Summary
Holding that the plaintiff had no standing to challenge the validity of mortgage assignment between originator and third party.
Summary of this case from Utreras v. Aegis Funding Corp.Opinion
11 CV 1557 (NGG)(RML)
08-29-2012
LENORE H. KARAMATH, Plaintiff, v. U.S. BANK, N.A. and IMPAC FUNDING CORPORATION d/b/a IMPAC LENDING GROUP, Defendants.
REPORT AND RECOMMENDATION
:
Defendants U.S. Bank, N.A. ("U.S. Bank") and Impac Funding Corporation d/b/a Impac Lending Group ("Impac") move to dismiss plaintiff's Amended Complaint. By order dated November 18, 2011, the Honorable Nicholas G. Garaufis, United States District Judge, referred the motions to me for a report and recommendation. For the reasons stated below, I respectfully recommend that defendants' motions be granted.
BACKGROUND AND FACTS
Plaintiff Lenore Karamath ("plaintiff" or "Karamath") commenced this action in March 2011. In July 2011, plaintiff filed an Amended Complaint. (See Amended Verified Complaint, dated July 29, 2011 ("Am. Compl.").) Plaintiff alleges that she was the victim of a predatory lending scheme and seeks damages related to the solicitation, origination, processing, underwriting, closing and funding of two mortgage loans and notes. (See id.)
On January 20, 2006, plaintiff purchased a two-family dwelling at 135-27 125th Street in South Ozone Park, New York (the "Property"). (Am. Compl. ¶¶ 1, 38.) To secure funding for that transaction, plaintiff retained independent mortgage broker Ace Mortgage. (See Borrower's Certification and Authorization, annexed as Ex. A to the Declaration of Alan F. Kaufman, Esq., dated Oct. 3, 2011 ("Kaufman Decl.").) In connection with the purchase, plaintiff executed and delivered to Impac a first mortgage in the amount of $564,000 (the "First Loan"), which is secured by the Property. (Am. Compl. ¶ 38.) The First Loan is a conventional thirty-year adjustable rate mortgage loan with an interest rate of 8.125 percent. (Kaufman Decl., Exs. B & C.) On February 22, 2008, the First Loan was assigned to U.S. Bank, as Trustee for the Holder of Bear Stearns Asset Backed Securities I Trust 2006-IMI. (Am. Compl. ¶ 42.)
Ace Mortgage, which is not a party to this action, is owned by Edul Ahmad, who was arrested in July 2011 on federal mortgage fraud charges. The criminal complaint, filed in this court, alleges that Ahmad conspired with others to conduct an extensive mortgage fraud scheme, regularly lying to lenders about applicants' income and using straw buyers to conceal his involvement. (Criminal Complaint in 11 CR 589, dated July 11, 2011.) That case is pending before the Honorable Dora L. Irizarry, with the trial currently scheduled for November 5, 2012.
The First Loan was allegedly assigned by Impac's nominee, Mortgage Electronic Registration Systems, Inc. ("MERS"). (Am. Compl. ¶ 42.)
On the same date as the purchase, January 20, 2006, plaintiff also executed and delivered to Impac a second mortgage in the amount of $141,000, which is also secured by the Property (the "Second Loan"). (Am. Compl. ¶ 34; Kaufman Decl., Ex. F.) The Second Loan is a balloon fifteen-year fixed mortgage rate loan with an interest rate of 13.25 percent. (Kaufman Decl., Exs. E & F.) The Second Loan has not been assigned.
In connection with obtaining these loans, plaintiff executed a number of documents setting forth the amount of her monthly mortgage obligations, including: (1) the Adjustable Rate Note, reflecting a monthly principal and interest payment of $4,187.68 for the First Loan (Kaufman Decl., Ex. B); (2) the Balloon Note, reflecting a monthly principal and interest payment of $1,587.34 for the Second Loan (id., Ex. E); and (3) the Truth in Lending Disclosure Statements, setting forth plaintiff's payment schedules over the course of the loans (id., Ex. G). Plaintiff has not denied signing each of these documents. Plaintiff also signed the loan applications, initialing each page. (Id., Exs. H & I.) In addition, she provided two forms of the Borrower's Certification and Authorization, in which she certified that "all of the information [in the loan applications] is true and complete" (id., Exs. A & J), and she executed a Borrower's Income Certification certifying "that the monthly income stated and/or sources of income as disclosed on the Uniform Residential Loan Applications [] for the [Loans] is true, accurate, and current as of this date." (Id., Ex. K.)
