Latouche v. Well Fargo Home Mortgage Inc. et alMotion to Dismiss for Failure to State a ClaimE.D.N.Y.November 11, 2016UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------------------X MICHELLE LATOUCHE, 16-CV-01175 WFK-RLM V. Plaintiff, NOTICE OF MOTION WELLS FARGO HOME MORTGAGE INC., WELLS FARGO BANK N.A., ASEF MORTGAGE CAPITAL, STEVEN SHAHIPOUR, PANEBIANCO THOMAS ESQ., STEVEN J. BAUM ESQ., HOWARD ASSOCIATE INC., BRUCE HOWARD, PLAZA HOMES LLC, ALBERT BASAL, FRED BASAL, ALFRED BASAL, STEIN AND HEILDLOWER LLP, MICHAEL CRAIGHTON, JANUS ABSTRACT INC., SAHRIARAF AFSHARI, HIGINIO MARTINEZ, VIGO CONSTRUCTION GROUP, Defendants. ------------------------------ X MOTION BY: DATE, TIME AND PLACE OF HEARING: SUPPORTING PAPERS: RELIEF REQUESTED: Westerman Ball Ederer Miller Zucker & Sharfstein, LLP Attorneys for Defendants Plaza Homes LLC, Albert Basal, Fred Basal and Alfred Basal 1201 RXR Plaza Uniondale, New York 11556 (516) 622-9200 November 14, 2016 at the United States District Court, Eastern District of New York, 225 Cadman Plaza East, Brooklyn, New York 11201 (1) Declaration of Richard F. Harrison, Esq., dated August 17, 2016, together with all exhibits annexed thereto; and (2) Memorandum of Law dated August 17, 2016. (1) An Order pursuant to Rules 9(b) and 12(b)(1)(6) of the Federal Rules of Civil Procedure, dismissing the claims asserted against the "Plaza" Defendants. Case 1:16-cv-01175-WFK-RLM Document 33 Filed 11/11/16 Page 1 of 3 PageID #: 206 OTHER RELIEF : (2) Such other and further relief as this Court deems just and proper. Dated: Uniondale, New York August 17, 2016 WESTERMAN BALL EDERER MILLER ZUCKER & SHARFSTEIN, LLP By: /s/ Richard F. Harrison Richard F. Harrison, Esq. Attorneys for Defendants Plaza Homes LLC, Albert Basal, Fred Basal and Alfred Basal 1201 RXR Plaza Uniondale, New York 11556 (516) 622-9200 TO: Emmanuella M. Agwu, Esq. Attorney for Plaintiff, Michelle Latouche 90-25 161 5t Street, Suite 501 Jamaica, New York 11432 (718) 657-3800 Afiya Jordan, Esq. Lisa J. Fried, Esq. Hogan Lovells US LLP Attorneys for Defendants Wells Fargo Bank, NA and Wells Fargo Home Mortgage 875 Third Avenue New York, New York 10022 (212) 918-3000 Matthew J. Bizzaro, Esq. L'Abbate, Balkan, Colavita & Contini, LLP Attorneys for Defendants Stein, Wiener & Roth, LLP wrongfully s/hla Stein & Sheildlower LLP and Michael Creighton, Esq., wrongfully s/h/a Michael Craigton (collectively, "SW&R") 1001 Franklin Avenue Garden City, New York 11530 (516) 294-8844 2 Case 1:16-cv-01175-WFK-RLM Document 33 Filed 11/11/16 Page 2 of 3 PageID #: 207 Nancy Quinn Koba, Esq. Wood, Smith, Henning & Berman, LLP Attorneys for Defendants Janus Abstract Inc. 222 East 41 St Street, 21 st Floor New York, New York 10017 (212) 997-7114 Steven Shahipour Defendant, Pro Se 212 Robby Lane Manhasset Hills, New York 11040 (516) 509-0606 1423599 Case 1:16-cv-01175-WFK-RLM Document 33 Filed 11/11/16 Page 3 of 3 PageID #: 208 Case 1:16-cv-01175-WFK-RLM Document 33-1 Filed 11/11/16 Page 1 of 2 PageID #: 209 Case 1:16-cv-01175-WFK-RLM Document 33-1 Filed 11/11/16 Page 2 of 2 PageID #: 210 EXHIBIT A Case 1:16-cv-01175-WFK-RLM Document 33-2 Filed 11/11/16 Page 1 of 17 PageID #: 211 _i111 IIil ^ ' 1 Michael G. Feurtado, Esq. Errol G. Collins, Legal Assistant Leila Rose-Gordon, Esq. (of counsel) Stacey Allen, Legal Assistant April 9, 2002 Stephen Weintraub, Esq. 147-20 Hillside Ave Jamaica, NY 11435 J\ Re: Plaza to LaTouche Premises: 373 Marion Street Brooklyn , NY Dear Sirs: Enclosed herein please find three (3) copies of the contracts in the above captioned matter duty executed by my client along with check in the amount of $6,500.00 which represents the deposit on contract to be held in escrow until closing. Kindly have your client(s) sign the contracts and return two (2) fully executed copies to my attention at the above address. Thank you for your attention. Very truly yours, Michael Feurtado MGF/lrg encls. Case 1:16-cv-01175-WFK-RLM Document 33-2 Filed 11/11/16 Page 2 of 17 PageID #: 212 r-t A 7,25-ResNenlol rontr+cl of sole, l l-96.o dumb. q c.lsto', Cublsner. NYC loon] ILlI Jointly preppred by the Real Properly Secrlon of the New York Stare Bar Association, the Nev York State Land rile Assocfalion, the Commiuee on Real Property L.qi of ih; Association of the Bar of the Ciryof New York and the Committee on Real Property Law of the New York County Lawyerr' Aasoriarian, WARNING: No REPRESENTATION IS MADE THAT THIS FORM OF CONTRACT FOR THE SALE AND PURCHASE OF REAL ESTATE COMPLIES WITH SECTION 5-702 OF THE GENERAL OBLIGATIONS LAW ("PLAIN LANGUAGE"). CONSULT YOUR LAWYER BEFORE SIGNING THIS AGREEMENT NOTE r FIRE AND CASUALTY LOSSES AND CONDEMNATION. This contract form doer oat provide tar what happens in the event of fire, or other casualty loss or condemnation before the title closing. Unless different provision is made in this contract, Section 5-1111 of the General Obligaiiuns Law 'wit apply. One part of That law makes a Purchaser responsible for fire and casually loss upon taking possession of the Premises before the Mille closing.: Residential Contract of Sale (9C1,n±r c uf made as of f April, 2002 BETWEEN PLAZA HOMES LLC, doing businessvat; Address: 147_20 Hillside Avenue, Jamaica, New York Social Security Number/Fed. I. D. No(s): hereinafter called "Seller" and MICHELLE LATO(JCHE, residing at; Address: fl-15 30th Drive, Astoria, New, York, 11102. Social Security Numbers Fed, I. D, No(s); hereinafter called "Purchaser", T1{e prnrti,ee ftareb' rsgrss as fallofne: 1. Premises. Seller shall sell and convey and Purchaser shall i interest at the rate of percent per annum, in monthly purchase the property, together with all buildings and improve- installments of S which include principal, inter- ments thereon (collectively the "Premises"), more fully described on a separate page marked "Schedule A", annexed hereto and ' eat and escrow amOUnlS, if aR and with any balance of p rinci pal y Y made a part hereof and also known as: being due and payable on Street Address: 373 Marion Street (b) To the extent that any required payments are made on the Brooklyn, New York existing mortgage between the date hereof and Closing which Tax Map Designation: reduce the unpaid principal amount thereof below the amount BLOCK# • 1 $1 $ LOT : 46 shown in paragraph 3(b), then the balance of the price payable at Closing under paragraph 3(d) shall be increased by the amount of Together with Seller's ownership and rights, if any, to land lying in - the payments of principal. Seller represents and warrants that the the bed of any street or highway, opened or proposed, adjoining amount shown in paragraph 3(b) is substantially correct and the Premises to the center line thereof, including any right of agrees that only payments required by the existing mortgage will Seller to any unpaid award by reason of any taking by condemna- ; be made between the date hereof and Closing. Lion and/or for any damage to the Premises by reason of change i (c) If there is a mortgagee escrow account, Seller shall assign it of grade of any street or highway. Seller shall deliver at no addi- • to Purchaser, if it can be assigned, and in that case Purchaser shall tiona! cost to Purchaser, at Closing (as hereinafter defined), or pay the amount in the escrow account to Seiler at Closing. thereafter, on demand, any documents that Purchaser may reu- (d) Seller shall deliver to Purchaser at Closing a certificate sonably require for the conveyance of such title and the assign- dated not more than 30 days before Closing signed by the holder mast and collection of such award or damages. of the eaisling mortgage, in form rot recording, certifying the 2. Personal Properly. This sale also includes all fixtures and arti- t amour[ of the unpaid principal, the date to which interest has Iles of personal property now attached or appurtenant to the been paid and the amounts, if any, claimed to be unpaid for grin- cipal and interest, itemizing the same. Seller shall pay the fees for Premises, unless specifically excluded below. Seller represents and warrants that at Closing they will be paid for and owned by Seller, - recording such certificate. If the holder of the existing mortgage is free and clear of all liens and encumbrances, except any existing a bank or other treriwlnon as defined in Section 774•n of the Real Properly Law it may, instead of the certificate, furnish a letter mortgage to which this sale may be subject. They include, but are signed by a duly authorized officer, employee or agent, dated not limited to, plumbing, heating, lighting and cooking fixtures, not more than 30 days before Closing, containing the same information, w r^ rr3 +,• ^ storm donrc 'tindo ma (e) Seiler represents and warrants chat (i) Seller has delivered to Purchaser true and complete copies of the existing mortgage, the nlwtrblrery, note secured thereby and any extensions and modifications thereof, t nge, oman, {ii} It a existing mortgage is act now, and at the time of Closing ' and installations. ,J,jetrtgemutor, will not be. in default, and (iii) the existing mortgage does not wall to wall carpeting and built-iris not excluded bet w (strike out contain any provision that permits the holder of the mortgage to napplicabie items). require its immediate payment in full or to change any other term thereef by reason of the Sale or conveyance of the Premises, Seller agrees to give a concession of $25,140.00 towards purchaser's pre -paids first, then points 5. Purchase Money Mortgage. (Delete if inapplicable) If there is then other allowables at closing, to be a purchase money mortgage as indicated in paragraph 3(c) above: (a) The purchase money note and mortgage shall be drawn by the attorney for Seller in the form attached or, if not, in the stand- Esctded from this sale are ILrniture and household furnishings and form adopted by the New''York State Land Title Association. and Purchaser shall pay at Closing the mortgage recording tax, record- ing fees and the attorney's fees in the amount of $ for its preparation. lb) The purchase money note and mortgage shall also provide that it is subject and subordinate to the lien of the existing mort- gage and any extensions, modifications, replacements or consoli- datione of the existing mortgage. provided that (i) the interest rate 3, Purchase Price. The purchase price is thereof shall not be greater than percent per annum and the fatal debt service thereunder shall not be greater than $41 9,000 . 00 S per annum. and (it) if the principal amount payable as follows thereof shall exceed the amount of principal owing and unpaid on (a) n„ li',: signi,p C.I Ihit ._cinlraeI, by Purchaser's cheek pitiable : the existing mortgage at the time or placing such new mortgage or eonsoltdaicd mortgage, the. excess be paid to the holder of such lit tttc [iscr.twcc Its hefemafler dclinedl, subject to coticcno,it. tlee rceelpl rf which is he rchi' ark nuwicd ged. lu be i•,eld in cscsn", peurciluse manes' iOrrgabc in nrducti ,in oh the principal thereof. par+a:rnl E.I parsgrtlph f, of Ibis contract (the "l)o wnp.IVrnenl') I he purchase money mortgage shall alert provide That such pay- 6,500. COJ merit to the holder thereof shall not alter or affect the regular Installments, if any, of principal payable thereunder and that the Ib) by allowance for the principal amount unpaid on the exlsl- holder thereof will, on demand and without charge therefor, exe- ing mortgage nn the date hereof, payment of which Purchaser cute, acknowledge and deliver any agreement or agreements shall assume byaoinder in the deed: S further to effectuate such subordination. to) by a purchase money note and mortgage frunn I'urchaaer to 6. Downpayment in Escrow. (a) Seller's attorney ("Escrowee") Seller: S shall hold the Downpayment for Seller's account in escrow in a full h:lh,mcc ,It ('hosing In acrnrdanrc us-rib p,Jragnpit 7 segre1aleJ bark :recount at S 412,500.00 4. Existing Mortgage. (Delete Iifirlapplirabfe) If this sale is subject - until Closing or sooner termination of this contract and shall pay over or apply the Downpayment in accordance with the termsof [a an existing mortgage as indicated In paragraph 3(b) above'- The Premises shall he conveyed suti,iecl to the continuing ' this paragraph. Escrowee shall (nor) (Delere if inapplicable) hold (a) lien of the existing ntortgage, which is presently payable, with the Downpayment in an interest-bearing account for the benefit of Case 1:16-cv-01175-WFK-RLM Document 33-2 Filed 11/11/16 Page 3 of 17 PageID #: 213 the parties. If interest is held for the benefit of the parties, it shall be paid to the party entitled to the Downpayment and the party receiving the interest shall pay any income taxes thereon. If inter- est is not held for the benefit of the parties, the Downpayment shall be placed in an IOLA account or as otherwise permitted or required by law, The Social Security or Federal Identification numbers of the parties shall be furnished to Escrowee upon request. At Closing, the Downpayment shall be paid by Escrowee to Seller. if for any reason Closing does not occur and either party gives Notice (as defined in paragraph 25) to Escrowee demanding payment of the Downpayment, Escrowee shall give prompt Notice to the other party of such demand. If Escrowee does not receive Notice of objection from such other party to the proposed pay- ment within 10 business days after the giving of such Notice, Escrowee is hereby authorized and directed to make such pay- ment. If Escrowee does receive such Notice of ohl^etion within such 10 day period or if for any other mason E<_^^_•vrec in good faith shalt. ; lea...nut to make such payrrlent, Escrowee shall con- linue tohtold such amount until otherwise directed by Notice from the parties to this contract or a final, nonappealable judgment, order or decree of a court. However, Escrowee shall have the right at any time to deposit the Downpayment and the interest thereon with the clerk of a court in the county in which the Premises are located and shall give Notice of such deposit to Seiler and Pur- chaser. Upon such deposit or other disbursement in accordance with the terms of this paragraph, Escrowee shall be relieved and discharged of all further obligations and responsibilities hereunder. (b) The parties acknowledge that, although Escrowee is holding the Downpayment far Seller's account, for all other purposes Escrowee is acting solely as a stakeholder at their request and for their convenience and that Escrowee shall not be liable to either party for any act or omission on its part unless taken or suffered in bad faith or in willful disregard of this contract or involving gross negligence on the part of Escrewee, Seller and Purchaser jointly and severally agree to defend, indemnify and hold Escrowee harmless from and against all costs, claims and expenses (including reasonable attorneys' fees) incurred in connection with the performance of Escrewee's duties hereunder, except with respect to actions or omissions taken or suffered by Eserowen in bad faith or in willful disregard of this contract or involving gross negligence on the pert of Escrowec. (c) Escrowec may act or refrain from acting in respect of any matter referred to herein in full reliance upon and with the advice of counsel which may be selected by it (including any member of its f rrrt) and shall be fully protected in so acting or refraining from action upon the advice of such counsel. (d) Escrowee acknowledges receipt of the Downpayment by check subject to collection and Escrowec's agreement to the provi- sions of this paragraph by signing in the place indicated on the signature page of this contract, (e) Escrowee or any member of its firm shall be permitted to act as counsel for Seller in any dispute as to the disbursement of the Downpaymeni or any other dispute between the parties whether or not Escrowee is in possession of the Downpayment and con- tinues to act as Escrowee. 7. Acceptable Funds. All money payable under this contract, unless otherwise specified, shall be paid by: (a) Cash, but not over Si 3 O00.00; (b) Good certified check of Purchaser drawn on or official check issued by any bank, savings bank, trust company or savings and loan association having a banking office in the State of New York, unendorsed and payable to the order of Seller, or as Seller may otherwise direct upon not less than 3 business days notice (by telephone or otherwise) to Purchaser; (c) As to money other than the purchase price payable to Seller at Closing, uncertified check of Purchaser up to the amount of and (d) As otherwise agreed to in writing by Seller or Seller's attorney. 