THE BANK OF NEW YORK MELLON v. WITTY et al

Filing 122

LETTER OPINION & ORDER denying Defendant's 104 Motion to Stay. Signed by Magistrate Judge Michael A. Hammer on 1/25/2024. (mxw, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Chambers of

Martin Luther King, Jr. Federal Bldg.

Michael A. Hammer

& U.S. Courthouse
50 Walnut Street, Room 2042
Newark, NJ 07102
[phone]

United States Magistrate Judge

January 25, 2024
LETTER OPINION & ORDER
Andrew J. Witty
500 White Oak Ridge Road
Short Hills, NJ 07078
J. Eric Kishbaugh
KML Law Group
701 Market Street, Suite 5000
Philadelphia, PA 19106
Re:

Bank of New York Mellon v. Witty, 15-500 (MCA) (MAH)

Dear Litigants:
This matter comes before the Court on pro se Defendant’s, Andrew Witty (“Defendant”)
motion to stay proceedings. See generally Mot. to Stay, D.E. 104. On October 26, 2023, Plaintiff,
Bank of New York Mellon (“BONYM”), opposed Defendant’s motion. See generally Opp’n, D.E.
115. Defendant replied on November 17, 2023. See generally Request to Continue Instant Mot.
for Stay, D.E. 119. 1 The Undersigned has considered the briefs submitted in support of, and in

1

The Court notes that Defendant Witty has filed several supplemental submissions without
permission from this Court. See Supplemental Br. in Supp. of Def’s Mot. to Stay, D.E. 113;
Objections of Def., D.E. 121. However, considering the age of this case, Defendant’s pro se status,
and the Court’s interest in rendering a decision on the merits, this Court has considered all
submissions as they relate to Defendant’s request for a stay of proceedings.

opposition, to Defendant’s motion without oral argument. Fed. R. Civ. P. 78; Local Civ. Rule
78.1(b). For the reasons set forth below, Defendant’s motion is denied.
I.

BACKGROUND 2
This matter arises from a state foreclosure action. On November 29, 2006, Defendant and

his wife executed a promissory note in the amount of $1,200,000 by Heartland Finance Inc. Letter
Order, August 14, 2020, D.E. 73, at 2; Ex. D., Mortgage, D.E.104-1. This note was secured by a
non-purchase money mortgage against Defendant’s property, located at 496 Oak Ridge Road,
Short Hills, New Jersey (“the Property”). Letter Order, August 14, 2020, D.E. 73, at 2. On
December 1, 2009, Defendant failed to make the required monthly payment, and therefore
defaulted on the promissory note. Id. Initially, the mortgage was assigned to the Bank of New
York Mellon as Trustee for the Benefit of Alternative Loan Trust 2007-7T2 Mortgage PassThrough Certificates (“Prior Bank of New York Entity”). Id. Following a notice of default and
intent to foreclose, Defendant was given until August 24, 2013, to cure the default. Id. However,
Defendant failed to do so. Id. On September 27, 2013, the Prior Bank of New York Entity assigned
the mortgage to BONYM.
On June 18, 2014, BONYM initiated foreclosure proceedings against the Property in the
Superior Court of New Jersey, Essex County, Chancery Division. Id. Although Defendant
answered in state court, on January 23, 2015, he removed this matter to federal court. 3 Id. at 3.

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This Court draws upon the facts from the Court’s August 14, 2020 Letter Order determining
summary judgment. See Letter Order, August 14, 2020, D.E. 73.
3

Following removal, on December 7, 2015, Defendant filed another action in federal court. See
Witty v. Bank of New York Mellon, No. 15-8486. That Complaint alleged approximately ten claims
against BONYM. See generally Witty v. Bank of New York Mellon, 15-8486, Compl., D.E. 1. The
two matters were informally consolidated for purposes of discovery and dipositive motions. See
Letter Order, August 14, 2020, D.E. 73, at 1 n.1. Any references to docketed items throughout this
Letter Opinion and Order is to the 15-500 matter unless explicitly stated.
2

