCRA. Osagie offers his own testimony about what he sought from
the credit reporting agencies, see Osagie Aff. ¶¶ 45–50, but no documents representing
his submissions to them. He has apparently not obtained (in any case, he does not
provide) any communications between the credit reporting agencies and JPMC to show
the nature of the dispute as described by the credit reporting agencies to JPMC. He
does not produce any affirmative evidence at all about what steps JPMC took in
response to any notice it received. The only relevant pieces of evidence he produces
on this issue are his own sworn statements about communications between himself and
the credit reporting agencies and between himself and JPMC and the written responses
that he received from the credit reporting agencies after they had apparently made
inquiries and received some kind of response from JPMC. See Equifax Report dated
12/9/2008 (Doc. No. 53-1 at 18) (reflecting response to investigation from JPMC);
Transunion Report dated 12/9/2008 (Doc. No. 53-1 at 19–21); Experian Report dated

19

1/15/2009 (Doc. No. 53-1 at 22–26). These reports reflect how JPMC reported the
Account after Osagie’s complaints, but little else. Under these circumstances, even
though it is largely as if “no opposing evidentiary matter [were] presented,” the court is
not convinced that Osagie has shown that “no material issue of fact remains for trial.”
Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
JPMC also raises two affirmative arguments to refute its liability. First, JPMC
contends that Osagie did not meet the intermediate (i.e., through the credit reporting
agencies) notice requirement—the second element in the foregoing description of the
cause of action for a violation of section 1681s–2(b). See JPMC Reply Mem. at 5–6;
JPMC Opp. at 15. This argument is meritless. As the court noted supra, Osagie offers
reports from the agencies reflecting that they notified JPMC of Osagie’s disputes and
that JPMC responded to these notifications. See Equifax Report dated 12/9/2008;
Transunion Report dated 12/9/2008; Experian Report dated 1/15/2009. JPMC does not
contest the accuracy of these reports and does not respond with any evidence of its
own on this point. The court rejects this argument.
JPMC’s only other argument is that it is not liable because “Osagie has failed to
produce any evidence that JPMC violated the investigative requirements of the credit
bureaus that Osagie allegedly contacted with regard to disputed information.” JPMC
Reply Mem. at 6 (emphasis added). This reading is unsupported by case law and
ignores the plain language of the statute. The case law simply provides that, after
receiving notice of a dispute from a credit reporting agency, an entity such as JPMC
must not negligently or willfully fail to investigate the disputed information (and, if there
was merit to the dispute, to take corrective action). See, e.g., Seamans v. Temple

20

Univ., 744 F.3d 853, 864–65 (3d Cir. 2014); Alston v. Wells Fargo Bank, N.A., 2013 WL
4507607, at *5 (D. Md. Aug. 22, 2013) (proceeding from premise that liability turns
simply on falsity of information reported—not compliance with investigative
requirements of credit reporting agency); see 15 U.S.C. § 1681s–2(b)(1)(C), (D), (E).
Moreover, JPMC does not offer—and the court cannot find—a single piece of
evidence describing the procedures to which JPMC may have adhered in responding to
the credit reporting agencies’ notification of Osagie’s dispute. Given this blatantly
inadequate attempt to refute liability and the evidence that Osagie presents that JPMC
was notified, the court rejects this second argument.
From all of the evidence before the court, a jury could conclude that JPMC is
liable to Osagie for a negligent, or perhaps even for a willful, violation of the Fair Credit
Reporting Act. However, drawing all reasonable inferences in favor of nonmovant
JPMC, the court cannot say that no reasonable jury could find for JPMC. The court
concludes that neither party is entitled to summary judgment on the question of JPMC’s
liability for negligent or willful violations of section 1681s–2(b). Both parties’ Motions are
denied as to Count III.
C.

Violation of the Connecticut Unfair Trade Practices Act (Count V)

A CUTPA claim will succeed where (1) a defendant “engage[s] in . . . unfair or
deceptive acts or practices in the conduct of any trade or commerce,” Conn. Gen. Stat.
42-110b(a), and, (2) “‘as a result of’ this act, the plaintiff suffer[s] an injury. The
language ‘as a result of’ requires a showing that the prohibited act was the proximate
cause of a harm to the plaintiff.” Abrahams v. Young and Rubicam, Inc., 240 Conn.
300, 306 (1997).

21

JPMC contends that any assertion by Osagie of a claim under CUTPA fails for
three reasons: first, Osagie actually just re-states a breach-of-contract claim and
nothing more, and CUTPA does not provide for a cause of action for simple breach-ofcontract claims; second, Osagie has asserted no “ascertainable loss;” and, third, Osagie
has provided insufficient evidence of proximate causation. See JPMC Mem. at 15–19.
1.

Breach of contract claims unavailable under CUTPA

JPMC correctly asserts that Osagie cannot raise a simple contract claim under
CUTPA. See, e.g., Vega v. Sacred Heart Univ., Inc., 836 F. Supp. 2d 58, 64 (D. Conn.
2011). However, JPMC is incorrect when it asserts further that Osagie fails to state a
claim under CUTPA because he does not point to any deceptive or fraudulent practice
independent of his bare breach-of-contract allegations. See JPMC Mem. at 16–18.
Indeed, JPMC appears to ignore almost all of the allegations and evidence that Osagie
presents.
At the very least, Osagie appears to intend to state a claim under CUTPA for
JPMC’s misrepresentation of, or failure to represent within a reasonable time or in a
reasonable manner, the purported reason for the block on the Account.8 See Complaint

8

Osagie may also be attempting to state claims under the following theories: first, JPMC’s
requiring that Osagie re-sign loan documents and its representation that the existence of this fault in the
loan documentation was Osagie’s, when actually the fault was JPMC’s, see Complaint ¶¶ 55–57, 85, 86,
88; second, JPMC’s breaching the contract with the false justification that Osagie was not entitled to
JPMC’s performance because he himself had breached the contract, see Letter dated 7/25/2008 from
JPMC to Osagie (Doc. No. 53-1 at 12); third, JPMC’s threatening to misrepresent, see id. ¶ 30; Osagie
Aff. ¶ 43, and, fourth, actually misrepresenting, see Complaint ¶ 32, and, fifth, continuing to misrepresent
after Osagie posted a dispute to the CRAs and to JPMC, see id. ¶¶ 33–34, 65–67, 77–79, 99, Osagie’s
account type and status to credit reporting agencies to induce Osagie to continue paying on the account
and/or to sign a new agreement with JPMC, see id. ¶¶ 31, 92, 93.
JPMC’s Motion does not address each of these grounds independently, but only baldly claims
that Osagie raises no theories besides breach of contract. Because the court denies this sweeping basis
for the Motion on the grounds that one of Osagie’s theories is sufficient, the court deems it unnecessary
to address at this time whether each and every theory that Osagie might raise under his Complaint is
grounded upon sufficient evidence for a jury to find in Osagie’s favor.

22

¶¶ 84–85; Osagie L.R. 56(a)(1) Stmt. ¶ 10; Osagie Aff. ¶¶ 15, 31, 33 (stating that,
during a telephone call by Osagie to JPMC, JPMC representatives told Osagie that it
would only give him a response by mail, even though Osagie explained the urgency of
the situation and prior communications related to formation of agreement had been by
phone, fax, or email); Letter from JPMC to Osagie dated 7/16/2008 (Doc. No. 53-1 at
11) (stating that reason for block was that his check “would exceed the available credit
limit on your account”); Letter from JPMC to Osagie dated 7/25/2008 (Doc. No. 53-1 at
12) (stating that JPMC “ha[d] not received the needed signed documentation from”
Osagie). These facts and this theory are sufficient to raise a question for the jury
whether JPMC not only breached its contract with Osagie but also committed unfair or
deceptive trade practices. See Tessmann v. Tiger Lee Constr. Co., 228 Conn. 42, 55
(1993) (affirming award of punitive damages for CUTPA violation where defendant
contracted to build home for the plaintiffs and then “exhibited a reckless disregard of the
plaintiffs’ rights” by building an obviously shoddy home, refusing to make repairs, and
attempting to “t[ake] advantage of the plaintiffs”). Thus, the court rejects this basis for
JPMC’s Motion on Count V.
2.

Ascertainable loss

JPMC’s second argument is that Osagie has stated no CUTPA claim because he
has not shown any “ascertainable loss.” See JPMC Mem. at 15–16; Hinchliffe v. Am.
Motors Corp., 184 Conn. 607, 614–15 (1981). Specifically, JPMC states, Osagie has
not offered evidence that “prove[s] . . . specifically defined damages;” he “cannot
quantify his damages.” JPMC Mem. at 16.

23

This argument is frivolous. The Supreme Court of Connecticut has explicitly
“h[e]ld that the words ‘any ascertainable loss’ as used in [CUTPA] do not require a
plaintiff to prove a specific amount of actual damages” to establish liability under
CUTPA, and that “there is no need to allege or prove the amount of the ascertainable
loss.” Hinchliffe, 184 Conn. at 612–13, 614.9 A “plaintiff[ ] demonstrate[s] that [he]
suffered an ascertainable loss when [he] produce[s] evidence fairly suggesting that, as
a result of an unfair or deceptive trade practice, [he] received something different from
that for which [he] had bargained.” Id. at 619. In claiming that he lost, inter alia, his
upfront costs and his pre-determined fee from the agreement with Zembe-Arinze, as a
consequence of the actions of JPMC that the court has just recited, see Osagie Depo.
at 44:10–14, Osagie has more than adequately met this standard. The court rejects this
second basis for JPMC’s motion as to Osagie’s CUTPA claim(s).
3.

