Defendant/third-party plaintiff JP Morgan Chase Bank (Chase) moves for an order pursuant to CPLR 3212 granting summary judgment and dismissal of the complaint in its entirety. Third-Party defendant has not appeared on this motion. For the reasons stated below, Chase's motion for summary judgment is granted in its entirety.^[FN1]

The complaint (Mot. Ex. C) seeks to rescind a home equity line of credit ("credit line") granted by Chase on the single-family residence owned by plaintiff, to recoup loan payments made to Chase, and also alleges negligence and a claim for attorney's fees based on violations of [*2]the Truth in Lending Act (15 USC § 1601, et seq.), and other federal statutes.

According to the complaint, in 2002, Judith Bandler and her husband Brian Bandler, who are currently in the middle of divorce proceedings, made arrangements to finance a home through a mortgage with defendant Chase.^[FN2] In August 2002, they obtained a primary mortgage from Chase and signed a Home Equity EasyClose/Purchase Plus Loan or Line of Credit in the amount of $315,000 (Mot. Ex. L). On December 2, 2002, plaintiff issued a Power of Attorney (POA) to her husband as her attorney-in-fact, for purposes of the closing (Mot. Ex. H).^[FN3] The POA states in pertinent part:

This power of attorney is limited to actions and agreements relating to [the single-family residence in question], including without limitation acquisition, closing and settlement, and execution of promissary notes, mortgages and other instruments of every description in connection with financing for such acquisition, specifically, the right to sign the $315,000 mortgage and related documents with JP Morgan Chase bank, under loan No. [here deleted]

The closing took place on December 3, 2002. Plaintiff was not present. On that date, Chase also provided a revolving home equity line of credit (HELOC), secured on the property by a second mortgage, signed by Brian Bandler individually and as attorney-in-fact for plaintiff, making Judith and Brian Bandler joint obligors (Mot. Ex. G). Plaintiff alleges that she only discovered the credit line one year later after speaking with Chase. Moreover, she contends that the POA only authorized her husband to handle the original mortgage and not the credit line.

Subsequently, Brian Bandler withdrew two checks in the amount of $100,000 and $200,000, payable to "cash" from the credit line (Mot. Mot. Ex. M [illegible copies of the checks]). Plaintiff alleges that she was not notified about these withdrawals (Opp. Ex. A, J. Bandler Aff. ¶ 28). She contends that Brian Bandler deposited the funds "into a variety of accounts," including their joint credit card, checking and brokerage accounts, and then withdrew and transferred funds in "rapid, high speed volume" made "within short periods of time" (Opp. Ex. A, J. Bandler Aff. ¶¶ 28-29).

During her conversation with the Chase representative during which she allegedly learned about the line of credit and the withdrawals, she was also informed that she was [*3]obligated under the credit line for repayment, and that Chase could proceed against her and the property if payments were not made (Opp. Ex. A, J. Bandler Aff. ¶ 31). Plaintiff thus made a $50,000 payment to Chase towards the credit line in February 2004 (Opp. Ex. A, J. Bandler Aff. ¶ 35; Mot. Ex. N). She claims that she made it as a "result of the coercion of Chase and in reliance of its false and misleading statements that she had executed documentation making her legally responsible for extensions of credit" (Opp. Ex. A, J. Bandler Aff. ¶ 38). She also requested that the line of credit be frozen so that no additional amounts could be withdrawn, and that Chase provide her with copies of all the documentation concerning the line of credit (Opp. Ex. A, J. Bandler Aff. ¶¶ 33, 34).

Plaintiff commenced her action against Chase in February 2007. The complaint asserts six causes of action. First, it seeks a declaratory judgment that she is not liable to Chase for any amounts due under the line of credit and that it is null and void as to her based on defendant's violations of the Currency and Foreign Transaction Reporting Act, also known as the Bank Secrecy Act (31 USC §§ 5311-5330 and 12 USC §§ 1818 [s], 1829 [b], and 11951-195931); the Money Laundering Control Act of 1986, and the Money Laundering Suppression Act of 1994. Second, it seeks recoupment of the $50,000 payment made in February 2004. Third, it claims that Chase failed to provide plaintiff with any notices of the terms and conditions of the credit line, or of her right to rescind, as required under the Truth in Lending Act (15 USC § 1601, et seq.), the Home Ownership and Equity Protection Act of 1994 (15 USC § 1602, et seq.), and the Real Estate Settlement Procedures Act of 1974 (12 USC §§ 2601-2617), and that she is entitled under TILA to rescission of the line of credit, to statutory and actual damages, and for attorney's fees and costs. Fourth, it claims unjust enrichment in that Chase wrongly received $50,000 from plaintiff, as well as possible interest wrongly paid by plaintiff, and seeks recoupment. Fifth, it claims that Chase breached its duty of care in the manner in which it managed, supervised, and operated its mortgage business, and that it violated "various state and federal statutes" as concerns the making of the line of credit and the draw downs of the two checks signed by Brian Bandler (Mot. Ex. C, Compl. ¶¶ 55-59). Sixth, it claims that Chase knowingly falsely represented that plaintiff was legally obligated to pay the credit line or face legal proceedings and the loss of the real property.