Although Defendant’s removal was untimely, BONYM failed to file a motion to remand within
thirty days and therefore waived any objection to removal. See Order, Mar. 21, 2016, D.E. 15, at
2 (citing Blackburn v. United Parcel Service, Inc., 179 F.3d 81, 90 n.3 (3d Cir. 1999)).
On September 27, 2019, BONYM moved for summary judgment. See generally Mot. for
Summary Judgment, D.E. 64. Defendant filed a cross-motion for summary judgment. See
generally Cross-Mot. for Summary Judgment, D.E. 65. On August 14, 2020, the Court issued a
Letter Order granting BONYM’s motion and denying Defendant’s cross-motion. See generally
Letter Order, August 14, 2020, D.E. 73. In that Order, the Court determined that BONYM
established a prima facie right to foreclose on the Property. Id. at 5. The Court further rejected
Defendant’s defenses, any affirmative claims asserted in the 15-8486 action, and dismissed
Defendant’s Complaint in the 15-8486 matter. Id. at 10. On October 6, 2020, Defendant filed a
motion for reconsideration of the Court’s August 14, 2020 Letter Order. See generally Mot. for
Reconsideration, D.E. 78.

On May 28, 2021, the Court denied Defendant’s request for

reconsideration. See Order, May 28, 2021, D.E. 81.
On November 21, 2021, the Court ordered a status update on the matter. See Order, Nov.
21, 2021, D.E. 83. BONYM responded, and requested the matter remain open because the
pandemic’s foreclosure moratorium impeded BONYM’s foreclosure. See Status Report, Nov. 23,
2021, D.E. 86. Numerous subsequent status reports from BONYM reiterated the same. See Status
Report, Jan. 14, 2022, D.E. 88; Status Report, Jan. 25, 2022, D.E. 90; Status Report, Apr. 27, 2022,
D.E. 93. On April 28, 2022, the Court ordered BONYM provide an update on May 27, 2022 and
warned that if BONYM could not offer a future date for the foreclosure sale in the May update the
matter would be administratively terminated without prejudice. See Order, Apr. 28, 2022, D.E.
94-95. BONYM failed to provide a status report in accordance with the April 28, 2022 Order, and

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therefore the Court administratively terminated the matter. See Order, May 31, 2022, D.E. 97. On
February 23, 2023, BONYM moved to reopen, which Defendant opposed. See generally Mot. to
Reopen, D.E. 98; Def.’s Opp’n to Reopen, D.E. 101. After considering the parties’ submissions,
on July 14, 2023, the Court reopened the matter and ordered that within forty-five days BONYM
provide the Court with a proof of sale of the property. See Order, July 14, 2023, D.E. 103.
Prior to the close of the Court’s forty-five-day deadline, Defendant filed the instant motion
to stay proceedings on August 24, 2023. See Mot. to Stay, D.E. 104. Due to a case management
error by BONYM’s counsel, BONYM failed to file opposition to the motion to stay. See Letter to
Ct., Sept. 19, 2023, D.E. 107. Accordingly, the Court set forth a briefing schedule for BONYM’s
opposition to Defendant’s motion to stay, as well as deadlines for BONYM’s motion for entry of
final judgment. See Order, Sept. 25, 2023, D.E. 109. On October 10, 2023, BONYM filed its
motion for final judgment. See Mot. for Final Judgment, D.E. 110. However, again, BONYM
failed to file its opposition to Defendant’s motion to stay. Without permission from the Court, on
October 13, 2023, Defendant filed a supplemental brief in further support of his motion to stay. 4
See generally Supplemental Br. in Supp. of Def’s Mot. to Stay, D.E. 113. On October 26, 2023,
BONYM opposed Defendant’s motion to stay. See BONYM’s Opp’n, D.E. 115.
A. Parties’ Arguments
Defendant asserts that any proceedings in this matter should be stayed pursuant to 12 C.F.R.
§ 1024.41(g) due to an alleged pending loss mitigation application he claims to have submitted to

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As set forth in the Court’s prescribed briefing schedule, Defendant also filed opposition to
BONYM’s motion for final judgment on October 16, 2023. See Def.’s Opp’n to Final Judgment,
D.E. 111. However, within that motion, Defendant additionally requests discovery be reopened to
depose several individuals as well as sanctions against BONYM for “hiding witnesses” as related
to its submissions for its motion for final judgment. Id. at 3-6. As Defendant’s requests relate to
BONYM’s motion for final judgment, this Court solely addresses his request for a stay.

