PUBLISHED DECISIONS

Back

DEUTSCHE BANK NATIONAL TRUST COMPANY v. KEEGAN, et al.

By Jackie Halpern Weinstein


SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS

Index No.: 7081 l 1/2018

STIPULATION OF SETTLEMENT AND MUTUAL RELEASE

Premises: 203-18 27th Avenue, Bayside, NY Block S980, Lot 27

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR SECURITIZED ASSET BACKED RECIEVABLES LLC TRUST 2007-NCJ, MORTGAGE PASS­ THROUGH CERTIFICATES, SERIES 2007-NCl,

Plaintiff,

-against-

STEPHEN KEEGAN as EXECUTOR OF THE ESTATE OF RICHARD L. KEEGAN, CEN LI FA LLC, CATHAY BANK, NEW YORK CITY ENVIRONMENT AL CONTROL BOARD, and

JOHN DOE #1-J 0, the last ten names being fictitious and unknown to plaintiff, the parties intended being the tenants. occupants, persons, or entities, if any, having or claiming an interest in the premises described in the complaint,

Defendants.


This  STIPULATION  OF SETTLEMENT AND MUTUAL RELEASE (the “Agreement”) is made this 24th day of September, 2018, by and between DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR SECURITIZED ASSET BACKED RECEIVABLES LLC TRUST 2007-NCl, MORTGAGE PASS-TIIROUOH CERTIFICATES,. SERIES 2007-NCI (“Deutsche Bank”), STEPHEN KEEGAN as EXECUTOR OF THE ESTATE OF RICHARD L. KEEGAN (“Keegan”), CHEN LI FA LLC (“CLF”), CATHAY BANK (‘”Cathay”), and OCWEN LOAN SERVICING LLC (“Ocwen”), by their respective undersigned counsel, all of which ere sometimes hereinafter referred to as the “Parties,” or sometimes, individually, as ”Party”; and

WHEREAS, on September 13, 2006, decedent Richard L. Keegan executed a note (the “Note”) and mortgage in favor of New Century Mortgage Corporation in the principal amount of $475,000.00 (the “Mortgage”), which Note and Mortgage are currently owned by Deutsche Bank; and

WHEREAS, Deutsche Bank commenced an action with respect to the Note and Mortgage against. inter alia, Keegan, CLF, and Cathay, styled DEUTSCHE BANK NATION1L TRUST COMPANY, AS TRUSTEE FOR SECURITIZED ASSET BACKED RECEIVABLES UC TRUST 2007-NCJ, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-NCJ ·v. S/’EPHEN KEEGAN as EXECUTOR OF THE ES,TATE OF RICHARD L. KEEGAN, er. al, under Index No. 70811 J/2018 in Queens Supreme Court (“Deutsche Bank’s Action”);

WHEREAS, in connection with Deutsche Bank’s Action, Deutsche Bank caused to he filed with the Queens County Clerk a Notice of Pendency on May 24, 2018 (the “Notice of Pendency”);

WHEREAS,  Defendant  Keegan  commenced a separate action against Ocwen styled, STEPHEN KEEGAN  AS EXECUTOR FOR THE ESTATE OF RICHARD KEEGAN v. OCWEN LOAN SERVICING, LLC. under Index No. 604985/2018 in Nassau Supreme Court with respect to the Note and Mortgage (“Keegan’s Action”);

WHEREAS, Deutsche Bank and Ocwen assert that, good through September 28, 2018, there is $473,120.16 due and owing under the terms of  Note and Mortgage (the “Payoff Amount”);

WHEREAS. the Parties who are party to Deutsche Bank’s Action have reached an , agreement to settle and resolve all disputes and claims raised in Deutsche Bank’s Action and ‘ wish to confine and memorialize their settlement in this Agreement;

WHEREAS, the Parties who are party to the Keegan Action have reached an agreement to settle and resolve all disputes and claims raised in the Kegan Action and wish to confirm and memorialize their settlement in this Agreement;

WHEREAS, no Party is or might he an infant, mentally retarded, mentally ill, an alcohol abuser, an incompetent person for whom a committee has been appointed, or a conservatee, and upon information and belief, there are no defendants unknown to the Parties. and any judgment related to this. Agreement will not affect a person or persons not in being or ascertained at the commencement of Deutsche Bank’s Action or Keegan’s Action, and every person in being, who may have or have had an estate or interest in the Premises is named as a party hereto.

