Upon the foregoing papers, in this action by plaintiff Beka Realty LLC (plaintiff) against defendant JP Morgan Chase Bank, N.A. (Chase) for a judgment declaring that the enforcement or foreclosure of the mortgage held by Chase is barred on the claimed basis that Chase lacks ownership of the mortgage, cancelling the mortgage, and awarding it damages for fraud, negligent misrepresentation, and unjust enrichment, Chase moves, pursuant to CPLR 3211 (a) (1) and (7) and 3016 (b), for an order dismissing plaintiff's complaint in its entirety, and awarding it reasonable attorneys' fees, costs, and expenses.

Plaintiff is the owner of certain commercial property, which is located at 101 Bergen Street, in Brooklyn, New York (the premises). On or about December 22, 1998, plaintiff executed and delivered a note in the amount of $350,000 to Queens County Savings Bank secured by a mortgage (Mortgage A) on the premises. On or about October 29, 2001, plaintiff obtained a mortgage in the amount of $186,326.66 from New York Community Bank (Mortgage B) and then executed a Consolidation, Extension and Modification Agreement, consolidating Mortgage A and Mortgage B to form a single lien in the amount of $500,000. On or about July 10, 2003, plaintiff obtained a mortgage in the amount of $130,363.63 from Washington Mutual Bank, F.A. (WaMu), and then executed an Assignment of Mortgage A and Mortgage B and then a Consolidation, Extension and Modification Agreement, consolidating Mortgage A and Mortgage C to form a single lien in the amount of $600,000.

In or around April 2005, a consolidated mortgage (Mortgage G) in the amount of $600,000 (which consolidated mortgages referred to as Mortgages D, E, and F) was assigned to the Park Avenue Bank, and a mortgage spreader agreement was executed so that the lien would cover an additional property. There was also a Mortgage H, which covered the premises and the additional property. A Consolidation, Extension and Modification Agreement was then executed by plaintiff with the Park Avenue Bank, which combined Mortgage A through Mortgage H to form a single lien of $1,635,000.

On December 29, 2005, plaintiff executed a severance agreement, which split the indebtedness of $1,635,000, of which $826,759.84 remained on the premises (Mortgage I).^[FN1] At or about that time, Mortgage I was assigned to WaMu, which extended an [*2]additional loan of $223,240 on the premises, and WaMu and plaintiff executed a Consolidation, Extension and Modification Agreement of Mortgage I and Mortgage J to form a new loan in the amount of $1,050,000.

On or about April 28, 2008, WaMu extended plaintiff another loan in the amount of $533,357.85, and, simultaneously, plaintiff and WaMu entered into a Mortgage Consolidation, Modification and Extension Agreement, giving WaMu a single first mortgage lien in the amount of $1,554,000 on the premises (the Mortgage). On May 8, 2008, the Mortgage was duly recorded in the Office of the City Register of the City of New York.

In connection with the Mortgage, plaintiff executed a promissory note, dated April 28, 2008, in the amount of $1,554,000 (the Note), whereby plaintiff promised "to pay to the order of [WaMu] . . . [in] Dallas, Texas . . . or at such other place as the holder of this note . . . may from time to time designate in writing," the required monthly payments of principal and interest, beginning on June 1, 2008 and continuing through the maturity date of May 1, 2038.

On September 25, 2008, approximately five months after the Mortgage and the Note were executed, the Office of Thrift Supervision closed WaMu and appointed the Federal Deposit Insurance Corporation (the FDIC) as the Receiver (see Dipaola v JPMorgan Chase Bank, 2011 WL 3501756, *3 [ND Cal, Aug. 10, 2011, No. C 11-2605 (SI)]). On that same date, the bulk of WaMu's assets, including all loans and loan commitments of WaMu, were transferred to Chase pursuant to a Purchase and Assumption Agreement (the PAA) entered into between the FDIC as the Receiver, the FDIC in its corporate capacity, and Chase (see id.). Section 3.1 ^[FN2] and section 2.1 ^[FN3] of the PAA expressly provided that Chase specifically assumed all of the mortgage servicing rights and obligations of WaMu. Plaintiff, for approximately four and a half years following the September 25, 2008 PAA, paid Chase, as the assignee of the Mortgage and the Note (collectively, the Loan) and the servicing agent for the Loan, monthly payments of principal and interest as required by the terms and conditions of the Note.