"On a motion to dismiss, the Court may consider all documents attached to or incorporated by reference into the Complaint, documents Plaintiff possessed or knew of when bringing suit, and matters of which judicial notice may be taken." Webster v. Wells Fargo Bank, N.A., No. 08 Civ. 10145, 2009 WL 5178654, at *1 n.2 (S.D.N.Y. Dec. 23, 2009), aff'd, 458 Fed. App'x 23 (2d Cir. Jan. 19, 2012). The court may also consider "documents that are integral to plaintiff's claims." Pisani v. Westchester Cnty. Health Care Corp., 424 F. Supp. 2d 710, 714-15 (S.D.N.Y. 2006) (internal citation omitted).
Plaintiff began making monthly mortgage payments of $5,875.02 on March 1, 2006 and continued to do so through August 1, 2007. (Am. Compl. ¶ 46.) She then defaulted on her mortgage payment due on September 1, 2007 (id. ¶ 45) and has made no payments since then. On February 6, 2008, U.S. Bank commenced foreclosure proceedings on the First Loan in New York Supreme Court, Queens County. (Id. ¶ 45; Summons and Complaint, annexed as Ex. N to the Kaufman Decl.) On September 16, 2008, the court granted U.S. Bank's motion for summary judgment and struck plaintiff's Answer and affirmative defenses. (Am. Compl. ¶ 47.)
Plaintiff was represented by counsel throughout the foreclosure action. (Compl. ¶ 47.) After the court granted U.S. Bank's motion for summary judgment, plaintiff was given the opportunity to participate in settlement conferences in the Queens County Foreclosure Conference Part, from which the action was released in February 2011 (shortly before plaintiff commenced this action). (See Declaration of Chava Brandriss, dated Oct. 3, 2011 ("Brandriss Decl."), ¶ 5, Ex. C.)
Plaintiff's Amended Complaint asserts causes of action against both defendants for: (1) common law fraud, (2) violation of the New York State Banking Law, and (3) violation of the New York State General Business Law. Plaintiff also asserts causes of action against U.S. Bank to set aside the assignment of the First Loan, and for an injunction restraining U.S. Bank from prosecuting its foreclosure action in state court. (See Am. Compl.)
DISCUSSION
A. Standard for Motion to Dismiss
In considering a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all the facts alleged in the complaint and must liberally construe the complaint in the light most favorable to the plaintiff. In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A complaint should be dismissed only if it fails to set forth sufficient allegations of fact to state a claim for relief that is "plausible on its face." Id. at 1949; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facts that assert merely conceivable conclusions will not survive a motion to dismiss. See Twombly, 550 U.S. at 570. Moreover, "'[l]abels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678 (quoting Twombly,550 U.S. at 555). Rather, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Assessing a complaint's plausibility "is context-specific, requiring the reviewing court to draw on its experience and common sense." Id. at 1940.
B. Common Law Fraud
Defendant U.S. Bank moves to dismiss plaintiff's fraud claim on the ground that it could have been raised as an affirmative defense in the state court foreclosure action. (See Memorandum of Law in Support of Defendant U.S. Bank, N.A.'s Motion to Dismiss, dated Oct. 3, 2011 ("U.S. Bank Mem."), at 5-6.) Both defendants also contend that plaintiff's fraud allegations fail to state a claim against them because plaintiff does not allege that either U.S. Bank or Impac made any representations of any kind to her. (See U.S. Bank Mem. at 6-7; Defendant Impac Lending Corporation's Memorandum of Law in Support of Motion to Dismiss Plaintiff's Amended Complaint, dated Oct. 3, 2011 ("Impac Mem."), at 7-8.)
1. Res Judicata
Federal courts must give a state court judgment the same preclusive effect as would be given it under the law of the state in which the judgment was rendered. See 28 U.S.C. § 1738. In New York, under the doctrine of res judicata, "'a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.'" Burgos v. Hopkins, 14 F. 3d 787, 789 (2d Cir. 1994) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980) (emphasis added)). New York takes a "transactional approach to res judicata, barring a later claim arising out of the same factual grouping as an earlier litigated claim even if the later claim is based on different legal theories or seeks dissimilar or additional relief." Id. at 790 (citing Smith v. Russell Sage College, 429 N.E.2d 746, 749 (N.Y. 1981)). It is well-settled "that a summary judgment dismissal is considered a decision on the merits for res judicata purposes" in this court and under New York state law. Weston Funding Corp. v. Lafayette Towers, Inc., 550 F.2d 710, 715 (2d Cir. 1977); see also Yeiser v. GMC Mortg. Corp., 535 F. Supp. 2d 413, 421 (S.D.N.Y 2008).
