Boniel et al v. U.S. Bank, N.A., et al
ORDER denying 19 Motion for Reconsideration ; denying 20 Motion for Reconsideration. Ordered by Judge Edward R. Korman on 4/18/2013. (Davies, Jamison)
UNITED STATES DISTRICT COURT
NOT FOR PUBLICATION
EASTERN DISTRICT OF NEW YORK
YOSSEF BONIEL AND SHELLY BONIEL,
: MEMORANDUM & ORDER
- against :
U.S. BANK N.A., as trustee for LEHMAN
: 1:12-CV-3809 (ERK)(MDG)
MORTGAGE TRUST PASS THROUGH
CERTIFICATES, SERIES 2006-8;
NATIONSTAR MORTGAGE, LLC,
Plaintiffs Yossef and Shelly Boniel filed suit alleging negligent misrepresentation,
fraudulent misrepresentation, invalid assignment, unjust enrichment, violation of Regulation Z of
the Truth in Lending Act and sought to quiet title on their property. The claims stem from the
allegedly improper transfer of mortgages on plaintiffs’ property at 72 Tennis Place, Forest Hills,
New York. In a Memorandum and Order (“M&O”) filed on February 6, 2013, I granted
defendants’ motion for summary judgment in full and denied plaintiffs’ cross-motion. Plaintiffs
move for reconsideration. Familiarity with the facts underlying the case and the court’s order
granting summary judgment is assumed. See Boniel v. U.S. Bank N.A., No. 12-CV-3809, 2013
WL 458298 (E.D.N.Y. Feb. 6, 2013).
“It is well-settled that Rule 59 is not a vehicle for relitigating old issues, presenting the
case under new theories, securing a rehearing on the merits, or otherwise taking a ‘second bite at
the apple.’” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012)
(internal quotation omitted). “Rather, ‘the standard for granting [a motion for reconsideration] is
strict, and reconsideration will generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked.’” Id. (quoting Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995)).
Plaintiffs argue that the Court should not have accepted the facts set forth in Defendants’
Statement of Undisputed Material Facts (“Defendants’ SUMF”) because such facts were hearsay
to the extent they were supported by the Declaration of A.J. Loll. They further contend that,
though they failed to submit a counter-statement of material facts, it was error to deem the
defendants’ facts admitted because they were unsupported by admissible evidence and that the
court should have considered the entire record. Finally, they argue that the alleged existence of
two distinct copies of the Consolidated Note creates an issue of material fact that should have
precluded the grant of summary judgment.
Plaintiffs’ first argument is premised on the fact that Loll could not have had personal
knowledge of the relevant facts. Loll is an employee of Nationstar, which began servicing
plaintiffs’ loan in 2012, whereas the issues pertinent to the case arose out of the original loan
process around six years earlier. First, plaintiff briefed this argument in its initial opposition to
the defendants’ motion for summary judgment, Pls. Cross Mot. for Summ. J. & Opp’n at 23, and
points to no new authority or controlling decisions that were overlooked. Second, the declaration
is clearly based on Loll’s examination of Nationstar’s books and records, including those that
were transferred to Nationstar from other parties when it began servicing the loan, and was
submitted for the primary purpose of putting those records into evidence before the court. See
Loll Decl. at ¶ 3 (“I make this declaration based upon . . . my review of the records relating to
Plaintiffs and maintained by Nationstar . . . .”). “It is axiomatic that a corporate representative
may testify and submit affidavits based on knowledge gained from a review of corporate books
and records.” Harrison-Hoge Indus., Inc. v. Panther Martin S.R.L., No. 05-cv-2851, 2008 WL
905892, at *28 (E.D.N.Y. Mar. 31, 2008). Plaintiffs make no effort to respond to or distinguish
this line of cases. Therefore, the motion to reconsider on this basis is denied.
Plaintiffs further argue that notwithstanding their failure to submit the required counterstatement of material facts and the consequence under our Local Rules that unopposed facts are
deemed admitted, the court should have considered the entire record before granting summary
judgment in favor of the defendants. This argument raises no new authority or facts which the
court overlooked, and, in fact, the entire record was considered when ruling on the motion,
including the limited evidence that was submitted by plaintiffs.
Finally, the plaintiffs argue that the existence of two “materially divergent” versions of
the Note at issue precluded the grant of summary judgment. First, this argument was considered
and addressed in the M&O, where I found that the minor differences likely reflected that the
document was signed by the MERS appointee later in time, or that there may have been multiple
execution copies. See M&O at 5. Plaintiffs point to no new authority or facts that would require
revisiting this issue. Second, any divergences in the Notes are not “material” in any sense that
would preclude the grant of summary judgment. Notably, plaintiffs never dispute that their
signatures are authentic and that the mortgage as signed by them was valid. They only dispute
the transfer of the Note, and plaintiffs have done nothing to rebut the presumption of ownership
by possession of the note. See M&O at 6 (citing Deutsche Bank Nat’l Trust Co. v. Pietranico, 33
Misc. 3d 528, 545 (Sup. Ct. 2011); Mortg. Elec. Registration Sys., Inc. v. Coakley, 41 A.D.3d
674, 674 (2d Dept. 2007).
In sum, plaintiffs’ motion points to no “controlling decisions or data that the court
overlooked,” Analytical Surveys, 684 F.3d at 52, and is merely an attempt to relitigate the issues
that have already been considered and decided.
The motion for reconsideration is denied.
Brooklyn, New York
April 18, 2013
Edward R. Korman
Edward R. Korman
Senior United States District Judge
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