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Adams v. Smith

September 1, 2010




Presently before the Court are eleven Motions pertaining to the above-captioned action by pro se Plaintiff Karen Marie Adams ("Plaintiff"). Plaintiff's Third Amended Complaint ("Complaint") asserts, inter alia, several claims for federal civil rights violations as well as a variety of state law claims. The Defendants, individually or in designated groupings, have moved to dismiss Plaintiff's Complaint or claims contained therein; additionally, a cross-Motion to vacate a notice of pendency filed in Essex County, New York, concerning the property identified as located at 20 Thompson Road, Keeseville, New York, has been brought before the Court. Plaintiff, subsequent to completion of briefing relating to Defendants' Motions to dismiss, has moved to supplement her pleadings. After reviewing the background of this case, the Court will address these pending Motions.


Plaintiff's Complaint sets forth a highly involved factual history for her action and alleges a wide-ranging course of wrong-doing by various Defendants over a period of years. Specific claims include equal protection, procedural due process and substantive due process violations under 42 U.S.C. § 1983, breach of contract, breach of implied-in-fact contract, breach of covenant of good faith and fair dealing, promissory estoppel, and intentional infliction of emotional distress; Plaintiff also appears to allege fraud claims, as well as to indicate that she was subject to Fair Debt Collection Practices Act and Real Estate Settlement Practices Act violations. The Defendant parties are Donald and Carolyn Loreman ("the Loremans"); the Village of Keeseville, New York ("the Village"); Mark J. Whitney, who held the position of Mayor of the Village during a period relevant for this litigation, William O'Connor, who was employed by the Village during a period relevant for this litigation, and William Seaver, who was also employed by the Village during a period relevant for this litigation (collectively, "the Keeseville Defendants"); Kathryn W. Smith and Kenneth L. Smith ("the Smiths"); Standard Federal Bank ("Standard"), the successor by merger to ABN AMRO Mortgage Group; and Bayview Loan Servicing, LLC ("Bayview").

This action initially arrived before this Court on April 26, 2007 with the filing of Plaintiff's original pro se Complaint and application to proceed in forma pauperis. An amended Complaint soon followed on May 14, 2007. Dkt. Nos. 1-2. While in forma pauperis status was granted, review of the first Complaint required the Court to dismiss a number of parties and claims based on judicial immunity, failure to allege state action, and statute of limitations grounds. See generally Dkt. No. 5. The Court ordered that Plaintiff filed a second amended complaint within thirty days. Thereafter, on June 25, 2007, Plaintiff made such a filing, which the Court proceeded to review. For this pleading, the Court allowed the Second Amended Complaint to proceed but dismissed certain allegations as time-barred, dismissed the claims made pursuant 42 U.S.C. §§ 1985 and 1986 for failure to state a claim, and dismissed the Loremans and Smiths as Defendants along with a number of other named individuals, including the now-deceased Keeseville Town Justice, George Head. Dkt. No. 11. Subsequently, Plaintiff received permission to submit an amended complaint, which resulted in the filing of the current Third Amended Complaint on January 16, 2008. Dkt. No. 57. On October 8, 2008, Bayview moved the Court to dismiss all claims asserted against the company. Dkt. No 152. On October 9, 2008, Standard filed a Motion to dismiss the Complaint as against the bank or strike pleadings and cancel a notice of pendency. Dkt. No. 155. On October 10, 2008, the Loremans and Smith Defendants each filed Motions to dismiss the Plaintiff's claims and Complaint. Dkt. Nos. 160, 162. On October 11, 2008, the Keeseville Defendants moved the Court to the dismiss the action as asserted against them. Dkt. Nos. 165, 166. Later, on August 21, 2009, Plaintiff filed a Motion which purportedly seeks to supplement her pleadings. Dkt. No. 199. On August 28, 2009, Standard brought a cross-Motion specifically seeking to vacate the notice of pendency concerning the property over which the Bank and Plaintiff have been in dispute. Dkt. No. 200. Plaintiff, on August 27, 2008, filed a Notice of appeal as to the Court's denial of her Motion to reconsider the Court's denial of a preliminary injunction also in relation to the property and any action by Standard to evict Plaintiff from it. Dkt. No. 148. The Court of Appeals for the Second Circuit issued a mandate on May 7, 2010 dismissing Plaintiff's appeal.