Here, plaintiff's fraud claim arises from the same "factual grouping" that formed the basis of the state court foreclosure action. See Weston v. First Union Nat'l Bank, No. 99 CV 7116, 1999 WL 1070056, at *2 (2d Cir. Nov. 18, 1999) (upholding dismissal of fraudulent seizure claim and claim that the bank misrepresented its level of expertise in servicing construction loans, where plaintiff failed to raise those claims in earlier state court foreclosure action); Swiatkowski v. Citibank, 745 F. Supp. 2d 150, 171-71 (E.D.N.Y. 2010) ("Many of the factual allegations plaintiff raises in opposition to the instant motion to dismiss involve issues that could have been raised as claims or defenses in the state court [foreclosure] proceedings."), aff'd, 446 Fed. App'x 360 (2d Cir. Nov 16, 2011); Yaiser, 535 F. Supp. at 421 (stating that res judicata "applies to defenses that could have been litigated, including defenses to a foreclosure."); Beckford v. Citibank N.A., No. 00 Civ. 205, 2000 WL 1585684, at *4 (S.D.N.Y. Oct. 24, 2000) (finding that claim under Real Estate Settlement Procedures Act was available to plaintiff during state foreclosure proceeding "and litigation of the issue now would frustrate the rights and interests established in those proceedings"). Plaintiff is thus barred from asserting her fraud claim against U.S. Bank under the doctrine of res judicata.
Obviously, since Impac was not a party to the foreclosure action and plaintiff could not have asserted her fraud claim against Impac in that case, res judicata does not apply to her cause of action for fraud against Impac.
2. Fraud Allegations
To state a claim for fraud under New York law, a plaintiff must allege that: (1) the defendant made a misrepresentation of material fact; (2) the defendant knew the representation was false and made it with the intent to deceive and for the purpose of inducing the plaintiff to rely upon it; (3) the plaintiff justifiably relied on the misrepresentation; and (4) the plaintiff was injured as a result. See, e.g., Haggerty v. Ciarelli & Dempsey, 374 Fed. App'x 92, 94 (2d Cir. 2010) (citing Eurycleia Partners, LP v. Seward & Kissel, LLP, 910 N.E.2d 976 (N.Y. 2009)); Jablonski v. Rapalje, 788 N.Y.S.2d 158, 162 (2d Dep't 2005) (citations omitted). Furthermore, plaintiff's common law fraud claims are subject to the particularity requirements of Fed. R. Civ. P. 9(b). See Eternity Global Master Fund Ltd. v. Morgan Guaranty Trust Co. of N.Y., 375 F.3d 168, 187 (2d Cir. 2004). To satisfy Rule 9(b), "a complaint must 'allege facts that give rise to a strong inference of fraudulent intent.'" Berman v. Morgan Keenan & Co., No. 11-CV-2725, 2012 WL 147907, at *2 (2d Cir. Jan.19, 2012) (quoting Acito v. IMCERA Group, Inc., 47 F.3d 47, 52 (2d Cir. 1995)).
Plaintiff does not allege that either Impac or U.S. Bank made any representations to her. However, she does allege that Ace Mortgage was Impac's agent. (See Plaintiff's Memorandum of Law in Opposition to Defendants' Motions to Dismiss, dated Nov. 3, 2011 ("Pl.'s Mem"), at 8; Am. Compl. ¶¶ 20-23.) She also argues, without any citation to authority, that "[a]s the alleged assignee . . . , US Bank is liable for all of the claims that Plaintiff asserts against IMPAC." (Pl.'s Mem. at 8 n.2.) In other words, plaintiff concedes that she is attempting to hold these defendants vicariously liable for fraudulent acts allegedly committed by Ace Mortgage. (See Am. Compl. ¶ 65) (alleging that Impac "is vicariously liable for the acts, omissions, fraudulent misrepresentations and concealment of material facts of its subsidiary, affiliate, agents, servants, employees and representatives in originating, processing, underwriting and closing of the subject mortgage loans."); id. ¶ 66 (alleging that U.S. Bank "as alleged assignee of the subject first mortgage loan by assignment . . . is liable for the acts, omissions, fraudulent misrepresentations and concealment of material facts of its . . . assignor, IMPAC, its subsidiary, affiliate, agents, servants, employees and representatives in originating, processing, underwriting and closing of the first mortgage loan.").