Proximate causation

JPMC’s third argument is that Osagie fails to “prove causation,” that “whatever
damages Osagie claims are speculative at best.” JPMC Mem. at 16; see also id. at 18–
19. In other words, JPMC contends that Osagie has not proven proximate causation of
any damages that he alleges. The question here is whether, “on the basis of the
evidence [presented], a fair and reasonable person could conclude only that the [facts
alleged as CUTPA violations] did not cause the plaintiff's injuries.” Haesche v. Kissner,
229 Conn. 213, 217 (1994). Osagie presents evidence that JPMC knew of Osagie’s
need for funds and that, although he tried to move his deadlines and he sought funding

9

JPMC’s Memorandum on this point is odd. Where it makes this argument, JPMC states,
“Osagie has failed to offer [inter alia] deposition testimony . . . to prove . . . specifically defined damages.”
JPMC Mem. at 16. On just the previous page, JPMC states correctly that, “at his deposition, Osagie
testified that he was claiming damages totaling $1,285,850.86.” JPMC Mem. at 15.

24

from other sources, because JPMC first blocked his $4,000 check he was unable to
fulfill his obligations to Zembe-Arinze, and Zembe-Arinze thus terminated the contract
with him. See Osagie Aff. ¶¶ 31, 33, 40, 41. A reasonable jury could conclude that
JPMC’s actions were the proximate cause of Osagie’s inabiltiy to recoup his
expenditures or receive his fee. Thus, this last argument does not rest on undisputed
facts and is insufficient to sustain JPMC’s Motion for Summary Judgment.
For all of the foregoing reasons, the Motion is denied as to this Count.
D.

Breach of the implied covenant of good faith and fair dealing (Count II)

With regard to Osagie’s claim that JPMC breached the implied covenant of good
faith and fair dealing, JPMC moves for summary judgment on the ground that Osagie
has come forward with no facts supporting the claim element that JPMC acted in bad
faith. See JPMC Mem. at 9–12.
The duty of good faith and fair dealing, implied in every contract, “requir[es] that
neither party do anything that will injure the right of the other to receive the benefits of
the agreement.” Gupta v. New Britain Gen. Hosp., 239 Conn. 574, 598 (1996). A party
breaches this duty when (1) it is in a “contract or contractual relationship” with another
party, (2) it “impedes the [other]’s right to receive benefits that he or she reasonably
expected to receive under the contract,” and (3) it does so “in bad faith.” De La Concha
of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432–33 (2004). For the
purposes of this kind of claim, a party to a contract acts in “bad faith” if it “impedes the
plaintiff’s right to receive benefits that he or she reasonably expected to receive under
the contract,” and does so “in bad faith.” Id. at 433. “Bad faith” requires “[1] actual or
constructive fraud, or [2] a design to mislead or deceive another, or [3] a neglect or

25

refusal to fulfill some duty or some contractual obligation, not prompted by an honest
mistake as to one’s rights or duties, but by some interested or sinister motive.” Habetz
v. Condon, 224 Conn. 231, 237 (1992) (as quoted in De La Concha, 269 Conn. at 433).
Although intent is generally an issue for the jury to decide, a plaintiff is not
entitled to have a claim go to the jury where his only support for the intent element is a
bare assertion of bad faith. See Multi-Service Contractors, Inc. v. Town of Vernon, 193
Conn. 446, 452 (1984). Here, JPMC argues that Osagie presents nothing more than
assertions. This is incorrect. Osagie has indeed provided evidence that JPMC acted in
bad faith, e.g., by ignoring his attempts to have JPMC explain why it did not honor his
check and to remedy the harm he alleges that JPMC caused him before Zembe-Arinze
voided its contract with Osagie, see Osagie L.R. 56(a)(1) Stmt. ¶ 10; Osagie Aff. ¶¶ 15,
31, 33, and by stating it would change its characterization of the Account to punish him
for failing to pay despite his grievances, see id. ¶ 43; see also De La Concha, 269
Conn. at 442 (noting that analyses of scienter requirements for CUTPA and good faith
and fair dealing are similar). As a consequence, granting summary judgment to JPMC
on this basis would be inappropriate. JPMC’s Motion is denied as to this Count.
E.

Negligence (Count IV)

Osagie asserts a claim for negligence arising out of, inter alia, JPMC’s failure to
comply with the duties of care imposed by the Fair Credit Reporting Act. See generally
discussion supra Section III.B. “The essential elements of a cause of action in
negligence are well established: duty; breach of that duty; causation; and actual injury.”
LePage v. Home, 262 Conn. 116, 123 (2002) (internal quotation marks omitted).

26

JPMC’s only argument that it is entitled to summary judgment on this Count is
that the economic loss doctrine bars a claim by Osagie for negligence because Osagie
seeks damages in tort “from the same underlying factual allegations as a breach of
contract claim.” JPMC Mem. at 14; see also Ulbrich v. Groth, 310 Conn. 375, 410
(2013) (holding that “the economic loss doctrine bars negligence claims that arise out of
and are dependent on breach of contract claims”). JPMC fails to recognize that Osagie
does not predicate his negligence claims upon JPMC’s breach of his contract. Osagie
relies, inter alia, on the duties imposed by the Fair Credit Reporting Act. See discussion
supra Sections III.B–D. The court denies JPMC’s Motion as to this Count.
IV.

CONCLUSION
Osagie’s Motion for Partial Summary Judgment (Docs. No. 51, 62) is hereby

GRANTED IN PART as to liability on the contract claim (Count I) and DENIED IN PART
as to liability on the FCRA claim (Count III). JPMC’s Motion for Summary Judgment
(Doc. No. 55-1) on all counts is hereby DENIED. Liability remains to be determined on
Counts II, III, IV, and V, and damages on Count I.
SO ORDERED.
Dated at New Haven, Connecticut this 29th day of September 2014.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

27

EXHIBIT I

Case 3:12-cv-00639-JCH Document 53 Filed 09/20/13 Page 36 of 38
(Page 1 o! 6)

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MAXIMUM LIEN. The lien of this Mortgage shall not exceed at anyone time $82.000.00.
THIS MORTGAGE dated May 2, 200:3. is made and executed between ABEL 0 OBABUEKI lind ALABA S
OBABUEKI. HUSBAND AND WIFE. whose address is
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to below 1I!l "Lender"l.
GRANT OF MORTGAGE. For .ofuublo con.leI..,.,,;an. G",ntor giv.s. gr.nts. bargains. sells •• ssigns ond conlir"", unto Lender oil 01 Gruntor's
rig"t, titl., and Interest in and : 0 IN 1.11c~1nQ ~q~orl\:>~ d real property, togeth.r with .11 exl.dng or subsequently er.ctod.or· affixed build in?".
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all miner.I,. 0/1, gas. geothermal and similar matters, Ithe "Real Property") located in FAJRFll:lD County, State of

Connecticut:
ALL THAT CERTAIIII TRACT, PIeCE OR PARCEL OF LAND. WITH 'I11E BUILDINGS THEREQN. StTl,lATED IN
THE TOW.N Of OA,NBURY. OOUNTY OF FAiRfiELD MIO STATE OF CONNECl'ICUT ANO·OWt1lEAlEO AS LOT
NO • .Zi ON A CERTAIN MPoP' EN.T IT.lEO,. MAP PF.'!WAREO FOR PACE BUILDERS.l. INC. CAN.BURY
CONnECTICUT. TOTAL .o.REA 81 469 ACIU;S RU ·~O RES. ZONE SCALE 1 INCH EuUAlS 100' AND
CEItTIFIEO 'Stf8STAIIITlAll:Y CORRECT' ':fE~IUCIS, LAND St:JRVEVOR. WHICH MAp IS . D~TE[j JULy 30,
1965 AND IS fT\lee ON THE DANBURY LAND REC0ROS AND BEARS MAP NO 4860. l'OGElItiI:R wrrH THe
RIGHT TO "'ASS AND REf'AS.s OVER ALI:. ROI\DS AS SHOWN ON .sAIt> MAP. SAID PREMISES ARE FURTHER
DESCI;I.BED AS FOLLOWS: NORJHERLY: 19.5".8.4 FE'E;n3Y LOT 30. AS ,SHo.wN ON SAID MAP: EASTERly:

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AS SHOWN 0111 SAID MAP.
The Reo' Property or its address is commonly known as
Real Property tax identification number is ~20-47.

DRIVE SOUTH,

. CT

. The

REVOLVING LINE OF CREDIT. SpBci!1cally. in addition 10 Iho amounts lpeciHad in tho Indebtedn.ss deflnltlon. and without IIm~.t1on. til,.
Mortgage 51H;UreS a revolving ID3I'I agrllilment I milk. advances to Grantor '0 long as Grantor eompBe, wT1h 1111 .t he t8fT11' of the Credit
Agrcl:rntnt. Su.:h .dvancD3 moy be- rnada, repalct, Bnd romsde from rrrne to time, ,ubject to th. Umlt.ttlon ~t th .. toul outst.lni:llng .b.Jenclt
owIng at anyone tlmo. not including finan.o c".r90. on such bolanco at .ali.&d Of variabl. rate or IUm a. proVided in tho Crodlt Agr •• ment, Iny
temporary overages, other chalg0~. and any amounts expand&d or advanced 81 provjded In .i1her the Indebtedness paragraph or thls pltagruph.
shall not "xeNd th. Credit Limit al providod In the C,edlt Aor •• ment. It Is the (nt.ntlon at Gr.nta, and Lend." that thl. Mortg_g_ JleeUrel the
belanc:e outstanding under tho Credit Agreement from 1ima to time from urg up 10 the Cr.dit Limit iU provid,'d In thl. MongllQ8 end ilny
Intermediate bal,nc ••
Grantor pr.sen~y assigns to Lender all of Grantor', right. 1itle. and interest in and to all present eM future lea.es ot the Property and .rr Rents
from tha Property. In addition. Grantor gr.nt. to Lendar a Uniform Commercial Code security interest in the Person.1 Property and Rents.
TO HAVE AND TO HOLO. !he Propertv. with the privileges. and appurtenances of the Property, uMv Lender. its successors .nd assigns forever,
to its and thefr own proper use and behoof.

