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Encore Credit Corp. v. LaMattina

January 18, 2006

ENCORE CREDIT CORP. D/B/A ECC ENCORE CREDIT, PLAINTIFF,
v.
JOSEPH LAMATTINA, LAMATTINA & ASSOCIATES, INC., JOSEPH W. LAFORTE, JAMES LAFORTE, JR., TINA LAFORTE, JAMES LAFORTE, TARA GIBSON, JAIME LYNN GULI, FRANCIS ALFIERI AND MICHAEL O'LEARY, DEFENDANTS.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff Encore Credit Corp. d/b/a ECC Encore Credit ("Encore") commenced this action on November 18, 2005 against defendants Joseph LaMattina ("LaMattina"), LaMattina & Associates, Inc. ("LaMattina & Associates"), Joseph W. Laforte, James LaForte, Jr., Tina LaForte, James LaForte, Tara Gibson, Jaime Lynn Guli ("Guli"), Francis Alfieri and Michael O'Leary (collectively, the "defendants") alleging claims for conversion, unjust enrichment, money had and received, negligence, breach of fiduciary duty, and fraud. According to the complaint and affidavits filed in support of this motion, in July and August 2005, Encore wired $1,086,027.94 to an account at Victory State Bank maintained by LaMattina & Associates in its capacity as a settlement agent in connection with three real estate transactions. However, defendants did not disburse the funds as instructed. Encore alleges that it has been unable to communicate with the defendants, and that the defendants have or will dissipate and/or abscond with the money. On November 18, 2005, plaintiff filed a motion for attachment pursuant to Rule 64 of the Federal Rules of Civil Procedure and § 6201(3) of the New York Civil Practice Law and Rules and for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure against all defendants. At a hearing held on December 5, 2005, I granted the motion with respect to all defendants except for defendant Guli and granted defendant Guli additional time to respond to the motion. Defendant Guli has now responded, and plaintiff Encore has filed a reply.

Presently before the Court is plaintiff Encore's motion for an order of attachment and preliminary injunction against defendant Guli. For the reasons and upon the findings of fact and conclusions of law set forth below, plaintiff's motion is denied.

BACKGROUND

The following facts are taken from the complaint and plaintiff Encore and defendant Guli's submissions in connection with this motion. The remaining defendants have failed to respond to the motion.

Plaintiff Encore is a licensed mortgage banker in the business of making loans secured by real property. Encore is a California corporation with its principal place of business in California. Defendant Joseph LaMattina is an attorney licensed in the state of New York, a resident of New York, and a shareholder, officer or director of defendant LaMattina & Associates or is otherwise affiliated with LaMattina and Associates. Defendant LaMattina & Associates is a law firm and a corporation organized and existing under the laws of the state of New York with its principal place of business in New York. The complaint alleges that the remaining defendants, Joseph W. LaForte, James LaForte, Jr., Tina LaForte, James LaForte, Tara Gibson, Jaime Lynn Guli, Francis Alfieri and Michael O'Leary, are all individuals who reside in New York and, during all relevant times, were shareholders, officers, employees, or agents of LaMattina & Associates. Ms. Guli is a representative of Key Land Services, Inc. ("Key Land"), a title abstract company retained by Encore in connection with the loans.

At all relevant times, defendants LaMattina and LaMattina & Associates maintained a settlement trust account entitled "LaMattina & Associates, Inc, Joseph LaMattina Settlement Trust Account," (the "Settlement Trust Account") number 004-002648, at Victory State Bank in Staten Island, New York.

In the ordinary course of business, if Encore approves a loan application, a loan closing is scheduled. Encore typically retains outside counsel to represent Encore's interests at the closing, at which time the loan documents, mortgage documents, and other necessary documents are executed, and the funds are disbursed according to instructions issued by Encore to the closing attorney. Upon confirmation of a closing and the scheduled date of disbursement of the settlement funds, Encore wires the funds to the closing attorney's trust account.

In July and August 2005, Encore approved the loan applications of three borrowers: (1) Attilio Guarino, (2) Raul Ivan Guzhambo, and (3) Wayne Smalls. Encore retained defendants Joseph LaMattina and LaMattina & Associates to represent Encore at the closings. The funds for the three closings, $1,086,027.94 in total, were wired to the Settlement Trust Account. However, the funds were not disbursed as set forth in the closing instructions, and the location of the funds are currently unknown to plaintiff. Plaintiff alleges that the LaMattina defendants have orchestrated similar thefts of funds from several other lending institutions,*fn1 and that the individual defendants (other than Joseph LaMattina) have been arrested and criminally charged in connection with those transactions.

DISCUSSION

Jurisdiction

This Court has jurisdiction pursuant to 28 U.S.C. § 1332(a) in that the amount in controversy exceeds $75,000 and there is diversity between the parties.

Order of Attachment

Plaintiff requests, pursuant to Rule 64 of the Federal Rules of Civil Procedure and New York Civil Practice Law and Rule ยง 6201(3), an order of attachment against the assets of defendant Guli in an amount ...


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