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Bosch v. Lamattina

March 31, 2009

GUADALUPE BOSCH, PLAINTIFF,
v.
DOMENICO LAMATTINA, YOUNG & YOUNG LLP, THOMAS J. BAILEY, ESQ., JOSEPH A. SCHUBIN & ASSOCIATES, FREEDOM MORTGAGE CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM AND ORDER

Defendant Joseph A. Schubin & Associates ("Defendant Schubin") moves to dismiss Plaintiff Guadalupe Bosch's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6). Despite being represented by counsel, Plaintiff has not opposed the motion to dismiss. For the reasons set forth herein, Defendant's motion is GRANTED.

BACKGROUND

Prior to November, 2, 2006, Plaintiff Guadalupe Bosch (hereinafter "Plaintiff") was the fee simple owner of a residence located at 105 Barber Street, Brentwood, New York. In 2006, Plaintiff fell behind on her mortgage payments and faced foreclosure. Defendant Domenico LaMattina approached Plaintiff regarding her residence and offered to assist Plaintiff. Defendant LaMattina arranged to meet Plaintiff on November 2, 2006 at the offices of Defendant Young & Young. Upon arrival, Plaintiff learned that this meeting was a closing, wherein Plaintiff was scheduled to sell her home to Defendant LaMattina, and lease it back from him, with an option to repurchase the home in two years.

At the closing, Plaintiff met Defendant Bailey, whom she was told would be her attorney. Defendant, as the buyer, was represented by Defendant Young & Young, LLP. Defendant Schubin acted as the settlement agent, representing Defendant Freedom Mortgage. Defendant Freedom Mortgage was Defendant LaMattina's mortgage broker and funded the loan on the day of the closing.

Plaintiff alleges that she received nothing from the sale. Plaintiff alleges that instead of receiving any disbursement from the sale, she paid Defendant LaMattina's closing costs and created an escrow account to pay the real estate taxes on Defendant LaMattina's behalf.

There are three relevant causes of action against Defendant Schubin. Under the first cause of action, Defendant Schubin allegedly violated 12 U.S.C. § 2607(a) and § 2607(b) of the Real Estate Settlement Procedures Act ("RESPA") by preparing a false HUD-1 Settlement Statement, and by paying fees and/or kickbacks to each other. Under the second cause of action, Defendant Schubin allegedly defrauded Plaintiff from the equity to her home as well as ownership of her home through its preparation of the false HUD-1 Settlement Statement. And the final cause of action Defendant Schubin allegedly violated is under New York State General Business Law § 349 ("Deceptive Practices Act"). Plaintiff alleges misleading practices such as preparing a false HUD-1 Settlement Statement, making misrepresentations to Plaintiff, and failing to disclose conflicts.

Defendant Schubin moved to dismiss this Complaint on March 28, 2008. The remaining Defendants have not moved for dismissal. Thus, the Court's findings in this Order are limited to Plaintiff's claims against Defendant Schubin.

DISCUSSION

I. Standard of Review

A. Rule 12(b)(6)

On a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must satisfy a "flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). The Complaint "must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed. 2d 1965 (2007). The Court does not require "heightened fact pleading of specifics, but only enough facts to state a claim for relief that is plausible on its face." Id. at 1974.

In applying this standard, the district court must accept the factual allegations set forth in the Complaint as true and draw all reasonable inferences in favor of Plaintiff. See Cleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). Additionally, the Court is confined to "the allegations contained within the four corners of the complaint." Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998.) However, the Court may examine "any written instrument attached to [the complaint] or any statements or documents incorporated in it by reference" as well as any document on which the complaint relies heavily. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-153 (2d Cir. 2002). "Of course, it may also consider matters of which judicial notice may be taken under Fed. R. Evid. 201." Kramer v. Time Warner, Inc., 837 F.2d 767,773 (2d Cir. 1991).

Defendant argues that Plaintiff fails to state a claim under the Real Estate Settlement Procedures Act of 1974, 12 U.S.C. ยง 2601 et seq. ("RESPA"), fails to state a claim for fraud, and fails to state a claim ...


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