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Shellpoint Mortgage Services (“Shellpoint”). 5 Mot. to Stay, D.E. 104, at 2-4. He further argues
that if the Court allows BONYM to proceed with its motion for final judgment, BONYM would
be improperly participating in dual tracking in contradiction with the statute. 6 Id.

According to

Defendant’s briefs and attached affidavits, Defendant submitted a loss mitigation application in
“various parts” in August 2022 to Shellpoint, but the status of this application is unknown. See
Mot. to Stay, D.E. 104, at 3; see also Def.’s Affidavit, D.E. 104, at 25; Def.’s Supplemental
Affidavit, D.E. 113, at 9. Defendant also contends that in September 2022, a representative of
Shellpoint assured him that the mortgage service company received his application, but that the
COVID-19 pandemic affected the timeline regarding loss mitigation application determinations.
Def.’s Affidavit, D.E. 104, at 25-26. According to Defendant, because “he has not received any
response from . . . Shellpoint” the Court is statutorily mandated to stay any proceedings until the
“loss mitigation issue is concluded.” Def.’s Supplemental Affidavit, D.E. 113, at 9; see also Mot.
to Stay, D.E. 104, at 19. Defendant further argues that he was not required to submit his application
in conjunction with his request for a stay because it contained personal, confidential, and financial
information. See Request to Continue Instant Mot. for Stay, D.E. 119, at 3. According to

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Defendant also raises arguments regarding standing within his request for a stay. See Mot. to
Stay, D.E. 104, at 8. However, the merits of Defendant’s arguments were previously considered
and decided both at the summary judgment phase and following a request for reconsideration. See
Letter Order, August 14, 2020, D.E. 73, at 6 n.8; Order, May 28, 2021, at 3. The Court therefore
declines to address Defendant’s arguments as they can only be characterized as a third motion for
reconsideration, and an attempt to relitigate the merits of the case. See Banxcorp v. Bankrate, Inc.,
No. 07-3398, 2020 WL 2786925, at *2 (D.N.J. May 29, 2020) (“The Court finds [the] [p]laintiff’s
contentions unavailing and notes that several of the arguments are improper attempts to relitigate
issues already considered by this Court.”).
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Dual tracking refers to situations in which the lender actively pursues foreclosure while
simultaneously considering the borrower for loss mitigation options. See Ogbebor v. J.P. Morgan
Chase, N.A., No. 16-3400, 2017 WL 449596, at *5 n.8 (D.N.J. Feb. 2, 2017)
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Defendant, submittance of his application cannot be questioned because “Shellpoint . . . has not
proffered any evidence to show he was untruthful.” Id.
BONYM argues that Defendant fails to provide any proof he actually has submitted a loss
mitigation application. Opp’n, D.E. 115, at 7. Further, BONYM contends that Defendant has not
even adequately represented he submitted a complete application, but rather has only asserted he
submitted piecemeal portions of the application. Id. at 8. According to BONYM, Defendant’s
motion to stay is simply an attempt to postpone foreclosure to allow him to continue living in a
home without payment. Id. at 1.
II.

ANALYSIS
This Court finds that Defendant has not established that a stay of proceedings is warranted.

Congress enacted the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq.,
which includes RESPA’s Regulation X, 12 C.F.R. § 1024.41. This regulation governs loss
mitigation procedures. See Duffy v. Wells Fargo Bank, N.A., No. 16-4453, 2017 WL 2364196, at
*9 (D.N.J. May 31, 2017). Regulation X’s dual tracking provision, 12 C.F.R. § 1024.41(g),
prohibits “mov[ing] for foreclosure judgment or order of sale” while a complete and timely loss
mitigation application is pending. See Joussett v. Bank of Am., N.A., No. 15-6318, 2016 WL
5848845, at *6 (E.D. Pa. Oct. 6, 2016) (quoting 12 C.F.R. § 1024.41(g)).
Here, Defendant fails to demonstrate or establish that he has submitted any loss mitigation
application at all, or even a complete application. See Joussett, 2016 WL 5848845, at *6 (stating
any “protections of § 1024.41 do not apply unless a servicer receives a loss mitigation
application”). At times, Defendant asserts that required documents for the application were
submitted in various parts. See Supplemental Br. in Supp. of Def’s Mot. to Stay, D.E., 113, at 5.
He also avers that although there was confirmation of the application’s receipt—Shellpoint has