By a letter dated September 12, 2012, plaintiff's attorney, David Stein, Esq., [*3]submitted a written request to Chase seeking certain documents evidencing that Chase had serviced and continues to service the Loan in accordance with the operative documents. By a letter dated October 4, 2012, Chase, in response, duly provided Mr. Stein, Esq. with the following documents: the Commercial Term Lending Rate Lock Agreement; the Promissory Note; the Amended and Restated Promissory Note; the Prepayment Addendum to Amended and Restated Promissory Note; the Mortgage Consolidation, Modification and Extension Agreement; the Commercial Loan Settlement Statement, which reflects the distribution of the proceeds of the loan amount of $1,554,000; and the Account Status Summary, which reflects the payments received from plaintiff up until January 9, 2012, and late charges assessed thereafter. The copy of the Note, which was provided to plaintiff, bears an "Original" stamp at the bottom right hand corner beneath the signature block executed by plaintiff's representative, Ed Honig. Plaintiff asserts, however, that it was not provided with any record of an assignment from WaMu to Chase.

In November 2012, plaintiff brought the instant action against Chase. Plaintiff's complaint asserts five causes of action against Chase, including a first cause of action for fraud, a second cause of action for negligent misrepresentation, a third cause of action alleging an invalid assignment, a fourth cause of action to quiet title, and a fifth cause of action for unjust enrichment. Plaintiff's complaint alleges that there was no public recording of the assignment of the Mortgage from WaMu to Chase. It further alleges that the lack of an endorsement or an assignment of the Mortgage raises significant questions concerning whether the Mortgage was the property of WaMu on the date of the assignment of its assets to Chase, whether Chase is in possession of the original Note, whether Chase is in possession of Mortgages A through K, and whether Mortgages A through K were properly assigned. On January 4, 2013, Chase e-filed its instant motion to dismiss plaintiff's complaint.

In addressing Chase's motion, the court notes that plaintiff initially argues that Chase's motion is defective because it failed to include a copy of the complaint. This argument is devoid of merit. As the complaint was e-filed, it was available to the parties and the court (see Washington Realty Owners, LLC v 260 Wash. St., LLC,105 AD3d 675, 675 [1st Dept 2013]; Studio A Showroom, LLC v Yoon, 99 AD3d 632, 632 [1st Dept 2012]). In any event, Chase, in reply, has annexed a copy of the complaint (see Pandian v New York Health & Hosps. Corp., 54 AD3d 590, 591 [1st Dept 2008]; Wells Fargo Trade Capital Services, Inc. v Blair Mills, LLC, 2010 NY Slip Op 30253[U], 2010 WL 497654 [Sup Ct, NY County 2010]).

Chase, by its motion, seeks dismissal of plaintiff's complaint, pursuant to CPLR 3211 (a) (1), based upon the documentary evidence and, pursuant to CPLR 3211 (a) (7), for failure to state a cause of action. Generally, upon such a motion, a complaint is to be liberally construed and the allegations contained therein are deemed to be true and [*4]accorded every favorable inference (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

However, on a motion pursuant to CPLR 3211 (a) (7), factual allegations consisting of bare legal conclusions, that are inherently incredible, or are flatly contradicted by the documentary evidence are not entitled to such consideration, and are neither presumed to be true nor accorded every favorable inference (see Sweeney v Sweeney, 71 AD3d 989, 991 [2d Dept 2010]; Zurich Depository Corp. v Iron Mtn. Info. Mgt., Inc., 61 AD3d 750, 751 [2d Dept 2009]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2d Dept 2008], lv dismissed 12 NY3d 878 [2009]; Pincus v Wells, 35 AD3d 569, 570 [2d Dept 2006]). A court is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences (see Sweeney, 71 AD3d at 991; Zurich Depository Corp., 61 AD3d at 751). Furthermore, the granting of a motion, pursuant to CPLR 3211 (a) (1), to dismiss the complaint on the ground that the action is barred by documentary evidence is warranted " where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law'" (Green v Gross & Levin, LLP, 101 AD3d 1079, 1080-1081 [2d Dept 2012], quoting Mendelovitz v Cohen, 37 AD3d 670, 670 [2007]; see also Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]).

