Galvin et al v. Metrocities Mortgage, Llc et al

MOTION to Dismiss for Failure to State a Claim

D.N.H.December 2, 2016

{K0658050.1} UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE MARK B. GALVIN and ) JENNY GALVIN ) ) Plaintiffs, ) ) v. ) Civil Action No. 1:16-CV-00268-JL ) METROCITIES MORTGAGE, LLC; ) PROSPECT HOLDING COMPANY, LLC; ) PAUL WYLIE; CREDIT SUISSE GROUP; ) BRADY DOUGLAS, JAMES CAYNE; ) JPMORGAN CHASE & CO.; ) JAMES DIMON; ) THE BANK OF NEW YORK MELLON ) CORP.; GERALD HASSELL; ) WELLS FARGO & COMPANY; ) JOHN STUMPF; ) MERSCORP HOLDINGS, INC.; ) R.K. ARNOLD; HARMON LAW OFFICERS; ) MARK P. HARMON; and ) COMMONWEALTH AUCTION ) ASSOCIATES ) ) Defendants. ) MOTION OF DEFENDANTS, METROCITIES MORTGAGE, LLC, PAUL WYLIE AND PROSPECT HOLDING COMPANY, LLC, TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT The above-named defendants, Metrocities Mortgage, LLC (“Metrocities”), Paul Wylie (“Wylie”) and Prospect Holding Company, LLC (“Prospect”), pursuant to Federal Rules of Civil Procedure 12(b)(6), hereby move to dismiss the Amended Complaint of the plaintiffs, Mark B. Galvin and Jenny Galvin (collectively the “Galvins”), for failure to state a claim. Metrocities, Wylie and Prospect rely upon, and incorporate by reference, the Defendants’ Memorandum of Law in Support of their Motions to Dismiss Plaintiffs’ Amended Complaint (“Defendants’ MoL”) (ECF Document No. 78-1). The arguments raised therein are equally Case 1:16-cv-00268-JL Document 82 Filed 12/02/16 Page 1 of 5 {K0658050.1} 2 applicable to, and constitute grounds for dismissal of the Amended Complaint as against, Metrocities, Wylie and Prospect. In addition, 1. THE GALVINS AMENDED COMPLAINT FAILS TO COMPLY WITH THE FEDERAL RULES. As noted in Defendants’ MoL, the Galvins are highly experienced pro se litigants. As such, they are not exempt from compliance “with relevant rules of procedural and substantive law.” Faretta v. California, 422 U.S. 806, 834 n. 46 (1975). While knowingly proceeding pro se, the Galvins “have been before this court on a number of occasions and must be charged with knowing the rules.” Larkin v. United Ass’n of Plumbers and Pipefitters, 338 F.2d 335, 336 (1st Cir. 1964). The Galvins, therefore, are entitled to no greater rights than, and are not absolved of the obligations of, all litigants, simply because they yet again proceed to pursue another pro se Amended Complaint. Because the Amended Complaint in this action, too, fails to comply with both Rules 8 and 12(b)(6), it must also be dismissed. 2. THERE IS NO ACTIONABLE CLAIM AGAINST WYLIE. The Galvins “claim” against Defendant Wylie, individually, must be dismissed for the reasons advanced in the Defendants’ MoL. Other than a simple allegation that Wylie was the founder and CEO of Metrocities (par. 51 of Amended Complaint), there are no other allegations that he was personally involved in any way in the origination of the Galvins mortgage loan in 2005, or committed any other wrongful act sufficient to impose personal liability upon him. Because there are no such allegations in the Amended Complaint, nor could there be, all claims against Wylie must be dismissed. Case 1:16-cv-00268-JL Document 82 Filed 12/02/16 Page 2 of 5 {K0658050.1} 3 3. THERE IS NO ACTIONABLE CLAIM ARISING FROM THE ORIGINATION OF THE LOAN IN 2005. In addition to all of the arguments asserted in the Defendants’ MoL, there is no actionable claim arising from the origination and closing of the loan in 2005. More specifically, it is undisputed that all of the loan documents which the Galvins executed at closing properly and correctly reference Metrocities as the lender on the mortgage loan. The reference to “CSFB” on a document generated by a third party (Ocean Bank), and titled notification of incoming wire transfer