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ORTLIEB v. HUDSON BANK

April 5, 2004.

HENRY R. ORTLIEB, Plaintiff,
v.
HUDSON BANK, et al, Defendants



The opinion of the court was delivered by: MARVIN KATZ, Senior District Judge

MEMORANDUM & ORDER

Plaintiff Henry Ortlieb brings this action against Defendant Jefferson Bank and its successor, Defendant Hudson United Bank (collectively, the "Bank") for their alleged failure to enter satisfaction of three mortgages given to Defendant on two of Plaintiff s real property holdings — one located in Pennsylvania and the other in New Jersey. As such, Plaintiff brings claims under both the Pennsylvania Mortgage Satisfaction statute, 21 P. S. §§ 681-682, and the New Jersey common law for slander of title. Now before this court are the Plaintiff's Motion for Partial Summary Judgment, Plaintiff's Supplemental Motion for Summary Judgment, and Defendant Hudson United Bank's Motion for Summary Judgment.*fn1 Because Plaintiff's claims are barred by both the doctrine of judicial estoppel and the applicable statutes of limitations, the Defendant's Motion is granted and the Plaintiff's' denied.

I. BACKGROUND On April 29, 1999, Plaintiff borrowed $550,000 from Jefferson Bank. As security for this loan, Plaintiff took out two $550,000 mortgages-one on his property in Fort Washington, Pennsylvania, and the other on his ocean-front house in Ocean City, New Jersey. Approximately one year later, on May 15, 2000, Plaintiff borrowed another $40,000, this time from Hudson United Bank, which had acquired Jefferson in the interim. As security for this second loan, Plaintiff gave Hudson United a $40,000 mortgage on the Ocean City, New Jersey house. By September 28, 2000, Plaintiff had repaid both loans in full.

  For the next two months, his obligations with respect to Defendant having been fulfilled, Plaintiff took steps to ensure that the Bank complied with its statutory duty to enter satisfaction of the repaid mortgages. First, some time in October, 2000, within a few weeks of repayment, Plaintiff spoke with Thomas Kelly, one of Hudson United's officers, and requested that Mr. Kelly provide satisfactions of the mortgages on both the Pennsylvania and New Jersey properties. The Bank failed to comply with these requests. Then, on November 28, 2000, Plaintiff's attorney at the time, Warren Trainor, wrote to Robert Seiger, the Bank's counsel in connection with the prior loans to Plaintiff, to inquire into whether the Pennsylvania mortgage had been satisfied. The November 28 letter marked the last time that Plaintiff, or any of his representatives, contacted the Bank regarding satisfactions until 2002.

  Plaintiff's first contact with Defendant in 2002 came on January 22, when Maxine Werbit, identifying herself as employed by a title insurance company, left a voice-mail on behalf of Plaintiff for Rose Diaz, Defendant's Vice President of Loan Operations, requesting satisfaction of Plaintiff's New Jersey and Pennsylvania mortgages. A few weeks later, the Bank received a letter dated February 18, 2002 from Plaintiff's new attorney, Dennis Nolan. Therein, Mr. Nolan cited the Pennsylvania Mortgage Satisfaction statute, 21 P.S, § 682, and threatened to sue Defendant if it did not prepare a satisfaction piece for the Pennsylvania mortgage and send it to him within ten days. A copy of this letter was furnished to Plaintiff, who also received oral confirmation from Mr. Nolan that the attorney had indeed threatened litigation against the Bank.

  In response to the February 18 letter, Barbara Montgomery, a file room employee at Hudson United, called Mr. Nolan's office to request the title information necessary to prepare the satisfaction; the attorney's office faxed the requested information to the Bank on February 27. Upon receiving this information, Hudson United promptly prepared and executed a release of the Pennsylvania mortgage, which it sent via Federal Express to Mr. Nolan's office on March 1. The delivery arrived at Mr. Nolan's office on March 4 and was signed for there by Theresa Marcone, Mr. Nolan's secretary.

  Approximately two months later, on or about April 30, 2002, Mr. Nolan's office called Defendant to inquire into satisfaction of Plaintiff s mortgages on the New Jersey property. On May 4, the Bank received a fax on Mr. Nolan's stationary containing the title information regarding the $550,000 mortgage on the New Jersey house. As requested, the Bank then prepared and executed a release for that mortgage, which it mailed to Mr. Nolan's office on May 7.

  On May 28, 2002, Mr. Nolan passed away and was replaced as Plaintiff's counsel by Frank Marcone. Although Mr. Marcone made diligent efforts to recover the Ortlieb files, he was unable to do so. He did, however, discover that-despite the Bank's having executed and sent to Mr. Nolan the releases for both the Pennsylvania mortgage and the $550,000 New Jersey mortgage-neither release was ever filed by Plaintiff or any of his representatives. As such, a title company requested confirmation of satisfaction of the Pennsylvania mortgage on August 1, 2002, while Mr. Marcone himself requested a satisfaction piece for both New Jersey mortgages on September 27, 2002. Defendant complied with those requests on August 6 and October 1, respectively, and, thereafter, Mr. Marcone filed the satisfaction pieces with the appropriate authorities.

  Before filing his Complaint in this court on July 18, 2003-some time between July 2002 and January 2003-Plaintiff contacted Kirk Wycoff, a banking executive with Progress Bank, in an attempt to again use his properties as collateral in order to obtain personal financing. Mr. Wycoff, however, told Plaintiff that he could do nothing for him as long as the Hudson United mortgages were not marked as satisfied. In addition, he explained to Plaintiff that, based on Mr. Wycoff's personal experience at Progress, he believed that Plaintiff might have a cause of action against Hudson United for the Bank's failure to satisfy the three mortgages in a timely manner.

  Although Plaintiff had satisfied his obligations to Hudson United by September 28, 2000, he remained indebted to other creditors throughout the course of his dealings with Defendant. In particular, Washington Mutual, which owned mortgages totaling in excess of $1 million on both the Pennsylvania and New Jersey properties, were pursuing foreclosures against both properties. Plaintiff also owed $250,000 to DSB, LLC, which had purchased the second lien position on the Pennsylvania property. In addition, Plaintiff owed $156,000 to GE Capital, and he had over $100,000 in unpaid state and federal taxes.

  As a result of these debts, Plaintiff filed personal bankruptcy petitions with this court's bankruptcy division on April 24, 2001, September 21, 2001, November 16, 2001, February 26, 2002, and April 24, 2003. In three of those five proceedings-the first, fourth, and fifth-Plaintiff filed the requisite schedules listing his assets but declined to mention his possible claim against Defendant in the instant litigation.*fn2

  Throughout the ongoing bankruptcy process, attorneys for Plaintiff attempted to settle his debts on the grounds that he could not afford to pay his creditors the amounts he owed in full. For example, on February 27, 2002, Mr. Nolan wrote to counsel for DSB and offered to settle Plaintiff's $250,000 debt for $125,000. He explained that the first lien holder on the Pennsylvania property was pursuing foreclosure and that, unless a proposed sale of the house to Mr. Ortlieb's wife financed by a mortgage in her name was approved, there would be no alternative other than to go through Chapter 11 and abandon the property. In addition, on September 18, 2002, Mr. Marcone faxed to counsel for Washington Mutual a letter containing an offer to settle Plaintiff's debt with that institution. Therein, Mr. Marcone explained that Plaintiff could not afford to pay the amount due because he was indebted to a host of additional creditors. The attorney went on to list Plaintiff's creditors and the amount owed to each, including a $550,000 debt to Jefferson Bank. Plaintiff, however, had paid off his debt to the Bank in full on September 28, 2000.

 II. DISCUSSION

  This court finds that summary judgment must be granted in favor of Defendant because Plaintiff's claims are barred by the equitable doctrine of judicial estoppel. Even absent judicial estoppel, all of Plaintiff's claims based on the Pennsylvania mortgage are either untimely or fail as a matter of law, while his claims based on the New Jersey mortgages are likewise time-barred. A. Summary Judgment Standard

  Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). At the summary judgment stage, the court does not weigh the evidence and determine the truth of the matter. Rather, it determines whether or not there is a genuine issue for trial Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In making this determination, all of the facts must be viewed in the light most favorable to, and all reasonable inferences must be drawn in favor of, the non-moving party. Id. at 256.

  The moving party has the burden of showing there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 639 (3d Cir. 1996). In response, the non-moving party must adduce more than a mere scintilla of evidence in its favor and cannot simply reassert factually unsupported allegations contained in its pleadings. Anderson, 477 U.S. at 249; Celotex, 477 U.S. at 325; Williams v. Borough of West Chester. 891 F.2d 458, 460 (3d Cir. 1989). Rather, there must be evidence on which a jury could reasonably find for the nonmovant. Liberty Lobby. 477 U.S. at 252. "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex. 477 U.S. at 322.

 B. Judicial Estoppel

  Defendant's primary contention is that judicial estoppel acts as a bar to Plaintiff's claims because he knowingly and misleadingly failed to disclose the existence of those claims on the bankruptcy schedules he filed with this court's bankruptcy division between 2001 and 2003. This court agrees. The circumstances surrounding Plaintiff's knowing, bad faith failure to disclose his contingent claims against the Bank throughout the bankruptcy process, coupled with his ...


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