AND ALSO. Grantor. tor Grantor and Grantor's heirs. executors and administrators. covenants with and WarTRnts to L~nder, its sucr.a$SOrs and
<J$sign,. that at and until the enseallng or this MOrtgage, Grantor is well seized ot the Real Property os 3. good indlJfcasible estate in fee ,imple,
that Orontor hall good and absolute lit/a to the Personal Property, and that Grantor has good rIght to giV8( grant. bargain~ sell, assign and convey
the Property in manner and farm as is above written, and that the Property is free and clear of all liens, encumbrances and 8)(ceptions to title
wha1soever (other than those set 'ann in any policy of title insurance i.ssued jn ravol of, and accepled by. lender in connection ..vW, (hr.
Mortgogel,
AND FURTHERMORe, Grantor does by this MortgagB bind Gran10r and Grantor's SUCceGsor6 and assigno forever to WA,RRANT AND DEFEND
the Property to Lender, it" ~UCC68sor' and assign&, ilgainst 1111 claims and demands whatsoever, except I'S .:sel fo,th in the title pollt;y, il any .

THIS MORTGAGE. INCLUDING ~E ASSIGNMENT OF RE'NTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY. IS
GIVEN TO SECURE (A) PAYMENT Of THE INDEBTEDNESS AND IB) PERFORMANCE Of EACH OF GRANTOR'S AGREEMENTS AND
OBLIGATIONS UNDER THE CREDIT AGREEMENT, THE RELATED DOCUMENTS, ANO THIS MORTGAGE. THIS MORTGAGE IS ClIVEN AND
ACCEPTED ON THE FOLLOWING TERMS!
PAYMENT AND PERFORMANCE. except as otherwise provided in this Mortgage, Grantor shall pay to Lender _rr ;,mounts securod by tt\i.
Mongege 8S they become due and shlill strictly peffofm sU of Grantor's obligations under th/, Mortgage 8r'!d under any Related Dac;un'lents.
POSSESSION AND MAINTENANCE OF ~E PROPERTY. Grantor agr ••• thet Grantof's po ••• ssion end use of tho Pro~erty .harr be governed by
the following provillions:

Po.sesslon and Use. Until the occurrer,C6 of an Event of Default. Grantor may (1) remain In possession and contral 01 the Propeny: 12)
use. operate or manage the Property: and (3) collect the Aents Irom the Prop.rty.
Duty to iIIalntaln. Granto, .hall ma;nt.ln the property In good condition ~nd promptly perform al/ ropairs. replacements. and malntenonce
necessar. to preserve its value.
v
Compliance WIth En~ironm.nt.1 law •. Grantor reprosents and werrants to Lender that! III During tho period of crrantor's ownors"ip 01
the PropertY. there has been no use. generation. manufacture. storage, treatment. di.posal, relaaso or threatened release of ony H... rdou.
Sub~tal1C9 by any person on, unde r. about Or from the !)roperty; (21 Grantor has no knowh:-dgo of, or rea$on to believe thot there ,",OB
baen, excl!tpt as. preViously di~clos8d to and acknowledged by Lender in writing. ta) any brUDCh or violation of IIny EnvIronmental Laws,
Ibl any uso, genoration. manufacture, otorago, ueatment. disposal. reloase or threataned release of any Hazardous Substanco On. undor,
about or from the Property by any prior owners or occupants of th& Property. Of le} eoy actuat or threatened litigation or ctaims of any
kind bV any peraen '~f8ting to such matter!i; and (3) Excep1 i'o' previously disclosed to Dnd acknowledged by lender in writina. lal ntltMr
Grantor no; any te.m mt, contractor, agent or Qther aumadzed user of tho Property shall usa, generate, manu(actur~4 stors, treaT" dIspose 01
or rol.8se any Hazerdous Substance on, under, about or from the Property; ond (b- any such activity. shall be conducted in compliance
I
with ~II applicable fede(;I, 91310. and local laws, regulatjon~ and ordinances, including without limitation all Environmental Laws. Granlor
~nt6r upon the Property to make such inspections 4nd 't~ts. at Grantor'S ~)Cpen3e. as Llinder may de·em
appropriate to determine compli.nce of the Property with this section 01 Ihe Mortgeg... Any inspections or tests ",ade by L.nd.r sll." bo
for lendor's purposes only and shall not be construed tp create any responsibility or liability on the part of Lendar to Clrantor or to any othor

authorIzes lender and its agent3 to

OSA000101

Book

1538, Paae 1110, File Number

Case 3:12-cv-00639-JCH Document 53 Filed 09/20/13 Page 37 of 38
(Pasra

2 of 6)

MORTGAGE
loan No: 426370173636

VOL I 5 3 8 PAGE, , I I

(Continued)

'!<b.

Page 2

L

person. Tho r9presen~atjons and warranties contain~d herein are based an Grantor's due dlligertCs In investigating the Property fOf
Ha1:ardous Substtlnces. Grantor hereby (' J r~'eases and waives any future cla ims ag ainst Lender for indemnity Of contribution in th e
event Grantor becomes liable lor cleanup Of other costs under any such law9; and (2) agrees to indemnify and hold "'armless Lender
against any and all claims • . k>SS8S, liabilities. damages. penEltties, and expenslt! which lender may directly or Indirectly sustsin or suffsr
rosul1ing from a bloach of this sectilln nf the Mortgc!gl1l or .!IS a consequenc& of !lny usa, gltneration~ manufactura, storage, disposal, reJal88
Or threatened relftase oc(!urring prior to Grantor's ownership or ntEU'(fst in the Prop erty, V'Jhether or not the same was or should have beGn
known to Grantor. The provisions of thi s: $uctlon of the Mortgage, including the obli98tion to indemnify, shall survivs the payment of th e
Indebtedness ·and tho satisfaction and rec onveyance 0.1 the fien or thi$ Mortgage and final! not be Ilffccted by Lender'~ acquisition of any
Interest in the Property, whether by foreolos uro or othoi'wi3e ~
Nuis1II1ce. Willte. Grantor shall not cause , conduct or permit any nuhrance nor commit. permit, or suffer any stripping of or waste on or to
the Property or any portion of tha Property . Without limiting the generality of the foregoing. Grantor will nOI remove. or grant to eny other
party the rIght to remove, Bny timber. miner als (i ncluding oil Clnd gas). coal, clay, .scoria. soil, I;Jravel 0( rock products without Lancer's prior
written cons ent.
AemoyaJ or ImprOVemBnt5 . Orllntot' shall nOt demolish or remove any lmprovemtlnts from the Aeal Property without .lsndar's prior written
cons~nt. As a condicion to t he removal 01 any Improvements} lender may require Grantor to make 8rrangement~ satisfactory to Lender to
replol;u such Improvemems With Improv81Tl8nts of at least equal value .
Lender'.! Rioht to Ent.r. Lender and lender's agents and representatives may enter upon the ReC11 Property at all r98sonabla times to attend
to lander's interests and to insp@ct the Aaal Property for purposes of Grantor 's c omplia nc e w ith the terms and conditions of th le Mortgage.

Compliance with Governmental Roqulramanu, Grantor shall promptly comply with all lews, ordinances, and regulation •• now or hereafter
in effect. of all governmental authorities applicabJe to ·tile use or occupancy of the Propeny. Grantor may conteat in gcod faith o!!Iny. such

lew, crdinance. or regulation and withhOld compliance during any. proceeding. including appropriate apPears. so long as Grantcr has notified
Lender in writing prior to doing so and so long es, In Lender'., sole opinion. Landor', Interests in the Property are not jeopardized. lender
may require Grantor to po.t adequat. securi!,! or a surety bond. ieason.bly .atlsfactory to Lender. to protect Lender's interest .
Duty 10 PrQ1ect. Grantor 8gr88s neither to ebandon or leave unattended the Property. Grantor shall do all other acts i in

addltlo~

to those

act, set forth above fn this section, which from the character and uSe of the Property IJre reascnably necessary to protect and: preservo tho
Proper!'!.
DIJE ON SALE· CONSENT BY LENDER, Lender may, .t Londer'. option. deelarQ Immedi.tely duo and payablo all sums ..eurad by this
s
M o r.tg a o~ upon the cala or transfer, without londet 's prior writt9n consont, of all or any part of thq Real Property, or any intorliu t in the Raa'
Property. A ·sale or transfer" means the conveyanc9 of Rual Property or any right. title or interest In the Real PropertY; whether legOlI, b8ne tic i~1
or equitable; whether voluntary or involuntary; Whether bV ovt1ight sale, dee d , insto1Umorit sale contract. J
and contract, contract for do ed,
leasohold interost w tth a term greater than tllreo (3) yesta. lease--option controct.. or by s.,le, a33ignmant, or trensfer of any beneficial Interest in
or t o any land t rust holding tit le to tho A&,al Property, or by eny other method of conv eyllnce of an inte fGs t in the Real Property. However, this
option shall not be 8Kerc i~ed by Lender if ~uch ex erci:se i3 prohibited by ledernl lew or by Connec ticut law .