to Signature Title Corporation (attached as Ex. A to the Amended Complaint) is much ado about nothing. CSFB presumably means Credit Suisse First Boston, which was likely one of Metrocities’ warehouse lenders. The possibility that the loan proceeds were simply wired directly from Metrocities’ account (at CSFB) creates no cause of action, since the funds still belonged to (and came out of) Metrocities’ account, and the receipt for the wired funds by Signature Title of $2,887,358.34 expressly states those funds were received from, or on account of, Metrocities (attached as Ex. B to Amended Complaint). Simply put, Metrocities made the loan with its monies from its account and therefore was the lender. It is undisputed that the Galvins received the loan proceeds wired from Metrocities account and, therefore, the loan was with Metrocities and the loan documents correctly reflected that. Moreover, as noted in the Defendants’ MoL, the Galvins never timely rescinded the loan back in 2005 following the closing, and cannot attempt to unilaterally do so now (10 years later). In rejecting a similar plaintiff borrower’s claim, the U.S. District Court in Wilder v. Ogden Ragland Mortgage, 2016 WL 4440487 (N.D. Texas, July 29, 2016), noted: Defendants argue that Plaintiff became contractually obligated on the loan and the loan was consummated on the day he executed the loan documents, despite Plaintiff’s allegation that the lender identified in the Case 1:16-cv-00268-JL Document 82 Filed 12/02/16 Page 3 of 5 {K0658050.1} 4 loan documents was not the true source of the funds. Furthermore, Defendants argue that, even if Plaintiff’s claim that the lender identified in the loan documents did not advance the funds is true, this does not change the fact that Plaintiff became contractually obligated on the loan and to the lender identified in the loan documents at the time he executed those documents and received $320,000.00 in accordance with the terms of those documents. Id. at * 4. Therefore, the court held that any argument that the loan was not consummated and the rescission period remained open years after closing was “nonsensical”. Id. 4. SUMMARY. The Galvins have no viable legal claims – the simple truth is they obtained exactly what they bargained for and from the lender identified in the loan documents – and then years later defaulted (and now seek to blame every party possible for their own misfeasance). The motion to dismiss of Metrocities, Wylie and Prospect should be allowed for the reasons stated, as well as those asserted in the Defendants’ MoL, which they have joined in and is incorporated herein. For the reasons asserted, the motion to dismiss should be granted. Respectfully submitted, Dated: December 2, 2016 By: /s/ William P. Breen, Jr. William P. Breen, Jr. NH Bar I.D. No. 16929 Eckert Seamans Cherin & Mellott, LLC Two International Place, 16th Floor Boston, MA 02110 Tel: (617) 342-6887 wbreen@eckertseamans.com Attorney for Metrocities Mortgage, LLC, Paul Wylie and Prospect Holding Company, LLC Case 1:16-cv-00268-JL Document 82 Filed 12/02/16 Page 4 of 5 {K0658050.1} 5 CERTIFICATE OF SERVICE I hereby certify this 2nd day of December 2016 copies of the foregoing Motion of Defendants, Metrocities Mortgage, LLC, Paul Wylie and Prospect Holdings Company, LLC, to Dismiss Plaintiffs’ Amended Complaint have been served upon Pro Se Plaintiffs Mark B. Galvin and Jenny Galvin and all counsel of record electronically via ECF, and via U.S. Certified Mail, Return Receipt Requested and U.S. First Class Mail, postage pre-paid, upon Pro Se Plaintiffs Mark B. Galvin and Jenny Galvin, 17 Heather Drive, Rye, NH 03870. Date: December 2, 2016 /s/ William P. Breen, Jr. William P. Breen, Jr. Case 1:16-cv-00268-JL Document 82 Filed 12/02/16 Page 5 of 5