The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiffs pro se Susan Blaize-Sampeur and Frantz Sampeur (collectively "plaintiffs") bring the present action alleging claims of fraud and civil RICO violations against twelve defendants as a result of a transaction by which plaintiffs attempted to refinance their home. Presently before the Court are four motions by four separate defendants. Defendants Tom Moonis (hereinafter "Moonis") and First National Bank of Arizona (hereinafter "FNBA") move to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6). Defendants Southern Star Mortgage Corp. (hereinafter "Southern Star") and Aurora Loan Services, Inc. (hereinafter "Aurora") move for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).*fn1 For the reasons that follow, defendants' motions are granted.
For purposes of this motion, the facts as alleged in the complaint are assumed to be true and are construed in a light most favorable to plaintiffs, the non-moving party. As plaintiffs are proceeding pro se, the Court will "construe the complaint broadly, and interpret it to raise the strongest arguments that it suggests." Weixel v. Bd. of Educ. of the City of N.Y., 287 F.3d 138, 145-46 (2d Cir. 2002) (quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000)).
In approximately April 2004, plaintiffs fell in arrears on their mortgage payments on their home. (Compl. ¶¶ 38-39.) Plaintiffs sought refinancing in order to pay their mortgage arrears. (Id. ¶ 39.) Plaintiffs learned that they could not refinance without a co-signer because their credit scores were too low. (Id. ¶ 41.) Around May 2004, plaintiffs were referred to Maurice McDowell (hereinafter "McDowell") who devised a plan to help them refinance the premises. (Id. ¶¶ 41-45.) The plan provided that plaintiffs would temporarily transfer their home to a third party with a good credit rating who would qualify for a mortgage. (Id. ¶ 45.) The title would be temporarily transferred to that third party for four to six weeks and, after the financing was obtained, the title would be transferred back into plaintiffs' names. (Id.) McDowell informed plaintiffs that, at closing, an amount equal to twelve months of the new mortgage payments would be placed in an escrow account that would be held by McDowell and used to pay the monthly mortgage for one year. (Id.) McDowell also represented that plaintiffs would remain in possession of the home at all times, would close on the new loan within thirty days, he would help repair plaintiffs' credit, and that, within one year, plaintiffs would qualify for a new mortgage in their names. (Id.)
On or around June 16, 2004, plaintiffs' mortgage was seven months in arrears and their home was in pre-foreclosure status. (Id. ¶ 48.) Plaintiffs initially refused to pay the $50,000 fee requested by McDowell for his services. (Id. ¶¶ 46-47.) In approximately July 2004, however, they agreed to go along with the plan after McDowell promised to "work something out" with plaintiffs, though he never informed them of the actual fee. (Id.)
McDowell arranged to have a third party, defendant Sofya Levy (hereinafter "Levy"), obtain financing from defendant First National Bank of Arizona. (Id. ¶ 58.) A closing was held on September 28, 2004, where plaintiffs were introduced to defendant Donnahue George and informed that he was their attorney for their closing. (Id. ¶ 57.) Also present at the closing were defendant Carianne Johnson, who was the title closer present on behalf of defendant Poui Land Services, LLC, and defendant Moonis, who was an attorney representing defendant FNBA. (Id. ¶¶ 59-62.) Levy executed a mortgage on the premises for $427,500.00. (Id. ¶ 63.) Plaintiffs allege that Johnson, as the title closer and as agent for Poui Land Services, notarized Levy's signature and collected fees to record the deed and mortgage. (Id. ¶¶ 67, 71.) Plaintiffs allege that the deed was never recorded. (Id. ¶¶ 69, 72.)
Plaintiffs allege that, in representing FNBA in connection with the transaction, defendant Moonis "prepared a fraudulent HUD-1 Settlement Statement" (hereinafter "the HUD-1"). (Id. ¶ 73.) Specifically, plaintiffs allege that the HUD-1 lists Levy as having made a deposit of $22,500, even though, according to plaintiffs, no such deposit was made for the purchase of the home. (Id. ¶¶ 75-76.) The HUD-1 also lists a contribution of $2,151.72 by Levy at the September 28, 2004 closing, and plaintiffs allege that no such monetary contribution was made by Levy. (Id. ¶¶ 77-78.) In addition, the HUD-1 lists a cash payment of $89,965.12 to plaintiffs at the closing, even though plaintiffs allege they only received $7,500 from the closing. (Id. ¶¶ 82-83.) Finally, the HUD-1 lists a commission of $9,650 to defendant Chateau Properties, and plaintiffs allege they never retained or used Chateau Properties or any other real estate broker in connection with this transaction. (Id. ¶¶ 85-86.)
Plaintiffs allege that McDowell retained approximately $55,613.64 from the mortgage loan proceeds, purportedly to place in escrow to pay the monthly mortgage. (Id. ¶ 88.) Plaintiffs further allege that the mortgage on the premises was approximately five months in arrears at the time the complaint in this action was filed. (Id. ¶¶ 45, 89.)
On September 8, 2005, plaintiffs Susan Blaize-Sampeur, Frantz Sampeur, and Jacqueline Brown, represented by counsel, filed a complaint in the instant action against defendants Maurice McDowell, Lost and Found Recovery, Inc., Home Mergers, LLC, Poui Land Services, LLC, Sofya Levy, Donnahue Goerge, Tom Moonis, Carianne Johnson, Southern Start Mortgage Corp., First National Bank of Arizona, Aurora Loan Services, Inc., and Chateau Properties. Plaintiffs assert state law fraud claims and violations of the Racketeering Influenced and Corrupt Organization Act (RICO) against all defendants. (Id. ¶¶ 90, 95-98, 99-102, 103-132.) On February 9, 2006, the case was reassigned from the Honorable Leonard D. Wexler to this Court. A pre-motion conference was scheduled at the request of defendants Southern Star Mortgage, First National Bank of Arizona, Tom Moonis, and Aurora Loan Services. On March 2, 2006, the Court received an ex parte letter from counsel for plaintiffs requesting permission to withdraw as counsel. By Order dated March 2, 2006, the Court granted the request and gave plaintiffs additional time to secure new counsel. The Court held a pre-motion conference on April 10, 2006, at which plaintiffs failed to appear. In response to an order from this Court, by letter dated April 24, 2006, plaintiffs Susan Blaize-Sampeur and Frantz Sampeur stated their intent to proceed with this action.*fn2 The Court issued a briefing schedule which was subsequently amended by Order dated April 25, 2006, to allow plaintiffs additional time to attempt to find counsel. Plaintiffs did not secure new counsel and now proceed pro se. On July 21, 2006, defendant Aurora Loan Services filed a motion for judgment on the pleadings. On September 7, 2006, defendant Moonis moved to dismiss the complaint. On September 8, 2006, defendant FNBA moved to dismiss and Southern Star Mortgage filed a motion for judgement on the pleadings. The remaining named defendants have not answered or otherwise appeared in this action. Oral argument on the outstanding motions was held on October 11, 2006.*fn3
In reviewing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted, the court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). Dismissal is warranted only if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Weixel, 287 F.3d at 145 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The appropriate inquiry is "not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Twombly v. Bell Atl. Corp., 425 F.3d 99, 106 (2d Cir. 2005), cert granted, 2006 U.S. LEXIS 4911 (U.S. June 26, 2006) (No. 05-1126). A motion for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c) is evaluated under the same standard as a Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim. See Nicholas v. Goord, 430 F.3d 652, 658 n.8 (2d Cir. 2005).
A. FRAUD AND FRAUDULENT ...