United States District Court, D. Rhode Island
CITIBANK, N.A. AS TRUSTEE FOR AMERICAN HOME MORTGAGE ASSETS TRUST 2006-3, MORTGAGE BACKED PASS-THROUGH CERTIFICATES SERIES 2006-3, Plaintiff,
KATHERINE CAITO, Defendant.
J. McConnell, Jr. Chief Judge
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.
FACTS & BACKGROUND
Court will briefly review the relevant facts.
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
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
STANDARD OF REVIEW
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
Motion to Strike Sony Prudent Affidavit
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.
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. 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.
Caito's Motion to Strike ...