TAXES ANO LIENS. Tho following pro visions

reletin~

to the laxes and liens on the Proper!,! ere part of this Mortgage:

P3yrttOl", (3r~"wr Jlh~11 I)"~ whul1 duo (bn~ In ~rl .iiY."t~ prig, 10 ~~llr"l~.rt~.Y I ·811 I ~~, llIIy,ro~ 'I"~" . pop ,I UIJI!'O, ~'~"'lI!l11I '\I., wilt '
.
Qt)ti(G"" und gn""ar wvlo ...op~\g~ • .1 ,ad ~G' III:l, or art ~<:Q.~ ~l
I'" 1'~lIr\y, . nnd ~l m ll. ,PlI't WII.." ~\Ie . . lllel. fllll Ill( wor 11
01111 un 0< rOf,
" , viCe rn",{ltlW "" tjille~Jj,' r~ rill .t\ILlIO hu f'.operty. CU!" f ' . hnll rn~ lrl'l\l!1 r/1., I'I~pe n.v Ir~~ oj nnv ~Qf1' Mvlng 'pPlorlty dimr o~ equwl10
(1)8 Jrttera iri 01 ~.I1tl~,' uiIlIer Ibis- MO /lQdpo. o" Gopl: lOt 111.0 Exist!ng 11'lIJ Ob tCd~is~ rOlfoIF d 10 In 11\11 Mc/1!l8;,,·or 1ll0i111 10119 8~ctllgoUY
1
B;lr"o~ .\0 10.·lNnr, ~g ~"'·' I.o ndo r, nnel Ql(Cc
CP Il) r t h~ lion 01 ial<~ aM oa~ ~.tmoJl.1II 'lot c!O~ pq !ul;hQ< 'PQQ\I1~d In tn /lrGfJ1 to COnt..,,1
paragraph.

"r

Rlght to Contest. Grantor may withhold pZlyment of any tax, assessment, or claim in .c onnection with a good faith dispute o VaI' the
obligation to pay, &0 long as Lender's Interest in IM9 Property is not jeopardized. If a lien arises or IS. liIed as a result of nonpaymont.
Grantor sh .. 1 within fifteen 11 6j days ol11or the lien arises or, if a liem 1 filed. within fihocn 1 6) do.ys after Grantor has notice of the fil Ing,
1
5
1
8ecure tho d i3cherge of the lien, or if requ~stcd by Lender, deposit w ith Lender cosh or e sufficient ccrporBte surety bond or other security
s atisfactory to lender in !!Ion amount sufficient t o discharge the lien plus !lny costs and perm Issible fees , or other chmrges th~t cou ld accrue
as a r&!wlt of e foreclosure or 5o!!11a under the lien. rn any contest, Grant or shall defend it~elf and Lnnder and shall satisfy any adv"r3e
judgment before enforcemunt against the Property. Grantor shall nBma Lander as an additional obligee und~r any surety bond furnisheu in
the conte31 proceedinY:f.
EvJdence of Payment. drantor shall upon demand furni:sh to lender satisfac tory twidenc e 01 J:i8Vment of the taxes or asses.sments and shall
authorize the appropriato governmental official to delivel 10 Lender at any time a written 5taternent 011he taxes and aSSB!Sment$ against

the Property.
Notle. of Consb1Ietkln. Grantor s~all notify Lender at I.ast filteen (15) days before an¥ work is commenced. any services aie furnished. or
any materials at. supplied 10 the Property, if any mechanic's lien, materialmen·.s lien, Or othCf lien could be aSSerted on account of the
~ork, services. or materials. Oromor will YPon reqLJfJst of Lendar furnish
can and will pay the cost of !uch imp'ravc ment3 .

[Q

Lender ad~ance assurances satisfactory to Lender· that Grantor

PROPERTY DAMAGE INSURANCE. The foll owing provisions relating to insuring lhe

Pro~.rty

ere a part of this Mortgage,

Maintenancn of Insurance. Grantor shall procure and maintain policies of fire InsuranGe with standard extended coverage end orsements on
a replacemBnt basis far the fun insurable value covering all Improvements on the Real Property in an amount sufticient to a\'oid application
of any coinsurance clause, and with a standard mortgagee clause in favor- of lBnder. Poficlas shall be written by $uch insurance companies

and in such form as may be raasonably acceptable to Lender. Grantor shal l delive r to Lender certificates of coverege from each Insurer
containing a .stipulation that covarage will not be concelled or .diminished wilhoUl a minimum of ta. f1 0) days ' prior wrinen nOtica to londor
and net contBin inq any disclaimer of tha insurer's liability for failure to givB such notice. Each insurance policy also shall include en
endorsement providing that ooveraga in fc
wor 01 Lender will not be impaired in any way by any act omission or detautt of Grantor or any
other p B r~on . Shoud 1hA Real Property be located in an ele O deSignated bV the Director of the Federal Emergency Management Agencl( as
a specl(ll f lood hazard area, Grantor agrees to obtain and maintain Federal Fklod Insurance. if available. w ithin 45 days atter notice is oiven
by Lender that the Property is located in a special floo d nazard arae, 'or the fllll unpaid principal balance ot the loa n and any prior lien!i on
the pro~8rty se curing lh41 loan , up to the ma;.cimum po tIcy 'imj~" 'SClt under the Nationa l Flood Ill$urance Program, or 8S othotwisc requi red bV
lender, and to maintain Guch insurance for th~ term of the loan.

Appllcltfon 01 Procteds, Grantor shall promptly notify Lender of any 10 •• or damag" to the Properly. Lender may make proof ·of los. if
Grantor fails to do so within Ilhe.n 1151 days of the ca.ualty. Whether or not Lender's .acurity ie impaired. Lender may, at Lande, 's
election, receive and retain the proceeds 01 any Insurance and apply the proceeds.' to the reduction of the Indebtedness, payment of any lien

effecting the Property. or the restoration and re~air of tha Property. 11 Londer elects to apply the proceeds to rastor.tion and repair. Grantor
shell repair or replace tha damaged or destroyed Improvemertts in a manner .atislactory to Lender. Lenda, shall. upon satisl,ctory proof of
such expenditur., payor reimburse Grantor from tho proce.ds for the reason.ble Call of repoir or testoration if Grantor is nol in damult
under this Mortgage: Any proeeado which ha~e not been disbur~d within 180 days .ftor their raceipt and which Lender has, not
commined to lhe repair or re.to'"tion of tho Property sharr be used first to pay anv amount owing to Lender under this Mortgage. than to
pa.y accrued Interest. and the r-amainder. if i!lnV, snell be applied to the principal ball.lr.ce of the Indebtadna:5s. If Lender holds any proceeds
after JJlllyment in full of the Indebtednellls such
j

pro c e8d~

shall be paid to Granto·, SIS GriJntor 's in1erBsis may o!tpps1'IIr.

Campnane. wllh ExIs~n9 Indobtednes., During , he period In which any Existing Indebtedness descr ibed below is In effect, compllence with
tile insunnto provisions contained in tho instrument e.idencing SUcph Exi$\ing Indebtedna•• shall constitute compli ance witll the Insurance
prQlri5ions undar this Mortgage, to tho axtont compiian"a wilh the telmB of this Mortgage would CQns ti tvte a dupl iC ation of insurance
requirement. If' any proceeds from the insurance become payable on loss, th8 ·provision. itt tf'\19 Mortgage tor divi sion Of proceeds Shall
apply only 10 that portion of the proceeds nO payabla to tlto holder of the Existing Indebtedness.
I

LENDER'S EXPENOITURES. "Grantor fails IAI to keep the Property free of aU ta)(8S, liol15, security imer~sts, encumbrances. and other claime
18) 10 pr,oYide any requ ired in3urance: on the Property, or Ie) to maku repai/s to the Property or to comply whh Dny ob li gation to maintain
Existing fhdlibt e~n..u Ii'! Good . t."II[nQ ·raqurt.·d ~.low, t".n !.lind., m.y~., 1Kl{ If artY I'V on or pr~.,.ydlO{j I~ C(!lnrr,onG 11)0' would
.
pd
materl~I'y .~.ct' !!.aq".... IRtg. .." l'jl!'Q PlQlfu/'l" tMo~ Lond., 0" (]rllnt.crr'J Imh .1 rIIa v,' b.n '" nOI ".""Irod 10, I~~' ony ... lOn \ho, Lender
,
uc k' puipo~o·' will iIlo,,· ~.lf' Ihrar. 1I at the
believe. ·m a. ~~l'rI.qo 111 1It<I1'\G1 t~.d~,·. Intorn! ......1I . ... porlHS l"~ \lrud ~r iiiild"tj.( le nd o,

ft.

'0( ..

rat. cha llll'd ' undhi Ihe C,mflt Aw, ...n•• ~ t Ira'll 'tltJt,d~\o' I.tuutfod Of pH ~y '-"'1dot ·\O tho dDrQ o t r' ~I'",.QI by'Gro nto<, AtI ."'"·.xp.r.... wilt
id'
boc9me ~ ' ~"It pI .\ h ~ :f(l<\llljl~f1t .. '0<1. h.l ·.wJlIIM" o pddn •. IV.III lAI bn My.a," /' U'1 ~!rn An~: till' ce oCJ<lIICi ~ ,h. inion: -D ",. Credit
l
f

i .