Defendant Chase subsequently served its answer containing 12 affirmative defenses, and commenced a third-party action against Brian Bandler (Mot. Ex. D). Brian Bandler served his third-party answer containing three affirmative defenses against plaintiff (Mot. Ex. E).

Plaintiff previously moved for summary judgment on her third cause of action concerning violations of TILA, which was denied by the court's June 8, 2009 decision and order, as she had not established that she did not know about the credit line, although Chase had not established that it had complied with TILA. Third-party defendant's cross motion seeking summary judgment and dismissal was also denied because his liability would depend on a finding of liability by Chase.

Chase moves for summary judgment seeking dismissal of the complaint in its entirety. It argues that it was reasonable and lawful for Chase to rely on the POA signed by plaintiff. It contends that plaintiff was very much aware of the credit line and that the line of credit agreement accords with TILA. It also argues that the allegations that it has violated the Bank Secrecy Act and Money Laundering Act are baseless and lack any kind of detail.

"The proponent of a motion for summary judgment must demonstrate that there are no [*4]material issues of fact in dispute, and that it is entitled to judgment as a matter of law." Dallas-Stephenson v Waisman, 39 AD3d 303, 306 (1st Dept 2007), citing Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Upon a proffer of evidence establishing a prima facie case by the movant, "the party opposing a motion for summary judgment bears the burden of produc[ing] evidentiary proof in admissible form sufficient to require a trial of material issues of fact.'" People v Grasso, 50 AD3d 535, 545 (1st Dept 2008), quoting

Zuckerman v City of New York, 49 NY2d 557, 562 (1980). In considering a summary judgment motion, evidence should be viewed in the "light most favorable to the opponent of the motion." Grasso at 544, citing Marine Midland Bank, N.A., v Dino and Artie's Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990). The function of the court is one of issue finding, not issue determination. Ferrante v American Lung Assn., 90 NY2d 623, 630 (1997).

Chase provides an affidavit by Thomas Reardon, Assistant Vice President, who states his belief that it was entirely proper for defendant to rely on the Power of Attorney when it issued the line of credit, and that the monies received by Brian Bandler were deposited into a joint account maintained by both plaintiff and Brian Bandler (Mot. Reardon Aff. ¶ 7). Reardon states he was informed by counsel that Brian Bandler indicated that the funds were used to pay joint obligations, and that a review of the loan payment histories show that "shortly after the $200,00.00 check was drawn on the credit line (on or about September 8, 2003), a corresponding $200,000.00 principal payment was made on the Primary Mortgage (on September 16, 2003)." (Mot. Reardon Aff. ¶¶ 7-8). Indeed, as noted by this court in its previous decision, defendant had provided copies of statements demonstrating that $100,000.00 was deposited into the joint marital account and that $200,000.00 was utilized to pay down the couple's mortgage (see, Judith Bandler v JP Morgan Chase Bank, N.A. v Brian Bandler, Sup Ct, NY County, June 8, 2009, Feinman, J., index No. 604244/2005, p. 7). In addition, Chase notes that plaintiff herself signed the initial August 2002 line of credit application. Thus, Chase establishes a prima facie entitlement to its claim that plaintiff was aware of the home equity line of credit. Plaintiff offers nothing to raise a question of fact, other than her unsubstantiated statements otherwise.

Chase argues that it properly relied on the Power of Attorney executed by plaintiff. It notes that a bank's failure to accept a properly executed power of attorney is deemed unlawful, and that it should not be held liable for acting upon the authority of the power of attorney, citing section 5-1504 (2) and (3) of the General Obligations Law. Plaintiff argues that the POA was restricted solely to the original $315,000 loan, pointing to the POA language that the power pertained to "specifically, the right to sign the $315,000 mortgage and related documents with JP Morgan Chase bank, under loan #

[here redacted]." The form's powers extend, "without limitation [to the] . . . execution of promissary notes, mortgages and other instruments of every description" in connection with the $315,000 mortgage, and while the powers are limited to documents connected with "financing for such acquisition," here there is evidence that the line of credit was used primarily to pay down the mortgage. As plaintiff and Brian Bandler are both attorneys, it cannot be found that she lacked sufficient understanding of what she was granting to her husband, and there is nothing to suggest other than the complaint's inferences, that simply because Brian Bandler is employed by Chase, that there was any sort of impropriety in Chase's actions.