Here, there is no dispute that plaintiff obtained the Loan from WaMu and that it executed the Note promising to pay to the order of WaMu or such other holder of the Note the sum of $1,554,000. The Federal Deposit Insurance Act authorized the FDIC, as the Receiver of WaMu, to "transfer any asset or liability" of WaMu "without any approval, assignment, or consent with respect to such transfer" (12 USC § 1821 [d] [2] [G] [i] [II]). Consistent with this statutory provision, the FDIC transferred all of WaMu's loans and loan commitments to Chase pursuant to the September 25, 2008 PAA.^[FN4] As noted above, sections 2.1 and 3.1 of the PAA provided that "[Chase] specifically assume[d] all of the mortgage servicing rights and obligations of [WaMu]." Courts have, therefore, consistently held that Chase became the owner of all of WaMu's loans and loan commitments by operation of law and that Chase is entitled to enforce the acquired WaMu loans (see Stehrenberger v JPMorgan Chase Bank, N.A., 2012 WL 5389682, *2 [SD Ohio Nov. 2, 2012, No. 2:12-CV-874]). Thus, by virtue of the PAA, Chase became the assignee of the Note and Mortgage ^[FN5] (see JP Morgan Chase Bank N.A. v Miodownik, [*5]91 AD3d 546, 547 [1st Dept 2012], lv dismissed 19 NY3d 1017 [2012]; Haynes v JP Morgan Chase Bank, N.A., 2011 WL 2581956, *6 [MD Ga, Jun. 29, 2011, No. 3:10-CV-11 (CDL)], affd 466 Fed Appx 763 [11th Cir 2012]).

While plaintiff asserts, as a basis for its complaint, that there was a lack of an endorsement of the Note or an assignment of the Mortgage, it is well established that the loan documents were not required to be individually negotiated or assigned since the FDIC had the authority to transfer any and all of WaMu's loans with or without formal assignment pursuant to 12 USC § 1821 (d) (2) (G) (i) (II) and federal law and regulations preempt state law requiring individual negotiation, which "would constitute an onerous burden not contemplated by federal law" (JP Morgan Chase Bank, N.A. v 1770 Realty Corp., Sup Ct, Kings County, Jan. 29, 2010, Gerges, J., index No. 7655/09; see also FTBK Inv. II LLC v Mercy Holding LLC, 36 Misc 3d 1219[A], 2012 NY Slip Op 51401[U], *6 [Sup Ct, Kings County 2012] [holding that the defendants were incorrect in their assertion that the note had to have been individually negotiated and physically indorsed to Chase through an allonge pursuant to UCC 3-202]; JP Morgan Chase Bank, N.A. v 334 Marcus Garvey Boulevard Corp., Sup Ct, Kings County, Dec. 5, 2011, Rosenberg, J., index No. 26152/09 [holding that a valid transfer from the FDIC to Chase of the assets of WaMu, as a failed bank, occurs even without a formal assignment instrument]; Jericho Assets Corp. v RRJ 216 Corp., Sup Ct, Nassau County, Sept. 25, 2012, Murphy, J., index No. 17699/09 [holding that "the FDIC had authority to transfer all assets' of WaMu to Chase without individually negotiating or physically endorsing each note"]).