OSA000102

, Book 1538. Pace 1110. rile Number

Case 3:12-cv-00639-JCH Document 53 Filed 09/20/13 Page 38 of 38

MORTGAGE
Loat'i No: 426370173636

(Continued)

val I 5 3 8

PAGE I I r 2

'I ~

Page 3

Agreement and be apportioned among and be payable with Bny installment payments to become due during either (11 the term of any
.oplicable insurance policy: or (21 the remain ing term 01 the Credit Agreement; or ICI be tr~ated as a balloon payment which .",111 be due and
p!lyable at 1he Credit Agreement's m~turi1y . The Property Also will gecute payment 0' these amounts . The rights provided 10r in this paragraph
shall be in addition to any other rights or any remsdles to which Lender m~y be entitled on account at any default. Anv such action by Lends,
S'hbJl MY be cOllstru9d as curing 1118 default so as 10 bar Lendar Ifom any remedy that it otherwl.e would rUlIVe had ..
WARRANTY: DEFENSE OF TITLE. The lollowlng provisions ,elating to ownership 01 tOO Property

are

a part of this Mortgage:

ntl..

Grantor w .... nt. that: (01 Grantor holds good and marketable title 01 ,ecord to th. Property in f.e slmpl •• fr.o and cle.r of all liens
and eneumbrar.ces olho( than 1hose set forth in the Rear Property de"criptlon Of in the Exisfny Indebtedness section below or In any title
insurance policy, title fflport. 01 final cWs opjnion issued In tavor of. and accepted by. Lender in connection with this Mortgage, and (b)
Grllntor has the full right, power, and authority to execute and daliver this Mortgage 10 ~8nd~r.
D.r.!,~&

(If Tltk. Subject to the exception In the paragraph abolJo!I, Grantor warrants and will forever de'and the titl. to the Property a9air.st

1:he I",wtul cl.llims 01 all persor,s. fn the event any action Or proceadlng is commenced that qul!tstions Grantor's title Of the interest of L!mder
under this Mort9age, Grantor shall defend the aC'tion a[ Grantc"', expense. Grantor may be 'the nominal party In such proceeding, but
Lender snalf be entitled to participate, in the prcl!aeding and to be rep'resentad in .tho proceedino by counsel of le-nder's t>wn choice. and
Grantot will deli\ler, or cauce to be daliverQ.o. to lender such instruments .n Lender may rQqu~st from time to time to porrnjt suen
partie Ipation.

Compliance With La...,s. Granlor warranls that the Propel IV and Grantor's ~s. 01 the Property complies wi I" all existing applicable law ••
ordinances, and regulations at Dovernmental authoritie3 .
Survival 01 Promises, All promises, agreements. and statements Grantor has made in this Mortgage shall .survi\le the yxeculion and d"livilry
of this Mortgage, shall be continuing in nature and shall remain in full force and orrect umil Such time as Grantor's Indebtedness Is paid In
lull.

EXISTING INDEBTEONESS. Tho following provisions concerning Existing Indabtednass are a part of this Mortgage:
Exlltlng Uen. The lian of thls Mortgage securIng the Indebtedness may be secondary and inforior to tha lien securing payment of an
existing obligation. Tha 8xisti~g obligation has. current principal belanca of approximately $149800. Grantor expressly Coyenants and
agrees to p~y. or see to the payment of, the Existing Indebtedness and to prevent any delauh. on suc'h indebtedness. any detault under the
Instruments ovidencing such indebtedness, or any default under any security dor.uments fOl such indebtedness.
No Modification. Granter shall not enter into any agreement with the holder Qf any mortgage. deed of trust, or other security agreement
h~s prloljty OVer this Mpngi'!ge by which that egreem,em Is modified, emended. extended, or renuwed without lhe prior written
consent 01 Lender. Gramor snalJ neither request not accept any future advancos under any such $ecurity agreement without the prior
written coni~nt of Lender.

whIch

CONOEMNATtoN. The folJowing prOVisions raJating to condemnation proceedings are a part of this Mortgaop.:
ProcORdlng.. If any proceeding in condemnetion is filod. Grantor shall promptly nollly Lander In writing. and Grantor shall PlOmplly take
such steps ae maY .E?e neoessary to ~9tend tho action and obtain the award. Grantor maY ' be the nominal 'party II:' such p:ocfJsding. but
lender 5f-t~1I be entitled to participate In the proceeding and to btl reprasented in the proceeding by counsel 01 its own choice. and Grentor
will deliver or cause to be delivered to lender such instruments and dooumentat.lol\ as: rna)'. ba requested by. lender f~6m time to time tQ
permit such participation.

It en or anv pan: or the Property Is condemned by eminent domain proceedings or by any proceeding or
purchase In lieu of condemnation. Lender may ot Its election require that all or ony portion of the net proceeds of the award ba epplied to
the Indebtedness or the repair 0' restoration of 1ho Property. The net proceeds 01 the awerd shall mean the award atter paymont 0/ all

Appncatlon 01 Net Proc.ad!.

reasonable costs, e.xp.nsas, and attorneys' fees incurred by Lender in connactlon with the .condemnation.

IMPOSITION OF TAXES. FEES AND CHARGES BY GOVIORNMENTAL AUTHORITIES. The following provisicns 101""9 to goy.rnm."t.1 tax ...
feo$ 3nd charocs at'! a part 01 this MOftgage:
Current Tue •• Fe.. and ehargu. Upon reque.t by, Lender. Grantor sholl execute such docum~nts in addition to thi~ MQrtgaga and lake
wh'iltcvar other action is requested by Lender to perfect and continua Lender!s Iten en the Real Property. Gnmtor shall reimbllrs8 Lender for
alilaxes, .. descrlb.d below. together with oil expenses incurred in recording, perfecting or continuing this Mortgage. including without
limitation all taxes. faes. documentary stamp,. and other cherges for recording or registering this Mortgage.
TaXIt3. The following shall constitutliJ tl:lxes to which this section applies: (1) !I 1ipecific tiJX upon this type of Mortgage or upon all or any
part of the Indobtednns secured by this Mong~g8; (2~ a specific tax on Grantor which Grantor ;1$ 8uthori£ed or requited to deduct from
payments on tho Indebtedness S<!cured by this type of Mortgage; (3) a tax On this typa of Mortgage cha'geablo against tho Land.r or the
hold~r of tho Credit Agreement; and 14) a specific taK on .11 or any portion of the Indebtedness or on paymonl. of principal Bnd inieresl
made by Grantor.

Subldquant Ta)(tta. If any tax to which this section applias. is 9nactQd subsequent to the data of this Mortgage. this Qv&nt shall havQ the
$lIm~ effect as an Event of Detll!')lt, lICld lender may exercise any or "II at It' availeble remedies for an Ev.nt of Default 8S provided below
unlesS Grantor either (1) pays the tax before it beccmes delinquent or (2) COr'ltests the tax aa provided above in The Taxes and LIens
section and depOSIta with Lender cash or a sufficient corporate surety bQnd or other security .satisfactory to Lender.
SECURITY AGREEMENT: ANANCING STATEMENTS, Tha following provisions relating to this Mortgage as a security agree mont are. part of
this Mortgaga:
Security Agreoment. This instrument shall coos(ilutfJ a Security Ag,eement 10 the extent any of rh" Proper ty consrlrute~ /ixturo3, and
Lender shall have all 01 the rights of • secured party under the Uniform Commercial Code es amonded from time to tlma.

Security Inttrnt. Upon request by Lender. Grantor shall execute financing s1atements and take whatever athel ar.::1ion is flHluested bV
Le'nder to pertect and oon.tinue lender's s.&Curity interest In tho Personal Property. In additlC?" to recording this Mortgage in the real
property reoords l Ler.dllf may, ot any tJms and without further Buthorization trem Grsntor, file executed counterparts, copies ,or
reprodvction~ of this Mortgege os 8i finanoing statement.
Grantor shsll r.almbursEI Lender lor ell eKponses incurred in petfectinQ or
continuing this security interest. Upon defnult. Gtltntor shall tlMemble the Personal Propeny In a manner and at a place reasonably
convenient to G,,,ntor ~nd Lender end make h aveiJnblc ,~ londor within- t~ree (3) daY:II after receipt of wrinen demand from lender.
Addr ....... The mailing addrosses of G,antcr idebtOlI and Landar (secured pertvl from which information concelninR tho security Interest
granted by this MOlto'ge may be obtained (each es required by the Unilorm Commercial Codel are as slaled on the tilst page 01 this
Mortgage .
FURTHE;R ASSURANCES: ATTORNEY-iN-FACT. The following prOVisions retatlng to further assurance. and attorneV-ln-f.et are. part of thi~
Mortgage:

Ft.lrther Assurance._ At any time, and from time to time, upon request ot lander. Orantot wJn m.td( •• t:nr:eC'ut~ and deliYI;U, or will ~auSiJ to.
ow to Lender's dasfgn99, and wh9n requested by Lind", caUSe to be filed. recorded, refiled. or
rerecorded, as the ets, may bt, at such Urnes and in 'uCh office" and place's as,Lender may deem app'roprilte, any aJ1d all luch mortgages,
deeds of trust. ,ecurity deadl. security Dgreement" financing :sblements, continuation statement:J, Instrumonu of fUrther DoaurDnce.

