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Fidelit y Nat ional Tit le I nsurance Company v. JP Morgan Chase Bank, N.A.

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Fi del i t y Nat i onal Ti t l e I nsur ance Company v. JP
Mor gan Chase Bank , N.A.
Pl ai nt i f f : Fidelit y Nat ional Tit le I nsurance Company
Def endant : JP Morgan Chase Bank, N. A.

Case Number : 3: 2012cv00540
Fi l ed: March 27, 2012

Cour t : New York Nort hern Dist rict Court
Of f i ce: Binghamt on Office
Count y : XX US, Out side St at e
Pr esi di ng Judge: Gary L. Sharpe
Ref er r i ng Judge: David E. Peebles

Nat ur e of Sui t : Cont ract - Ot her Cont ract
Cause: 28: 1441
Jur i sdi ct i on: Diversit y
Jur y Demanded By : Plaint iff

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U.S. District Court
Northern District of New York - Main Office (Syracuse) [LIVE - Version 5.0.3] (Binghamton)
CIVIL DOCKET FOR CASE #: 3:12-cv-00540-GLS-DEP
Fidelity National Title Insurance Company v. JP Morgan Chase
Bank, N.A.
Assigned to: Chief Judge Gary L. Sharpe
Referred to: Magistrate Judge David E. Peebles
Case in other court: Florida Middle, 3:10-cv-01153
Cause: 28:1441 Petition For Removal--Other Contract
Date Filed: 03/27/2012
Jury Demand: Plaintiff
Nature of Suit: 190 Contract: Other
Jurisdiction: Diversity
Plaintiff
Fidelity National Title Insurance Company
V.
Defendant
JP Morgan Chase Bank, N.A.
as Indenture Trustee on behalf of the Noteholders and Note Insurer of ABFS Mortgage Loan Trust 2001-3, Mortgage
Backed Notes, c/o Ocwen Loan Servicing, LLC
Date Filed # Docket Text
12/16/2010 1 NOTICE OF REMOVAL from Fourth Judicial Circuit in and for Duval County, Florida, case
number 16-2010-CA-13302 filed in State Court on 10/22/2010. Filing fee $ 350, receipt
number J1103 filed by JP Morgan Chase Bank, N.A.. (Attachments: # 1 Exhibit) (Counsel
notified re: cd/civil cover sheet)(TL) [Transferred from Florida Middle on 3/27/2012.]
(Entered: 12/17/2010)
12/16/2010 2 COMPLAINT against JP Morgan Chase Bank, N.A. with Jury Demand filed by Fidelity
National Title Insurance Company.(TL) (Filed in State Court, modified on 12/17/2010) (TL).
[Transferred from Florida Middle on 3/27/2012.] (Entered: 12/17/2010)
12/16/2010 3 CERTIFICATE of interested persons and corporate disclosure statement by JP Morgan Chase
Bank, N.A.. (TL) [Transferred from Florida Middle on 3/27/2012.] (Entered: 12/17/2010)
12/17/2010 4 AMENDED STANDING ORDER: Filing of documents that exceed twenty-five pages. Signed
by All Jacksonville Divisional Judges on 5/25/05. (TL) [Transferred from Florida Middle on
3/27/2012.] (Entered: 12/17/2010)
12/22/2010 5 ORDERED: Defendant shall have until January 7, 2011, to provide the Court with sufficient
information so that it can determine whether it has jurisdiction over this action. See Order for
details. Signed by Judge Marcia Morales Howard on 12/21/2010. (MEH) [Transferred from
Florida Middle on 3/27/2012.] (Entered: 12/22/2010)
12/22/2010 6 NOTICE of designation under Local Rule 3.05 - track 2. Signed by Deputy Clerk on
12/22/2010. (Attachments: # 1 Case Management Report Form, # 2 Consent Letter and
Form)(JW) [Transferred from Florida Middle on 3/27/2012.] (Entered: 12/22/2010)
01/07/2011 7 MEMORANDUM in support re 1 Notice of removal, 5 Order Requiring Sufficient Information
to Establish Jurisdiction filed by JP Morgan Chase Bank, N.A.. (Attachments: # 1 Exhibit A,
# 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Tran, Steve) [Transferred from Florida Middle on
3/27/2012.] (Entered: 01/07/2011)
01/07/2011 8 DECLARATION of Jill S. David by JP Morgan Chase Bank, N.A.. (Attachments: # 1 Exhibit
A, # 2 Exhibit B, # 3 Exhibit C)(Tran, Steve) [Transferred from Florida Middle on 3/27/2012.]