Thus, Chase had no obligation to record any assignment of the Mortgage under either federal or state law since it was empowered to transfer WaMu's assets without an assignment (see). Indeed, it has been specifically held that "[t]here is no requirement that the FDIC as receiver, endorse or assign the note and mortgage to [Chase]" (JP Morgan Chase Bank v Russo, 2012 NY Slip Op 31879[U], 2012 WL 2993587 [Sup Ct, Nassau County, July 2, 2012]; see also JP Morgan Chase Bank N.A., 91 AD3d at 547). Significantly, Chase's status as WaMu's successor-in-interest for all of its loans and loan commitments, with standing to foreclose on mortgages formerly held by WaMu, has recently been expressly recognized (see JP Morgan Chase Bank, N.A. v Shapiro, 104 [*6]AD3d 411, 412 [1st Dept 2013]; JP Morgan Chase Bank N.A., 91 AD3d at 547).

Plaintiff argues, however, that Chase has failed to establish that it is the current lawful holder and owner of the Note. It contends that Chase does not own the Note and cannot produce the original Note. It asserts that while Chase claims that it is possession of the original Note, Chase has only included a copy of the Note which is marked "Original," and that having a copy of a document does not establish that Chase is in possession of the original Note. Plaintiff maintains that if Chase is in possession of the original Note, then it should consent to an in camera inspection of the Note.

This argument is unavailing. The documentary evidence, consisting of the Mortgage and the Note, the latter of which bears an "Original" stamp beneath the signature block executed by plaintiff's representative, Ed Honig, are annexed as Exhibit C to plaintiff's complaint. Such evidence demonstrates that Chase holds the original Note and Mortgage. Chase has thus shown that it is in possession of the Note and, in fact (as discussed above), it had previously provided a copy of the original Note to plaintiff. Plaintiff has not set forth any basis to argue that this was not the actual Note executed by it (see Malin v JP Morgan Chase Bank, N.A., 2013 WL 3423822, *10 [ED Tenn, Jul. 8, 2013, No. 3:11-CV-554]; Dowland v JPMorgan Chase Bank, N.A., 2012 WL 1392549, *3 [SD NY, Apr. 23, 2012, No.11 CIV. 2225 (LAK)]). Chase's possession of the original Note constitutes prima facie evidence that it lawfully possesses it and may enforce it (see Corporation Holding Co., Inc. v Wieber, 230 App Div 636, 636 [3d Dept 1930]).

Moreover, plaintiff does not deny its execution of the Note annexed to its complaint or claim that the Note has been altered, nor does it claim that anyone else is holding the original Note or seeking to enforce it. While Chase does not object to the inspection of the Note by the court, plaintiff has not provided any reason to doubt the authenticity of the Note produced by Chase. As discussed above, the Note was sold to Chase as part of the PAA. Consequently, Chase has duly established that it is the present holder of the Note and is in possession of the original Note, and plaintiff has failed to rebut Chase's documentary proof.Plaintiff further argues that Chase has failed to establish that the Loan was the property of WaMu at the time of the September 25, 2008 transfer of assets to Chase by virtue of the PAA. Although plaintiff acknowledges that Chase acquired all of WaMu's loans under the PAA, it contends that Chase has failed to establish that WaMu did not assign the Loan to another entity prior to the transfer by the FDIC of WaMu's assets to Chase.

In support of this argument, plaintiff heavily relies upon the case of Jericho Assets Corp. v RRJ 216 Corp. (Sup Ct, Nassau County, Sept. 25, 2012, Murphy, J., index No. 17699/09), in which the plaintiff therein, Jericho Assets Corp., moved for summary judgment with regard to the foreclosure on the property of the defendants therein, and the Supreme Court, Nassau County, found, citing FTBK Inv. II LLC v Mercy Holding LLC (36 Misc 3d 1219[A], 2012 NY Slip Op 51401[U], *6 [Sup Ct, Kings County 2012]), that "as the note and mortgage may not have been the property of WaMu on the day Chase [*7]acquired WaMu's assets . . . [Jericho Assets Corp.] must provide proof, beyond the PAA alone, that WaMu owned the note and mortgage and transferred them to Chase pursuant to the PAA." Plaintiff argues that Chase similarly cannot claim an interest in the Note and Mortgage because it has not provided proof that WaMu owned the Note and Mortgage and transferred them to Chase pursuant to the PAA.