8. Mortgage Contingency. (Delete +f meppliyo/i(el (a) The obligations of Purchaser hereunder are conditioned upon issuance on or before , (the "Commit- ment Date") of a written commitment from any thstiIerIional Lender pursuant to which such lns[iIerliooal Lender agrees to make a first mortgage loan, other than a VA, FHA or other governmentally insured loan, to Purchaser, at Purchaser's sole cost and expense, of $ or such lesser sum as Purchaser shall be willing to accept.:[ the prevailing lived rate of interest not to exceed or initial adjustable rate of interest not to exceed for a tern of at least years and on other customary commitment terms, whether or not conditional upon any factors other than an appraisal satisfactory to the Institutional Lender. For purposes of this contract, the Icrm "intilllutiotiat Lender" shall mean any hank, savings bank, private banker, trust company, savings and loan association, credit union or similar banking institution whelhcr organized under the laws of this stale, the United Stales or any other state; foreign banking corporation licensed by the Superintendent of Banks of New York or the Comptroller of the Currency to transact business in New York Slate: insurance company duly organized or licensed to do business in New York Stale•, mortgage banker licensed pursuant to Article 12-D of the Banking Law; and any instrumentality created by the United States or any state with the power to make mortgage loans_ Purchaser shall Ii) make prc.,npi application to an Institutional Lender for such mortgage loan, (ii) furnish'rccurate and complete information regarding Purchaser and members of Purchaser's family. as required, (iii) pay all fees, points and charges required in connectloo with such application and loan, (iv) pursue such application with diligence. (v) cooperate in good faith with such Institutional Lender to obtain such twists intent and (vi) promptly give Notice to Seller of the name and address of each Institutional Lender to which Purchaser has made such application, Purchaser shall comply with all requirements of such commitment (or any other commitment accepted by Purchaser) and shall furnish Seller with a copy thereof promptly after receipt thereof, If such commitment is not issued on or before the Commitment Date, then, unless Purchaser has accepted a commitment that does not comply with the requirements set' forth above, Purchaser may cancel this contract by giving Notice to Seller within 5 business days after the Commitment Date, in which case this contract shall be deemed cancelled and there- after neither party shall have any further rights against, or obligations or liabilities to, the other by reason of this contract, except that the Downpayment shall be promptly refunded to Purchaser and except as set forth in paragraph 27. If Purchaser fails to give notice of cancellation or if Purchaser shall accept a commitment that does not comply with the terms set forth above, then Purchaser droll he derrt''tl to have A, ;,: ved Purchaser's fight ;o' cancel this contract and to receive a retund of the Downpayment by reason of the contingency contained in this paragraph. (Delete if inapplicable) (b) Purchaser and Seller agree that the submission of an application to a mortgage broker registered pursuant to Article 12•D of the New York Banking Law ("Mortgage Broker") shall constitute full compliance with the terms and conditions set forth in paragraph 8(a)(i) of this contract, and that Purchaser's cooperation in good faith with such Mortgage Broker to obtain a commitment from an Institutional Lender (together with Purchaser's cooperation in good faith with any Institutional Lender to which Purchaser's application has been submitted by such Mortgage Broker), and the prompt giving of Notice by Purchaser to Seller of the name and address of each Mortgage Broker to which Purchaser has submitted such an application shall constitute full compliance with the terms and cc)ndilions set forth in paragraph Malls) and (vi) of this contract. 9. Permitted Exceptions, The Premises are sold and shall be con- veyed subject to: (a) Zoning and subdivision laws and regukaliorve, and landmark, historic or wetlands designation, provided that they are not vio- lated by the existing buildings and improvements erected on the property or their use; (b) Consents for the erection of any structures on, under or above any streets on which the Premises abut; (c) Encroachments of stoops, areas, cellar steps, trim and corni- ces, if any, upon any street or highway; (d) Real estate taxes sites are a lien, but are not yet due and payable; and (e) The other matters, if any, including a survey exception, set forth in a Rider attached, 10. Governmental Violations and Orders. (a) Seller shall comply with all notes or notices of violations of law or municipal ordinances, orders or requirements noted or issued as of the date hereof by any governmental department having authority as to lands, housing, buildings, fire, health, environmental and labor conditions affecting the Premises, The Premises shall be conveyed free of them at Closing. Seller shall furnish Purchaser with any authorizations necessary to make the searches that could disclose these matters. (b) (Delete if inapplicable) All obligations affecting the Pre- mises pursuant to the Administrative Code of the City of New York incurred prior to Closing and payable in money shall be dis- charged by Seiler at or prior to Closing. 11. Seller's Representations, (a) Seller represents and warrants to Purchaser that: (ii The Premises abut or have a right of access to a public road; lii) Seiler is the sole owner of the Premises and has the full right, power and authority to sell, convey and transfer the same in accordance with the terms of (his contract; (iii) Seller is not a "foreign person", as that term is defined for purposes of the Foreign Investment in Real Property Tax Act, Internal Revenue Code ("1RC") Section 1445, as amended, and the regulations promulgated thereunder (collectively "FIRPTA"); (iv) The Premises are not affected by any exemptions or abatements of taxes; and (v) Seller has been known by no other name for the past tar years, except (b) Setter covnnaits and warrants That all of the representations and warranties set forth in this contract shall be true and correct at Closing. , (c) Except as otherwise expressly set forth in this contract, none of Seller's covenants, representations, warranties or other obliga- tions contained in this contract shall survive Closing. 12. Condition of Property. Purchaser acknowledges and repre- sents that Purchaser is fully aware of the physical condition and state of repair of the Premises and of all other property included in this sale, based on Purchaser's own inspection and investigation thereof, and that Purchaser is entering into this contract based solely upon such inspection and investigation and not upon any nformation, data, statements or representations, written or oral, as to the physical condition- state of repair, use, cost of operation or any other matter related to the Premises or the other property included in the sale, given or made by Seller or its representatives, and shad accept the same "as is" in their present condition and state of repair, subject to reasonable use, wear, tear and natural deterioration between the date hereof and the date of Closing teacups as otherwise set forth in paragraph 16(f)), without any reduction in the purchase price or claim of any kind for any change 'in such condition by reason thereof subsequent to the date of this contract. Purchaser and its authorized representatives shall have the right. at reasonable times and upon reasonable notice (by telephone or otherwise) to Seller, to inspect the Premises before Clout ng Case 1:16-cv-01175-WFK-RLM Document 33-2 Filed 11/11/16 Page 4 of 17 PageID #: 214 SELLER: PLAZA HOMES LLC. PURCHASER: MICHELLE LATOUCHE. PREMISES 373 Marion Street, Brooklyn, New York DATED: April 2002 1. Said premises are sold subject to any facts an accurate survey may show provided same does not render title unmarketable, and subject to any restrictive covenants, utility easements, agreements and reservations, if any, of record, not violated by existing structures or present use thereof. 2. The term "Purchaser" should be read as "Purchasers" if more than one person is purchasing the property, in which case their obligation will be deemed joint and several. The use of the masculine gender will be deemed to refer to the feminine or neuter gender and the use of the singular will be deemed to refer to the plural and vice versa, whenever the context so requires. 3. Seller represents that premises may be legally occupied as a four family plus store and if not contracts may be canceled by Purchasers. In this regard seller will have no obligation to spend any money to legalize the premises and if Purchasers elect to cancel sellers' sole obligation will be to refund the down payment made hereunder. 4. The PURCHASER has inspected the premises and agrees to accept same in "AS IS" condition, subject to reasonable wear and tear up to the date of delivery of deed excepted, the SELLER having made no representations in connection therewith except, that SELLER represents plumbing, heating and electrical systems and appliances will be in working order and the roof free of leaks, on date of delivery of the deed. In the event that the SELLER remains on possession pursuant to this rider agreement after delivery of the deed then their representations will survive until possession of the premises is delivered pursuant to the contract. 5. Possession of the premises will be delivered vacant and broom clean at the Closing of title and free from all tenancies unless otherwise provided in this contract of sale. 6. Within forty-eight (48) hours of the time fixed for closing the SELLER will permit the PURCHASER access to the premises to make an inspection. Said inspection to be made at reasonable hours and only by prior appointment. Case 1:16-cv-01175-WFK-RLM Document 33-2 Filed 11/11/16 Page 5 of 17 PageID #: 215 7. Should there be any facts or conditions rendering title unmarketable or should there be any notes or notices of violations of laws, ordinances, orders, regulations, or requirements noted in or issued by Federal, State or Municipal authorities and their departments or agencies having jurisdiction against or affecting the premises at a date hereof, the purchaser will immediately notify the seller in writing by, certified mail, return receipt requested, of the existence of such objections enclosing available official copies thereof. Within twenty (20) days after receipt of such notice the seller will have the right to cancel this contract if the aggregate expense of removing same exceeds $2500.00 unless the purchaser will accept such title and conditions as exist, waiving any and all objections and violations without any reduction in the purchase price or the seller may advise the purchaser that he will cause such objections or violations to be remedied at the seller's expense. In the event the seller exercises his right to cancel the contract as aforesaid the sole liability of the seller will be the repayment of any monies paid by the seller to the purchaser herein for the net cost of title search charges actually incurred and actual net survey costs, together with the down payment made hereunder. 8. If the purchaser willfully defaults on this contract, sellers' sole remedy will be to retain the down payment as liquidated damages, it being agreed that sellers' damages in case of purchasers' default would be impossible to ascertain and that the down payments constitute a fair and reasonable amount of damages in the circumstances. 9.PURCHASERS, at his or her own expense, (except if this is a VA transaction, in which case the SELLER will pay for inspection) may have a termite inspection within (10) days of firm commitment and notify SELLER'S attorney of the results thereof, in default of which notification this provision can become null and void. If active termite infestation or damage is found, SELLER will have the option of curing said termite condition and/or damage prior to the closing, or Ocanceling the Contract and refunding the deposit paid hereunder. 10. The parties agree that if for any reason whatsoever, except SELLER'S willful default, SELLER is unable to deliver to PURCHASER a marketable title in accordance with the provisions of this Contract, SELLER will not be required to bring any action or proceeding or otherwise incur any expenses. If PURCHASER will refuse to accept same, SELLER may rescind this Contract and upon returning to the PURCHASER herein the sum paid on the signing of this contract and the net title company expenses for the examination of the title to the premises all further liability on the part of the SELLER hereunder will cease and terminate, and this contract will become null and void and be canceled and of no further force and effect, and the SELLER will not be liable for any other costs or damages whatsoever. Case 1:16-cv-01175-WFK-RLM Document 33-2 Filed 11/11/16 Page 6 of 17 PageID #: 216 11. This Contract will not be assigned without the written consent of the SELLER. 12.THE PARTIES agree that any notices that may be required under this Contact may be given to the respective attorney herein. 13. THE PURCHASER warrants and represents that he or she has not dealt with any real estate broker in connection with his purchase of the premises other than ERA BIG APPLE REALTY. And agrees to indemnify the SELLER against any and all liability Seller may sustain to any broker (including any costs and expenses including reasonable legal fees SELLER may incur) as a result if the PURCHASER'S breach of his or her warranty and Representation. This provision will survive title closing. 14. This contract will not be construed as an offer to sell by the Sellers herein and will not be binding on the seller, until it has agreed to all the terms and conditions of same by signing said contracts. 15. In the event of any inconsistency between the provisions of this Rider and those contained in the Contract of sale to which this Rider is annexed, the provisions of this Rider will govern and be binding. 16. This contract is subject to the PURCHASER obtaining a firm unconditional commitment for an income check/no-income check l~HA. Mortgage for $406,430.00 at prevailing Interest at date of closing for 25 to 30 years within 30 days from the date of this contract. Purchasers agree promptly upon the execution of this agreement, to make a full, true and complete application to a lending institution for a first mortgage loan herein above described, within five business days thereafter, and to furnish, execute and deliver to said lending institution, with such application or promptly upon request therefore, any information or instruments required by the lending institution in connection with such application and to actively cooperate with such lending institution in furnishing such information and documents requested by it. if said mortgage Contract be obtained in within the time set forth above, then SELLER may cancel this contract and the down payment will be returned. SELLERS may, at its option, extend the time to secure the mortgage for an additional 30 days. PURCHASER represents that he has sufficient liquid assets in addition to the amount of this mortgage to consummate the purchase of the premises. PURCHASER further agrees that the requirement of any lending institution to sell any property will not be deemed a condition upon which the PURCHASER can cancel the Contract. Case 1:16-cv-01175-WFK-RLM Document 33-2 Filed 11/11/16 Page 7 of 17 PageID #: 217 17. The PURCHASER herein acknowledges that he has a right to the summary of the heating and/or cooling bills or a complete set of said bills or a complete set of said bills under section 17-103, Chapter 555 of the Laws of the State of New York, commonly known as the Truth and Heating Law. The Purchaser herein waives his rights to copies of said bills and acknowledges that he has not requested them in connection with this transaction. 18. If the SELLER herein is a licensed real estate broker salesman or any other relation a licensed real estate broker or salesman, Purchaser represents that he has been advised of the fact and the relationship. 