(Entered: 01/07/2011)
01/07/2011 9 NOTICE to the Courts to take judicial notice regarding Recorded Bargain and Sale Deed by
JP Morgan Chase Bank, N.A.. (Attachments: # 1 Exhibit D)(Tran, Steve) [Transferred from
Florida Middle on 3/27/2012.] (Entered: 01/07/2011)
01/07/2011 10 NOTICE of Appearance by Beranton J. Whisenant, Jr on behalf of Fidelity National Title
Insurance Company (Whisenant, Beranton) Counsel notified to refile with entire electronic
signature. Modified on 1/10/2011 (DTS). [Transferred from Florida Middle on 3/27/2012.]
(Entered: 01/07/2011)
01/13/2011 11 DECLARATION of Thomas E. Reardon re 7 Memorandum in support by JP Morgan Chase
Bank, N.A.. (Tran, Steve) [Transferred from Florida Middle on 3/27/2012.] (Entered:
01/13/2011)
03/15/2011 12 ORDER TO SHOW CAUSE why this case should not be dismissed for lack of prosecution or
sanctions imposed due to the parties' failure to file a Case Management Report. Show Cause
Response due by 3/29/2011. Signed by Judge Marcia Morales Howard on 3/15/2011. (JW)
[Transferred from Florida Middle on 3/27/2012.] (Entered: 03/15/2011)
03/18/2011 13 MOTION for Hearing on Judicial Order Entered on December 22, 2010 by JP Morgan Chase
Bank, N.A.. (Tran, Steve) [Transferred from Florida Middle on 3/27/2012.] (Entered:
03/18/2011)
03/29/2011 14 RESPONSE TO ORDER TO SHOW CAUSE re 12 Order to show cause filed by JP Morgan
Chase Bank, N.A.. (Tran, Steve) [Transferred from Florida Middle on 3/27/2012.] (Entered:
03/29/2011)
03/29/2011 15 CASE MANAGEMENT REPORT. (Tran, Steve) Stricken see Court's Order Doc. #17.
Modified on 4/7/2011 (DTS). [Transferred from Florida Middle on 3/27/2012.] (Entered:
03/29/2011)
03/29/2011 16 CASE MANAGEMENT REPORT. (Whisenant, Beranton) Stricken see Court's Order Doc.
#17. Modified on 4/7/2011 (DTS). [Transferred from Florida Middle on 3/27/2012.] (Entered:
03/29/2011)
04/06/2011 17 ORDER granting 13 Motion for Hearing on Judge's Order Filed on December 22, 2010;
Hearing set for April 21, 2011 at 10:00 AM before Judge Marcia Morales Howard in
Courtroom 10B; striking 15 Case Management Report and 16 Case Management Report; See
Order for details. Signed by Judge Marcia Morales Howard on 4/5/2011. (MGG) [Transferred
from Florida Middle on 3/27/2012.] (Entered: 04/06/2011)
04/11/2011 18 MOTION to amend/correct Plaintiff's Motion to Join Additional Party and to File an Amended
Complaint and for Remand and Incorporated Memorandum of Law by Fidelity National Title
Insurance Company. (Whisenant, Beranton) [Transferred from Florida Middle on 3/27/2012.]
(Entered: 04/11/2011)
04/11/2011 19 Motion to Join Additional Party, File an Amended Complaint to remand and incorporate
memorandum of law by Fidelity National Title Insurance Company. (DTS) [Transferred from
Florida Middle on 3/27/2012.] (Entered: 04/12/2011)
04/19/2011 20 ORDERED: Plaintiff shall confer with counsel for Defendant regarding its position
on 19 Plaintiff's Motion to Join Additional Party and to File an Amended Complaint and for
Remand, and file a certification pursuant to Local Rule 3.01(g) on or before April 29, 2011.