While Plaintiff's allegations of wrong-doing by various Defendants is wide-ranging, her suit primarily involves events surrounding the fate of the premises located at 1707-1709 Front Street, Keeseville, New York ("the Front Street building"), a "mixed-use, historic building" which Plaintiff purchased from the Loremans at a time prior to the litigation to run as, inter alia, a bed and breakfast. Compl. at 6. The Complaint provides a detailed narrative history of each Defendant's alleged interest in the building, relationship with the Plaintiff and other Defendants, and actions taken with respect to that interest and those relationships. Plaintiff organizes the factual allegations in her Complaint, in part, by Defendant group and by topic. The Court will relate those allegations in a similar order, and within a general chronological structure.

a. The Loremans and Village Defendants

According to Plaintiff, the Loremans owned the Front Street building until fire damage and inadequate insurance recovery led to Plaintiff's purchase of the building with funding from the Village of Keeseville Revolving Loan Fund. Id. at 6. An agreement was executed between the Village and Plaintiff on February 27, 2003; at this time and prior to the signing, Plaintiff asserts that the funds extended were represented by the Village Defendants to be an instrument of the United States Department of Housing and Urban Development ("HUD"). Id. at 12. Plaintiff contends that much later it was revealed that the monies were not associated with HUD, and that the Village was not acting as an agent of HUD in making the loan agreement. Id.

The Complaint shows that problems arose almost immediately upon Plaintiff's closing with the Loremans. Plaintiff alleges that the loan involved an agreement among the Loremans, Plaintiff and Village, or Village mayor at the time, that a rapid purchase from the Loremans be completed, such that renovations would be made in time for opening the building as a business that Spring. The Loremans would remain as tenets, occupying part of the premises to continue operation of their Keeseville Laundrette. Yet, according to Plaintiff, the Loremans withheld executed warranty documents, refused to actually sign a lease agreement with Plaintiff or make rent payments, but all the while continued to occupy and operate their Launderette enterprise. Id. at 6-7. Indeed, Plaintiff alleges that "both the Loreman Defendants and the Village Defendants began engaging in harassing, oppressive and obstructive behaviors, included but not limited to, failure to make timely payments and draw downs, issuing of bogus citations, repeated unnecessary inspections daily, harassing 'slow downs' with workers and Plaintiff, slander, theft of services, theft of goods, and failure to uphold agreements." Id. Plaintiff alleges that Defendant O'Connor and Justice Head demanded Plaintiff provide Defendant Seaver with an apartment in the Front Street building for the purpose of monitoring her; Seaver, Plaintiff contends, let Defendant O'Connor into the premises to enable harassment through code citations and let the Loremans inside despite requests not to do so. Id. at 45. The Loremans are alleged to have insisted to Plaintiff they negotiate some agreement with the Village that permit the Loremans to "take the building back." Id. at 7. Eventually, Plaintiff signed a lease offered by the Loremans, though Plaintiff alleges that non-payment and assorted breaches continued to occur. As a result, Plaintiff filed an eviction action against the Loremans in Keeseville Village Court in March of 2004. Id. at 8.

The eviction action came before the Village Justice, George Head. In response to the Plaintiff's first eviction attempt, he declared the "some of the required papers were missing and that service was not proper, despite personally giving the forms to Plaintiff for filing and arranging for his bailiff William Seaver to serve the documents." Id. Justice Head discontinued the action on this basis, and Plaintiff filed again to evict the Loremans in April of 2004. Due to an acquiantance's death, Justice Head postponed the hearing. Then, on the hearing date, he ruled that because the hearing should have been held within 12 days of service of the complaint and 14 days had passed, the action was dismissed. Id. After retaining counsel in August of 2004, Plaintiff made a third attempt to evict the Loremans at a three-day trial in December of 2004. At that time, Plaintiff alleges that the Loremans' attorney told Plaintiff's counsel that "we've been trying to starve her out for so long, we're amazed she can afford you." Plaintiff also describes the proceedings as demonstrating a high level of familiarity between the Loremans, Justice Head and the Mayor, Defendant Whitney, who is alleged to have entered and exited the court repeatedly to deliver notes from the Loremans. Id. at 9. According to Plaintiff, Justice Head concluded the trial without hearing all witnesses and stated that a ruling would follow within a few weeks. Plaintiff complains, however, that the only ruling that eventually emerged was an unsigned statement that Plaintiff was owed some monies; it suggested arbitration, and noted that a final order would be issued later if the parties could not agree. Plaintiff's counsel then sought re-argument and a final ruling; re-argument was eventually obtained in May of 2005, where Justice Head indicated a ruling would be imminently forthcoming. Nonetheless, despite her requests, Plaintiff recounts that no ruling in the case ever issued. Id.