Under New York law, "an agent must have authority, whether apparent, actual or implied, to bind his principal." Merrill Lynch Interfunding, Inc. v. Argenti, 155 F.3d 113, 122 (2d Cir. 1998). Actual authority "arises from a manifestation from principal to agent." Carte Blanche (Singapore) PTE., Ltd. v. Diners Club Int'l, Inc., 758 F. Supp. 908, 919 (S.D.N.Y. 1991); see also Empire Commc'ns Consultants, Inc. v. Pay TV, 510 N.Y.S.2d 893, 895 (2d Dep't 1987). The consent for actual authority may be "either express or implied from 'the parties' words and conduct as construed in light of the surrounding circumstances.'" Carte Blanche, 758 F. Supp. at 919 (quoting Riverside Research Inst. v. KMGA, Inc., 489 N.Y.S.2d 220, 223 (1st Dep't 1985)). "Importantly, whether such an agency exists depends upon the actual interactions of the putative agent and principal and not on the perception a third party may have of the relationship." Manchester Equip. Co., Inc. v. Am. Way, 60 F. Supp. 2d 3, 8 (E.D.N.Y. 1999).
For apparent authority to exist, there must be "'words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction'" on behalf of the principal. Standard Funding Corp. v. Lewitt, 678 N.E.2d 874, 877 (N.Y. 1997) (quoting Hallock v. State, 474 N.E.2d 1178 (N.Y. 1984)). "In such circumstances, the third party's reasonable reliance upon the appearance of authority binds the principal." Id.; see also Marfia v. T.C. Ziraat Bankasi, 100 F.3d 243, 251 (2d Cir. 1996) ("'Apparent authority . . . arises when a principal places an agent in a position where it appears that the agent has certain powers which he may or may not possess. If a third person holds the reasonable belief that the agent was acting within the scope of his authority and changes his position in reliance on the agent's act, the principal is estopped to deny that the agent's act was not authorized.'") (quoting Masuda v. Kawasaki Dockyard Co., 328 F.2d 662, 665 (2d Cir. 1964)); Standard Funding Corp., 678 N.E.2d at 877 ("Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction") (internal quotation marks and citation omitted); 2A N.Y. Jur 2d, Agency and Independent Contractors § 290 ("[A] principal is liable for the fraudulent acts of his or her agent committed within the scope of the agent's authority . . . [and] is liable . . . [for] pecuniary loss to a third party when the agent acts within the scope of his or her apparent authority.").
Thus, a defendant can be held liable for the fraudulent representations of its agent, so long as the plaintiff can show that the agent acted "within the apparent course and scope of" the agency when he or she falsely represented material facts. Bangkok Crafts Corp. v. Capitolo Di San Pietro in Vaticano, No. 03 Civ. 0015, 2006 WL 1997628, at *10 (S.D.N.Y. July 18, 2006); see also Am. Soc'y of Mech. Eng'rs, Inc. v. Hydrolevel Corp., 456 U.S. 556, 566 (1982) ("[A] principal is liable for an agent's misrepresentations that cause pecuniary loss to a third party, when the agent acts within the scope of his apparent authority.").
Usually, "questions as to the existence and scope of the agency are issues of fact and are not properly the basis of a motion to dismiss." Heredia v. United States, 887 F. Supp. 77, 80 (S.D.N.Y. 1995) (internal quotation marks omitted). However, to sustain a claim for fraud based on an agency theory, the plaintiff must plead "facts from which the Court can infer that [the alleged principal] controlled [the alleged agent's] purportedly fraudulent actions in connection with" the transaction. Meisel v. Grunberg, 651 F. Supp. 2d 98, 121 (S.D.N.Y. 2009). "The unsupported statement that [the agent] acted as an agent on behalf of [the principal] is insufficient to allege an agency relationship encompassing the authority to make allegedly fraudulent statements." Id.; see also Green v. Beer, No. 06 Civ. 4156, 2009 WL 911015, at *11 (S.D.N.Y. Mar. 31, 2009) (dismissing fraud claims against alleged principals because plaintiffs' allegations were "insufficient to support their fraud claims against Defendants on a theory of vicarious principal-agent liability.")