19. The Purchaser agrees that it will not record this contract, nor permit it nor any memorandum of it to be recorded. If the Purchaser should breach this promise, it will be considered a substantial breach of this contract for which the seller will have the rights to cancel the contract and retain the contract deposit as liquidated damages. 20. If the PURCHASER herein a licensed real estate broker/Salesman or any relation or agent to a licensed real estate broker or Salesman then Seller represents that he has been advised that the PURCHASER is purchasing the property for the purpose of a resale at a substantial profit. 21. The existence of any unpaid franchise taxes of any Corporation in the chain of title or any other lien against the premises which are dischargeable by the payment of Attorney, will not constitute any objections to title and will be no defense to the passage of title provided any reputable title company will insure against the collections of a said lien from the subject premises. 22. Purchasers are represented with respect to this contract by an attorney who is. Name: Address: Telephone #: 23_ ers represent that their ID Number is And tfi aser represents that his Social Security Number is PLAZA HOMES LLC. MICHELLE L TOUCHE Case 1:16-cv-01175-WFK-RLM Document 33-2 Filed 11/11/16 Page 8 of 17 PageID #: 218 RIDER ATTACHED TO AND MADE A PART OF CONTRACT OF SALE DATED April{ I ^p 2002 COVERING PREMISES: 373 Marion Street, Brooklyn, New York Required F.H.A. It is expressly agreed that, notwithstanding any other provisions of this contract, the Purchaser will not be obligated to complete the purchase Of the property described herein or to incur any penalty by forfeiture of corniced money deposits or otherwise unless the Seller has delivered to the Purchaser a written Statement issued by the Federal Housing commissioner setting forth. The appraised value of the property (excluding closing costs) of not less than $419,000.00 which statement the Seller hereby agrees to deliver to the purchaser promptly after such appraised value statements is made available to the Seller. The Purchaser will, however, have the privilege and option of Proceeding with the consummation of the contract without regard to the amount of the appraised valuation made by the Federal Housing commissioner. The appraised valuation is arrived at to determine the maximum mortgage. The Department of housing and Urban Development will insure. HUD does not warrant the value or the condition of the property. The Purchaser should satisfy himself/herself that the price and the condition of the property are Acceptable. ti PLAZA HOMES LLC MICHELLE LATOUCHE Case 1:16-cv-01175-WFK-RLM Document 33-2 Filed 11/11/16 Page 9 of 17 PageID #: 219 ADDENDUM TO SALES CONTRACT SELLER: PLAZA HOMES LLC. PURCHASER: MICHELLE LATOUCHE. PREMISES: 373 Marion Street, Brooklyn, New York If the property being purchased was built prior to 1978, the property may have lead-based paint or other sources of lead. Exposure to lead form lead-based paint or other sources may place young children at risk of developing lead poisoning. Lead poisoning includes learning disabilities, reduced intelligence quotient, behavioral problems and impaired memory. Lead poisoning also poses a particular risk to pregnant women. The purchaser agrees that he is purchasing the property "AS IS," without any representations or warranties whatsoever as to the condition of the property. The Purchaser further agrees and acknowledges that he was given the right to inspect said premises as and for any lead-based paint and/or any other sources of lead and the Purchaser have waived said right. Purchasers further agree that the seller has no responsibility or liability for, and Purchaser hereby unconditionally releases the seller form any and all liability, both known and unknown, present and future, that is based upon or related to the existence of lead or lead-based paint on or about the pro rty. B ' _ PLAZA HOMES LLC. MICHELLE LATOUCHE. Case 1:16-cv-01175-WFK-RLM Document 33-2 Filed 11/11/16 Page 10 of 17 PageID #: 220 DISCLOSURE OF INFORMATION ON LEAD-BASED PAINT ANDIOR LEAD-BASED PAINT HAZARDS Lead Warning Statement Every purchaser of/any interest in residential real property on which a residential dwelling was built prior to 1978 is notified that such property may present exposure to lead form lead-based paint may place young children at risk of developing lead poisoning in young children may produce permanent neurological damage including learing disabilities, reduce intelligence quclient, behavioral problems, and impaired memory. Lead poisoning also poses a particular risk to pregnant women. The seller of ant interest in residential real property is required to provide the buyer with any information on lead-based paint hazards from risk assessments or inspection in the seller's possession and notify the buyer of any known lead-based paint hazards. A risk assessment or inspection for possible lead-based paint hazards is recommended prior to purchase. SeIler's Disclosure (a) Presence of lead-based paint andlor lead-based paint hazards (check (I) or (ii) below). (1) Known lead-based paint and/or lead-based, hazards are present in the housing (explain). (ii) Sellers have no knowledge of lead-based paint hazards in the house. (b) Records and reports available to the seller (check (I) or (ii) below). (I)_Seller has provided the purchaser with all available records and reports pertaining to lead- based paint and/or lead-based paint hazards in the holding (list documents below). (ii)-Sellers have no report or records pertaining to lead-based paint and/or lead-based paint hazards in the housing. Purchaser's Acknowledgment (initial) ©_Purchasers have received copies of all information listed above. (d) Purchaser has received the pamphlet protect your family from lead in your home. (e)_Purchaser has (check (I) or (ii) below). (I) Received a 10-day opportunity (or mutually agreed upon period) to conduct a risk assessment or inspection for the presence of lead-based paint and/or lead-based paint hazards or (ii) Waived the opportunity to conduct a risk assessment or inspection for the presence of lead-based paint and/or lead-based paint hazards. Agent's Acknowledgment (initial) (f) Agent has informed the seller of the seller's obligations under 42 U.S.C. 4852d and is aware of his her responsibility to ensure compliance. C ification of Accuracy The wing parties have reviewed the information above and certify to the best of their knowledge that e in a they provided is true and accurate. Sell r Da e Seller Date urchaser Date Purchaser Date Agent Date Agent Date Case 1:16-cv-01175-WFK-RLM Document 33-2 Filed 11/11/16 Page 11 of 17 PageID #: 221 ADDITIONAL RIDER TO CONTRACT SELLER: PLAZA HOMES LLC, PURCHASER: MICHELLE LATOUCHE. PREMISES: 373 Marion Street, Brooklyn, New York DATED: April , 2002 Sale of Rehabilitated Homes: The undersigned Purchasers(s) acknowledge that they understand that the Seller is Not in the business of selling newly constructed homes, but IS in the business of purchasing and Rehabilitating pre-owned homes for a resale. The Purchaser(s) expectations must be realistic, and must comprehend that no amount of rehabilitation and restoration is going to transform the property purchased herein into a brand new home. The Purchasers(s) further understand that the rehabilitation of a house consists of skillfully repairing portions of the properties that have become broken, unsightly or any longer functional as well as replacing what cannot be repaired in a workmanlike manner. In other words, the rehabilitation process is the blending of what is salvageable with replacement for what is not salvageable. The purchasers(s) understand that an item or object in a house that is not broken and is functional is salvageable and will not be replaced just because it is not new unless specifically set forth in a written repair agreement to the contrary. It will only be replaced if it is broken and cannot be repaired in an economically sound way._ (Sellers)s judgment is conclusive on the decision as to what is salvageable and what must be replacedlrepaired. Products and materials used in all renovations/repairs will be at the sole discretion of (Seller). BY: ----------------- ------- PLAZA HOMES LLC. MICHELLE LAT UCHE Case 1:16-cv-01175-WFK-RLM Document 33-2 Filed 11/11/16 Page 12 of 17 PageID #: 222 PROPERTY CONDITION DISCLOSURE ACT RIDER (residential sale) The parties acknowledge the existence of the property condition Act (The "PCDA" herein), effective March 1, 2002, set forth under article 14 of the real property law. If the property condition disclosure statement (The "PCDS" herein) is not attached to this contract, then, and in that event, the purchaser shall receive at the closing of title, a credit from the seller in the sum of $500.00 as a reduction of the purchase price. This $500.00 represents the required amount due to the purchaser under section 465 of the PCDA. II. If the PCDS is not attached hereto said fact is because of the uncertainty of the information that the seller has knowledge of to complete said PCDS. III. The parties agreed that purchaser has bad ample opportunity to fully inspect the premises and all structures to the complete satisfaction of the purchaser. As such, seller representations shall be limited to the terms contained herein. All representations shall not survive delivery of possession. IV. The purchaser represents that, if the PCDS is attached hereto, that the purchaser received a copy of same prior to the purchaser's execution to this contract and that purchaser has had an ample opportunity to review same to purchaser's complete satisfaction. V. The seller represents that is the PCDS is attached hereto, same is true and complete to the best of the seller's knowledge. VI. The parties acknowledge having been fully advised by their respective attorneys as to the legal ramifications of said PCDA. SELL PURCHASER ES LLC MICHELLE 1ATt3UCHE. Case 1:16-cv-01175-WFK-RLM Document 33-2 Filed 11/11/16 Page 13 of 17 PageID #: 223 S EDULE A ir€scsi'mare A+El_ AU that csrtain plot, piles or paraal of laM, with the huildings and 3.apgoviisntt tharson +routed, situated, lyLng and haiog in the 84roolh of sroaklyn, Cowaty of Xinga r City rn,i-gtat. of Iles Yosk, bounded and daeeribed as follows SA41MUC st the corner [ova by the-lntersectioa of the NORTH RL! side of M.a^Lon Street with tie side of _. kinsoa hircnue ^ manning thence NORTHERLY iionq the WEST$RLY side of Hopkinson Avenue, 100 fatty' Thence WL,STBRLY parallel with $arias atr..t, 26 feet] Tb Ace OME Y para1141 14t3h Hopkinson Aveate, tedDart od the distana. t}UCOugh s party wsll, 100 feet to the NQRIxwmY side gt !ldrion gtr.str Thaaae ELY along the iaxiu, 16 feet to the point or pl.tc■ of aEG18t^ IMG. Being and is 4ndad to he the *axe premised described in sortgaga recorded {15' in zrl 1604 Page 1331. Sald prunf es being k 5y street pa*er as 373 l lrtoe Streit, Irooklyn, Maw York. ISIS y rt - •w°^^ .,Q =.ti 1Fipatlof oT €nse tome above described premises. Our charges, on the basis of our filed rate schedule are noted, subject to any revision due to any desired change in liability, the addition of any requested or necessary disbursements. or changes in our :• - ... ;.'. f >, r•.+tip.,..-r^ .r,ti:c: :.^ . '..^,^,,-^, .^^.v^-^.^'- '- ^-^ h .^^'--^ ̂ H .r,`aFti9` - - Case 1:16-cv-01175-WFK-RLM Document 33-2 Filed 11/11/16 Page 14 of 17 PageID #: 224 ,-1 • • ce Bk / CHASE 01.14200 h6 7 / / 1CHELL L TOUCHE APRIL Q9 ø Ate STVN'LINTRUB AS 500 00 • Amount S0Oi1-4OOOCENTS U.S. DoI1ar. LL 0 0 Case 1:16-cv-01175-WFK-RLM Document 33-2 Filed 11/11/16 Page 15 of 17 PageID #: 225 13.Insurable Title. Seiler shall give and Purchaser shall accept such title as any NYC Company shall issued shall be willing to approve and insure in accordance with its standard form of title policy approved by the New York State lnsura.ice Department, subject only to the matters provided for in this contract. k 14. Closing, Deed and Title, (a) "Closing" means the settlement of the obligations of Seller and Purchaser to each other under this contract, including the payment of the purchase price to Seller. and the delivery to Purchaser of a bargain and sale with covenants against grantor's acts deed in proper statutory short form for record, duly executed and acknowledged, so as to convey to Purchaser fee simple title to;ihe Premises, free of all encumbrances, except as otherwise herein stated, The deed shall contain a covenant by Seller as required by subd. 5 of Section 13 of the Lien Law, (b) if Seller is a corporation, it shall deliver to Purchaser at tthc time of Closing (i) a resolution of its Board of Directors autho'riz- ing the sale and delivery of the deed, and (ii) a certificate by the Secretary or Assistant Secretary of the corporation certifying such resolution and setting forth facts showing that the transfer is in conformity with the requirements of Section 909 of the Busiriess Corporation Law. The deed in such case shall contain a recital sufficient to establish compliance with that Section- 15. Closing Date and Place, Closing shall take place at the office ofAttorney for Lending institution, or mutually agreed upon offices. at ^,Q; Q o'clock ox or about or, upon reasonable notice (by telephone or otherwise) by Pur- chaser, at the office of 16. Conditions to Closing. This contract and Purchaser's obliga- tion to purchase the Premises are also subject to and conditioned upon the fulfillment of the following conditions precedent: (a)The accuracy, as of the date of Closing, of the representa- tions and warranties of Seller made in this contract. 1 (b) The delivery by Seller to Purchaser of a valid and subsisting Certificate of Occupancy or other required certificate of com- pliance, or evidence that none was required, covering the build , ing(s) and all of the other impronve ent to ated on the property authorizing their use as a t^fl family dwel- ling at the date of Closing. v (c)The delivery by Seller to Purchaser of a duly executed and sworn affidavit (in form prescribed by law) claiming exemption of the sale contemplated hereby, if such be the case, under Article 31-B of the Tax Law of the State of New York and the Regtila• Lions promulgated thereunder, as the same may be amended from time to time (collectively the "Gains Tax Law"); or if such sale shall not be exempt under the Gains Tax Law, Seller and Pur- chaser agree to comply in a timely manner with the requiremgnts of the Gains Tax Law and, at CIosing, Seiler shall deliver to Pur- chaser (i) an official return showing no tax due, or (ii) an official return accompanied by a certified or official bank check drawn'on a New York State banking institution payable to the order of the New York State Department of Taxation and Finance in the amount of the tax shown to be due thereon. Seller shall (x) pay promptly any additional tax that may become due under the Gains Tax Law, together with interest and penalties thereon, if any. which may be assessed or become due after Closing, and/Or exe- cute any other documents that may be required in respect thereof, and (y) indemnify, defend and save Purchaser harmless from qnd against any of the foregoing and any damage, liability, cost; or expense (including reasonable attorneys' fees) which may be suf- fered or incurred by Purchaser by reason of the nonpayment there- of, The provisions of this subparagraph (c) shall survive Closing. (d) The delivery by Seller to Purchaser of a certification stating that Seiler is not a foreign person, which certification shall be in the form then required by FIRPTA. If Seller falls to deliver the aforesaid certification or if Purchaser is not entitled under FIRPTA to rely on such certification, Purchaser shall deduct and withhold from the purchase price a sum equal to l0% thereof (or any lesser amount permitted by law) and shall at Closing remit the withheld amount with the required forms to the Internal Revenue Service. (e) The delivery of the Premises and all building(s) and improve- ments comprising a part thereof in broom clean condition, vacant and free of leases or tenancies, together with keys to the Premises, (I) All plumbing (including water supply anti septic systems; if any), beating and air conditioning, if tiny, electrical and mcchani- cat systems, equipment and machinery in thet building(s) located on the property and all appliances which are included in this sale being iaworking order as of the date of Closing. (g) if the Premises are a one or two family house, delivery by the parties at Closing of affidavits in compliance with state and local law requirements to the effect that there is installed in the Premises a smoke detecting alarm device or devices. (h) The delivery by the parties of any other affidavits required as a condition of recording the deed, 17, Deed Transfer and Recording Taxes. At Closing,certifled'or official bank checks payable to the order of the appropriate State, City or County officer in the amount of any applicable transfer and/or recording tax payable by reason of the delivery or record- ; of the deed or mortgage, if any, shall be delivered by the party required by law or by this contract to pay such transfer and/or recording tax, together with any required tax returns duly exe- cuted and sworn to, and such party shall cause any such checks and returns to be delivered to the appropriate officer promptly after Closing. The obligation to pay any additional tax or deli• ciency and any interest or penalties thereon shall survive Closing. 