Plaintiff, however, in its complaint, merely alleges that the lack of an endorsement or an assignment of mortgage "makes it doubtful" that its Mortgage was the property of WaMu on the date of the assignment of WaMu's assets to Chase. It speculates that WaMu may not have been the holder of the Note and Mortgage prior to going into receivership of the FDIC, such that Chase could not have obtained the Note and Mortgage from the FDIC pursuant to the PAA. Plaintiff, though, has failed to support this bare speculation with any specific allegations to rebut the contents of the documents themselves, which indicate that WaMu owned the Loan that became the property of the FDIC and then Chase (see Malin v JP Morgan Chase Bank, N.A., 2013 WL 3423822, *10 [ED Tenn, Jul. 8, 2013, No. 3:11-CV-554]). While the complaint need not contain detailed factual allegations, the factual allegations must be sufficient to raise the claimed right to relief above the level of mere speculation and to state a claim for relief that is, at least, plausible on its face (see Sweeney, 71 AD3d at 991). Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice (see id.).

Significantly, plaintiff has not specifically alleged or provided any factual allegations which indicate that WaMu did not own the Loan or that WaMu had transferred its interest in the Loan prior to Chase's acquisition of WaMu's assets by its execution of the PAA (see Eng v Dimon, 2012 WL 3659600, *1, 2 n 5 [ND Cal, Aug. 24, 2012, No. 11-3173 (MMC)] [relying on the PAA to reject the plaintiff's cause of action, titled "No Evidence of a Loan," explaining that Chase acquired the right to foreclose on the loan under the PAA and noting that the plaintiff had not alleged that WaMu transferred the loan prior to Chase's execution of the PAA]). Plaintiff fails to specifically allege that its Loan was not included among WaMu's assets that were sold as part of the PAA. Moreover, plaintiff does not set forth that any entity other than Chase has claimed to be the holder of the Loan. Plaintiff does not allege that another entity is also seeking to enforce its Loan or that it is at the risk of having to pay the same debt twice due to another earlier assignment of the same Loan.

In the face of the inconsistency between plaintiff's allegations and the contents of the PAA, the facts apparent from the face of the PAA control, i.e., that Chase purchased the Loan on September 25, 2008. Thus, plaintiff has failed to allege sufficient factual allegations to support its conclusory claim that WaMu may not have owned the Loan on the date that the FDIC acquired its assets. Consequently, the court cannot treat as true plaintiff's allegations that Chase did not own the Loan (see Jones v JP Morgan Chase Bank, N.A., 2012 WL 4815468, *1 [ND Cal Oct. 9, 2012, No. 12-CV-00488 (LHK)]). [*8]

Plaintiff also argues that since there was no written assignment of its specific Note or Mortgage from WaMu or the FDIC to Chase, Chase must show the circumstances in which the Note and Mortgage were physically delivered to it, and that Chase has not provided any evidence regarding these circumstances. It, again, relies upon Jericho Assets Corp. (Sup Ct, Nassau County, Sept. 25, 2012, Murphy, J., index No. 17699/09), wherein the Supreme Court, Nassau County, found that there was no evidence of any written assignment of the specific underlying note from WaMu or the FDIC to Chase and, citing to U.S. Bank, N.A. v Collymore (68 AD3d 752, 754 [2d Dept 2009]), stated that the plaintiff therein was, therefore, required to provide evidence regarding the circumstances in which the note and mortgage had been physically delivered to Chase.

Plaintiff's reliance upon this language in Jericho Assets Corp. is misplaced since U.S. Bank, N.A. (68 AD3d at 753-754) concerned an action to foreclose a mortgage in which a motion for summary judgment and to appoint a referee to compute sums due and owing under the note and mortgage by U.S. Bank, N.A. (U.S. Bank) was denied because U.S. Bank had failed to demonstrate its entitlement to judgment since it had not submitted sufficient evidence to demonstrate its standing as the lawful holder or assignee of the note on the date that it commenced that action. Specifically, in U.S. Bank, N.A. (68 AD3d at 754), the Appellate Division, Second Department, found that U.S. Bank's evidentiary submissions were insufficient to establish that it was an assignee of the note prior to the commencement of the foreclosure action because it had not shown that its assignor, MERS, had effectively assigned the note to it prior to such commencement, and it noted that the mere assignment of the mortgage without an effective assignment of the underlying note was a nullity. It further found that U.S. Bank had not shown that it was a lawful holder of the note because it had failed to establish that the note was physically delivered to it prior to the commencement of the foreclosure action since its evidentiary submissions in this regard were incomplete and conflicting (id.).