Here, plaintiff's Amended Complaint does not allege specific facts to show that Impac appointed Ace Mortgage to be its agent, that it knew Ace Mortgage was making fraudulent representations to plaintiff, or that it controlled Ace Mortgage's purportedly fraudulent actions. Thus, plaintiff's allegations are insufficient to support her fraud claims against Impac under an agency theory of vicarious liability.
As defendants also point out, plaintiff does not allege that Ace Mortgage made any fraudulent misrepresentations to her. Rather, the Amended Complaint alleges that Ace Mortgage falsely reported her employment, income, and expenses on the loan applications - in other words, misrepresented information about her and about the value of the property to Impac. (See Am. Compl. ¶¶ 52-57.) Since plaintiff signed certifications and authorizations for each of the loans, defendants argue that, if anything, it is plaintiff who made misrepresentations to Impac (see Impac Mem. at 8), and, since she was in the best position to know her own income and expenses, she could not reasonably have relied on any misrepresentations about her ability to make payments (id. at 9). I agree that plaintiff has failed to plead her fraud allegations with particularity and recommend that her fraud claim be dismissed on this ground, as well. See Hayrioglu v. Granite Capital Funding, LLC, No. 10-CV-3126, 2011 WL 2623461, at *7 (E.D.N.Y. July 5, 2011) (dismissing fraud claim against mortgage lender where plaintiff could not reasonably have relied on lender's alleged misstatement of plaintiff's own income).
With respect to U.S. Bank, the court's research uncovered no case, and plaintiff has cited none, holding that the assignee of a loan is liable for fraudulent statements made to the borrower by the original lender or its agent. Obviously, fraud in the inducement could be asserted as an affirmative defense in a foreclosure action, but the alleged misrepresentations do not support an independent claim for common law fraud against the assignee, absent any allegation that the assignee knew about or authorized the fraud. See Stephenson v. Terron-Carrera, No. 09 CV 2465, 2012 WL 2400756, at *7 (N.Y. Sup. Ct., Suffolk Cnty., June 5, 2012) ("[A]lthough it is well settled that an assignee of a mortgage takes it subject to the equities attending the original transaction, [the assignee] cannot be required to answer in damages for alleged misrepresentations committed by [the original lender] in connection with the making of the [original] mortgage loan[s].") (citations omitted). Thus, even if plaintiff's fraud claim against U.S. Bank were not barred by the doctrine of res judicata, it would fail to state a cause of action.
In sum, plaintiff's fraud claim does not state a cause of action against either defendant. I therefore recommend that it be dismissed.
C. New York State Banking Law § 6-1
Plaintiff's claim under New York Banking Law § 6-1 relates only to the First Loan. (Am. Compl. ¶ 69.) This section of the Banking Law establishes certain limitations and prohibits certain practices relating to "high cost home loans."
In 2006, when plaintiff took out the loans, Banking Law § 6-1(1)(e) defined a "home loan" as "a home loan, including an open-end credit plan, other than a reverse mortgage transaction, in which:
(i) The principal amount of the loan does not exceed the lesser of: (A) conforming loan size limit for a comparable dwelling as established from time to time by the federal national mortgage association; or (B) three hundred thousand dollars;N.Y. Banking L. § 6-1 (McKinney's Effective: April 1, 2003 to October 13, 2007).
(ii) The borrower is a natural person;
(iii) The debt is incurred by the borrower primarily for personal, family, or household purposes;
(iv) The loan is secured by a mortgage or deed of trust on real estate upon which there is located or there is to be located a structure or structures intended principally for occupancy of from one to four families which is or will be occupied by the borrower as the borrower's principal dwelling; and
(v) The property is located in this state.