The hearing set for April 21, 2011, at 10:00 a.m. is cancelled. On or before April 29, 2011,
Plaintiff shall advise the Court of its position regarding 7Defendant's Brief in Support of
Removal. Signed by Judge Marcia Morales Howard on 4/19/2011. (JW) [Transferred from
Florida Middle on 3/27/2012.] (Entered: 04/19/2011)
04/25/2011 21 CERTIFICATION of Good Faith by Fidelity National Title Insurance Company. (Whisenant,
Beranton) (Modified on 4/27/2011 to edit text) (DSY). [Transferred from Florida Middle on
3/27/2012.] (Entered: 04/25/2011)
04/25/2011 22 RESPONSE in opposition re 19 MOTION to remand filed by JP Morgan Chase Bank, N.A.
(Tran, Steve) [Transferred from Florida Middle on 3/27/2012.] (Entered: 04/25/2011)
04/26/2011 23 RESPONSE re 1 Notice of removal Plaintiff's Position Regarding Defendant's Brief in
Support of Removal filed by Fidelity National Title Insurance Company. (Whisenant,
Beranton) [Transferred from Florida Middle on 3/27/2012.] (Entered: 04/26/2011)
05/04/2011 24 MOTION to transfer case To The Northern District of New York by JP Morgan Chase Bank,
N.A.. (Tran, Steve) [Transferred from Florida Middle on 3/27/2012.] (Entered: 05/04/2011)
05/04/2011 25 DECLARATION of Jill S. David re 24 MOTION to transfer case To The Northern District of
New York by JP Morgan Chase Bank, N.A.. (Tran, Steve) [Transferred from Florida Middle on
3/27/2012.] (Entered: 05/04/2011)
05/04/2011 26 NOTICE to the Courts to take judicial notice regarding Certain Public Documents by JP
Morgan Chase Bank, N.A.. (Tran, Steve) [Transferred from Florida Middle on 3/27/2012.]
(Entered: 05/04/2011)
05/05/2011 27 ENDORSED ORDER regarding 23 Plaintiff, Fidelity National Title Insurance Company's
Position Regarding Defendant's Brief in Support of Removal. The Court construes this as a
motion to remand. Accordingly, Defendant shall file a response no later than May 20, 2011.
Signed by Judge Marcia Morales Howard on 5/5/2011. (JW) [Transferred from Florida Middle
on 3/27/2012.] (Entered: 05/05/2011)
05/20/2011 28 RESPONSE in opposition re 24 MOTION to transfer case To The Northern District of New
York filed by Fidelity National Title Insurance Company. (Whisenant, Beranton) [Transferred
from Florida Middle on 3/27/2012.] (Entered: 05/20/2011)
05/20/2011 29 RESPONSE re 27 Order, 23 Response to Plaintiff's Motion to Remand filed by JP Morgan
Chase Bank, N.A.. (Tran, Steve) [Transferred from Florida Middle on 3/27/2012.] (Entered:
05/20/2011)
05/26/2011 30 DECLARATION of Steve D. Tran, Esquire, Counsel for Defendant by JP Morgan Chase
Bank, N.A.. (Tran, Steve) [Transferred from Florida Middle on 3/27/2012.] (Entered:
05/26/2011)
12/12/2011 31 ORDER denying 19 Plaintiff's Motion to Join Additional Party and to File an Amended
Complaint and for Remand and Incorporated Memorandum of Law. Signed by Magistrate
Judge James R. Klindt on 12/12/2011. (JLD) [Transferred from Florida Middle on 3/27/2012.]