Similarly, Jericho Assets Corp. was an action to foreclose a mortgage, mandating an evidentiary showing that the note was physically delivered prior to the commencement of such action. Indeed, in FTBK Inv. II LLC (36 Misc 3d 1219[A], 2012 NY Slip Op 51401[U], *6), the Supreme Court, Kings County, found that the plaintiff therein was "correct in its claim that its possession of the note and mortgage [wa]s evidence that the loan documents were physically transferred from WaMu to Chase, but found that the plaintiff was also required to provide testimony from an individual with personal knowledge stating the circumstances in which the note and mortgage had been delivered to Chase prior to the commencement of that action due to the requirement, in a foreclosure action, of showing such possession prior to the commencement of such an action.

Here, in contrast, the present action does not involve a summary judgment motion in an action brought by Chase to foreclose a mortgage where it has not demonstrated that it had physical possession of the note prior to the commencement of such action. Rather, [*9]this is an action brought by plaintiff for a declaratory judgment, and Chase has shown that it had physical possession of the Note prior to plaintiff's commencement of this action since it provided such Note to plaintiff's counsel by the letter dated October 4, 2012.

Plaintiff further cites to language in Jericho Assets Corp. that Jericho Assets Corp. had "also failed to provide any documentation evidencing the transfer of the note or the mortgage from WaMu to Chase, as the PAA makes no mention of [the] defendants' specific note or mortgage, and the only evidence offered by [Jericho Assets Corp.] was a press release which constitute[d] inadmissible hearsay." Plaintiff argues that in this action, Chase has similarly failed to provide documentation evidencing the transfer of the Note and Mortgage from WaMu to Chase and that it, therefore, did not sufficiently establish its legal interest in the Note and Mortgage.

It has been held, however, that it is not necessary for the PAA to explicitly list each of the assets assigned (see Stehrenberger v JPMorgan Chase Bank, N.A., 2012 WL 5389682, *2 [SD Ohio, Nov. 2, 2012, No. 2:12-CV-874]). Thus, it was unnecessary for the PAA to specifically identify and list the Loan as an asset that Chase acquired in order for Chase to enforce the Loan (see id.).

Plaintiff additionally argues that Chase was required to establish that it has a good chain of title by showing that it is in possession of the prior notes that the current consolidated Note covers. Plaintiff relies upon Wells Fargo Bank, N.A. v Gallo (2011 WL 6738917, 2011 NY Slip Op 33318[U] [Sup Ct, NY County 2011]), wherein the Supreme Court, New York County, dismissed a foreclosure action where the plaintiff therein, Wells Fargo Mortgage, N.A. (Wells Fargo), sought to foreclose on a consolidated mortgage on real property, and, in support of its motion for summary judgment, it sought to rely on a consolidated note and a consolidated mortgage assigned to it by Option One Mortgage Corporation (Option One), but the documentary evidence established that at time the consolidated mortgage was entered into on August 13, 2007, the original April 19, 2006 mortgage on the subject property held by H & R Block Mortgage Corporation (H & R Block) had not been assigned to Option One, and there was no evidence that H & R Block had authorized Option One to enter into the consolidated mortgage nor was there any evidence that as of April 13, 2007, the date that Option One consolidated the mortgage, that Option One physically possessed or had been assigned the April 19, 2006 note by H & R Block. The Supreme Court, New York County, in Wells Fargo Bank, N.A. (2011 Slip Op 33318[U]), held that, therefore, as Wells Fargo could not rely upon the consolidated note and since it had not established that it was in possession of the original note at the time it commenced the foreclosure action, it lacked standing to maintain such action. Plaintiff argues that, here, Chase similarly has not shown that it is in possession of and has ownership of the previous mortgages and notes, i.e., Mortgage A through Mortgage J.