Chase argues that it was in full compliance with the Truth in Lending Act and the other statutes. TILA was enacted to protect consumers against the "inequities in their negotiating position with respect to credit and loan institutions." Community Mutual Savings Bank v Gillen, [*5]171 Misc 2d 535, 537 (City Ct, Mount Vernon 1997). TILA compels lenders to provide certain specific information to borrowers, such as interest rates, finance charges, and annual percentage rates, so that they can make educated decisions. See, e.g, Stein v JP Morgan Chase Bank, 279 F Supp 2d 286, 291 (SDNY 2003); General Elec Capital Financial v Bank Leumi Trust Co of NY, 1999 WL 33029, * 8 (SDNY 1999), citing Beach v Ocwen Fed. Bank, 523 U.S. 410, 411-412 (1998). Chase argues that together the documents provided for signature to Brian Bandler as attorney-in-fact meet the requisite disclosure standards required under the Truth in Lending Act.It provides in support of its motion, in addition to the $315,000 "Home Equity EasyClose/Purchase Plus Loan or Line of Credit" signed by both plaintiff and Brian Bandler on August 15, 2002 (Mot. Ex. L), copies of the Home Equity Line of Credit Agreement and Disclosure Statement, executed on December 3, 2002, by Brian Bandler individually and as attorney-in-fact for plaintiff as well as the New York Credit Line Mortgage, similarly signed and dated (Mot. Ex. G), and a Truth in Lending Statement, also signed on December 3, 2002, by Brian Bandler individually and as attorney-in-fact (Mot. Ex. J); a Notice of Right to Cancel, similarly signed and dated on December 3, 2002, appears not to have been previously submitted (Mot. Ex. K).

Plaintiff argues that the documents provided by defendant do not establish that Chase provided all the statutorily required disclosures at the time the application for a loan was provided. She points to the portion of Regulation Z setting forth various disclosures that must be provided (12 C.F.R. § 226.18), and the rule that the disclosures are to be provided at the time the application is provided to the consumer (12 C.F.R. § 226.5[g]). Although her attorney argues that the regulations require disclosure of "many items, most of which do not appear in Exhibit G - "Home Equity Line of Credit Agreement and Disclosure Statement," he does not delineate what specific notices are missing from the contents of the eight-page Agreement, and does not address whether certain of the notices might be contained in separate documents also provided to the attorney-in-fact, on the same December 2, 2002 date (see, Klass Aff. in Opp. p. 6, and Ex. B). Therefore, this argument is unpersuasive.

Plaintiff also argues that the documents provided by defendant were previously found not to be sufficient to establish defendant's right to summary judgment. However, defendant Chase never previously moved for summary judgment. Plaintiff contends that it is law of the case, as set forth in the court's July 8, 2009, decision and order, that there are material questions of fact concerning whether Chase has complied with TILA. She argues that defendant may not move for summary judgment based on the same documents and arguments as were previously considered by the court in the earlier motion brought by plaintiff for partial summary judgment. However, the two decisions cited by plaintiff in support of her argument, McDougal v County of Livingston, 89 AD2d 815 (4th Dept. 1982), and Green Point Savings Bank v Strum, 183 AD2d 870 (2d Dept. 1992), both concern cases where the same movant improperly made a second motion for summary judgment on the same proof. In contrast, here the initial motion for summary judgment was brought by plaintiff, and was denied based on the standard for summary judgment which requires denial of the motion where the opponent to the motion raises material issues of fact. See, Zuckerman v City of New York, supra , 49 NY2d at 563 (where a movant demonstrate its entitlement to summary judgment, burden of opposing such a motion is to demonstrate by admissible evidence the existence of a material issue of fact requiring a trial). The instant motion is brought by defendant, who submits evidence sufficient to establish its initial burden of showing entitlement to summary judgment, in particular by explicitly directing [*6]the court's attention to Exhibit G of its motion papers, which includes the HELOC agreement signed on December 3, 2002 by Brian Bandler on his behalf and as attorney-in-fact for plaintiff.^[FN5]

Defendant having satisfied its initial burden of going forward to eliminate issues of fact, the burden shifts to plaintiff to identify a material question of fact requiring a trial. She offers only conclusory accusations and unsubstantiated allegations, all of which are insufficient to defeat a motion for summary judgment. Zuckerman v City of New York, at 557.

Plaintiff also argues that defendant's motion should be denied based on its failure to provide all discovery demands, and argues that the motion should be denied under CPLR 3212 (f). Defendant contends that it has complied with all outstanding discovery demands, has provided "hundreds of pages" of documents, and its attorney has advised plaintiff's counsel that there are no additional documents responsive to the Notice to Produce (Zaino Reply Aff. ¶¶ 4-6). Plaintiff does not articulate what remains outstanding (Klass Aff. in Opp. pp. 8-10).

As to the claims that plaintiff was coerced and falsely misled by defendant concerning the terms of the line of credit and her obligations, she offers no evidence to support these claims. Her claim that Chase violated money laundering laws and the Bank Secrecy Act, as well as the other denominated federal statues listed in her first and third causes of action, are unsupported. She also offers nothing to support the allegations in the complaint that Brian Bandler was involved in a "complicated series of transactions that involved regular deposits into a variety of accounts, including joint credit card, checking and brokerage accounts," or that defendant aided him in these actions. She offers nothing to rebut the claim that the money was deposited into the couple's joint bank account, and some was used to pay down part of the principal.

In sum, Chase has met its burden of proof and is entitled to summary judgment and dismissal of the complaint, and plaintiff has not established that there exists any material questions of fact requiring a trial. Accordingly, defendant's motion is granted in its entirety. It is therefore

ORDERED that defendant JP Morgan Chase Bank, N.A.'s motion for summary judgment is granted and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

This constitutes the decision and order of the court.

Dated: June 25, 2010____________________________________

New York, New YorkJ.S.C.