be made, executed or d~iiver8d, to Lander

certllicate" and other documents as may, In tM sale opinion 01 L.nc;lor. be neca"ary or de.lreble in olde, to eff.ctuate. complete, perfec:.
continue. Or presorv. (11 Grenlor 's obligation. under the Credit Agreement. this Mottgag.., and the Related Documents, and (2) the liens
and security intere!lt9 creltG.d by this Mortgage en tha Property, wh(jlther no"V owned or hereafter ecquirBd by Grantor. Unless prohibited
by I~w or lender agl'ees to the contlCUY in writing, Grantor 'Shall reirnbur5e Lender fO'r all coste and 8Kp8nses incurred in connection with
the mltters referreQ ro In this paragraph.
Attornoy-In-Foct. If Glantor lail. to do any of tho things rel9t'red to In tha preceding paragroph. Lendor mey do 00 for and in the oame 01
Grantor and It Grantor's expen8B . For such purpaSBS~ Grantor hereby irrevocably appoints l..ender as Orantor's sUornev.. jn-f.JCt fot the
purpose of making. e)(ecuting, delivering, filing. recording, and doing all other things as may be necessary or desirable. In Lender's sale
opinion. to accompJI;h ths ml!tto', . referred to in the precedll"\O par"'oraph ~

FUU PERFORMANCE. If Grantor pays all the Indebtedness whan due. terminate, lhe credit line aceoum. and OtharNise performs aU the
imposed upon Gr8nlo! under this Mortgage. Lond.r shall execute and deliver to Grantor .s suilable satislaction ' of this Mortgage and
s'uita!lle statements of termination of any flnant"ing sta;em'llnt on ,file eVidancit'lg Lender's security .intefest in the Rents and the Personal
Property. Grantor will ):l~V, if permitted blf" applicable law, any reasonable termination fea as determined by Lender ftom ·time to time.
oblig~tions

OSA000103

Book 1538. Paqe 1110 . File

~er

Case 3:12-cv-00639-JCH Document 53-1 Filed 09/20/13 Page 1 of 38
(PsgI'! 4 of 6)

MORTGAGE
lQlIn No: 426370173636

Page 4

IContinl1ed)

EVENTS OF DEFAULT. Grantor will be in defautt und~r this Mortoage if .ny of the following happen:
.
(Al Granto, commits fraud or makes a materisl misrepresentation at any time In connaction with the Credit Agreement. This can
Include, for example, Ii rals~ statement about Grantor'! income, assets. liabilities. or anv other aspects of Grantor's financial condition.
IB) Gronlor does noT me.1 rho I.paymenr lerms of Ihe Credit Agreement.

131 Grantor'. action or inaction adversely .rfeolS the collateral or Lander's rights in the collateral. This can include, lor example, failure
to maintain reQuired Insurance, wBste or destructive USB of thll dwelling. failure to pay ta:t9s. death 01 it!1 persons liable on tng accaunt. tr!nsler
of title or sale of the dwelling, creation of a senior Hen on the dwelling without our permissjon. foreclosure by the holder af another lien, or the
USe of funds or the dwelling for prohibited purpose •.
RIGHTS AND ~EMEDIES ON DeFAULT, Upon the occurrence of an Event of Defaull .nd 01 any time Ihereattar, Lender, at Lena.r·s option, m.y
e)(ercise any Ono or more of the follOWing rights. and remedies, In addition to any oth&r rights or r9medies provided by law:

Accel.rllt, Indebt,dnlu. Lsnder shall havo th, right at its optio,., without notice to Grantor to declare
due and payable, including any prepayment penalty which Gronto( would be required to pay.

lh~

entire IndBbtodness immedietely

UCC R.mld"'.. With respect to all or any part of the Porsonal Property, Lender shall have all the rights nnd reme<!ie~ or a •• cured partY
under the Uniform Commercial Code.

Colloct Rent.. Lender shall havo the righI, without nolice to Grantor, to take possession of the Property and collect the Aems, including
amounts past due and unpaid. and apply the net proc!!sds. 0\1&( and above Lander·s costs, agair1st tho Indebtedness . In furtherance of this
right/ Lender may raquir'B any tenant or other usor of the Property ro maks peyrnants of rent or use lees directly to lender. It the Rent:.; D(C

collected by Lender, than Grantor irrevocably deSignates Lender as Granror's ettorney·in·lact to endorse Instruments received In payment
thereof in the name of Orantor and to negotiate the same end collacr the proceeds. Payment. by tenants or other use,. to Lender in
response to Lender's demand sheJi satisfy the obliga1;ons for which the payrmmh are made, whe1her or not any proper grounds for th(J
demal'ld ~xisted. Lander ma~ exercise its rights under this 5ubpa,ragl'eph either in person, by agent, or through B receiver.
Appoint R.c,lvef4 Lendar shalf have tha right to have a receiver appointad 10 take p0!l98esfon of all or any part of the Property. ,With tho
power to protect and preserve th". Property. to operate the Property preceding &ny trensfer Df title to the Property in e~tjngul5hmenl of the
proc~ds, over and above the. CPSI of the receivership. t:ig!inst lh~
Indebtedness, and to exorciSe! any other powers permitted bV applicable law. The recoiver may serve Without bond ir permitted by law ,
Lender',s right to the appoLntment or a reCfJiV8r shaH exist, whvthar or' not ths apparent vBlue 01 the Prop4:=rty t=~Ge6ds the Indebtednosi by 8
substantiaf amount. Employment by Lander shall not disqualify II person from serving U a rec9lver.

Indebtedness, .!lind ta collect the Rents from the Property and apply the

JudIcial Foreelo.ur.~ lender m"y obtain a judgment foreclosing Grantor's Intorast In all 0' any part ot tne Property.

Deflcioncy Judgmonl. If permitted by applicable law, Lender may oblain a judgment for onv deficiency remeining in the Indebtedness due
10 Lender after opplicalion of all amOUnts received from the exercise 0' the rights provided in this section.
Tenancy at Sufferance. It Gfantor' rema ins in po~5ession of the Property altfJr the Property is sold as provided ilIbove Qr L~ndef ath~,wi~e
becomes entitled to possession of the Property upon default or oranlor, Grantor shall be<:ome a tenant at sufferance 01 Lender or the
purchaser of tho Property and sholl, at Lender's option, either f11 pay. reasonabl. rental for the use of the Property, or 121 vacate ,the
Prop.rty immediatelv upon tlla domand 01 Londor.

Other Rsmedh.3. Lendsr shall have 81i other riohts and remedies proVIded in this Mortgage or the Credit ACl'eement or available at IdW or In
equity.
Sal. of tho Property. To the extenl permined by applicable law, GrMtor hereb'( waives any and all right to have tho Propartv marshalled.
In Bxarcising its rights. and remedies, Lender, or any court having jurisdiotion 10 foreClose this Mortgage, shell be free 10 sell all or any part
cl ,the Property tcgethar or saparately, in one 9ale or by separate sa'l es. Lar'ldGr shall be entitled 10 bid at any publjc sala on all or any
portion of the Propenv..
Notice of Saht. lander will 'giv~ Grantor reasonable notica of the tima and plDlcCJ of any publio ""Ie of the PeraonaJ Propt!rty or of the time
after which eny prlvrJte sale or other intended dillposition. of the Pel'sonal Property i, to be made. Reasonable notice shall mean notic6
given Ot least ton 1101 days before the time ot the sale or disposition.
ElltCtion of Remedies . All of lender's rIghts and remedies wilt be C"umulative and may be El)(9rcised alone or tog9'ther. An oloction by
lender to choose anyone ramed" wilillot bor Lor.der from using lIny other remedy , It Lender decides to spend money or to perforlll any o(
Grantor's obligatl9ns under this Mortgage, after Grantor's failure to do so. that deciSion by Lender will not affect Lender's right to declare
Grantor in default and to exercise Lender's remed ies.

Expenses. To the extent not prOhibited bV appHc!tJle law, all rl!Bsonabht expense.! L8nder incur3 that in Lender's opinion are r'lece~sar.,. at
any time for the protection at ita in~eresl' or 'he enforcement of its rights J shaU become a part of the loan pByable On demand , and' shall
bear interest at the Note rate fl'om the date of expenditure until repaid. Expenses covered by this paragraph include, without limitatioll.
however subject to any limits under appl1cable law, Lender's expenses for bankruptcy proceedings linch•
.lding efforts to modify or vacate tr.e
Butomtltic stay or injwnction)- and lIppeals. to the extent permlttod by applicable law.
NOTICES. Any notice required to be given undor thi~ Mortg(Jge, Including without limitation any notice of dofault and- any noeice of sale Sholll be
glven in writing, arid shall btJ effective when Dctuelly delivered. when Bctually received by telefacsimile lunless ottJarwis8 required by lawl, when
deposl1od with, a national1y recognized overnight courier, or. if mailed, when depo~ited in thc , \,)nl ~d S tOll»- ''!'tun, ~, cenified or ragi8tered meil
postage prepaid. directed to the addresses shown neer the beginning of this Mortgage. All c o~o:s o f notJt1!:I ot foreclosure tram the holdar
any li~n which has priority over this Mortgage shall bet .sent to lender's address, 8S shown ru,!!, U.Q & gjonlnlJ of this Mortgage. Any person
may chsnge his or her address lor notices under this Mortgage by gIving tormal wrrtten notice TO thB other person or penons, sp-t!clfylng that
the purpose of the notice Is 10 cMnge the person's address. for notice purpose., Grantor agree. to keep Lender Informed at all t imes of
Gra"
ntor's cUrrer'lt address. Unless otherwfse provided or required by law, it thero is more than one Grantor, any notice given bV Lender to any
Grantor is d~emed to be notice given to all Grantors,. It wiJl be Grantor's responsibWty to tell the o1hers of the notice from Lender.
Notwithstending the lorogoing, the address for notice lot Lender is: Bank One, P.O. Bo. 901008. ForI Worth. TX 16101-tOO8.

