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Citibank, N.A. v. Caito

United States District Court, D. Rhode Island

December 18, 2019

CITIBANK, N.A. AS TRUSTEE FOR AMERICAN HOME MORTGAGE ASSETS TRUST 2006-3, MORTGAGE BACKED PASS-THROUGH CERTIFICATES SERIES 2006-3, Plaintiff,
v.
KATHERINE CAITO, Defendant.

          ORDER

          John J. McConnell, Jr. Chief Judge

         Plaintiff Citibank, N.A. as Trustee for American Home Mortgage Assets Trust 2006-6, Mortgage-Backed Pass-Through Certificates Series 2006-3 ("Citibank") and Defendant Katherine Caito have filed Cross-Motions for Summary Judgment, each seeking the Court's determination in their favor on the propriety of a judicial foreclosure. Citibank seeks a judicial order of foreclosure on Ms. Caito's property in Westerly, Rhode Island. ECF No. 21. Ms. Caito seeks dismissal of Citibank's complaint for failure to meet a condition precedent of the Mortgage in that it failed to comply with the pro-foreclosure notice process. ECF No. 22. Ms. Caito has also moved to strike an affidavit filed in support of Citibank's cross-motion for summary judgment. ECF No. 40.

         I. FACTS & BACKGROUND

         The Court will briefly review the relevant facts.

         Ms. Caito received a $4, 500, 000 loan on June 6, 2006 with a Note to American Brokers Conduit ("ABC"). She was obligated to repay the Note by a Mortgage Citibank granted on the property to Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for ABC and its successors and assigns. MERS assigned the Mortgage to Citibank as Trustee. Ocwen Loan Servicing, LLC ("Ocwen") was the servicers of the Mortgage on behalf of Citibank as Trustee.

         Ms. Caito stopped paying on the Mortgage after April 2012. She has been in default since May 1, 2012. Ocwen issued the notice of default on May 11, 2018. The notice stated that Ms. Caito was in default, told her how to cure the default, that she had to cure the default by June 17, 2018, and that failure to cure on or before that date may result in acceleration of the Note. The default notice also stated that she had the right to reinstate the loan and the right to bring a court action to protest the default determination. She did not cure the default! Citibank filed this suit for judicial foreclosure, seeking a court order authorizing it to foreclose.

         II. STANDARD OF REVIEW

         When ruling on a motion for summary judgment, the court must look to the record and view all the facts and inferences therefrom in the light most favorable to the nonmoving party. Continental Cas. Co. v. Canadian Univ. Ins. Co., 924 F.2d 370, 373 (1st Cir. 1991). Once this is done, Fed.R.Civ.P. 56(c) requires that summary judgment be granted if there is no issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id. The parties have both filed motions for summary judgment, but "[t]he presence of cross motions for summary judgment neither dilutes nor distorts this standard of review." Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 205 (1st Cir. 2006). In evaluating cross-motions, the court must determine whether either party is entitled to judgment as a matter of law based on the undisputed facts. Scottsdale Ins. Co. v. Torres, 561 F.3d 74, 77 (1st Cir. 2009).

         III. DISCUSSION

         A. Motion to Strike Sony Prudent Affidavit

         Because the Court must consider the evidence put forth in Sony Prudont's Affidavit in ruling on Citibank's Motion for Summary Judgment, it will first consider Ms. Caito's Motion to Strike. ECF No. 40. She argues that Mr. Prudent's affidavit is hearsay under Rule 803(6) of the Federal Rules of Evidence because he did not mention that the mortgage rate had been modified, he does not verify the chain of servicers involved in the Mortgage and whether Ocwen verified the records of former servicers before integrating those into its own business records, and Ocwen has admitted in Consent Orders filed in New York and Rhode Island that its records are inherently inaccurate. Essentially, Ms. Caito does not appear to dispute the default, just the calculation of what she owes because the affidavit does not include the details of the sources of Ocwen's figures.

         Sony Prudent is a loan analyst for Ocwen who submitted an affidavit in support of Citibank's motion. Citibank submitted a Supplemental Affidavit in response to concerns raised in Ms. Caito's motion, clarifying the mergers, acquisitions, and name changes (not third-party transfers) relating to the servicing of her loan.[1] After reviewing the affidavits in light of Federal Rule of Evidence Rule 803(6), the Court finds that Mr. Prudent's affidavits are not hearsay and are reliable for the purpose of this motion. The affidavits discuss Mr. Prudent's background, what records he reviewed that Ocwen maintained in the ordinary course of business, the specific details of Ms. Caito's Mortgage, her default, the approximate amount Ms. Caito owes in principal and interest, and the amount she owes in fees, costs, and expenses since her default in May 2012. His statements are based on his personal knowledge and review of the integrated business records maintained in the ordinary course of business.

         Ms. Caito's Motion to Strike ...


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