According to defendants, the First Loan-in the amount of $564,000-exceeded the conforming loan size limit for a comparable dwelling as established by the federal national mortgage association, and therefore was not a "home loan" covered by this statute. Defendants are correct. In 2006, the conforming loan size for a two-family dwelling was $533,850. (See Fannie Mae Historical Conventional Loan Limits, www.fanniemae.com/resources/file/aboutus/pdf/historicalloanlimits.pdf (last visited Aug. 13, 2012). Therefore, plaintiff was not entitled to the protection of Banking Law § 6-1. See Deutsche Bank Nat'l Trust Co. v. Campbell, No. 17216/08, 2009 WL 5213682, at *3 (N.Y. Sup. Ct., Kings County, Dec. 23, 2009) ($561,000 loan clearly exceeded the statutory maximum and therefore was not a "home loan" within the meaning of Banking Law § 6-1). I recommend that this claim be dismissed.
In her opposition, plaintiff does not address this argument, and instead focuses on a separate provision of the Banking Law concerning the definition of "high cost." (See Pl.'s Mem at 9-10.) Since this was not a "home loan," whether or not it was a "high cost" loan is irrelevant. See Alliance Mortg. Banking Corp. v. Dobkin, No. 10625/06, 2008 WL 1758864, at *1 (N.Y. Sup. Ct., Nassau Cnty., Mar. 28, 2008) (explaining that "to qualify for the protections of the State statute the loan has to be a 'home loan,'" and dismissing the plaintiff's Banking Law claim where the mortgage loan exceeded the maximum amount to be considered a "home loan")
D. New York General Business Law § 349
New York General Business Law section 349 makes unlawful "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state." N.Y. Gen. Bus. Law § 349(a). Under this statute, "[h]armed consumers must establish (1) a 'consumer-oriented' practice that was (2) materially misleading or deceptive, and (3) that the plaintiff suffered a resulting injury." M & T Mortg. Corp. v. White, 736 F. Supp. 2d 538, 570 (E.D.N.Y. 2010); see also Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 126 (2d Cir. 2007) (citations omitted); Ammirato v. Duraclean Int'l, Inc., 687 F. Supp. 2d 210, 221 (E.D.N.Y. 2010); Stutman v. Chem. Bank, 731 N.E.2d 608, 611-12 (N.Y. 2000).
This claim is subject to the three-year limitations period imposed by N.Y. C.P.L.R. § 214(2), which applies to actions "to recover upon a liability . . . created or imposed by statute." Corsello v. Verizon N.Y., Inc., 967 N.E. 2d 1177 (N.Y. 2012). The three-year limitations period accrues when the plaintiff has been injured by a deceptive trade act or practice in violation of the statute. See Gaidon v. Guardian Life Ins. Co. of Am., 750 N.E.2d 1078, 1083 (N.Y. 2001). Since the alleged deceptive act occurred on January 20, 2006, when the First Loan originated, defendants contend that this cause of action is time-barred.
Plaintiff argues that the statute of limitations should be equitably tolled until the date she discovered the deceptive act, which she claims was in October 2009, when she first met with her attorney. (Pl.'s Mem. at 13.) However, equitable estoppel "will not toll a limitations statute where plaintiff [ ] possessed timely knowledge sufficient to have placed [her] under a duty to make inquiry and ascertain all the relevant facts prior to the expiration of the applicable statute of limitations." Rite Aid Corp. v. Grass, 854 N.Y.S.2d 1, 2 (1st Dep't 2008). Moreover, the doctrine "is triggered by some conduct on the part of the defendant after the initial wrongdoing; mere silence or failure to disclose the wrongdoing is insufficient." Ross v. Louise Wise Servs., Inc., 868 N.E.2d 189, 190 (N.Y. 2007) (quoting Zoe G. v. Frederick F.G., 617 N.Y.S.2d 370, 370 (2d Dep't 1994)). Plaintiff does not allege that these defendants engaged in any conduct designed to conceal the deceptive act from her. Accordingly, she cannot avail herself of equitable tolling, and I therefore recommend that this claim be dismissed.
In fact, U.S. Bank commenced the foreclosure action on February 6, 2008, within the limitations period. Plaintiff filed the instant action on March 30, 2011, more than three years later. Thus, even if it could be argued that plaintiff's duty of inquiry began when U.S. Bank began the foreclosure proceedings, plaintiff's claim under § 349 would still be time-barred.
E. Validity of the Assignment to U.S. Bank
Plaintiff alleges that U.S. Bank has no legal or equitable interest in the First Loan because the assignment of the note was invalid. Since, according to plaintiff, the transfer is void under New York's Estates Powers and Trusts Law (the "EPTL") and the Bear Stearns Asset Backed Securities I Trust 2006-IMI Pooling and Servicing Agreement (the "PSA," attached as Ex. F to the Declaration of Chava Brandriss, dated Oct. 3, 2011), the assignment must be set aside. (See Am. Compl. ¶¶ 104-135; Pl.'s Mem. at 15-16.)