18. Apportionments and Other Adjustments; Water Meter and Installment Assessments. (a) To the extent applicable, the follow- ing shall be apportioned as of midnight of the day before the day of Closing (i) taxes, water charges and sewer rents, on the basis of the fiscal period for which assessed; (ii) fuel; (iii) interest on the exist- ing mortgage; (iv) premiums on existing transferable insurance policies and renewals of those expiring prior to Closing: (v) vault charges: (vi) rents as and when collected. (b) if Closing shall occur before a new tax rate is fixed, the apportionment of taxes shall be upon the basis of the tax rate for he immediately preceding fiscal period applied to the latest assessed valuation, (c) If there is a water meter on the Premises, Seller shall furnish a reading to a date not more than 30 days before Closing and the unfixed meter charge and sewer rent, if any, shall be apportioned on the basis of such last reading. (d) If at the date of Closing the Premises are affected by an assessment which is or may become payable in annual install- ments, and the first installment is then a lien, or has been paid, then for the purposes of this contract all the unpaid installments shall be considered due and shall be paid by Seller at or prior to Closing. (e) Any errors or omissions in computing apportionments or other adjustriments at Closing shall be corrected within a reason- able time following Closing. This subparagraph shall survive Closing. 19. Allowance for Unpaid Taxes, etc. Seller has the option to credit Purchaser as an adjustment so the purchase price with the amount of any unpaid taxes, assessments, water charges and sewer rents, together with any interest and penalties thereon to a date not less than five business days after Closing, provided that official bills therefor computed to said date are produced at Closing. 20. Use of Purchase Price to Remove Encumbrances. if at Clos- ing there are other liens or encumbrances that Seller is obligated to pay or discharge. Seller may use any portion of the cash bal- ance of the purchase price to pay or discharge them, provided Seller shall simultaneously deliver to Purchaser at Closing instru- ments in recordable form and sufficient to satisfy such liens or encumbrances of record, together with the cost of recording or filing said instruments. As an alternative Seller may deposit suffi- cient monies with the title insurance company employed by Pur- chaser acceptable to and rhquired by it to assure their discharge, but only if the title insurance company will insure Purchaser's title clear of the matters or insure against their enforcement out of the Premises and will insure Purchaser's Institutional Lender clear of such matters Upon notice (by telephone or otherwise), given not less than 3 business days before Closing, Purchaser shall provide separate certified or official bank checks as requested to assist in clearing up these matters. 21, Title Examination; Seller's Inability to Convey; Limitations of Liability. (a) Purchaser shall order an examination of title in respect of the Premises from a title company licensed or autho- rized to issue title insurance by the New York State Insurance Department or any agent for such title company promptly after the execution of this contract or, if this contract is subject to the mortgage contingency set forth in paragraph 8, after a mortgage commitment has been accepted by Purchaser. Purchaser shall cause a copy of the title report and of any additions thereto to be delivered to the attorney(s) for Seller promptly after receipt thereof. (b)(i) If at the dale of Closing Seller is unable to transfer title to Purchaser in accordance with this contract, or Purchaser has other valid grounds for refusing to close, whether by reason of liens, encumbrances or other objections to title or otherwise (herein col- lectively called "Defects"), other than those subject to which Pur- chaser is obligated to accept title hereunder or which Purchaser may have waived and other than those which Seller has herein expressly agreed to remove, remedy or discharge and if Purchaser shall be unwilling to waive the same and to close title without abatement of the purchase price, then, except as hereinafter set forth, Seller shall have the right, at Seller's sole election, either to take such action as Seller may deem advisable to remove, remedy, discharge or comply with such Defects or to cancel this consract; (ii) if Seller elects to take action to remove, remedy or comply with such Defects, Seller shall be entitled from time to time, upon Notice to Purchaser, to adjourn the date for Closing hereunder for a period or pounds not exceeding 60 days in the aggregate (but not extending beyond the date upon which Purchaser's mortgage commitment, if any, shall expire), and-the date for Closing shall be adjourned to a date specified by Seller not beyond such period. If for-try reason whatsoever, Seller shall not have succeeded in re- moving, remedying or complying with such Defects at the expira- tion of such adjournment(s), and if Purchaser shall still be unwil- ling to waive the same and to close title without abatement of the purchase price, then either party may cancel this contract by Notice to the other given within 10 days after such adjourned date; (iii) notwithstanding the foregoing, the existing mortgage (unless this sale is subject to the same) and any matter created by Seller after the date hereof shall be released, discharged or otherwise cured by Seller at or prior to Closing. (c) I f this contract is cancelled pursuant to its terms, other than as a result of Purchaser's default, this contract shall terminate and come to an end, and neither party shall have any further rights, obligations or liabilities against or to the Other hereunder dr other- Case 1:16-cv-01175-WFK-RLM Document 33-2 Filed 11/11/16 Page 16 of 17 PageID #: 226 wise, except that Ii) Seller shall promptly refund or cause the Escrowee to refund the Downpayment to Purchaser and. unless cancelled-as a result of Purchaser's default or pursuant to para- graph 8, to reimburse Purchaser for the net cost of examination of title, including any appropriate additional charges related thereto. and the net cost, if actually paid or incurred by Purchaser, for updating the existing survey of the Premises or of a new survey. and (ii) the obligations under paragraph 27 shall survive the tcr- ruinalion of this contract. 22, Aftt vit as to Judgments, Bankruptcies, etc. If a title exami- nation discloses iudgrnents. bankruptcies or other returns against persons having names the same as or similar to that of Seller. Seller shall deliver an affidavit at Closing showing that they are not against Seller. 23. Defaulls 'and Remedies'. la) If Purchatier ,Is:lauils. hrrns'r•dcr, Seller's role remedy ;halt be to receive and retain the Downpay ment as liquidated damages, it being agreed that Seller's damages in case of Purchaser's default might be impossible to ascertain and that the Downpayment constitutes a fair and reasonable amount of damages under the circumstances and is not a penally. tb) If Seller defaults hereunder. Purchaser shall ho,c such remedies as Purchaser shall be emitted to al ttin or in equity. rnclud- ing, but not limited €o. specific performance. 24. Purchaser's Lien. All money paid on account of ibis contract, and the reasonable expenses of examina€ion of title to the Premises and of any survey and .survey inspection charges, are here- by made liens on the Premises, but such liens shall not continue after default by Purchaser under this contract. 25. Notices. Ann notice or other communication ("Notice'I shall be Inwritingandeitherta) sent by eithernfrhepartiesheretoorby€heir respective attorneys who are hereby authorized to do so on their behalf or by the Escrowee. by registered or certified mail, postage prepaid, or fb) delivered in person or by overnight courier, with receipt acknowledged. to the respective addresser given in this contract for the party and the Escrowee. to whom the Notice into be given, or to such other address as such party or Escrowee shall hereafter desig- nate by Notice given to the other party or panics and the Escrowee pursuant to this paragraph. Each Notice mailed shall be deemed given on the third business day following the dale of mailing the same,excepl That any notice to Escrowecshall be deemed given only upon receipt by Escrowee and each Notice delivered in person or by overnight courier shall be deemed given when delivered. 26. No Assignment. This contract may not be assigned by Purchaser without the prior written consent of Seller in each instance and any purported assignments) made without such consent shall be void. 27, Broker. Seller and Purchaser each represents and warrants to the other that ii has riot dealt with any real estate broker in connection with this sale other IhartERA BIG APPLE REALTY ("Broker`) and Seller shall pay Broker ens' commission carned pur- susnt In a separate agreement between .Seller and Broker Seller and Purchaser sh'iill indemnifc and defend each nlher against tics costs. clnrms and ce penal. Including rcasnnahlc ai lorncvv I'cc<. arcing our it tthc hreach can Iheir respeclirc part, of atlr rr'prcscn€uhnn nr ngrccmcnt contained in this paragraph. hid prm'LSinos ill Ih s purr grttpli shill surcit'c Closing or, iLClnsing does not occur. the €crm}nu- linrt of this cruitracl. 28. v11secIIanecUS, i. ^ l rill pi pr undcnllutc}irigs. arrernv Lit la, retire. sensations and warranties. oral or written. hetween Scllcr and Pur. chnuvr are merged in Ibis contract: is completely expresses their full agreement and has been entered into after full inrcaligutrnn. neither party relying uponan)' sitiernrnl made by anyone cl,c Ihai is not sci ftlrlh in this contract. Ifni Ncaher this contract nut any provr.cuon thercnl mac he warvcd. changed or cancelled except in writing,'l'hlscontract shall also apply In and bind the heirs, dirt ri bus ees. legal represents vet successors and permitted assigns of the respective parties. The parties herebv authorisc their respective attorneys to agree in writing lo aopchanges in dates and time periods provided for in Ihis contract. Ic) Any singular word or term herein shall also he read as in the plural and the neuter shall include the masculine and feminine gender. whenever the sense of this contract may require it. (d} The captions in This contract are for convenience of reference only and in no way define. limit or describe the scope oil his contract and shall not he considered in the interpretation of This contract or any pror'ision hereof. (el 1- hi.s contract shall nn{ he binding or effective until drrfy exe- cuted and delivered by Seller and Purchaser. if) Seller and Purchasershall comply with I RC reportingrequire- ments, if applicable. This subparagraph shall survive Closing. (g) Each party shall, at any time and from time to time, execute, acknowledge where appropriate and deliversuch further instruments and documents and take such other action as may be reasonably requested by he other in orderto carry out the intent and purpose of this contract. This subparagraph shall survive Closing (h) Thiscontracl is intended furlhe exclusive benefit of 'he parlics hereto and, except as otherwise expressly provided herein. shall not he 'for the benefit of, and shall not create any rights in, or he enforceable by. any other person or eon. {y. IN WITH REOF. this contract has been duly executed by the parties hereto. PLAZA HOMES LLC Sellr MICHELLE LATQ CHE ......,, ....... ............. ... ...... -..-...... .Srlfrr Ye^ rrhasr^ r Attorney for Seller; STEPHEN S. WEINTRAUB Address: 147-20 Hillside Avenue, (2f) Jamaica, New York, 11435 Tel.: 718-526-7174 Fax: 718-523-2646 io c D..payrnent is acknowledged and the undersigned agrees to act in accordance with the provisions of paragraph 6 above. . C untrrxrt of *Fxlr Tn.r No. PLAZA HOMES LLC TO MICHELLE LATOUCHE Attorney for Purchaser; MICHAEL G.YEURTADO,SsQ, Address: 80-21 1 4 STREET JAMAICA, NEW YORK 11432.1117 cl.: îl̂ JO ®,r 0 Fox:(^( s p ^ - -ev I. rrrri,'rr PREMISES Section Block 1/1515 Lot # 46 County or Town Kings Strut lumber Address 373 Marion Street Brooklyn, New York EPA and HUD Lead Paint Regulations: Owners of pre-1978 housing must disclose known lead-based paint hazards tj purchasers. Use the following BLUMBERG LAW PRODUCTS (800 LAW MART) to comply; 3140 Information Booklet 3142 Disclosure Form, Sale of Residence 3143WIN Disclosure form software Case 1:16-cv-01175-WFK-RLM Document 33-2 Filed 11/11/16 Page 17 of 17 PageID #: 227 EXHIBIT B Case 1:16-cv-01175-WFK-RLM Document 33-3 Filed 11/11/16 Page 1 of 13 PageID #: 228 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------- -x Wells Fargo Bank, N.A. Plaintiff, ANSWER -against- Index No. 13-6244 Michelle Latouche; Jude Ozuzu; City of New York Environmental Control Board; City of New York Parking Violations Bureau; City of New York Transit Adjudication Bureau, "JOHN DOE", said name being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises, Defendants. -------------------------------------------------------- ----------- X Defendants, MICHELLE LATOUCHE and JUDE OZUJ ZU, as and for their Answer to the Complaint of the Plaintiff, respectfully submit to this Court and allege, upon information and belief, as follows: 1. Denies knowledge or information sufficient to forma belief as to the allegations of the Complaint set forth in paragraphs First, Second, Third, Seventh, Eighth, Ninth, Tenth, Twelfth, and Seventeenth of plaintiffs Complaint. 2. Denies knowledge or information sufficient to form a belief and refers the Court to all authenticated originals as to the allegations set forth in paragraphs Fourth, Fifth, Sixth, Thirteenth, Fifteenth, of plaintiffs Complaint. 1 Case 1:16-cv-01175-WFK-RLM Document 33-3 Filed 11/11/16 Page 2 of 13 PageID #: 229 3. Denies paragraphs Fourteenth, Sixteenth, Eighteenth, Nineteenth, and Wherefore clauses (a), (b), (c), (d), (e), (I), (g), (h.) and (i) of plaintiffs Complaint,. 4. As to paragraph Eleventh of the Complaint, admits that defendants herein have some interest in the premises, but denies knowledge or information sufficient to form a belief as to the remainder of said paragraph. AS AND FOR A FIRST AFFIRMATIVE DEFENSE PLAINTIFF FAILED TO COMPLY WITH NOTICE REQUIREMENTS 5. Plaintiff failed to provide appropriate and required notices pursuant to the Real Property Actions and Proceedings Law and Rules. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 6. Upon information and belief, Plaintiff is not the true owner and/or holder of the original note or notes upon which it asserts Defendant's indebtedness, 7. Upon inforrnation and belief, Plaintiff is not the true owner and/or holder of the original mortgage or mortgages upon which it seeks to foreclose Defendant's interest ,& in the subject property. $. Plaintiff has failed to properly and adequately set forth the means and, timing by which the current party Plaintiff allegedly acquired proper corporative rights in and to the mortgage and note herein, and, thus, Plaintiff lacks legal capacity and standing to bring this foreclosure action. AS AND FOR A THIRD AFFIRMATIVE DEFENSE VIOLATION OF DECEPTIVE PRACTICES ACT 2 Case 1:16-cv-01175-WFK-RLM Document 33-3 Filed 11/11/16 Page 3 of 13 PageID #: 230 9. Upon information and belief, Plaintiff, andlor through its agents which originated loans on behalf of Plaintiff, violated the Deceptive Practices Act (NY Gen. Bus. 349) in its high volume and careless approach to foreclosure procedures. 