Plaintiff further alleges that on August 27, 2005, Plaintiff met with Carolyn Loreman,who informed Plaintiff that "George said we don't have to leave unless he issues an official ruling which says we have to, and he promised he won't do that." Loreman also allegedly stated that Mayor Whitney "told us not to pay you any rent so he could foreclose on you and work something out with us afterwards." Id. at 10. The Village of Keeseville Court closed following Justice Head's death in June of 2007. Plaintiff determined that in order to receive a final ruling in her case, she would need a statement from the Village or Village attorney that the Village Court is permanently closed, Justice Head is deceased, and that the case remains pending. According to Plaintiff, however, the Village Defendants refused to provide a statement that the case is pending, thus preventing her eviction action from being resolved. Id.

Many of Plaintiff's factual allegations, in her view, describe circumstances showing the existence of a conspiracy by various Defendants to deprive her of property, namely the Front Street building, without due process of law. She asserts that the Village Defendants have acted "to assist friends of the board and/or mayor, and to retaliate because she has been providing documentation and information to various authorities regarding ongoing collusion, abuses of power, [and] inappropriate handling of village monies . . . ." Id. at 11. The Complaint details Plaintiff's efforts to report her concerns about treatment by Village officials to authorities which include the New York State Commission of Judicial Conduct, State Police, and Essex County District Attorney. With respect to the Front Street property, Plaintiff broadly alleges that it was the intent of the Loremans and Village Defendants to perpetrate what amounts to a "fraud" on her. Id. She contends that the Village was instructed by the State to better utilize the Loan Fund and to re-build the Village's coffers, as the Loan Fund had previously been under-used and employed to extend funds to a "close personal friend" of Defendant Whitney and Justice Head, which had never been repaid. Id. at 12-13. After the loan for the Front Street property was made to Plaintiff in the amount of $145,000, Plaintiff alleges that she was "repeatedly delayed and harassed by Village officials," causing significant costs to be incurred. Id. at 13. Then, following Plaintiff's invoicing of the Village for the cost overruns attributed to the it, and after Plaintiff had begun payment on the loan, "the Village admitted its egregious bad acts and offered Plaintiff a moratorium on payments as a means to offset" those costs. Id. Plaintiff alleges, however, that upon the end of the moratorium, Defendant Whitney manipulated "the amortization and interest, so as to increase the debt by more than $28,000." Id. at 14.

Further, she alleges that Whitney "misappropriated payments Plaintiff made on the account, and . . . told numerous people in the community and elsewhere that Plaintiff had 'never even made one payment on the loan.'" Id. For example, the Complaint details that a July 2004 payment was never credited to her account, that another mortgage payment was directed to water and sewage without notice to Plaintiff, even though she had been paying that bill separately, and that, upon repeated inquiry with the Village, Plaintiff was told that "mayor Whitney had instructed the clerks to apply Plaintiff's previous mortgage payment to other than her mortgage account." Id. With regard to the September 2004 mortgage payment, Plaintiff went to Village attorney's office on September 10th to attempt to make that month's payment; however, the attorney refused to discuss the matter or accept a check, though his secretary stated that "he would not accept the payment because Mark Whitney had just telephoned him, advising that the payment was late and that he was instructed to initiate foreclosure proceedings." Id. at 15. According to Plaintiff, September 10th was the last day of the month on which payment would have been timely, and thus she was prevented from making proper payments and forced into foreclosure.