To the extent plaintiff is arguing that U.S. Bank lacks standing to foreclose on the mortgage, that is an affirmative defense that plaintiff waived when she failed to assert it in the foreclosure action. See Fossella v. Dinkins, 485 N.E.2d 1017, 1019 (N.Y. 1985) (explaining that lack of standing is not a cause of action but an affirmative defense that must be asserted in the action for which a party's lack of standing is claimed); see also Wells Fargo Bank Minn., N.A. v. Mastropaolo, 837 N.Y.S.2d 247, 250 (2d Dep't 2007) (mortgagor waived affirmative defense that mortgagee lacked standing to sue). At any rate, as U.S. Bank points out, plaintiff is not a party to the PSA or to the Assignment of Mortgage, and is not a third-party beneficiary of either, and therefore has no standing to challenge the validity of that agreement or the assignment. (See U.S. Bank Mem. at 9-10) (citing cases). I therefore recommend that these claims be dismissed.
F. Injunction
Plaintiff's Amended Complaint requests an injunction ordering U.S. Bank to "cease and desist from prosecuting its foreclosure action against Plaintiff presently pending in the Supreme Court, Queens County. . . ." (Am. Compl. ¶ 141.) It is unclear whether plaintiff is still pursuing this form of relief, as she does not address it in her opposition brief, but it is clear that this court must abstain from intervening in or enjoining state court proceedings. See Younger v. Harris, 401 U.S. 37, 44-45 (1971) (stating that a federal court must decline to interfere with pending state proceedings involving important state interests unless extraordinary circumstances are present); cf. 28 U.S.C. § 2283 ("A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.") In furtherance of this court's obligation to promote comity between state and federal judicial bodies, I recommend that this request be denied.
Apparently, the court already denied plaintiff's request for an injunction at the pre-motion conference on July 20, 2011, before she amended her complaint. (Brandriss Decl. ¶ 6.) Plaintiff has not asserted any grounds for revisiting the issue.
G. Motion to File a Second Amended Complaint
Finally, in the event this court grants defendants' motions to dismiss the Amended Complaint, plaintiff requests leave to serve and file a Second Amended Complaint. (See Pl.'s Mem. at 17.) When seeking leave of the court to amend a complaint, the plaintiff must detail the proposed amendments and the reasons why such amendments are necessary. See Yarborough v. Queens Auto Mall, Inc., No. 08 CV 3179, 2010 WL 1223584, at *3 (E.D.N.Y. Mar. 23, 2010) ("Motions to amend a complaint must explain the basis for, and nature of, the proposed amendment . . . so that both the court and opposing parties can understand the exact changes sought."). In addition, the plaintiff must attach the proposed amended complaint to the motion. See La Barbera v. Ferran Enters., Inc., No. 06 CV 2678, 2009 WL 367611, at *3 (E.D.N.Y. Feb. 10, 2009) ("In order to meet the requirements of particularity in a motion to amend, a complete copy of the proposed amended complaint must accompany the motion[.]") (internal quotation marks omitted); Team Air Express, Inc. v. A. Heffco Techs., Inc., No. 06 CV 2742, 2008 WL 3165892, at *10 n.10 (E.D.N.Y. Aug. 6, 2008) (stating that "the Court could recommend denial of the motion [for leave to amend] solely on the basis of plaintiff's failure to submit a proposed amended Complaint," but denying the motion on the merits as futile). Here, plaintiff has done neither, and I respectfully recommend that this request be denied.
CONCLUSION
For the reasons stated above, I respectfully recommend that defendants' motions to dismiss the Amended Complaint be granted and that plaintiff's motion to amend her complaint a second time be denied. Any objection to this Report and Recommendation must be filed with the Clerk of the Court, with courtesy copies to Judge Garaufis and to my chambers, within fourteen (14) days. Failure to file objections within the specified time period waives the right to appeal the district court's order. See 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72, 6(a), 6(e).
Respectfully submitted,
/s/_________
ROBERT M. LEVY
United States Magistrate Judge Dated: Brooklyn, New York
August 29, 2012