10. Upon information and belief, Plaintiffs procedures that put Defendant into foreclosure were heedless and reckless. 11. The initiation of this foreclosure action and similar foreclosure actions to other homeowners had a broad impact on consumers. 12. The making of the subject loan and loans similar to other borrowers had a broad impact on consumers. 13. The actions taken by Plaintiff caused a loss of equity in the home. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE RPL §282 FEES 14. The mortgage contains provisions for legal fees that Plaintiff seek in this action. 15. Defendant is entitled to legal fees and costs under Real Property Law §282, which provides that all mortgage agreements giving prevailing lenders the right to attorney's fee must be granted to the borrowers as well. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 16.The Plaintiff is barred because of unclean hands. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 17. The Plaintiff is barred because of illegality. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 18. The Plaintiff is barred because of waiver and estoppel. 3 ma Case 1:16-cv-01175-WFK-RLM Document 33-3 Filed 11/11/16 Page 4 of 13 PageID #: 231 AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 19.The Plaintiff is barred because of fraud in the inducement. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 20. The Plaintiff or its predecessors did not provide the defendant with the proper disclosures required by federal or state law prior to or on the date of closing, with respect to this loan. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 21. Under Banking Law 6-L(1[), the loan transaction must be rescinded. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE, F RST SET-OFF AND COUNTERCLA11 22, Upon information and belief, the plaintiff or its agents, provided the defendant with an attorney, or induced the defendant to rely on counsel for the plaintiff. 23. Upon information and belief, the plaintiff, or its agents, induced the defendant to utilize a title company chosen by the plaintiff or the plaintiff's agents. 24. The Plaintiff, or its agents, owed the defendant a duty of care in its dealings with defendant. 25. The plaintiff , or its agents, breached its duty of care to the defendant, by failing to make sure and/or negligently representing to defendant, that the building had a proper Certificate of Occupancy or was otherwise a legal three family residence. 26_ Upon information and belief, at the time of the closing, the building did not have a Certificate of Occupancy, or other evidence in the New York City Department of Buildings, that it was a legal three family residence. `^ 4 Case 1:16-cv-01175-WFK-RLM Document 33-3 Filed 11/11/16 Page 5 of 13 PageID #: 232 27. That the plaintiff was, or should have been, alerted, through its title company search or appraisal process, that the property was either not designated as a legal three family residence, or that, if it was designated a legal three family residence, it did not conform thereto. 28. That the plaintiff, or its agents, negligently or recklessly represented the premises to be a legal three family residence, leading the defendant to believe that she could obtain sufficient rental income to pay the mortgage. 29. After the closing, it carne to defendant's attention that, upon information and belief, the premises was not a legal three family residence andlor it did not conform to a legal three family residence. 30. The defendant was issued violations from the City of New York, and could not obtain the rents necessary to continue paying the mortgage. 31. Substantial sums of money became, or will become, necessary to renovate the premises so that a proper Certificate of Occupancy may be issued, or that the premises will otherwise be brought into Building Code compliance_ -, 32. As a result of the foregoing, defendants demand judgment against the plaintiff in the surn of $1,000,000. AS AND FOR A SECOND COUNTERCLAIM 33. Repeats and realleges each and every allegation contained in paragraph 22 through. 32 with the same force and effect as if fully set forth herein. ` w 5 Case 1:16-cv-01175-WFK-RLM Document 33-3 Filed 11/11/16 Page 6 of 13 PageID #: 233 34. Upon information and belief, Plaintiff's misrepresentations were fraudulent, unreasonable, andlor unconscionable. 35. Upon information and belief, Plaintiff acted in bad faith in its dealings with defendants prior to making the loan and up through the bringing of this foreclosure action. 36. As a result of the foregoing, defendants demand judgment against the plaintiff in the sum of $1,000,000. 37, That as a result of the foregoing, the defendants are due exemplary and/or punitive damages in an amount to be determined by the Court. JURY DEMAND 38. Defendants demand a trial by jury on the issues raised in the within Answer which can be tried by a jury, WHEREFORE, Defendants hereby respectfully request that a judgment be issued as follows: (1) that the Complaint be dismissed in its entirety, with prejudice; (2) that judgment against Plaintiff be entered in favor of the Defendants; (3) that an order be made rescinding the mortgage loan transaction or transactions, terminating any security interests created under the transaction or transactions, and directing Plaintiff, its agents and/or assigns to return any monies or property given by Defendant to any entity in connection with such transaction or transactions. 6 Case 1:16-cv-01175-WFK-RLM Document 33-3 Filed 11/11/16 Page 7 of 13 PageID #: 234 (4) that the mortgage loan or mortgage loans be declared null and void, (5) that Plaintiff, its agents and/or assigns be enjoined and restrained from undertaking any and all actions consistent with the mortgage loan or mortgage loans being in full force and effect; (6) a judgment against plaintiff in favor of defendant(s) on the First Counterclaim in the amount of $1,000,000; and on the Second Counterclaim in the amount of $1,000,000, plus exemplary andlor punitive damages to be determined by the Court; (7) that, to the extent that any alleged loss suffered by Plaintiff is proven to be a direct and proximate result of Defendant's conduct, liability be apportioned indirect relation to the culpable conduct found attributable to Plaintiff, and (8) that Defendant be awarded costs, disbursements and reasonable attorney's fees, along with such other, further and different relief as the Court may deem just and proper. Dated; Garden City, New York May 7,2013 LAW OFFICES OF CYNTHIA M. BURKE By: yntl a M. Burke Attorneys for Defendants Michelle Latouche and Jude Ozuzu 591 Stewart Avenue, 4"' Floor Garden City, NY 11530 (516) 833-5135 To: ELIZABETH A. CLARKE, ESQ. SHAPIRO, DICARO & BAR AK, LLC Attorneys for Plaintiff 250 Mile Crossing Boulevard, Suite 1 Rochester, NY 14624 (585) 247-9000 File No. 3-024618 7 Case 1:16-cv-01175-WFK-RLM Document 33-3 Filed 11/11/16 Page 8 of 13 PageID #: 235 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS IndexNo. 13-6244 Wells Fargo Bank, N.A., Plaintiff, -against- Michelle LaTouche, Jude Ozuzu, et al. Defendants. NOTICE FOR DISCOVERY AND INSPECTION CYNTHIA M. BURKE Attorney(s) for Defendants, LaTouche and Ozuzu 591 Stewart Avenue, 4`s Floor Garden City, NY 11530 (516) 833-5135 Pursuant to 22 NYCRR 130-1.3, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous. Dated: May 8, 2013 Signature: --^.^ To Service of a copy of the within is hereby admitted. Dated: ______________ , 20 Attorney(s) for: PLEAS; TAKE NOTICE: ❑ NOTICE OF ENTRY that the within is a (certified) true copy of a duly entered in the office of the clerk of the within named court on 20 , 0 NOTICE OF SETTLEMENT that an order of which the within is a true copy will be presented for settlement to the HON, one of the judges of the within named court at on 20 Dated: 20 Yours, etc. Case 1:16-cv-01175-WFK-RLM Document 33-3 Filed 11/11/16 Page 9 of 13 PageID #: 236 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS 0 Wells Fargo Bank, N.A. Plaintiff, NOTICE FOR DISCOVERY AND INSPECTION -against- Index No. 13-6244 Michelle Latouche; Jude Ozuzu; City of New York Environmental Control Board; City of New York Parking Violations Bureau; City of New York Transit Adjudication Bureau, "JOHN DOE", said name being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises, Defendants. ____-___-__----------_-___-_ -x PLEASE TAKE NOTICE that pursuant to Article 31 of the C.P.L.R:, defendant-demands that you produce and submit for discovery by defendant, defendant's attorney, or another acting on her behalf, Is at the Law Offices of Cynthia M. Burke, 591 Stewart Avenue, 4 s' Floor, Garden City, New York 11530, on the 7th day of June, 2013 at 2:00 p.m., at which time such documents will be physically inspected, copied or mechanically reproduced and returned. . All written agreements between the plaintiff and defendant. Original Promissory Note to be made available for inspection by Defendant. 2_ Copies of all documents signed by or delivered to the defendant at the closing of the mortgage which is the subject matter of this action. 3. Copy of Good Faith Estimate, and any other disclosures, given to defendant 1 Case 1:16-cv-01175-WFK-RLM Document 33-3 Filed 11/11/16 Page 10 of 13 PageID #: 237 prior to the date of this mortgage. 4. Copy of Loan Application associated with this mortgage. 5. Copies of any correspondence, memos, or other writings sent to the plaintiff by the defendant. 6. Copy of title report obtained by the bank utilized at the closing of the subject mortgage. 7. Copy of appraisal done in connection with this mortgage. PLEASE TAKE NOTICE, that failure to provide these documents will result in a motion to preclude if plaintiff attempts to introduce requested documents into evidence at the time of trial or otherwise, together with such other and further relief as may be appropriate pursuant to the applicable provisions of the C.P.L.R. Dated: Garden City, New York May 7, 2013 LAW OFFICES OF CYNTHIA M. BURKE By: C nthia M. Burke Attorneys for Defendants Michelle Latouche and Jude Ozuzu 591 Stewart Avenue, 4 th .Floor Garden City, NY 11530 (516) 833-5135 To: ELIZABETH A. CLARKE, ESQ. SHAPIRO, DICARO & BARAK, LLC Attorneys for Plaintiff 250 Mile Crossing Boulevard, Suite 1 Rochester, NY 14624 (585) 247-9000 File No. 3-024618 2 Case 1:16-cv-01175-WFK-RLM Document 33-3 Filed 11/11/16 Page 11 of 13 PageID #: 238 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No, 13-6244 Wells Fargo Bank, N.A., Plaintiff, -against- Michel a LaTouche, Jude Ozuzu, et al. Defendants. NOTICE FOR DISCOVERY AND INSPECTION CYNTHIA M. BURKE Attorney(s) for Defendants, LaTouche and Ozuzu 591 Stewart Avenue, 4`h Floor Garden City, NY 11530 (516) 833-5135 Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous. Dated: May 8, 2013 Signature: To: Service of a copy of the within is hereby admitted. Dated: _______________,20____ Attorney(s) for: PLEASE TAKE NOTICE: ❑ NOTICF OF ENTRY that the within is a (certified) true copy of a duly entered in the office of the clerk of the within named court on 20 u NOTICE OF SETTLEMENT that an order of which the within is a true copy will be presented for settlement to the HON, one of the judges of the within named court at on 20 Dated: 20 Yours, etc. Case 1:16-cv-01175-WFK-RLM Document 33-3 Filed 11/11/16 Page 12 of 13 PageID #: 239 t alit Elizabeth A. Clarke, Esq: * . Shapiro, Dicaro & Barak, LLC 250 Mile Crossing Blvd., Suite I Rochester, NY 14624 ^ ''[̂ ,fWw ^'i"'Ly^q+ a 1+fin ̂, { ;,..̂.. ..v ,.* 'r ^"` ,_:7'^t'i°"l^.w^„^..,.̀"'"^ 'a ^ 'E'i } * 1 l l l >i -YS q r: { ̂ "'' u 's' '1 ^ r j 3 r r 5,..-- i d i9 ^l r r̂^ ^ _ _ ? Y ^ ! ^' r t ra F i} „, i r * y ; b' ^ i- i'l r l Ii li ! s I t . >3 5 r ^ wi ^ r 1r jar t, ^ f 7 Ir . t i 1 -s ^ - l' 1) '{ I ii 3` Flrk} + ̂ - <^ r t} 3 his r L ? li ^ 1 N -e°i k r i hi'FIS ItrS fir y^,^ + 4 ! Ar.5+ r ̂ ; s s 1 t v 1 Y 5 5 ' s k7 N i- Sf i 1i I 1, Y --t j 4 i P l - i' l r l N^ , ^.i ̂r r s FI a r1 r t lC ^ .'1 1 1 t1 ` r E' tlifi ^ I r = J w i ^ r I ̂i ' y ^l. S y ^1 Cu:" i t di i i. F ,t } ! i j; 1 ^ Mt rl C t i i ' r 1. i . i i - .t - IF i' >' 9 s 1 ̂^'^ ,+ti j^if 3 i ii vi iO ^-^^^.^[i \r;.e+. i' ^^ -j^1^'t ✓ [ -! - 1 ^ i..,. - ydr1 4v r r {3., 5 , ^^ II C ....t-_:4 U 1?T^ ̂ ... . ^ . ,. ^^'. .. - J.._v i_, .-_ .:`.F ,. ! ^ ' a..'•PIl. ^ , s r Case 1:16-cv-01175-WFK-RLM Document 33-3 Filed 11/11/16 Page 13 of 13 PageID #: 240 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK ....---....--- W ------------------------------------------ X MICHELLE LATOUCHE, 16-CV-01175 WFK-RLM Plaintiff, AFFIDAVIT OF SERVICE V. WELLS FARGO HOME MORTGAGE INC., WELLS FARGO BANK N.A., ASEF MORTGAGE CAPITAL, STEVEN SHAHIPOUR, PANEBIANCO THOMAS ESQ., STEVEN J. BAUM ESQ., HOWARD ASSOCIATE INC., BRUCE HOWARD, PLAZA HOMES LLC, ALBERT BASAL, FRED BASAL, ALFRED BASAL, STEIN AND HEILDLOWER LLP, MICHAEL CRAIGHTON, JANUS ABSTRACT INC., SAHRIARAF AFSHARI, HIGINIO MARTINEZ, VIGO CONSTRUCTION GROUP, Defendants. -__...._.._ W....----------------------------------------------------------- X STATE OF NEW YORK) ) ss.. COUNTY OF NASSAU) JOANNE CONNELL, being duly sworn, deposes and says: I am over eighteen years of age, I am not a party to this action and I reside in Nassau County, New York. On August 17, 2016, I caused to be served copies of the Notice of Motion and Declaration with Exhibits on the following parties by delivering same in a Federal Express envelope to a Federal Express courier in the State of New York and County of Nassau: Emmanuella M. Agwu, Esq. Attorney for Plaintiff, Michelle Latouche 90-25 161` Street, Suite 501 Jamaica, New York 11432 Case 1:16-cv-01175-WFK-RLM Document 33-4 Filed 11/11/16 Page 1 of 2 PageID #: 241 Afiya Jordan, Esq. Lisa J. Fried, Esq. Hogan Lovells US LLP Attorneys for Defendants Wells Fargo Bank, NA and Wells Fargo Home Mortgage 875 Third Avenue New York, New York 10022 Matthew J. Bizzaro, Esq. L'Abbate, Balkan, Colavita & Contini, LLP Attorneys for Defendants Stein, Wiener & Roth, LLP wrongfully s/h/a Stein & Sheildlower LLP and Michael Creighton, Esq., wrongfully s/h/a Michael Craigton (collectively, "SW&R") 1001 Franklin Avenue Garden City, New York 11530 Nancy Quinn Koba, Esq. Wood, Smith, Henning & Berman, LLP Attorneys for Defendants Janus Abstract Inc, 222 East 41 st Street, 21 Floor New York, New York 10017 Steven Shahipour Defendant, Pro Se 212 Robby Lane Manhasset Hills, New York 11040 Joanne Connell Sworn to before me this -sday o f -^ug ^ sl, 2016 No ary Public PHYLLIS HALPERN NOTARY PUBLIC, State or New York Na. 4847763 Qualified in Nassau County 424220 Commission Expires March 30, 20 2 Case 1:16-cv-01175-WFK-RLM Document 33-4 Filed 11/11/16 Page 2 of 2 PageID #: 242 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------------------X MICHELLE LATOUCHE, 16-CV-01175 WFK-RLM Plaintiff, V. WELLS FARGO HOME MORTGAGE INC., WELLS FARGO BANK N.A., ASEF MORTGAGE CAPITAL, STEVEN SHAHIPOUR, PANEBIANCO THOMAS ESQ., STEVEN J. BAUM ESQ., HOWARD ASSOCIATE INC., BRUCE HOWARD, PLAZA HOMES LLC, ALBERT BASAL, FRED BASAL, ALFRED BASAL, STEIN AND HEILDLOWER LLP, MICHAEL CRAIGHTON, JANUS ABSTRACT INC., SAHRIARAF AFSHARI, HIGINIO MARTINEZ, VIGO CONSTRUCTION GROUP, Defendants. --------------------------- X MEMORANDUM OF LAW OF DEFENDANTS, PLAZA HOMES LLC, ALBERT BASAL, FRED BASAL AND ALFRED BASAL IN SUPPORT OF MOTION TO DISMISS Richard F. Harrison, Esq. Westerman Ball Ederer Miller Zucker & Sharfstein, LLP 1201 RXR Plaza Uniondale, New York 11556 (516) 622-9200 (telephone) (516) 622-9212 (facsimile) Attorneys for Defendant, Plaza Homes LLC, Albert Basal, Fred Basal and Alfred Basal rharrison@westennanlip.com Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 1 of 27 PageID #: 243 TABLE OF CONTENTS Page TABLEOF CONTENTS .............................................................................................................. i PRELIMINARYSTATEMENT ..................................................................................................1 BACKGROUND AND ALLEGATIONS ARGUMENT A. Standard of Review ..................................................................................................... 5 POINT I The Court Lacks Subject Matter Jurisdiction over the "Plaza Defendants" ....................................................... 