In light of these events, Plaintiff alleges that Defendant Whitney and the Village "abused" her to "help their friends as well as make themselves look better to State auditors . . . . Whereas initially they created the default to assist the Loremans, as Carolyn Loreman openly admitted, they got a bonus: inflate a payoff, foreclose, and . . . collect." Id. at 15-16. Plaintiff notes, "as further evidence of the collusion and fraudulent intent of the [Village] and Loremans, as well as intent to deprive," the Village informed Plaintiff's counsel that it "intended not only to foreclose but to immediately ask the judge in that action, to appoint the Loremans as trustees and receiver of the building as soon as possible." Id. at 16 (emphasis omitted). In April of 2004, according to Plaintiff, she met with Defendant Whitney in regard to her concerns, and he "not only admitted the bad faith, [but] insisted, 'We have insurance for this. Sue us if you need to.'" Id. at 46.

Upon recommendation by her counsel, Plaintiff objected to the eviction proceedings and the demand that the Loremans be named trustees, and she filed a Complaint with the New York State Attorney General's Office, which, due to Justice Head's alleged involvement, advised Plaintiff to file a complaint with the New York State Commission on Judicial Conduct. She did so on approximately June 8, 2005. However, rather than lead to any reduction in Plaintiff's problems with the Village, she alleges that once her reporting efforts were discovered, "Justice Head and others increased their efforts and schemes . . . includ[ing] stalking, issuing bogus restraining orders, threats, slander, prowling, abuse of property, and more." Id. at 17. Plaintiff alleges that Justice Head was witnessed directly engaging in these activities. Id.

Another escalation of "abuse and harassment" is alleged to have occurred during the period between 2005 and 2007, when and after Plaintiff cooperated with investigations by the State Attorney General's Office and the New York Times of "abuses perpetrated in the small town and village courts" in the State. Id. at 42. On December 14 and 15, 2006, the New York Times published a story and follow-up about the conduct of Justice Head. Id. Plaintiff alleges that Defendant O'Connor, as the former Code Officer and Village court bailiff, committed various abuses prior to the publication, including citing Plaintiff for "phony code violations" and calling Plaintiff at home and variously threatening her. Plaintiff further alleges that, at some point later, "Defendant O'Connor saw Plaintiff in a local store and told her that she had been 'set up,' and that he no longer was working for the village as code officer." Id. at 43. Rather, according to Plaintiff, O'Connor admitted that he had been "instructed to harass Plaintiff for the purposes of discouraging her and causing her to quit." Id. It is claimed that O'Connor recounted a conversation in which Defendant Whitney told him: "I want that building bad, but I'll get it myself . . . you're putting us in danger of a lawsuit." Id.

b. The Smiths

On October 1, 2004, Plaintiff placed the Front Street premises up for sale. She asserts that it had more than doubled in value in the past year due to her renovations, such that the building and business were eventually listed for $399,000 and generated inquiries from across the United States as well as from Canada. Id. at 18. Plaintiff alleges that when the Loremans and Village learned about the possibility of a sale, they became extremely concerned. At the same time, according to Plaintiff, the Loremans began talking with the Smith Defendants about a potential purchase of the Launderette by the Smiths. In November 2004, however, Plaintiff alleges that the Smiths learned she had filed to evict the Loremans, and Defendant Kathryn Smith then approached Plaintiff to discuss forming a partnership directly with her. Id. Subsequently, Plaintiff explained to Kathryn Smith her assorted problems with the Loremans and Village. Smith then helped serve witness subpoenas for the eviction trial and repeatedly urged Plaintiff to enter a partnership with her. Id. at 19. On December 21, 2004, using a form downloaded from a website, Plaintiff states that she and Kathryn entered into such a partnership agreement.

In April 2005, Kathryn Smith approached Plaintiff about refinancing the Front Street property rather than renewing its sale listing. An agreement was reached to this end, with a memorandum of understanding outlining various terms and contingencies. In part, this agreement provided that title of the property would temporarily pass to the Smiths in exchange for their financing the mortgage, pending resolution of the problems with the continuing non-paying tenancy of Loremans and with the Village; thereafter, Plaintiff would be allowed to buy out the Smiths or be added to the title. Id. Additionally, the Smiths agreed to evict the Loremans by any practical means, after which they would jointly open a commercial enterprise with Plaintiff while Plaintiff would operate the Front Street property as a bed and breakfast establishment. Id. at 20. On September 6, 2005, Plaintiff alleges that title was passed consistent with, and subject to, the parties' agreement. Other financing in the form of a note for $36,000 is alleged to be held by Plaintiff , wherein that amount would be credited to Plaintiff's equity and partnership interests if the agreement's terms were met. Id.