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provided no communication regarding the application since 2022. Def.’s Supplemental Affidavit,
D.E. 113, at 9. However, Defendant provides no evidence, other than his affidavits that the
application was submitted. Therefore, without substantiating evidence, the Court cannot conclude
that Defendant actually filed the loss mitigation application, and that a stay should be granted.
Indeed, Defendant’s attachments throughout his submissions include either previous opinions and
orders of this Court or documents, such as the mortgage, already contained in the record. To the
extent Defendant is concerned that filing his application could reveal confidential and financial
information, he could have filed it under seal or in redacted format. Neither of the aforementioned
actions is beyond the capacity of a pro se litigant. See Huertas v. U.S. Dep’t of Educ., No. 083959, 2010 WL 2771767, at *5 (D.N.J. 2010) (“[C]ourts are unwilling to allow pro se litigants to
. . . perpetually delay . . . proceedings”). Even if Defendant did not file the application itself, he
could have any number of other items to substantiate the pending loss mitigation application. For
example, Defendant could have provided email or mail confirmation of the application’s receipt
by Shellpoint, or even copies of communications sent by Defendant regarding the status of his
application. Because it is Defendant’s obligation as the movant to establish good cause for the
stay, and because Defendant provides no evidence to support a completed loss mitigation
application was submitted or completed, the Court cannot conclude that this matter should be
stayed. See Turner v. Chiesa, No. 12-5224, 2013 WL 2650506, at *3 (D.N.J. June 11, 2023)
(refusing to grant a stay where the petitioner claimed witness affidavits would illustrate innocence
but petitioner failed to provide the court with the purported affidavits); see also Herbert v. Newton
Mem’l Hosp., 933 F. Supp. 1222, 1229 (D.N.J. 1996) (stating “a party cannot rely upon self-serving
conclusions, unsupported by specific facts in the record”).

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Nor does this Court find it should stay the proceedings based on its own inherent power to
do so. See Depomed Inc. v. Purdue Pharma L.P., No. 13-0571, 2014 WL 3729349, at *2 (D.N.J.
July 25, 2014) (quoting Landis v. North Am. Co., 299 U.S. 248, 254 (1936)) (“[T]he power to stay
proceedings is incidental to the power inherent in every court to control the disposition of the cases
on its docket with economy of time and effort for itself, for counsel, and for litigants.”) When
evaluating a motion to stay proceedings, courts generally weigh a number of factors including,
“(1) whether a stay would unduly prejudice or present a clear tactical disadvantage to the nonmoving party[ ]; (2) whether denial of the stay would create a clear case of hardship or inequity
for the moving party [ ]; (3) whether a stay would simplify the issues and the trial of the case [ ];
and (4) whether discovery is complete and/or a trial date has been set.” See Gentry v. Chubb, No.
21-13744, 2021 WL 11959607, at *1 (D.N.J. Dec. 22, 2021) (internal citations and quotation marks
omitted).
Here, the standard for a motion to stay proceedings has not been met. First, a stay would
most certainly present a tactical disadvantage to BONYM, and also unduly prejudice it. The Court
granted BONYM summary judgment approximately three years ago. Accordingly, BONYM has
a right to proceed for final judgment, and a stay would inhibit BONYM from doing so. Further, if
this Court were to grant Defendant’s request for a stay, it would effectively be granting an indefinite
one, as Defendant provides no indication of when that stay would abate. Indeed, Defendant alleges
he has received no communications from Shellpoint since 2022. In addition, based on the Court’s
determination that there is no evidence of a pending application, the Court cannot find that a stay
would simplify any issues in the present matter. Finally, discovery is complete in this matter, and
summary judgment has already been determined. Therefore, a stay would only impede BONYM

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from seeking final judgment. At bottom, Defendant has failed to demonstrate that a stay is
warranted in this matter.
III.

CONCLUSION
For the foregoing reasons, Defendant’s motion to stay, D.E. 104, is denied.
/s Michael A. Hammer
Hon. Michael A. Hammer,
United States Magistrate Judge

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