7 A. The Complaint Fails to Plead Jurisdiction Under the "National Housing Act" ............................................................................................8 1. Plaintiffs "Truth In Lending" Claim is Time Barred and Fails to State a Claim for Relief Against the Plaza Defendants ...........................9 2. The "Equal Credit Opportunity Act" does not Provide Jurisdiction Over the Plaza Defendants ................................................................11 3. Jurisdiction Cannot Lie Against the Plaza Defendants Under the "Federal Torts Claim Act" ...................................................................12 4. The Court Should Decline "Supplemental Jurisdiction" ......................................13 POINT 11- The Complaint Fails to Plead Claims for Relief under Rule 12(b)(6) ............................................................................14 A. Plaintiff's "Fraud" Claims are Time Barred ...............................................................14 B. Plaintiff Fails to Plead a Plausible Basis to Extend a Statute of Limitations .........................................................................................16 C. Plaintiffs Eighth Claim Under General Business Law § 349 Fails to State a Claim and is Time Barred ........................................................................18 POINT III The Complaint Fails to Plead Claims for Relief under Rule 9(b) .................................................................................19 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 2 of 27 PageID #: 244 POINT IV - All State Claims Should be Dismissed as Against Defendants, Albert Basal, Alfred Basal and Fred Basal, As None of These Individuals are Alleged to have Acted Outside the Scope of Their Role as Members of the Defendant, Plaza Homes LLC ........................................................................22 CONCLUSION.............................................................................................................................24 11 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 3 of 27 PageID #: 245 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK MICHELLE LATOUCHE, 16-CV-1175 WFK-RLM Plaintiff, V. WELLS FARGO HOME MORTGAGE INC., WELLS FARGO BANK N.A., ASEF MORTGAGE CAPITAL, STEVEN SHAHIPOUR, PANEBIANCO THOMAS ESQ., STEVEN J. BAUM ESQ., HOWARD ASSOCIATE INC., BRUCE HOWARD, PLAZA HOMES L,LC, ALBERT BASAL, FRED BASAL, ALFRED BASAL, STEIN AND HEILDLOWER LLP, MICHAEL CRAIGHTON, JANUS ABSTRACT INC., SAHRIARAF AFSHARI, HIGINIO MARTINEZ, VIGO CONSTRUCTION GROUP, Defendants. ---------------------------------------------.------------------------- X PRELIMINARY STATEMENT Defendants, Plaza Homes LLC, Albert Basal, Fred Basal, Alfred Basal ("Plaza Defendants"), by their attorneys, Westerman Ball Ederer Miller Zucker & Sharfstein, LLP, respectfully submit this Memorandum of Law in support of their motion pursuant to Federal Rules of Civil Procedure 9(b), 12(b)(1) and 12(b)(6) for an Order to dismiss all claims as to the Plaza Defendants. This is an action arising from a residential real estate transaction conducted fourteen years ago. This Court lacks federal question jurisdiction over the claims pled against the Plaza Defendants, as Plaintiffs jurisdictional allegations are egregiously defective and boarder on frivolous claims (see Complaint, "C", ¶¶ 17-22). Plaintiff pleads subject matter jurisdiction under the "National Housing Act", which provides no private right of action for a mortgagor (infra, p. 8). Plaintiff pleads jurisdiction under the "Truth In Lending Act" and "The Equal Credit Opportunity Act" while ignoring the statutory predicate that the Plaza Defendants are not "creditors" under either statute (infra, pp. 9, 10). The complaint's generic reference to the Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 4 of 27 PageID #: 246 "Federal Tort Claims Act" is inexplicable, as the pleading omits any "notice" to a federal agency of any tortious conduct, and fails to show that the Plaza Defendants were "persons acting on behalf of a federal agency". 28 U.S.C. § 2671 (infra, p. 12). Diversity jurisdiction (28 U.S.C. § 1332) cannot be plead. Plaintiff admitted to being a resident of the State of New York (see C, ¶ 3) and the Defendant, Plaza Homes LLC, is incorporated in the State of New York (see C, ¶ 10); as such, there is no jurisdiction to hear the claims against the Plaza Defendants. Presuming the Court's examination of the merits of these claims beyond their jurisdictional defects, the four claims pled against the Plaza Defendants (infra, p. 16) are uniformly time-barred with no plausible basis to extend or toll the relevant statute of limitations (Fed. R. Civ. Pr. 12(b)(6)). Similarly, each claim against the Plaza Defendants fails to plead a material element required for relief under Fed. R. Civ. Pr. 12(b)(6), and the claims pled against the individual members of Plaza Homes LLC violate Fed. R. Civ. Pr. 9(b). BACKGROUND AND ALLEGATIONS On February 24, 2002, the Plaintiff went to the offices of Plaza Homes LLC "with the intent of purchasing a three-family home as a first time homebuyer under an FHA loan program" (see "C", ¶^J 23, 24), Plaza Homes LLC is described as a New York Limited Liability Company located at 147-24 Hillside Avenue, Jamaica, New York (see C, ¶ 10). Plaintiff alleges she was shown a three-story multiple dwelling at 373 Marion Street, Brooklyn, New York (id.). The house was allegedly described by the Defendants, Alfred and Albert Basal, as a five-family dwelling with a store. Alfred and Albert Basal are described as members" of Plaza Homes LLC (see C, ¶ 11). It is alleged that Alfred and Albert Basal told the Plaintiff that the house needed substantial work (see C, ¶ 27), and that Plaintiff relied on the "initial representation" as to what work was to be done (see C, ¶ 28). 2 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 5 of 27 PageID #: 247 In February 2002, Plaintiff was then "extensively interviewed about her finances" by a Steven Shahipour, whom Plaintiff associates with "Asef Mortgage Capital/Wells Fargo Home Mortgage" (see C, ¶ 29). Asef is described as a domestic corporation that "acted as a broker/agent to Wells Fargo Home Mortgage" (see C, ¶ 7). Plaintiff alleges she was introduced to Mr. Shahipour by the Defendants, Alfred, Fred and Albert Basal (C, id.). Plaintiff alleges, upon information and belief, that she was then qualified for a mortgage of "approximately $410,000" and that she was told that the "fair market value" of the home in "as is" condition was $185,000. Plaintiff states that she was told that an additional $225,000 would be required as an escrow for renovations and repairs (see C, ¶¶ 34, 35). Plaintiff pleads that she was told that the purchase price and total cost for renovations would be approximately $410,000 which, upon information and belief, Plaintiff claims that Mr. Shahipour and Mr. Alfred Basal opined was a "fair, reasonable and affordable" price (id.). In April 2002, Plaintiff alleges, upon information and belief, that she was introduced to an engineer, a Mr. Sahriar Afshari, to compile an inspection report. She further alleges that an appraisal report was also prepared at the same time by a Mr. Bruce Howard of Howard & Associates (see C, ¶¶ 37, 38). Neither document is annexed to the pleading. Plaintiff alleges, upon information and belief, that both the report and appraisal contained misrepresentations and that the purpose of both reports was to defraud the Plaintiff and HUD, which was apparently to provide FHA mortgage insurance. In or about April 2002, Plaintiff, upon information and belief, alleges that either the appraisal and/or engineer's report "omitted serious structural defects which would have cost an additional $75,000 to $100,000 to correct". Plaintiff then contradicts her claims by alleging: ". .. (it) would not have precipitated the Plaintiff's withdrawal from the transaction, but upon further information and belief, 3 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 6 of 27 PageID #: 248 would have rendered the premises financially ineligible for both the FHA mortgage insurance and 203 rehabilitation loan" (see C, ^ 42) (emphasis). Plaintiff pleads, upon information and belief, that during the period April 2002 through June 2002 she was then "recommended" to an attorney, Panebianco Thomas, Esq., whom she alleges was personally known to the "seller, Alfred, Albert and Fred Basal, Plaza Homes Realty" (see C, ¶J 9, 40, 59). Plaintiff alleges, upon information and belief, that the attorney "was assigned to her" and that neither Plaza Homes nor Alfred Basal or "his brothers" ever disclosed to the Plaintiff that Plaza Homes supposedly had a close business relationship with the attorney and that the attorney, upon information and belief, similarly had a close relationship with the lender, Wells Fargo Home Mortgage (id., ¶ 48). In June 2002, a closing was conducted on 373 Marion Street, Brooklyn, New York, where Plaintiff was "directed by her attorney" to sign documents and to initial pages (see C, ¶ 51). On .tune 25, 2002, at the time of closing, Plaintiff alleges that she was fraudulently induced to sign a Truth in Lending Statement authorizing the release of "203K rehabilitation loan proceeds", and that upon information and belief, a substantial amount of work called for in the scope of work was never completed including, but not limited to, the conversion of the premises to a three-family dwelling (see C, ¶ 56). After the June 2002 closing, Plaintiff alleges that a contractor ceased work before all repairs were performed, that work was not completed in a workmanlike fashion and that Plaintiff repeatedly contacted the offices of her attorney, the "seller" and the "lender" to demand compliance from the contractors and agents (see C, ¶¶ 66, 67). Plaintiff alleges, upon information and belief, that the "sellers failed and refused to communicate with the Plaintiff and 4 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 7 of 27 PageID #: 249 never supplied a closing statement or copies of any document in connection with any repairs or renovations" (id., ¶¶ 69, 70). Plaintiff alleges that in February 2008, she stopped paying her mortgage and that in December 2009, "Wells Fargo" offered her a loan modification "FHA-HAMP" (see C, ¶ 72). Plaintiff concludes her pleading with the allegation, upon information and belief, that Wells Fargo and its foreclosure attorney concealed the fact that the property was a commercial property and thus ineligible for an FHA-HAMP modification. The Plaza Defendants are then named under four of the eleven claims plead in the Complaint: Claim No. Description_ Claim I Conspiracy to Commit Fraud among all Defendants (¶¶ 74-90) Claim 111 Conspiracy to Commit Fraud between the Plaza Defendants, Asef Capital, Steven Shahipour and Bruce Howard (¶¶ 97-103) Claim VIII A Violation of the Truth in Lending Act (¶¶ 134-136) Claim IX A Violation of N.Y. GBL § 349 (¶¶ 137-140) ARGUMENT A. Standard of Review The Plaza Defendants move for an Order dismissing the First, Third, Eighth and Ninth Claims pursuant to Federal Rules of Civil Procedure 9(b), 12(b)(1) and 12(b)(6). A Court faced with a motion to dismiss pursuant to Fed. R. Civ. Pr. 12(b)(1) and 12(b)(6) shall decide the jurisdictional question first, since a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction. Moreno v. United States, 965 F.Supp. 521 (S.D.N.Y. 1997). 5 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 8 of 27 PageID #: 250 A motion to dismiss pursuant to Rule 12(b)(1) challenges a Court's statutory or constitutional power to adjudicate a case and "typically alleges that the Federal Court lacks either Federal Question or Diversity Jurisdiction over the action". Jackson v. New York State Department of Correctional Services, 1995 W.L. 539644, at *2 (S.D.N.Y. Sept. 8, 1995). Once challenged, the burden of establishing a Federal Court's subject matter jurisdiction over a matter rests on the party asserting jurisdiction, id. In considering a motion to dismiss for lack of subject matter jurisdiction, a Court may refer to evidence outside the pleadings. Gallo v, United States Department of Treasury, 95 F.Supp. 1246, 1248 (S.D.N.Y. 1997). Alternatively, to survive a motion to dismiss under Rule 12(b)(6), the factual allegations set forth in a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face". Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.E. 2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L.E. 2d 929 (2007) (a claim has facial plausibility when a plaintiff pleads factual content that allows a Court to draw the reasonable inference that a defendant is liable for the misconduct alleged. Id. (citing Twombly, 550 U.S. at 556). A plaintiff's obligation to provide the "grounds" of his "entitlement to relief' requires more than labels and conclusions and a formulaic recitation of the elements of a cause of actionwill not do (id.). The factual allegations set forth must "be enough to raise a right to relief above the speculative level" (supra, Twombly, 550 U.S. at 545). A statute of limitations defense, based exclusively on dates contained within a complaint or appended materials, may be properly asserted by a defendant in a Rule 12(b)(6) motion. Rodriguez ex rel JJT v. Astrue, 2011 W.L. 7121291 at *2 (S.D.N.Y. July 25, 2011). Claims made may be dismissed when its apparent from the face of the complaint and documents referenced therein that they are barred by an applicable statute of limitations. Fezzani v. Bear 6 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 9 of 27 PageID #: 251 Stearns & Co. Inc., 384 F.Supp.2d 618 (S.D.N.Y. 2004). A motion to dismiss on statute of limitations grounds, is generally treated as a motion to dismiss for failure to state a claim under Rule 12(b)(6). Nehien v. U.S. Department of Veterans Affairs, 451 F.Supp.2d 599, 603 (S.D.N.Y. 2006). POINT I THE COURT LACKS SUBJECT MATTER JURISDICTION OVER THE "PLAZA DEFENDANTS" Plaintiff alleges subject matter jurisdiction over the Plaza Defendants as follows: ¶ 3. Jurisdiction is conferred by 28 U.S.C. §§ 1331, 1337, 1343(3) and (4) and 1346 (see C, ¶ 3). These citations do not establish this Court's capacity to adjudicate the claims in this Complaint. These statutes merely grant original jurisdiction to a District Court of any civil action or proceeding arisinz under another statutory act of Congress. 28 U.S.C. § 1331. These statutes provide no individual basis for jurisdiction beyond that found in a statute establishing federal subject matter jurisdiction. Dutcher v. Matheson, 733 F.3d 980 (10' Cir 2013). As a Court of limited jurisdiction, no jurisdiction can be declared to exist in this action absent a showing by this Plaintiff as to the substance of the jurisdictional allegations before this Court. This is not simply a question of this Plaintiff's failure to comply with a pleading obligation under Fed. R. Civ. Pr. 8(a)(1), but rather an issue of whether this Court lacks jurisdiction over the subject matter, a defect that would exist in this action beyond the formal sufficiency of any Rule 8(a)(1) argument. Plaintiff then alleges five separate statutes as a basis for this Court's jurisdiction: ¶ 17. This case arises, inter alia, under the National Housing Act (12 U.S.C. § 1701), 15 U.S.C. § 1601 (Truth in Lending Act); 15 U.S.C. § 1691 (Equal Credit Opportunity Act); 28 U.S.C. § 2680 7 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 10 of 27 PageID #: 252 (Federal Tort Claims Act); and New York General Business Law § 349 (Deceptive Practices Act) (see C, ¶ 17). A. The Complaint Fails to Plead Jurisdiction Under the "National Housing Act" Plaintiff pleads subject matter jurisdiction (see C, § 3) under the "National Housing Act" (id., 11 17). Plaintiff makes a passing reference to this statute and then fails to plead any specific allegations against the Plaza Defendants under this statute. Count I pleads a general "conspiracy" (see C, 73) without attempting to particularize the conduct of any Defendant. Count III pleads a "conspiracy" for selling the Marion property at a "grossly inflated sale price" (see C, ¶ 100). Counts Eight and Nine plead entirely separate statutory violations (see Claim Eight, "Truth In Lending"; Claim Nine, General Business law § 349). The "National Housing Act" ("NHA") does not provide that a private person may sue to enforce its terms (Reiner v. West Village Associates, 768 Fed. 31 (2d Cir. 1985) (low income tenants have no implied right of action under NHA). Frakes v. Pierce, 700 F.2d 501 (9th Cir 1983); Withycombe v. Pierce, 608 F.Supp. 1177 (D. Conn. 1985). These cases reflect Supreme Court precedent that limits the circumstances in which Courts should imply private remedies in regulatory schemes.' Plaintiff claims jurisdiction under the National Housing Act as a mortgagor under an FHA "203k" loan (see C, ¶IJ 62-64). Various Circuits have found that the National Housing Act does not create a private right of action in favor of a mortgagor. Lam v. PNC Mortgage, 2015 1 The Supreme Court has come to view the implication of private remedies under regulatory statutes with increasing disfavor. Hal/wood Realty Partners v. Gotham Partners, 286 F.3d 613, 618 (2d Cir 2002); see also Alexander v. Sandoval, 53 U.S. 275, 291 (2001) (ruling that language in a regulation cannot create a private right of action that has not been authorized by Congress). A plaintiff asserting a private or express right of action under a Federal statute bears a heavy burden of demonstrating that Congress affirmatively contemplated private enforcement when it passed the statute. See gen Cort v. Ash, 422 U.S. 66, 78 (1975); Casas v. AM Airlines Inc., 304 F.3d 517, 521-22 (5`h Cir. 2002). %3 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 11 of 27 PageID #: 253 W.F. 5330848 (D. Mass. 2015); Harlib v. Lynn, 511 F2d 51 (7 th Cir. 1975); McCullogh v. Redevelopment Authority of Wilkes-Barre, 522 F.2d 858, 867-68, N. 27 (3d Cir 1975). In Falzarano v. United States, 607 F.2d 506 (1 st Cir 1979), the First Circuit definitively determined that there is no private right of action consonant with the legislative scheme set forth under the National Housing Act: The overall statutory scheme suggests that no private right of action exists. Unlike the Securities and Exchange Act of 1934, the National Housing Act contains no "standards of conduct that a private action could help to enforce", nor does it contain any "general grant of jurisdiction through the District Courts". Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 424, 95 Sup. Ct. 1733, 1740, 44 L.E.2d 263 (1975). The National Housing Act does not grant a private right of action under the facts as pled and therefore this Court is not empowered to act under this statute as to the Plaza Defendants. 1. Plaintiff's Truth in Lending Claim is Time Barred and Fails to State a Claim for Relief Against the Plaza Defendants Plaintiff's Eighth Claim purports to plead a cause of action under the Truth in Lending Act 15 U.S.C. § 1601 (see C, ¶¶ 134-136). The Complaint does not assign liability to any specific Defendant under the Truth in Lending Act. Again, no single Defendant is identified under the Plaintiffs Eighth Claim, though Plaintiff uses this statute as one basis to assert jurisdiction. The Plaza Defendants are not "creditors" within the meaning of the Truth in Lending Act. A "creditor" is defined under the Truth in Lending Act as a person who both (1) regularly extends, whether in connection with loans, sales of property or services, or otherwise, consumer credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, and (2) is the person to whom the debt arising from the 0 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 12 of 27 PageID #: 254 consumer credit transaction is initially payable on the face of the evidence of indebtedness or, if there is no such evidence of indebtedness by agreement (15 U.S.C. § 1602(f)). The Complaint fails to pled that Plaza Homes "regularly extended" credit and was the "person to whom the debt was payable". The Complaint makes no attempt to plead the requisite elements of a "creditor" against the Plaza Defendants under TILA, assuming such a claim were timely pled. No cause of action under the Truth in Lending Act could timely be plead against the Plaza Defendants. Private actions for damages based on a violation of the Truth in Lending Act (TILA) are subject to a one-year statute limitations. Johnson v. Scala, 2007 W.L. 2852758 at *3 (S.D.N.Y. Oct. 1 2007); see also 15 U.S.C. § 1640(e) ("any action under this Section may be brought in any United States District Court, or in any Court of competent jurisdiction within one year from the date of the occurrence of the violation"). The plain language of § 1640(e) and the cases interpreting this statute indicate that where a damage claim is time barred, a Court is prohibited from even reaching the question of whether a defendant has violated TILA. AfcAnaney v. Astoria Fin. Corp., 2007 W.L. 2702348 at *12 (E.D.N.Y. Sept. 12, 2007). It is also settled law that in transactions like the one at issue, the "date of occurrence of a violation is no later than the date the plaintiff enters into the loan agreement". Cardiello v. Money Store Inc., 2001 W.L. 604007 at *3 (S.D.N.Y. June 1, 2001). Plaintiff alleges that the transaction in question closed on June 25, 2002 (see C, 1 49). Consequently, Plaintiff's transaction was consummated fourteen years before the instant action was filed and is time barred. 10 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 13 of 27 PageID #: 255 2. The "Equal Credit Opportunity Act" does not Provide Jurisdiction Over the Plaza Defendants Plaintiffs third attempt to plead subject matter jurisdiction is predicated on allegations under the "Equal Credit Opportunity Act", 15 U.S.C.A § 1691(a); 12 CFR § 202.2(m) (see C, ¶¶ 17, 20). The "Equal Credit Opportunity Act" ("ECOA") is a Federal statutory response to "creditors" and prohibits discrimination with respect to credit transactions. Kamara v. Columbia Home Loans LLC, 654 F.Supp.2d 259 (E.D.Pa. 2009). ECOA defines a "creditor" as any person who regularly extends, renews or continues credit; any person who regularly arranges for the extension, renewal or continuation of credit; or any assignee or an original creditor who participates in the decision to extend, renew or continue credit. 15 U.S.C.A. § 1691(a)(e); 12 CFR § 202.2(1). Nothing in this Complaint identifies the Defendant, Plaza Homes LLC, as a "creditor". Plaintiff fails to plead that Plaza regularly "extended, renewed or continued" credit. In other words, the same pleading defect committed by the Plaintiff in pleading a Truth In Lending claim, supra, pp. 9-10, is repeated in pleading the "ECOA" claim. To establish a prima facie case of discrimination under ECOA, a plaintiff must show that it was (1) a member of protected class; (2) applied for credit from the defendant; (3) was qualified for the credit; and (4) despite being qualified was denied credit while a defendant continued to extend credit to others who were similarly qualified. Anderson v. Wachovia Mortgage Corp., 621 F.3d 261 (3d Cir 2010); Hafitz v. Greenpoint Mortgage Funding Inc., 652 F.Supp.2d 1039 (N.D. Cal. 2009). Plaintiff did not "apply for credit" from the Defendant, Plaza Homes. Plaza Homes is not a lender. Plaza Homes has been a real estate developer since 1980. Plaza Homes does not 11 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 14 of 27 PageID #: 256 engage in credit transactions. There are no allegations in this Complaint which allege that Plaza was a "creditor". Neither the mortgage note nor mortgage was originated by Plaza Homes. Nor can this Complaint plead that the Defendant, Plaza, "continued to extend credit to others", as Plaza was not the loan originator or successor and was not in the "ordinary course of business of making credit decisions". ECOA also provides that a claim for relief must be brought within two years after the date that the alleged discriminatory credit practice occurred. 15 U.S.C. § 1691(e)(f). The statute accrued upon the closing of the Plaintiff's loan in 2002 (see C, ¶ 55). Plaintiff then waited fourteen years to bring this action. The ECOA statute provides no basis for subject matter jurisdiction against the Plaza Defendants. 3. Jurisdiction Cannot Lie Against the Plaza Defendants Under the "Federal Tort Claims Act" Plaintiff claims jurisdiction under the Federal Tort Claims Act ("FTCA"). 28 U.S.C. §§ 2680-2671, § 1346(b) (see C, ¶ 21). None of the eleven claims in the Complaint plead this statute. None of the four claims in the Complaint which mention the Plaza Defendants plead this statute (see C, Claims 1, 3, 8 and 9). No jurisdiction can be pled against the Plaza Defendants under the FTCA. The FTCA provides that the United States may be liable for tortious actions of its employees, ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of an employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). 12 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 15 of 27 PageID #: 257 Under the FTCA a government "employee" is defined as an "officer or employee of a Federal agency ... and persons acting on behalf of a Federal agency in an official capacity ..." 28 U.S.C. § 2671. Nothing in this Complaint is plead with respect to the status of the Plaza Defendants as either an "employee" or a "person acting on behalf of a Federal agency". Plaintiff fails completely to plead the threshold element for jurisdiction under the FTCA. Secondly, in order to file a suit under the FTCA, a claim must have been presented to the "appropriate Federal agency" and had been "finally denied" in writing. 28 U.S.C. § 2675(a). A claim asserted under the FTCA must be presented to an appropriate agency within two years after the claim accrues. Id. at § 2401(b) (2011). If a claim is finally denied by a Federal agency within six months of notification, a suit must be filed in Federal Court within six months. Id., 28 U.S.G. § 2675(a). This Complaint makes no effort to plead the requisites of a FTCA claim. Nothing is pled with respect to any notification given to any Federal agency, regarding the alleged conduct of a "Federal employee" or a "person acting on behalf of a Federal agency". There is absolutely no good faith basis in fact or law to plead a claim under the FTCA against the Plaza Defendants. None of the four claims against the Plaza Defendants (see Claim 1, Conspiracy, Claim Three, Conspiracy, Claim Eight, "Truth In Lending"), provide subject matter jurisdiction over the Plaza Defendants under Fed. R. Civ. Pr. 12(b)(1). 4. The Court Should Decline Supplemental Jurisdiction as all Claims Over Which it would have had Original Jurisdiction are Subject to Dismissal Plaintiff argues that subject matter jurisdiction over its State law claims arises under 28 U.S.C. § 1367. 13 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 16 of 27 PageID #: 258 '`Supplemental jurisdiction" is a doctrine of discretion, not of a plaintiff's right. Chester Upland School District v. Pennsylvania, 861 F.Supp.2d 492 (E.D.P.A. 2012). Where a District Court has dismissed before trial the only basis for Federal jurisdiction, a Court should decline to exercise jurisdiction over pendent State claims. Baylis v. Marriott Corp., 843 F.2d 658, 665 (2d Cir 1988); Somin v. Total Community Management Corp., 494 F.Supp.2d 153 (E.D.N.Y. 2007). Under the foregoing authorities, this Court cannot avail itself of supplemental jurisdiction in the absence of a Federal claim providing original jurisdiction. Valencia ex rel Franco v. Lee, 316 F.3d 299, 305 (2d Cir 2003). Since Plaintiffs claims against the Plaza Defendants do not provide a basis for original subject matter jurisdiction, its State law conspiracy claims (Claims One, Three) must be dismissed for lack of subject matter jurisdiction and its claim for a violation of General Business Law § 349 (Claim 9) should be dismissed. POINT II THE COMPLAINT FAILS TO PLED CLAIMS FOR RELIEF UNDER RULE 12(b)(6 ) The Complaint pleads three State law claims against the Plaza Defendants: Claim One pleads a "conspiracy" to defraud between the Plaza Defendants and all Defendants (see C, ¶¶ 83W 90); Claim Three alleges the Plaza Defendants conspired with the Defendants, Asef Mortgage Capital, Steven Shahipour and Bruce Howard (see C, ¶J 99-10 1); and Claim Eight alleges the Plaza Defendants' violation of General Business Law ¶ 349 (see C, ¶J 134-136). A. Plaintiff's "Fraud" Claims are Time Barred In the context of a motion to dismiss based on statute of limitations under Rule 12(b)(6), "a District Court must limit itself to facts stated in the Complaint or in documents attached to the Complaint as a exhibits or incorporated in the Complaint by reference". Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir 1991); Nghiem v. U.S. Department of Veterans Affairs, 451 F.Supp.2d 599, 603 (S.D.N.Y. 2006) (under a motion to dismiss for statute of limitations, Courts 14 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 17 of 27 PageID #: 259 apply standards and procedures of Rule 12(b)(6) and determine the legal sufficiency of the complaint). The statute of limitations for fraud in New York is six years from the date of the commission of the fraud, or two years from the date of a plaintiffs discovery or from when the plaintiff should have discovered the fraud, whichever is longer. N.Y. CPLR § 213(8). 131 Main Street Associates v. Manko, 897 F.Supp. 1507, 1522-23 (S.D.N.Y. 1995). "Constructive" notice of a fraud may be found where circumstances suggest to "a person of ordinary intelligence" that fraud may be present, in which case, "a duty of inquiry arises", and if an inquiry would have shown the truth "knowledge of the fraud will be imputed to him". Armstrong v. McAlpin, 699 F.2d 79, 88 (2d Cir 1983). By the admission of her pleading, Plaintiff knew or should have known of the alleged "fraud" by the Plaza Defendants when she closed her mortgage in June 2002 or shortly thereafter -- not fourteen years later: 1. Plaintiff visually inspected the premises at 373 Marion Street, Brooklyn, New York in February 2002 (see C, ¶ 25); 2. Plaintiff admits that the Defendant, Alfred Basal, told her that the home needed substantial work and that the building was a five-family dwelling with a store (see C, 11 27); 3. Plaintiff admits that she was told by the Plaza Defendants before June 2002 that the home was being sold in "as is" condition and would require an estimated escrow for renovation and repairs of $225,000 (see C, ¶ 35). Plaintiff now claims that it was "impossible" for her to determine if the repairs were "cosmetic" (see C, ¶ 28); 4. Plaintiff admits to receiving an appraisal in April 2002 which stated that the property was undergoing repairs. Plaintiff now claims the appraisal raised various questions in her mind (see C, ¶ 38); 5. Plaintiff claims she was "steered" to a particular lawyer, the Defendant, Panebianco Thomas, to close her loan by June 25, 2002 (see C, ¶J 48, 49). Plaintiff neglects to inform the Court that she had first retained her own attorney, Michael Feurtado, to review and return her executed contract of purchase for April 9, 2002 (see Harrison Declaration, Exhibit A). 