The Smiths soon ran afoul of Plaintiff by allegedly defaulting on the agreement and refusing to make payment on the note, despite Plaintiff's demands. Id. at 21. Further, the Smiths are alleged to have been "secretly meeting" with the Loremans, "both before and after the September 2005 closing." Id. Plaintiff alleges that the Smith Defendants admitted that they met with the Loremans to discuss "business options," and that, in fact, "[w]hile going through the motions to evict the Loremans . . . they followed through with meetings and plans with the Loremans to defraud and deprive Plaintiff of not only justice or equity, but the building, her business and assets as well." Id. After October 31, 2005, when Kathryn Smith failed to appear at a meeting with Plaintiff, the Smiths are alleged to have postponed every meeting scheduled between the parties. Plaintiff asserts that she attempted to pay half of the mortgage and paid other bills related to the Front Street building during this time. Then, on or about December 8, 2005, the Smiths are alleged to have locked Plaintiff out of the premises and, subsequently, told the New York State Police that the building was "their house." Once this occurred, Plaintiff states that she could no longer operate or develop her business, and that she communicated the situation to "the DA's office, the AG, and the lead FBI agent who had been contacting her." Id. at 23. Meanwhile, it is alleged that the Smiths and Loremans continued to jointly use the Front Street premises, retaining an estimated $80,000 of Plaintiff's personal property in the premises which have never been recovered.

The Complaint generally describes an abrupt transformation in Plaintiff's apparent relationship with the Smiths. On September 11, 2005, Plaintiff recounts that Kathryn Smith signed a notarized statement attesting to the "dire and extreme tactics" and "injustice and discovery of extreme corruption" in connection with reporting the problems experienced with the Loremans and Village officials; yet, according to Plaintiff, Kathryn Smith perjured herself when, a few months later, the Smiths denied the existence of dire circumstances in depositions made during Plaintiff's Chapter 13 bankruptcy proceedings, as a fraudulent conveyance action was brought against the Smiths pursuant to the bankruptcy case. Id. at 24. Ken Smith is likewise alleged to have perjured himself in depositions stating that he and his wife had no understandings and agreements with the Plaintiffs. Id. at 26.

After the fraudulent conveyance action was initiated, it is alleged that Plaintiff suffered an "onslaught of harassment" against herself and her family, including her deck being set afire. Id. at 25. The Smiths and Loremans are alleged to have met repeatedly to plan their efforts against Plaintiff, with both Defendant groups using the same lawyer. The Village is alleged to have offered to cease any foreclosure action and restructure the loan if Plaintiff would consent to adding the Smith to the existing loan. As a result of the Chapter 13 proceedings, the Bankruptcy Judge is alleged to have ordered the Smiths to allow Plaintiff to survey and take inventory of the premises. On the date this inspection occurred, the Smiths elected to move out of the premises and return to their home. Later, on or about December 30, 2006, the Smiths are alleged to have contacted Plaintiff through their attorney to inquire if she would take back ownership of the Front Street building. Plaintiff responded that she would do so only upon the Smiths' payment of the current mortgage and compensated certain losses. Then, on January 21, 2007, a foreclosure action was initiated against the Smiths by Defendant Bayview Loan Servicing.

c. Bayview

Plaintiff's allegations against Bayview are limited in scope, revolving around the company's foreclosure on the Front Street property. According to the Complaint, the Smiths executed a mortgage on the property which, at the time of Plaintiff's filing, was held by Bayview and was for an amount much less than the property's value. In August 2007, Plaintiff asserts that the Smiths attempted to deed the Front Street building back to Bayview rather than face foreclosure; upon inquiries by Plaintiff about her interest in the property, Bayview is alleged to have been non-responsive. On approximately September 1, 2007, Plaintiff recounts that she learned Bayview and/or the Smiths listed the property for sale. Then, "after many telephone conversations with representatives for BLS, including attorneys and financial officers . . . BLS claimed to be willing to work with Plaintiff to at least retrieve her assets if not arrange a suitable resolution of the Note." Id. In November 2007, Bayview proceeded to take the deed for the property from the Smiths in lieu of foreclosing; this transaction occurred without payment to Plaintiff on her $36,000 note. Id. at 28. Additionally, Plaintiff alleges that she has been prevented from retrieving her personal property located within the premises by Bayview. Id. According to Plaintiff, the property may be in the process of being sold or has already been sold to an unnamed party. Id.