(Entered: 12/12/2011)
12/26/2011 32 MOTION to review Magistrate Judge order re 31 Order on motion to remand by Fidelity
National Title Insurance Company. (Whisenant, Beranton) [Transferred from Florida Middle
on 3/27/2012.] (Entered: 12/26/2011)
01/08/2012 33 RESPONSE to motion re 32 MOTION to review Magistrate Judge order re 31 Order on
motion to remand filed by JP Morgan Chase Bank, N.A.. (Tran, Steve) [Transferred from
Florida Middle on 3/27/2012.] (Entered: 01/08/2012)
01/20/2012 34 MOTION to dismiss Plaintiff's Complaint by JP Morgan Chase Bank, N.A.. (Attachments:
# 1 Exhibit)(Tran, Steve) [Transferred from Florida Middle on 3/27/2012.] (Entered:
01/20/2012)
01/20/2012 35 DECLARATION of Jill David re 34 MOTION to dismiss Plaintiff's Complaint by JP Morgan
Chase Bank, N.A.. (Tran, Steve) [Transferred from Florida Middle on 3/27/2012.] (Entered:
01/20/2012)
01/20/2012 36 NOTICE to the Courts to take judicial notice regarding 34 MOTION to dismiss Plaintiff's
Complaint by JP Morgan Chase Bank, N.A.. (Tran, Steve) [Transferred from Florida Middle
on 3/27/2012.] (Entered: 01/20/2012)
02/08/2012 37 RESPONSE in opposition re 34 MOTION to dismiss Plaintiff's Complaint filed by Fidelity
National Title Insurance Company. (Whisenant, Beranton) [Transferred from Florida Middle
on 3/27/2012.] (Entered: 02/08/2012)
03/26/2012 38 ORDER overruling 32 Plaintiff's Objection to Magistrate Judge's Pretrial Order;
affirming 31 Order. Signed by Judge Marcia Morales Howard on 3/23/2012. (JW) [Transferred
from Florida Middle on 3/27/2012.] (Entered: 03/26/2012)
03/26/2012 39 ORDER granting 24 Defendant's Motion to Transfer Action to the Northern District of New
York. The Clerk of the Court is directed to transfer this case to the Northern District of New
York and close this file. Signed by Judge Marcia Morales Howard on 3/23/2012. (JW)
[Transferred from Florida Middle on 3/27/2012.] (Entered: 03/26/2012)
03/27/2012 40 Case transferred in from District of Florida Middle; Case Number 3:10-cv-01153.
electronically transferred when case opened (Entered: 03/27/2012)
03/27/2012 41 NOTICES of Admission Requirement for attorneys Beraton Whisenant, Jr., and Steve Tran,
Esqs. Admissions due by 4/26/2012. (Attachments: # 1 Tran Notice re: Admission)(amt)
(Entered: 03/27/2012)
03/27/2012 42 G.O. 25 FILING ORDER ISSUED: Initial Rule 16 Conference set for 5/18/2012 at 11:00 AM
in Binghamton before Magistrate Judge David E. Peebles. Civil Case Management Plan due
by 5/4/2012. (amt) [counsel served via reg. mail w/notices of admission] (Entered: 03/27/2012)
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Case 3:12-cv-00540-GLS-DEP Document 2 Filed 12/16/10 Page 1 of 4
.. '
IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT
IN AND FOR DUVAL COUNTY, FLORIDA
FIDELITY NATIONAL TITLE
INSURANCE COMPANY,
Plaintiff,
v_
JPMORGAN CHASE BANK, NA, as
Indenture Trustee on Behalf of the NOicholders
and Note Insurer of ABFS MORTGAGE LOAN
TRUST 200 1-3, MORTGAGE BACKED NOTES,
clo OCWEN LOAN SERVICING, LLC,
Defendant.
CASE NO. :
,, - ;iliklN C I 't
& D_ FOR IXXX -Mi.
{O-fN-frs 3--
DIVISION CV-D
__________________________
Plaintiff, Fidelity National Title Insurance Company ("FNTlC"), by and through
its undersigned counsel, sues JPMORGAN CHASE BANK. N.A., as Indenture Trustee
on Behalf of the Notcholdcrs and Nole Insurer of ABFS MORTGAGE LOAN TRUST
2001-3, MORTGAGE BACKED NOTES, clo OCWEN LOAN SERVICING, LLC
(hereinaOer "JPMorgan") .\IId ulleges as follows:
PARTIES
I. FNTIC is a Nebraska corporation with its principal place of business
located in Jacksonville, Duval County, Florida.
2. Defendant JPMorgan Chase Bank, N.A. as Indenture Trustee on Behalf of
the Noteholders and the NOle Issuer of AI3FS Mortgage Loan Trust 200L-3 Mortgage
Backed NOles, clo Dewell Loan Servicing, LLC ("JPMorgan") is a Florida limilcd
liability company with ils principal place of business localed al 1661 Worthington Road,
Suite 100, West ,Palm Beach, Palm Deaeh County. Florida 33409.
Case 3:12-cv-00540-GLS-DEP Document 2 Filed 12/16/10 Page 2 of 4
.'
FACTUAL ALLEGATIONS
3. This case involves sc\'crallraJlsaclions in\'olving real property commonly
known as Box 257 Bmce Hill RO:ld aIk.Ia 54! Bruce Hill Road, Harpersfield. New York
13786 (the "Property").