Plaintiff contends that based on the Schedule that was attached to the consolidated Note that Chase has submitted, there are issues that cloud the chain of title. Plaintiff [*10]asserts that the Consolidation, Extension and Modification Agreement of Mortgage I and Mortgage J between it and WaMu in December 2005 states that the Consolidation of Mortgage A through Mortgage C was executed between WaMu and Arthur Avenue Realty II Corp., instead of it. It argues that this raises doubt as to whether the Consolidation of Mortgage A through Mortgage C was done validly. The court rejects this argument. Notably, plaintiff, in its complaint, itself relies upon the Consolidation, Extension and Modification Agreement to document the history of the Loan, acknowledging that it executed this agreement. Moreover, Schedule I of Exhibit B to the complaint shows that the Consolidation, Extension and Modification Agreement C1, which consolidates Mortgages A through C to form a single lien in the amount of $600,000 was executed by and between WaMu and plaintiff, and not by Arthur Avenue Realty II Corp.

Plaintiff further argues that on the Schedule of Assignments, there is no record of an assignment of Mortgage A from Queens County Savings Bank to New York Community Bank. Plaintiff contends that this raises a question of whether New York Community Bank was in possession of the Note on Mortgage A at the time that it consolidated Mortgage A and Mortgage B. This contention is devoid of merit since New York Community Bank was the successor in interest to Queens County Savings Bank, and, thus, no assignment of Mortgage A was necessary. Thus, plaintiff has failed to support its claim of any defect in Chase's chain of title with respect to the Loan.

Notably, plaintiff fails to explain the reason that prompted it, after remitting loan payments to Chase for more than four years, to question Chase's position as the rightful owner of the Loan. As discussed above, plaintiff does not deny that it executed the Note and the Mortgage and that it owes the payments thereunder and it has not asserted that any other entity has claimed to be the holder of such Note or Mortgage. Rather, it appears that plaintiff is merely seeking to avoid payment of its debt by instituting this action. Such an attempt, based upon a complaint consisting only of conclusory, speculative, and unsupported allegations, cannot be countenanced by the court, and warrants dismissal of this action. Consequently, plaintiff is not entitled to a declaratory judgment that Chase does not own the Mortgage or that the enforcement or foreclosure of the Mortgage is barred (see Stehrenberger, 2012 WL 5389682, *5; Javaheri v JPMorgan Chase Bank, N.A., 2011 WL 1131518 [CD Cal Mar. 24, 2011, No. CV10-08185 (ODW FFMX)]).

Moreover, plaintiff's five causes of action all fail as a matter of law because each of them is predicated on the unfounded assertion that Chase does not have the right to enforce the Loan. Since this assertion is flatly contradicted by the unrefuted documentary evidence, none of these causes of action state legally viable claims.

Specifically, plaintiff's first cause of action purports to allege a claim of fraud. However, in order to recover damages for fraud, a plaintiff "must prove a misrepresentation or a material omission of fact which was false and known to be false by [*11]defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury" (Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]). In addition, CPLR 3016 (b) provides that "[w]here a cause of action . . . is based upon . . . fraud . . ., the circumstances constituting the wrong [must] be stated in detail."

Here, plaintiff alleges that Chase misrepresented that there was an assignment of the Loan to it, that Chase had knowledge of the falsity of this representation because it collected payments despite knowing that there was no assignment of the Mortgage, that Chase induced reliance by misrepresenting that it held the Mortgage and the Note, that it justifiably relied upon these misrepresentations by making mortgage payments to Chase for the last four and a half years, and that it is entitled to damages. Plaintiff asserts that its claim of fraud is predicated on Chase's act of collecting payments and misrepresenting that it has a right to do so under the Loan.