d. Standard Federal Bank

Standard is a party to this action as the successor by merger to ABN AMRO Mortgage Group, the entity which has held the mortgage on a home belonging to Plaintiff's former husband. This property is entirely separate and discrete from the Front Street building previously discussed. The note between ABN AMRO and Plaintiff's former husband pertaining to the home was signed and dated on March 21, 2001. Id. at 29. According to Plaintiff, under the terms of her divorce, Plaintiff was to pay the mortgage owning to ABN AMRO and the ex-husband was to execute a warranty deed for title to the home. A number of problems subsequently arose, however, leading to conflict with ABN AMRO. Generally, Plaintiff alleges "a pattern of abuses and negligence going at least as far back as January of 2003" by ABN AMRO, which "include[d] deceptive practices as well as joining in with other defendants named in the scheme to defraud, and to unjustly deprive Plaintiff of liberty and property." Id. at 28-29.

Plaintiff asserts that in late 2002 and early 2003, her ex-husband accessed Plaintiff's account from which mortgage payments were made and withdrew funds without her knowledge; as a result, "at least one" of Plaintiff's payments to ABN AMRO was returned. Id. at 29. Plaintiff alleges that repeated attempts to discuss the situation with ABN AMRO were rebuffed by customer service representatives on the ground that she was "not the mortgagor," despite the alleged existence of a record held by the company authorizing such communications about the account. Id. In relation to these allegations, the Complaint references the Real Estate Settlement Practices Act of 1974 prohibition of "discrimination based on 'family status.'" Id. at 30. Plaintiff asserts that she "by quit claim deed and by her execution of the Divorce documents did execute her agreement to assume and pay the mortgage debt, and thus became the 'substitute mortgagor.'" Id. Nevertheless, ABN AMRO "continued to return payments sent in on account by Plaintiff," even though "Plaintiff sent these documents, along with numerous letters and requests for assistance" to the company. Id. Eventually, Plaintiff's efforts led to contact with a Pat Tillery at ABN AMRO, who sent a letter to Plaintiff on or about June 5, 2003 asking for information concerning assumption of the mortgage by Plaintiff. On June 27, 2003, Plaintiff contends that ABN AMRO sent a notice stating that it had received a mortgage payment she had sent, though Plaintiff claims that the company later denied that the payment was accepted or retained. Id. at 31.

In September 2003, Plaintiff received a forbearance agreement document from the company, rather than the assumption of mortgage document she had anticipated. Id. Plaintiff alleges that ABN AMRO sought from Plaintiff proof of insurance, which Plaintiff provided; yet ABN AMRO added high-premium insurance fees to the mortgage for which Plaintiff was indirectly charged. Once this insurance issue emerged, Plaintiff asserts that ABN AMRO promised a credit to Plaintiff for the excess amount, equal to at least $5,000. Id. at 32. The Complaint indicates that the credit was never extended, however, and that ABN AMRO meanwhile was pursuing foreclosure proceedings. Id. at 32-33. Plaintiff alleges a frustrating series of interactions with the company throughout 2004 and 2005. In August 2005, prior to a scheduled sheriff's sale of the home, Plaintiff asserts that was offered a payment agreement by a Andrea Roberson of ABN AMRO, though "[c]counsel for ABN has steadfastly denied same, however their transaction history indicates this is true." Id. at 33-34. Negotiations did not progress because "Plaintiff was told that if she still wanted to assume the mortgage, she would have to pay approximately $38,000, which included the insurance overcharges and over $12,000 in attorney's fees[.]" Id. at 34. Faced with a March 2006 forced sale date, Plaintiff filed for bankruptcy protection. Id. at 36. Proceedings were "short lived, and . . ...

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