15 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 18 of 27 PageID #: 260 Plaintiff executed a contract in which she agreed to purchase the property in "as is" condition (id.); 6. Plaintiff alleges that her contractor ceased work before all repairs were performed "in a workmanlike fashion" (see C, I; 66); and 7. Plaintiff then accuses various parties of failing to communicate with her since June 2002. Claims may be dismissed when it is apparent from the face of a complaint that they are barred by an applicable statute of limitations. Fezzani v. Bear Stearns & Co., Inc., 384 F.Supp.2d 618 (S.D.N.Y. 2004). Presuming the gravamen of the so-called fraud was the physical condition of the home, Plaintiff knew the exact condition and costs in 2002, and accepted the home in "as is" condition. Plaintiff received third-party appraisals on the home. Plaintiff received construction estimates for the home's repairs. Assuming this Court is even in the position to take ,jurisdiction of this matter, Plaintiff's Claim I and Claim III against the Plaza Defendants should be dismissed as time barred, as Plaintiffs pleading admissions show, at minimum, her "constructive" knowledge of the fraud over eight years ago. B. The Complaint Fails to Plead any Plausible Basis to Extend a Statute of Limitations Having demonstrated that Plaintiff's claims under Claim I and Claim III are time barred, we address Plaintiff's conclusory use of the term fraudulent concealment,".. . Plaza Homes role in a conspiracy to defraud Plaintiff involves steering the Plaintiff to both Asef and Wells Fargo, and concealing from them the exact estimated amounts to convert the premises to a three-family dwelling ..." (see C, ¶ 10). The doctrine of equitable tolling applies where a defendant's fraudulent conduct results in a plaintiff's lack of knowledge of a cause of action. Marshall v. Hyundai Motor AM, 51 F.Supp.3d 451, 462 (S.D.N.Y. 2014). Equitable tolling is applied where a plaintiff has been 16 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 19 of 27 PageID #: 261 prevented "in some extraordinary way" from exercising his rights. Miller v. International Telephone & Telegraph Corp., 755 F.2d 20, 24 (2d Cir 1985). Equitable tolling is predicated on a pleading showing that it would have been "impossible" for a reasonably prudent person to learn about her cause of action. Johnson v. Nyack Hospital, 86 F.3d 8, 12 (2d Cir 1986). Within this concept, fraudulent concealment requires a pleading of plausible facts that a defendant wrongfully concealed its action, such that a plaintiff was unable, despite due diligence, to discover facts that would allow him to bring his claim in a timely manner, or that a defendant's action induced plaintiff to refrain from commencement of a timely action. DeSole v. Knoedler Gallery LLC, 974 F.Supp.2d 274, 318 (S.D.N.Y. 2013). Due diligence on the part of a plaintiff in bringing an action is an essential element of fraudulent concealment. Koch v. Christie International PLC, 699 F.3d 141, 157 (2d Cir. 2012). Here, Plaintiff alleges that after her contractor ceased performing work in a "workmanlike fashion" (see C, ¶ 66), various Defendants failed to communicate with her since June 2002 (see C, ¶ 60). This admission belies any showing on the part of this Plaintiff as to an "affirmative" act of concealment by the Plaza Defendants over the last fourteen years. In applying the concept of fraudulent concealment, the question is not whether a plaintiff was in possession of all of the information necessary to prevail on claims, but whether plaintiff had enough information to commence a lawsuit. De Sole, supra, 974 F.Supp.2d at 318. Assuming, arguendo, the Plaza Defendants failed to communicate with the Plaintiff since June 2002, then by that admission the Plaza Defendants took no affirmative steps to prevent the Plaintiff's discovery of her claim or injury. Id. at 318 -319. Plaintiff had no difficulty in pleading generic, defective, fraud claims in her defense to the State foreclosure action which has been pending for years (see Harrison Declaration, Exhibit B, Latouche Answer and Counterclaims in 17 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 20 of 27 PageID #: 262 re Wells Fargo Bank N.A. v. Latouche, et al., Index No. 13-6244 (Sup. Ct., Kings Cty)). Conduct on the part of a defendant must be alleged, conduct apart from the underlying fraud, which shows affirmative steps taken by defendant to conceal a plaintiff's discovery of her claim. State of'New York v, Hendrickson Brothers, 840 F.2d 1065, 1083 (2d Cir 1988). All of the acts pled occurred either prior to the June 2002 closing, or within a short time thereafter, but certainly well before the commencement of this action some fourteen years after Plaintiff took title and elected to stop paying her mortgage. No "subsequent or specific actions" were taken by the Plaza Defendants, separate from those that provide the factual basis for the underlying fraud claims that somehow kept this Plaintiff from timely bringing suit of the last fourteen years. Corsello v. Verizon New York Inc., 18 N.Y.3d 777, 789, 944 N.Y.S.2d 732, 967 N.E. 2d 1177. This Plaintiff cannot rely on the same "fraud" acts she has accused the Plaza Defendants of committing to support her allegation of a "concealment". Keitt v. New York City, 882 F.Supp.2d 412, 439 (S.D.N.Y. 2011). Under the facts and circumstances, Plaintiffs Claim I and Claim III are time barred and this pleading fails to plausibly allege any allegations that would either equitably extend or support a "fraudulent concealment" to extend the statute of limitations for fraud (CPLR 213(8)). C. Plaintiffs Eighth Claim Fails to State a Claim under General Business Law 349 Plaintiffs General Business Law Claim fails to state a cognizable claim under Rule I2(b)(6). Plaintiff alleges: ¶ 138. New York State's General Business Law § 349 (the Deceptive Practices Act) prohibits deceptive acts and practices in 18 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 21 of 27 PageID #: 263 the conduct of any business, trade or commerce or in the furnishing of any service. ¶ 139. Each of the non-governmental Defendants has committed and/or conspired to commit one or more such acts and/or engaged in one or more such practices as set forth throughout this Complaint. To state a claim under NYGBL § 349, a plaintiff must prove three elements: first, that the challenged act or practice was "consumer-oriented"; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act. Stutman v. Chemical Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 895, 731 N.E.2d 608 (2000). To show that a challenged act or practice was "consumer-oriented", a plaintiff must show that it had a "broader impact on consumers at large"; "private contract disputes, unique to the parties, do not fall within the ambit of the statute". Oswego Laborers' 214 Pension Fund v. Marine Midland Bank N.A., 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 532, 647 N.E.2d 741 (1995). Further, Plaintiffs claim under General Business Law § 349 is to "recover upon a liability imposed by statute" (CPLR § 214(2)) and is therefore time barred by a three-year statute of limitations. Plaintiff presents no plausible, non-conclusory evidence that the alleged acts, e.g., Plaintiffs purchasing a rehab home from Plaza Homes LLC, was an act committed against "consumer interests" or, indeed, allegedly against anyone other than the Plaintiff. The alleged conduct fails to evince any "impact on consumers at large" and Plaintiffs Eighth Claim should be dismissed. POINT III THE COMPLAINT FAILS TO PLEAD FRAUD AGAINST THE INDIVIDUAL PLAZA DEFENDANTS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 9(b) In a complaint alleging fraud, Federal Rule of Civil Procedure 9(b) requires that the plaintiff plead fraud with particularity. Atlanta Shipping Corp. v. Chemical Bank, 818 F.2d 240, 19 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 22 of 27 PageID #: 264 251 (2d Cir 1987). The purpose of Rule 9(b) is to further three goals: (1) providing a defendant fair notice of plaintiffs claim, to able preparation of a defense; (2) protecting a defendant from harm to his reputation or good will; and (3) reducing the number of strikes suits. DiVittorio v. Equidyne Extractive Industries Inc., 822 F.2d 1142, 1147 (2d Cir 1987). Pursuant to Rule 9(b) "in alleging fraud or mistake, a party must state with particularity the circumstances constituting the fraud or mistake". The Second Circuit has stated that a complaint must "(1) detail the statements (or omissions) that the plaintiff contends are fraudulent (2); identify the speaker; (3) state where and when the statements or omissions were made; and (4) explain why the statements or omissions were fraudulent". Harsco Corp. v. Segui, 91 F.3d 337, 347 (2d Cir 1996). A pleader must "allege facts that give rise to a strong inference of fraudulent intent". Shields v. CityTrust Bank Corp., 25 F.3d 1124, 1128 (2d Cir 1994); The Responsible Person of Music Land Holding Corp. v. Best Buy Co., Inc., 398 B.R. 761, 773 (Bankr. S.D.N.Y. 2008). Plaintiffs may not allege "fraud by hindsight". Shields v. CityTrust Bank Corp., 25 F.3d 1124, 1128 (2d Cir 1994). Accord Campaniello IMPS Limited v. Saporiti Italia, 117 F.3d 655, 664 (2d Cir 1997). In addition, "group pleading" is forbidden because each defendant is entitled to know what he is accused of doing. O'Connell v. Arthur Andersen LLP, 383 B.R. 231, 257-58 (Bankr. S.D.N.Y. 2008). Where multiple defendants are asked to respond to allegations of fraud, a complaint should inform each defendant of the nature of his alleged participation in the fraud. DiVittorio, 822 F.2d at 1247. The "Statement of Facts" (see C, ¶¶ 23-73) pleads forty-three paragraphs on "information and belief'. A pleader cannot allege fraud based upon information and belief unless the facts are "peculiarly within the opposing party's knowledge ". Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir 1974). 20 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 23 of 27 PageID #: 265 The "Facts" purport to plead allegations of fraud against each of the three individual members of Plaza Homes, Alfred Basal, Albert Basal and Fred Basal (see C, ¶ 11): Alfred Basal is the managing member of Plaza Homes LLC, and along with his brothers and members of Plaza Homes LLC, Albert Basal and Fred Basal acted in concert with Asef and Wells Fargo to steer the plaintiff to subject premises, discourage and prevent them from shopping around for other mortgage lenders or from obtaining financing from any lender except Wells Fargo, and to falsely represented to Plaintiff that the premises, which were purchased by Plaintiff, shall be improved to three-family dwelling prior to closing of the 203K FHA loan (id.). This is an example of "group pleading", typical of the allegations pled throughout this Complaint. No single allegation is directed to an individual Defendant, no attempt is made to assign a specific statement or omission to an individual Defendant. The Complaint engages in further group pleading by alleging "upon information and belief', that the Defendants, Alfred Basal and Steven Shahipour, informed the Plaintiff that the fair market value of the house in "as is" condition was $185,000 and that the house would require renovation and repairs in the amount of $225,000 which would have to be escrowed with the lender (see C, ¶ 35). Plaintiffs allegations as to the Plaza Defendants concludes with an equally egregious example of group pleading: "Upon information and belief, the circumstances encountered by the Plaintiff in this transaction, including but not limited to (a) the steering of the purchaser/borrower to a particular lender by a seller; (b) the steering of the purchaser/borrower to a particular lawyer recommended or provided by the lender and seller; (c) the discouragement of a purchaser/borrower from obtaining independent inspection and/or engineering reports; (d) use of an inflated appraisal of property; (e) the accelerated timeframe from contract of sale to closing; and (f) the advertisement to the public of the availability of approved FHA insured mortgages as a means of creating an illusion of legitimacy. .." (see C, ¶ 59). 21 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 24 of 27 PageID #: 266 No facts are pled to support an allegation that either Albert Basal, Alfred Basal or Fred Basal acted outside the course of their duties as members of Plaza Homes LLC. No factual allegations are pled against the Defendant, Alfred Basal. No factual allegations are pled against the Defendants, Alfred or Albert Basal, other than their disclosure that the home required substantial work and that it was a multi-family dwelling. This Complaint does not contain information sufficient to establish as a matter of law under Rule 9(b) that the Defendants, Alfred Basal, Albert Basal or Fred Basal conspired to commit fraud in Claim I and Claim III of this Complaint. POINT IV ALL STATE CLAIMS SHOULD BE DISMISSED AS AGAINST DEFENDANTS, ALBERT BASAL, ALFRED BASAL AND FRED BASAL, AS NONE OF THESE INDIVIDUALS ARE ALLEGED TO HAVE ACTED OUTSIDE THE SCOPE OF THEIR ROLE AS MEMBERS OF THE DEFENDANT, PLAZA HOMES LLC The Complaint (see C, ¶ 10) alleges that Plaintiff transacted business with Plaza Homes LLC, a New York State domestic Limited Liability Company, and that Plaza Home's role in defrauding the Plaintiff was to "steer" the Plaintiff to a mortgage broker, Asef and Wells Fargo (id.). It is alleged that the Defendant, Alfred Basal, was the managing member of Plaza Homes and, along with his brothers and members, Albert Basal and Fred Basal, acted in concert with Asef and Wells Fargo to steer the Plaintiff to the subject premises (see C, ¶ 11). By naming the managing member and individual members of a New York limited liability company, the Plaintiff improperly attempts to pierce the corporate veil of the Defendant, Plaza Homes LLC. Piercing the veil of a limited liability company is an exceptional remedy requiring a showing that: (1) the owner's exercised complete domination of the LLC in respect 22 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 25 of 27 PageID #: 267 to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiffs injury. Morris v. New York State Department of Taxation and Finance, 82 N.Y.S.2d 135, 141-142 (1993) (a party seeking to pierce a corporate veil must establish that its owners, through their domination, abused the privilege of doing business in the corporate form to perpetuate a wrong or injustice against a party such that a Court in equity will intervene) (citations omitted). The factors to be considered in the determination of control or domination sufficient to pierce a corporate veil include (1) the absence of the formalities that are part and parcel of the existence of a limited liability company; (2) inadequate capitalization; (3) overlap in ownership, officers, directors and personnel; (4) common office space, address and telephone numbers; (5) the amount of business discretion displayed by the allegedly dominated corporation; and (6) whether the related corporations deal with the dominated corporation or individuals at arms- length. Shisgal v. Brown, 21 A.D.3d 845, 848 (1 st Dept 2005) (quoting William Passalacqua Builders Inc. v. Resnick Developers South Inc., 933 F.2d 131 (2d Cir 1991). The Complaint does not include any allegation to pierce Plaza Homes as a limited liability company, so as to charge the individual Defendants. 23 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 26 of 27 PageID #: 268 CONCLUSION The Complaint should be dismissed with prejudice as to the Plaza Defendants. Dated: Uniondale, New York WESTERMAN BALL EDERER MILLER August 17, 2016 ZUCKER & SHARFSTEIN, LLP By: /s/ Richard F. Harrison Richard F. Harrison, Esq. 1201 RXR Plaza Uniondale, New York 11556 (516) 622-9200 rharrison(ca westermanllp.com Attorneys for Defendants, Plaza Homes LLC, Albert Basal, Fred Basal and Alfred Basal 1338119.2 24 Case 1:16-cv-01175-WFK-RLM Document 33-5 Filed 11/11/16 Page 27 of 27 PageID #: 269 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK ----- ------------------X MICHELLE LATOUCHE, 16-CV-01175 WFK-RLM V. Plaintiff, AFFIDAVIT OF SERVICE WELLS FARGO HOME MORTGAGE INC., WELLS FARGO BANK N.A., ASEF MORTGAGE CAPITAL, STEVEN SHAHIPOUR, PANEBIANCO THOMAS ESQ., STEVEN J. BAUM ESQ., HOWARD ASSOCIATE INC., BRUCE HOWARD, PLAZA HOMES LLC, ALBERT BASAL, FRED BASAL, ALFRED BASAL, STEIN AND HEILDLOWER LLP, MICHAEL CRAIGHTON, JANUS ABSTRACT INC., SAHRIARAF AFSHARI, HIGINIO MARTINEZ, VIGO CONSTRUCTION GROUP, Defendants. ---------------------------------------------------------------------- X STATE OF NEW YORK) ) ss.: COUNTY OF NASSAU) JOANNE CONNELL, being duly sworn, deposes and says: I am over eighteen years of age, I am not a party to this action and I reside in Nassau County, New York. On August 17, 2016, I caused to be served copies of the Memorandum of Law of Defendants, Plaza Homes, on the following parties by delivering same in a Federal. Express envelope to a Federal Express courier in the State of New York and County of Nassau: Emmanuella M. Agwu, Esq. Attorney for Plaintiff, Michelle Latouche 90-25 161 s1 Street, Suite 501 Jamaica, New York 11432 Case 1:16-cv-01175-WFK-RLM Document 33-6 Filed 11/11/16 Page 1 of 2 PageID #: 270 Afiya Jordan, Esq. Lisa J. Fried, Esq. Hogan Lovells US LLP Attorneys for Defendants Wells Fargo Bank, NA and Wells Fargo Home Mortgage 875 Third Avenue New York, New York 10022 Matthew J. Bizzaro, Esq. L"Abbate, Balkan, Colavita & Contini, LLP Attorneys for Defendants Stein, Wiener & Roth, LLP wrongfully s/h/a Stein & Sheildlower LLP and Michael Creighton, Esq., wrongfully s/h/a Michael Craigton (collectively, "SW&R") 1001 Franklin Avenue Garden City, New York 11530 Nancy Quinn Koba, Esq. Wood, Smith, Henning & Berman, LLP Attorneys for Defendants Janus Abstract Inc. 222 East 41st Street, 21S1 Floor New York, New York 10017 Steven Shahipour Defendant, Pro Se 212 Robby Lane Manhasset Hills, New York 11040 CJ5iine Connell Sworn to before me this /7 day f2A9gJ1st, 2016 i Notary Public PHYLLIS HALPERN NOTARY PUBLIC, Stae at New York 'o. 484776.3 Qua[ifiecl in Nassau County 1424221 Commission Expires March 30, 2 ^ d 2 Case 1:16-cv-01175-WFK-RLM Document 33-6 Filed 11/11/16 Page 2 of 2 PageID #: 271