0'

WAIVER OF HOMESTEAD EXEMPTION. Grantor hereby rel ••• es and waives all rights and benefits of the home"e.d exemption law. of tlla
stale where the GrSol\to( resides U, to all indebtedness secured bV this MortgageJDaed 01 Trust.

NON·WAIVER. A waiver by any party of a bteach of a provision of this Mortgage shS1i not constitute a waiver 61 or prejudice the put)l'S right
• otherwise to demand strict compliance with that provision or any other prOVision.

IDENTITY OF LENOER. Lender is Bank Ono, N.A., a national banking associorlon with its main oftlc •• located in Columbus., Ohio.
SUPPLEMENT TO PERSONAL PROPERTY DEFINITION. It is tho intention of Lender only to take a security Inter •• t in and retain. lien on that
personal property con1idel'ad tixtur~s under the Uniform Commercial C(lde as ada pled In 1he lurisdic.\io,n where this Mortgage. is 1U~d of (ecord ~s
sama may tla amended from time to time' or such other statuto of such Jurisdiction that define, property affixed to resl estate and no other
personal prOPerty.

MISCEl.LANEOUS PROVISIONS, The 10Howing mi$cellaneous provisions are a parI nf this MOl1g.ge;
Am~ndm8nt..

What is wrinen In 'this MOftgagH find in t.he Rel.lJted Documents is Gr.!ll'n~or'~ entire agreement .with lltnoer concerning the
maner! covered by 'hIs Mortgage. To be effective, any changl!t or IImendmem to this Mortgag. must be in writing and must be Signed by
8

wnoever will be bound or obligated hv the change or amendment,
CiiptTDr) Headings. Ception ha!idings in this Mortgage are for convenience pUlposes only and .r. not to be used to Interpret or del/ne tne
provisions of this Mortgage,
Gavernmg L.aw. 1hls agreement wilf be govtJrned by and interpreted in acco,danctt wHh ftu.JeritJ Jaw and tho law" of the SlAle
COMactlcur. except far matters teJlIred to 'mal'est .8nd the exportation of interest, which mltter:; win be governed by lind interJjHtted
accordance with federal law !including, but not limited to. statutas. r8gulatians, inlerpretations, tUld opinions) and Itlw:i of the Slate
Ohfo. However, if there ever is a que,s tion about whether any provis ion of the agreement Is valid or enforceable. the pr'av~ion that

Tn.
"

of
in
at
I~

questioned 'will b. governed by whicheve, state or federal law wou:d find the provi$lon to be valid and e
.nforceable.
,.,an tran.action
which is e,idenced by this and other related documents ha9 been approved, made and lund ed, and aif nec.ssary· documents have been
acc's pted by Lsnder in lhe Srate of Ohio.

OSA000104

Jolnl and Several L1QblJlty. All obligations of Grantor under this Mortgage shall be joint and several. and all r~ferances to Gr3ntor 3hall mean

Book 1538. Pacre 1110.

F~le

NUmber

Case 3:12-cv-00639-JCH Document 53-1 Filed 09/20/13 Page 2 of 38
(page- 5 of 6)

MORTGAGE VOL
Loan No: 4"26370173636

I 5 3 8 PAGE I I ~ ~

Page

5

M

IContinlledl

o";'h and every Grontor. This moans that e.ch Grantor signing below Is responsible for all obligations in this Mortgage.
No W.IV&r by londor. Grantol ~nder$tands Lendjl/ vDl /101 91~b up ,)I'!y oi Lendor'. rights under this Mortgage uhles. L&nder do~s so in
writing. The fact that Lender delavs or omits to UXJ"ci$Q 'nny, tlo~t 1",111 f1(ll; mean 'that Lendor has given up that rigbt, If Lendol doa. agr.e
in wri1.ing to givB l.fJ onu of Lender's rights. that dO,1l1
m~,n G't'1II1
U'U ~Il not h,ve to compty with the other .provisi~s of this hAortgage.
Grentor also understands that if Lender does ccnsfillnt to til request, that does not mean that Grantor wiU not have to get Lemdor'o con,entagain 1f the situation happens egain, Grentor further understands that Just bacause Lander consents to one or male 01 Grantol', reque.ts,
that doe" not mean Lender will be required to consent to any of Grantor's future requests. Grantor waives presentmsnt, demand for
payment. protest, an~ notice 01 dishonor to the extant allowed by law.

rrG,

So •• rability, If 8 court Nnds that any provision of !hi. Mortgage ,. not valid or should not b. enforcad, That lact by itself will not mean that
ttle m5t of this Mortgage will not tie valid or anforced, ThereforB, a court will enforce tll8 rsst of ths proVisions of1hi. Mortgage even JI •
provision of this Mortgage may be found 10 be invalid or Unenforceable.
Merger. There shall ba no margar of t"a in,er~i$t or os-tate cteated by this Mortgage witt-. ,my Qther interest or estate in the Property at any
tim a held by or for tho ben~tit of Landor In any capacity, without tho written content of Lender.
SUCCelnQN and A.sifJns. Subject to any Iimila1ions stated in this Mortgage on transfer of Gr8ntor's interest, this Mortgage shaH be bindi~

upon and Inure to lhe benetLt or the parties. their succeSsors and a"5signs, If ownership of the Ptopeny becomes vested in 8 person olher
them · Graf1tor, Lender, without nOlioB to Glantor, may dual with Grantor's ~uccessors with reterence to this Mortgage and thA Indebtedness
by wa~ of forbel'ranC8 01' exten5ian without releasing Grantor from the obligations of this Mortgage or liability under the Irldebtednesa.

TIme i. of the Euence.. Time is of the eSgenCe in the performanoe 0' this Mortg .. gc.
DEFINITIONS. The following words shall have the following mllaning_ when used in this Mortoage:

Borrower. Th. ""ord "Borro"".r" meon. ABEL 0 OBABUEKI and ALABA S OBABUEKI,
Agreernent,

~nd

.11 olher persons and enlities signing the Credit

Cr.dn Agreement. Tho words "Credit Agreement" mean the cfedit agre.ment dated May 2, 2003, in the original principal amount
of $82,000,00 from Grantor to Londer, a copy of .".hich i. mode. peri of this Mortg.ge end attached to this Mort9ago •• ,on ~xhibit,
loae1her with all. renewals of; extensions of, modificu~iQns ot, refinancings of, corasolidotions of, end sobgtJtution~ for the promis&orv noto
or agreement. The maturity d~te of Ihis Mortgage is May 2, 2023.
Envirol'fTl8ntal Laws, The words 'Environmontal Laws" ,mean snv and all state, federal and loc~1 statutes, regulalions and ordinances
relating to .the protection of ·human health Or the envlronmel'\t. Including without limitation the Comprehansive Environmental Respon5e,
Compensation, and li.bi~ty Act of 1980, as amended, 42 U.S.C, Section 9601, ot soq. ("CERCLA"I, tha Superfund Amendment. and
Reauthorization Act Qf 19S9, Pub, L. No, 99-499 I"SARA"" the Hazardous Materi.'. Transportation Act, 49 U,S C, Section 1801, At seq ..
the Resource Conselvation and Rec.overy Act, 42 U.S.C. Sectio(\ 6901, &t seq,. or other applicable state or feder~1 laws. tules, Ot
rogulations adopted pursuant thereto.
Event of Oefault. The words -E.vent of Default" mean any ot the events of dafault set forth in this Mortgage in 1he Bv~nts of default
section of thi9 Mortgage.

Existing IndabtlJdn.ss.

Th"il words -ExistIng Indebtedne9s· meAn. the indgbtodnou do»cribQd in tha E)(i;ting Liens

provj~'-on

of this

MOr1gelg'iI!J.

Grantor, ThB word "Grantor" mBans ABEL 0 OBABUEKI and ALABA S OBABUEKI.
Hazardous Substanc.,,,. The words -HazardouS' Substances" m"ean materials lhat, because 01 thei,. quantity, concentratlon or physical,
chemical or infectiolls characteristics, may cause or pose a Dre~ent or potential hazard to human health or the envlronm,;)nt when
improp«rly uS6d, treated( stored, di$posea of, "enerated l manutac:-ulod r transported or otherwise handled. ThB words ~Hal:ardous
Substanoes" are used jn their very broadest sonse end include without limitation any and all hazerdous Qr toxic subQtancas. materialS or
waste a& defined bv or listed under the Environmentttl Laws. The term "Haz.ardous Substances'" also includes. without limitation. petroleum
enct petrQleum bV·products or any fraction thereof and asbestos.