Plaintiff's first cause of action for fraud fails to state a cognizable claim because plaintiff has failed to show any material misrepresentation made by Chase with respect to the Loan. Rather, as discussed above, Chase is the lawful assignee of the Loan. Additionally, plaintiff has failed to state the circumstances constituting the wrong in sufficient detail in accordance with the requirements of CPLR 3016 (b). Thus, dismissal of plaintiff's first cause of action for fraud is mandated (see CPLR 3211 [a] [1], [7]; 3016 [b]).

With respect to plaintiff's second cause of action for negligent misrepresentation, plaintiff claims that this cause of action involves the sole issue of whether Chase misrepresented that it owed it the sums due under the Mortgage. This cause of action, however, like plaintiff's first cause of action for fraud, cannot be sustained because plaintiff has failed to show any material misrepresentation or falsity made by Chase with respect to the Loan or regarding its status as the assignee of the Loan (see Lama Holding Co., 88 NY2d at 421). In addition, plaintiff has failed to plead any special relationship of trust or confidence between it and Chase since such a relationship does not arise from its making monthly mortgage payments as the relationship of a borrower and a lender is not of a confidential or fiduciary nature (see River Glen Assoc. v Merrill Lynch Credit Corp., 295 AD2d 274, 275 [1st Dept 2002]). Consequently, dismissal of plaintiff's second cause of action for negligent misrepresentation is warranted (see CPLR 3211 [a] [1], [7]).

Plaintiff's third cause of action for "invalid assignment" alleges that there was a lack of an endorsement of the Note and no public recording of the assignment of the Mortgage from WaMu. Plaintiff asserts that it has properly pleaded a cause of action for invalid assignment because Chase has not adequately shown that WaMu had a good chain of title to the Loan that it assigned to it, that it is in possession of the original Note and Mortgage, or that WaMu was in possession of the Note and the Mortgage on the date of the transfer of assets to the FDIC and the subsequent transfer to it. As discussed above, however, the FDIC, as the Receiver of WaMu, was empowered to transfer WaMu's assets [*12]without an assignment (see 12 USC § 1821 [d] [2] [G] [i] [II]). Furthermore, Chase may enforce the terms of the Loan as the assignee of the Loan, and there is no requirement that the assignment be recorded (see Carlin v Jemal, 68 AD3d 655, 655-656 [1st Dept 2009]). Thus, inasmuch as the court has rejected the arguments upon which plaintiff's third cause of action for invalid assignment are predicated, this cause of action must be dismissed (see CPLR 3211 [a] [1], [7]).

Plaintiff's fourth cause of action to quiet title alleges that Chase claims an interest in the premises adverse to its title, pursuant to which it may seek to foreclose upon them, and that it has no lien on the premises such that any attempted foreclosure on the premises would be unlawful. Since, however, it is undisputed that plaintiff executed the Mortgage and the Note in favor of WaMu and the court finds that Chase has lawfully acquired plaintiff's Loan, this cause of action is contradicted by the documentary evidence and fails to state a cause of action, mandating its dismissal (see CPLR 3211 [a] [1], [7]).

Plaintiff's fifth cause of action for unjust enrichment alleges that Chase has been unjustly enriched because Chase has been receiving monthly mortgage payments for the last four and a half years at its expense because it was making loan payments to Chase who has been accepting such loan payments when it had no right to these payments. However, since the existence of a valid and enforceable written Note and Mortgage govern this matter, plaintiff is precluded from recovery in quasi-contract for events arising out of the same subject matter (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]; Whitman Realty Group, Inc. v Galano, 41 AD3d 590, 592-593 [2d Dept 2007]). Moreover, plaintiff's claim of inequitable conduct upon which this cause of action is predicated hinges entirely upon its contention that Chase is not entitled to such payments, which the court finds to be wholly lacking in merit. As discussed above, any claim predicated on plaintiff's assertion that Chase is not the owner, lawful assignee, or holder of the Loan has been insufficiently alleged (see Javaheri , 2011 WL 1131518). Thus, plaintiff's fifth cause of action for unjust enrichment must be dismissed (see CPLR 3211 [a] [1], [7]).

Accordingly Chase's motion for an order dismissing plaintiff's complaint in its entirety is granted, and it is declared that Chase is entitled to enforce the Loan.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.