4. FNTtC is infonned and believes and thereupon alleges that Linda Playford
and Roscoe Playford ("Playford") acquired title to the Property in July 2001. TIle
Playford's financed the aC{luisilion of Ihe Property with a mortgage Ihat was assigned 10
IPMorgan on July 9, 200 J (the "Mangagc").
5. On August 31, 2006 JPMorgan filed a luwsuil in Delawilfl! County. New
York seeking 10 judicially foreclose the Mortgage.
6. FNTIC is infomlcd and believes and thereupon alleges thai 011 April 9, 2007
a tnx sale deed was recorded in favor of Dcluwarc County in which Ihe Property was
conveyed to Delaware County as u result of Playford' s failure 10 pay taxes owed in 2005.
7. On April 17, 2007 JPMorgan obtained ajudgmenl of foreclosure against
Playford, which was recorded with the office of the c1crk of Delaware County on April
25,2007.
8. FNTlC is infonned and belicvcs and thereupon alleges that on July 31, 2007
Delaware County conveyed the Propeny to Linda Playford.
9. FNTlC is infonned and believes ~ d thereupon alleges th<'!1 on October 10,
2007 JPMorgan conducted a foreclosure sale in which tilt: Property was conveyed to it.
10. FNTIC is infonncd and believes and thereupon allcgcs thai on August II,
2
Case 3:12-cv-00540-GLS-DEP Document 2 Filed 12/16/10 Page 3 of 4
2008 JPMorgan purported to cOllvey litlc to {he ProperlY 10 Dr Schneider Development
Corp. ("DT"). Also, FNTIC issued an owner's policy of title insurance (the "Policy") to
DT insuring the validity of DT's title to the IJroperty.
II. FNTIC is informed and believes and thereupon alleges that on December 3D,
2008 Playford conveyed title to the Property to Eklund Farm Machinery, Inc. ("Eklwld").
12. On February 5. 2009 Eklund filed suit against DT seeking to quiet tide to the
ProperlY. On February 23, 2009 OT tendered n claim to FNTIC as a resu!! of Eklund's
service of its suil on DT.
13. On October 9, 200? the New York Slate Supreme COlill granted EklWld's
motion for summary judgment and denied DT's cross-Illotion for SUlIlIUilI)' judgment,
ruling that Eklund had title to the Property because the execlition of the tax deed to
Delaware County wiped out lPMorgan's Mortgage interest in the Property and thus
lPMorgan had no interest to convey 10 DT. The judgment was entered in favor of Eklund
on January 22, 2010 and FNTlC is infonned and believes and thereupon alleges that this
judgment is now final.
14. On August 19, 2010 FNTlC resolved DT's claim all the POlicy by paying
OT $72,000.00. Illis payment was made pur$u,ml lu FNTIC's obligations under Ihe Policy,
and not as a volWlteer. FNTlC also incurred expenses in derending DT in Eklund's suit,
10laling $25,000.00. Given these payments, FNTlC is now DT's subrogee.
COUNT 1- UNJUST ENRICHMENT
15. Plaintiff re-alleges paragraphs I Ihrough 14 as though fully set rOllh
herein.
16. Defendant has been unjustly enriched in the amount or $97,000.00.
Case 3:12-cv-00540-GLS-DEP Document 2 Filed 12/16/10 Page 4 of 4
.. '.
17. FNTle, not .IS a \'olulHecr, pa.id a debt justly owed by de rend ant und,
accordingly, to permit defcndant to retain the moncy that should have paid that debt is (0
unjustly enrich them in that amount.
WHEREFORE, FNTIC dClllaJlds relier as follows:
I. Judgment against defcnd,Ul1 ill (hI.! amount ofS97 ,000.00;
2. Pre and post-judgment interest on this J mOlUlt;
). Costs and disbursements incurred herein; and
4. All other rclicfthut the court dcemsjust and equitable.
Respectrully Submitted,
FOl.EY & MANSFIELD, P.L.L.P.
4770 Biscayne Boulevard, Suite 1000
Mi<1mi, Florida 33 1)7
Telepholll.!: (305) 438-9899
facsimile: (305) 438-9819
~ _ . L ~ L
4
BERANTON J. WHISENANT, JR.
Florida. Bar No.: 0788651
bwhisenant@foleymansficld.com