NOW, THEREFORE, the Parries have agreed, in consideration of the terms, conditions, promises, and releases hereinafter contained in this Agreement, as follows:

I ) Incorporation of the Recitals. The foregoing recitals are specifically incorporated herein by reference

2) The Payments In consideration of the terms, conditions, promises, and releases hereinafter contained in this Agreement, and in full and final settlement of all claims raised in Deutsche Bank’s Action and/or Keegan’s Action, the Parties agree that (I) Keegan shall pay to1 Deutsche Bank the sum of $447,465.58 (the “Keegan Payment..), (2) Cathay and CLF shall pay, to Deutsche Bank the aggregate sum of $5,000.00 (the “CLF/Cathay Payment”). and (3) First 1 American Title Insurance Company shall pay to Deutsche Bank $20,654.58 (the “First Ami . Payment”, and together with the Keegan Payment and the CLF/Cathay Payment, collectively, the ‘”Payments”.). Each of the Payments shall be paid on or before Monday, September 24, 2018 ‘ payable to Adam Leitman Bailey, P.C.• as attorneys, and shall be delivered to Adam Leitman 1 Bailey, P.C. at One Battery Park Plaza. 18th Floor. New York, NY 10004, by check or via wire pursuant to the following wire instructions:

BANK INFORMATION: ROUTING# 026013576 ACCOUNT # 1501972 l06

SIGNATURE BANK, 923 BROADWAY, WOODMERE, NEW YORK 11598

3) Wire to Ocwen. Upon receipt of the Payments, Adam Leitman Bailey, P.C. shall immediately, and by no later than September 28, 2018, wire the Payments to Ocwen.

4) Cancellation of Note/Satisfaction of Mortgage Upon Adam Leitman Bailey, C.. receiving confirmed receipt of the Payments from Ocwen, (I) the Note shall be deemed paid and the Mortgage shall be decm d satisfied. and (2) Deutsche Bank shall, within ten (10) business days thereof, TIME BEING OF THE ESSENCE. deliver the original Note marked “Canceled” to Keegan (and Keegan shall immediately confirm receipt thereof in writing to counsel for Cathay and CLF). If Deutsche Bank fails to comply with the terms of this Paragraph, it cause the return of the Keegan Payment to Keegan and the Catbay/CLF Payment to counsel for Cathay and CLF

5) No Balance Waiver As Ocwen will be receiving the full Payoff Amount for the Note and Mortgage, Deutsche Bank, Keegan, and Ocwen agree that there is no balance waiver and no debt forgiveness to report to the Jntema1 Revenue Service (IRS) on Form l 099-C or otherwise. In the mistaken  event  that Ocwen prints a Form 1099-C and reports it  to the IRS, however, (i} First American Title Jnsurancc Company,  upon receiving immediate notice of the mistaken event, will reimburse Keegan up to $2,500.00 for any legal and/or accounting fees that Keegan is forced to pay to resolve any erroneous tax implication. and (ii) Ocwen will withdraw the Form 1099-C.

6) Surrender of Claims Deutsche Bank, Keegan, and Ocwen hereby agree to discontinue , and withdraw. for all eternity and with prejudice. any claim, cross claim. counterclaim. action, , third party action, assertion; or other basis for relief relating to the Note. Mortgage, Payments, and/or Payoff Amount, including specifically, without limitation. Deutsche Bank. Keegan. BJJd 1 Ocwen agree that, in consideration of the Payments. the Mortgage is fully satisfied, and none of them are liable to any other of them for attorney’s fees. expenses, exemplary damages, consequential damages, or treble damages, except as otherwise provided herein.

7) Discontinuance of Plaintiff’s Upon Ocwen confirming receipt of the Payments in accordance with the terms of this Agreement. (1) Deutsche Bank shall promptly take all necessary steps to immediately cancel the Notice of Pendency in accordance with the provisions of CPLR 6514(d), and (2) all Parties to Deutsche Bank’s Action shall promptly execute and deliver to each of the other parties to Deutsche Bank’s Action, a stipulation (a) withdrawing all pending motions in Deutsche Bank’s Action and (b) discontinuing Deutsche Bank’s Action witb prejudice and without costs. AU parties to Deutsche Bank’s Actions at their own cost art expense, take all actions necessary in furtherance of the foregoing.