Improvement.. The word -Improvements" mean.s all exi:ning Bind future improvementS'. buildings, ,trucwr&s. mobilo homos affixed on the
Real PrqpBlty. facilities, additions, lspJ8cements and other construction on thlt Re8' Propttrty.
Ind"bttlllldne ... The woed -tndebtedne5~· means all priflCipal, intere~t, and other 8mounu, C(lsts and .expanses pltyftble under the Credit
Agreement or Aelated Documents, together with all :enewals of, extensions of. modifications 01. consolidations of and substitutions for the
Credf1 Agreement or Related Docl1ments and any amounts eXJJfmdad or advanced bV lendet tQ discharge Grantor's obligation~ or expenses
incur1.,d by landM to enforce GlaMor's obli9i1.tjo~s ~nder this Mortoage. tog~ther witn interest on such amounts' as pr9vided in this
Mortgage. In addition. and without limitation, the ~erm "lndeht.dnul5!i" InCludes all amount. Idanttffed 11'\ the RevaNlng Une of Crulrt
pO'.-graph of thic MortQ'Qe. HOI4l'8"J.'. th6 t4'm "Indebtedness" is ~bJ8Ct to tht dmnatl!3". IdQntHi.d Tn the Ml!lxlmtlrt'! lien •• ctiort of thi.
Mortga~ •.

lender. The word -Lender· means Bank Ono, NA , its 'Successors and assigns, The words
company that acquires any interest ir'l1na CrBciit Agreement.

·SUCCd$SOrS

or assigns" mean any parson Of

MOrtg89t1. The word. "Mortgage" mean.! thj~ Mortgage be.tween Grantor and Lender.

Person.1 Property. The words "Porsonal Property" mean all equipment, fixtur.s, and other anicle. of personal propeny now or hereaft.r
owned by Grantor, and now or hereafter anac;hed a( affixed to thBi Real Property; together wfth an accessions. pans, and .addftion!l to. er,
rep'acerncnt9 0(, and atl substitutions for. any of such property; and togeth~r with :aU proc;eed3 (inolud;ng without Jirnitation all iMuranco
proceeds Bind refunds of premiums) from any sI'le or other disposition of th" Property_
Property. The word "PropeI1Y~ means collac~ivO'ly th" Real Proper1y and the Personal Property.
RGal Property. Tha words ~Real P/oporty· me In the (eol property. interests and tights, DS: funner described jn this Mortgage.
The. wards HRel:atliild Documents=' mean all promissory notls, cf$dit agreements, toan agr94!lmenl~. anvironmonfaf
agreements, guaranties, 1S8GWity agreements., mortgages. dil\'eds of trust, security deeds, c;olla!eral mortgages:, and 1.111 other instrum~ms.
agrElemen~s and d.ocuments, whether no~ or hereafter eXisting, execlrted in connectIon with the Indebtedness

Rofat,d Document..

Rant"

The word "Rents" me.IJns aU present and future rents, revenlles, income, issues. roya.lties, profits, and otner beneHts derived from

the Property.
OPEN·~NO MORTGAG~. This i•• n aPEN-~ND MORTGAGE, and the holder 01 this Mortgage shall have all the rights, power. and protection.
authorizad and a!lowed bv Section 49·2 of the Connecticut Gener.1 St.tutes and by othef stotute. and applicable law, subject onlv to such
limitations: as arB Imposed by law, Lende, is specifically permined. at its option a.nd In its disore!lon, to make additio.nal loa~ or advaMftments
undAr thiS' Mortgage a. contemplated by Section 49-2 (cl of the Conn.clic~t General Statutes. and .aeh and every sueh loan or advahcemont
snail be sec\Jtad by this. Mortgage equally wrtf:'!, and with the .lame priority ovar qt!'1sr claims as, tne amounts initially disburs9d In r8J~1 of the
Indebted" ••• evidenced by the Credit Agr.ernent.

OSA000105

Book 153B. Paqe 1110. File Number

EXHIBIT II

Case 3:12-cv-00639-JCH Document 59-1 Filed 09/23/13 Page 11 of 15

EXHIBIT C

Case 3:12-cv-00639-JCH Document 59-1 Filed 09/23/13 Page 12 of 15
Mar 30 12 11:14a

CHS

[phone]

ac (oH4-7104)

Chase Home Finance
3415 Vision Drive
Columbus, OH 43219-6009
[phone] Customer Care

CHA

p.31

E
EXHIBIT C

July 25, 2008
00311-01 !1A 214-000000000300

Abel Osagie
Dr S
, CT

ZAZICSISS

Ite: Home Equity Account ********3636
Block In form ado n
Dear Abel Osagie:
Thank you. for contacting Chase about your home equity line of credit account.
We have received your request for information why the account was blocked. This was blocked
because Chase has not recieved the neecled signed documentation from you to record collateral
documents. Once the said signed documents are rewind then Chase can remove the block from
your account.

Chases goal is to provide the highest level of quality service to each of our customers. If you have
any questions, please contact Customer Care at [phone].
We appreciate your business and value our relationship with you.
Sincerely,

Jovel Conde
Customer Care Professional
Customer Care

Case 3:12-cv-00639-JCH Document 59-1 Filed 09/23/13 Page 13 of 15

EXHIBIT D

Case 3:12-cv-00639-JCH Document 59-1 Filed 09/23/13 Page 14 of 15
EXHIBIT D

CHASE 0

41•1.1.1.1.17

aalr

Chase Home Finance LLC
1320 Faqt Sky Harbor Circle, S.
Phoenix, AZ 85034-9701
Collections Department
[phone]

nrompoosepoollo

••ss•••sssss•s•

October 20, 2008

27917 0000392 001
OSA0 IE , ABEL
OSAGIE . ALASA S

FIRST CLASS MAIL

RY C

Acceleration Warning (Notice of Intent to Foreclose)
Account #: 11110111.111M11111163636 (the 'Loan")
Property Address:
Drive South
Ct 0
(the "Property")
Dear Mortgagor(s):
Our records indicate that your Loan is in default and you have breached the terms of the Mortgage, Secunty
Deed, or Deed of Trust ("Mortgage'') securing the Loan.
Under the terms of the Mortgage, you arc hereby notified of the following:
I . You are in default because you have failed to pay the required monthly installments commencing with
the payment due August 15, 2008, late charges and fees incurred or paid on your behalf.
2. As of October 20, 2008, principal, interest, escrow, late fees, and charges/fees of $5139.68 are past
due.
3. If there is reason to dispute the debt, or any portion thereof, you must notify Chase Home Finance LLC
within 30 days of this notice. Otherwise, Chase Home Finance LLC will consider the debt validated.
4. Action required to cure default: You must pay the total amount sot forth in Paragraph 2 and all monthly
installments, fees and other charges, which become due or are paid an your behalf after thc date of this
notice.
5. If you fail to cure the default within 30 days from the date of this notice, Chase Home Finance LLC
intends to accelerate the maturity of the Loan, terminate your credit line if the Loan provides for
revolving advances, declare all sums secured by the Mort&age immediately due and payable, and
commence foreclosure proceedings. If this happens, Chase Home Finance LLC ll be entitled to
collect its expenses incurred in pursuing the remedies provided in the Mortgage, including, but not
limited to, masonable foreclosure/attorneys' fees and costs of title evidence.
6. You have the right to reinstate arler acceleration and the right to bring a court action to dispute the
existence of a default, or any other defense to acceleration, foreclosure, and sale.

0 SA000401

Oarrici103006

Case 3:12-cv-00639-JCH Document 59-1 Filed 09/23/13 Page 15 of 15

Osagie,Abel
Page Two
October 20, 2008

7. The to

due is required in the form of Certified Funds and should be re

Regular Mail: HE Default Payment Processing
Mailcode 0H4-7164
Chase Home Finance LLC
P.O. Box 24785
Columbus, OH 43224-0785

d to:

Overnight Mail: HE Default Payment Processing

Mailcode OH4 7164
Chase Home Finance LLC
3415 Vision Drive
Columbus, 01-1 43219
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8. If ,ou are unable to pay the amount past due, Chase Home Finance LLC has a variety of programs,which
ight help you resolve -iour default However, we need to talk to you to discuss these options and which of
them might be appropriate for your circumstances. Please call us as soon as possible at [phone].
9. While the loan remains in default, we will perform certain tasks to protect our interest in the property. Onc
of thc tasks that we will perform at regular intervals during the default is to visit your property. This will
be done to determine, as of the date of the inspection, the property condition, occupancy status, and
possibly your plans for curing the default and paying this loan on time. You can anticipate that any costs
incurred by Chase l-lome Finance LLC will be added to the amount you now owe.
For California customers, the state Rosenthal Fair Debt Collection Practices Act and the federal Fair Debt
Collection Practices Act require that, except under unusual circumstances, collectors may not contact you before 8
a.m. or after 9 p.m. They may not harass you by using threats of violence or arrest or by using obscene language.
Collectors may not use false or misleading statements or call you at work if they know or have reason to know that
you may not receive personal calls at work. For the most part, collectors may not tell another person, other than
your attorney or spouse, about your debt Collectors may contact another person to confirm your location or
enforce a judgment. For more information about debt collection activities, you may contact the Federal Trade
Commission at 1 877 FTC I-IE-LP or www.11c.sov.
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Chase Home Finance LLC does not offer homeownership counseling services to borrowers. Such counseling is
available through a variety of non-profit organizations experienced in homeownership counseling and approved by
the Secretary of Housing and Urban Development (HUD). A listing of such organizations may be obtained by
calling HUD toll-free at [phone].
Colorado customers may contact the Colorado Foreclosure hotline at ( 7) 601-4673 or a Chase Loss Mitigation
specialist at [phone] to discuss alternatives to foreclosure.
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Chase Ho e Finance LLC is attempting to collect a debt and any information obtained will be used for that
purpose.

We may report information about your account to credit bureaus,
defaults on your account may be reflected in your credit report.

Pa

s, missed payments, or other

If you have received a discharge from the Bankruptcy Court, you are not personally liab e for payment of the
Loan and this notice is for compliance and informational purposes only. However, Chase Home Finance
LLC still has the right under the Mortgage to foreclose on the Property.
Sincerely,

OSA000402
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