8) Discontinuance of Keegan’s Action. Upon Ocwen confirming receipt of the Payments in accordance with the terms. of this Agreement, aU Parties to Keegan’s Action shall promptly; execute and deliver, to each of the other parties to Keegan’s Action, a stipulation (a) withdrawing all pending motions in Keegan’s Action and (b) discontinuing Keegan’s Action with prejudice_’ and without costs. All parties to Keegan’s Action shall, at their own cost and expense, take all actions necessary in furtherance of the foregoing.

9) Mutual Releases of the Parties to Deutsche Bank’s Action. Upon Ocwen confirming receipt of the Payments in accordance with the terms of this Agreement, in consideration of the . covenants hereinabove and hereinafter stated, the Parties who are party to Deutsche  Bank’s Action. each, for themselves, and for their respective successors. legal representatives, parent companies. subsidiaries and affiliates. officers, fiduciaries, members, employees. agents, heirs, distributees, attorneys. and assigns. shall be deemed to release and discharge each other·, for themselves and their respective successors, legal representatives, parent companies. subsidiaries and affiliates, officers, fiduciaries. members, employees, agents, heirs, distributees,  attorneys, and  assigns,   of  and  from   any  and  all  actions,  causes  of  action,  claims,  cross  claims, counterclaims. third party claims_. obligations, costs, losses, liabilities, damages, agreements. covenants, understandings, suits.·debts, variances, trespasses, accounts, controversies, expenses, attorneys’ fees and demands of whatsoever character, whether or not known, suspected or claimed, asserted or unasserted, which they, or either of them,. or any of them, has had o.r hereafter may have, against the other, from the beginning of time to the date of this Agreement (each, a “Claim”), incurred or sustained in connection with Deutsche Bank’s Action, the Note; and the Mortgage only. Notwithstanding the foregoing, specifically excluded from this release is any Claim Cathay may have as against CLF or that CLF may have as against Cathay. For the’. avoidance of doubt,  specifically  excluded  from this release is the performance  by  the  Parties to their respective obligations under this Agreement.

10) Mutual Releases of the Parties to Keegan’s Action. lo consideration of the covenants hereinabove  and  hereinafter  stated, the  Parties  who are party to  Keegan’s Action, and  First American Title Insurance Company, each,. for themselves, and for their respective successors, legal representatives, parent companies, subsidiaries and affiliates, officers, fiduciaries, members, employees, agents. heirs, distributees, attorneys, and assigns, hereby release and discharge each other, for themselves and their respective successors, legal representatives, parent ‘ companies, subsidiaries and affiliates, officers, fiduciaries, members, employees, agents, heirs, distributees,  attorneys,  and assigns,  of and from any and all actions, causes of action, claims, cross claims, counterclaims, third party claims, obligations, costs, losses, liabilities, damages, agreements, covenants, understandings, suits, debts, variances, trespasses, accounts, controversies, promises, expenses, attorneys’ fees and demands of whatsoever character whether or not known, suspected or claimed, asserted or unasserted, which they, or either of them, or any of them, has bad or hereafter may have, against the other, from the beginning of time to the date of this Agreement, incurred or sustained in connection with the Note. Mortgage. Payments, and/or Payoff Amount. Notwithstanding the foregoing, specifically excluded from this release is the performance by the Parties and First American Title Insurance Company of their respective obligations under this Agreement.

11) Ownership of Claims. The Parries hereto each represent and warrant that each sign to to this Agreement is authorized and entitled to sign this Agreement on behalf of his or her respective client and warrants to each of the Parties that bent owns and has not sold, pledged, hypothecated, assigned, or transferred any of the claims being released herein. Specifically, Deutsche Danie warrants to each of the PU1ies that it owns and has not sold, pledged, , hypothecated, assigned, or transferred the Note and Mortgage being satisfied herein.

12) Severability. If any portion or portions of this Agreement may be held by a court of competent jurisdiction to conflict with any federal state, or local Jaw, and. as a result, such portion or portions arc declared to be invalid and of no force or effect in such jurisdiction. all remaining  provisions of this Agreement shall  otherwise  remain in full force and effect and be construed as if such invalid portion or portions had not  been included herein  to the extent that such declaration docs not result in any Party hereto being denied a substantial intended benefit hereof.

13)Further Assurances. The Parries hereto agree to execute such further and additional documents. instruments. and writings, and to take any such other action, as may be reasonably necessary, proper, required, desirable, or convenient for the purpose of fully effectuating the terms and provisions of this Agreement The Parties further represent and affirm that the within Agreement accurately expresses the terms of the settlement reached between them.

14) Amendments and Waivers. This Agreement may not be modified, amended, changed, waived, terminated, or supplemented, in whole or in part, except by an instrument in writing, signed by each of the Parties affected thereby. No failure to exercise, and no delay in exercising, any right, remedy, or power under this Agreement shall operate as a waiver thereto nor shall any single or partial exercise of any right, remedy, or power under this Agreement preclude any other or further exercise thereof, or the exercise of any other right, remedy, or power provided herein or by law or in equity.

15) Headings The titles of paragraphs in this Agreement are for convenience only, are not definitive, and shall not be considered or referred to in resolving questions of interpretation or construction.

16) Jurisdiction. The Parties agree that the Supreme Court of the State of New York, Queens County shall retain jurisdiction (a) to resolve any disputes arising out of this Agreement, and (b) to enforce the terms and provisions of this Agreement.

I7)Construction and Binding Effect. This Agreement will be binding upon and shall 1 inure to the benefit of the Parties and their respective successors, heirs, servicers, executors, administrators, and assigns. This Agreement shall be construed without regard to any presumption or other rule requiring construction against the party causing this Agreement to be drafted All terms and words used in this Agreement, regardless of the number or gender in which they are used, shall be deemed to include any other number and any other gender as the content may require.

l8)Voluntary Agreement. The Parties further represent and declare that it/be/she has carefully read this Agreement, knows and understands the contents thereof without reservation, and is executing the Agreement freely and voluntarily.

19) Representation by Counsel The Parties acknowledge and warrant that it/he/she has been represented by counsel or had the opportunity to be represented by Counsel of its/his/her o choice throughout all negotiations that preceded the execution of1his instrument. Each Party has read this entire instrument and understands such provisions as set forth.

20) Counterparts and Facsimile Signatures. If this Agreement is executed in counterparts, each counterpart shall be deemed an original, and an counterparts so executed shall constitute

one Agreement binding on all of.the parties hereto, notwithstanding that all of the parties are not signatory to the same counterpart.  This Agreement may be executed  by original or facsimile, signatures, each of which shall be equally binding.

21) Entire Agreement. All agreements, covenants, representations and warranties, express or implied, oral or written, of the parties he o concerning the subject matter hereof are contained herein. No other agreements, covenants, representations, or warranties, express or implied, oral or written, have been made by any party hereto to any other party concerning the subject matter hereof Each of the Parties acknowledges and agrees that no representations or promises have been made to or relied upon by any of them or by any person acting for or on its/her/his behalf in ; connection with the subject matter of this Agreement, which are not specifically set fonh herein. All prior representations and  promises  made  by any Party to  another, whether in writing or orally, are understood by the Parties to be merged in this Agreement.

22) No One Drafter This Agreement is the result of negotiations between the Parties, each of whom was represented by counsel. or had the opportunity to be represented by counsel. and each of the Parties had input into its drafting. Accordingly, no rule of construction of the Agreement against any drafter shall be applied in the event of a dispute.

23) Governing Law. This Agreement shall be governed by the laws of the State of New York, without giving effect to principles of conflicts of laws.

24) Presentation to the Court. This Agreement can and will be presented to any court by any Party and/or its counsel for filing and/or to be made into an order without further notice.

2S) Recording. That the City Register of the County of Queens upon presentation to him or her of a certified copy of this Agreement when so ordered and upon payment of his or her lawful fees shall record this Agreement against the above-mentioned parcel of real property (Block 5980 and Lot 27);

IN WITNESS WHEREOF, the Parties have executed this Agreement as of September 2018.

Original Decision

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS