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La Mar Gunn v. R&R Ambac Assurance Corporation; Eqcc Home Equity Loan Trust 1998-2

August 6, 2012

LA MAR GUNN,
PLAINTIFF,
v.
R&R AMBAC ASSURANCE CORPORATION; EQCC HOME EQUITY LOAN TRUST 1998-2 DATED 6.1.98 (CUSIP NO. 268917EN7); AND EQCC HOME EQUITY LOAN TRUST 1998-3, DATED 9.1.98 (CUSIP NO. 268917EV9), DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:

USDC SDNY

ELECTRONICALLY FILED DOC #: _________________

ORDER ADOPTING

Pro se plaintiff La Mar Gunn ("Gunn") alleges that Ambac Assurance Corporation ("Ambac") and two securitization trusts, EQCC Home Equity Loan Trust 1998-2 dated 6.1.98 (Cusip No.: 268917EN7) and EQCC Home Equity Loan Trust 1998-3 dated 9.1.98 (Cusip No.: 268917EV9) ("the trusts"), along with the trustee for the two trusts, U.S. Bank National Association ("U.S. Bank"), and its servicing agent, Select Portfolio Servicing, Inc. ("SPS"), engaged in fraud and racketeering, leading to the foreclosure of his Delaware home.

On November 16, 2011 and January 20, 2012, Ambac and SPS*fn1 moved, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), to dismiss Gunn's complaint, arguing that: (1) the Court lacks subject-matter jurisdiction under the Rooker-Feldman doctrine; (2) Gunn's claims are barred by the doctrines of collateral estoppel and res judicata;*fn2 (3) some of Gunn's claims are time-barred; and (4) Gunn failed to state a claim for fraud, racketeering, civil conspiracy, or malicious prosecution. On December 8, 2011, Gunn filed an opposition brief, and sought leave to amend his complaint.

On June 26, 2012, Magistrate Judge James Cott issued his thorough and scholarly Report and Recommendation ("R&R"), recommending that the Court grant Ambac and SPS's motions to dismiss, deny Gunn's motion to amend his complaint, and dismiss the complaint with prejudice. On July 15, 2012, Gunn file objections to the R&R.

For the following reasons, the Court adopts the R&R in its entirety, GRANTS Defendants' motions to dismiss, and DENIES Gunn's motion to amend.

I.Background*fn3

In 1997, Leisa and Robert Johnson (the "Johnsons") obtained a $235,000 mortgage (the "first mortgage") on their residential property located at 210 Cornwell Drive, Bear, Delaware 19701 (the "Property"), from EquiCredit Corporation of Delaware ("EquiCredit DE"). In 1998, the Johnsons took out a second mortgage on the Property from a different lender. Either in 1997 or 2002, the first mortgage was assigned to U.S. Bank as trustee for an EQCC securitization trust. In 2001, the Johnsons defaulted on their first mortgage. On July 19, 2002, U.S. Bank commenced a foreclosure proceeding, and the Delaware Supreme Court entered a default judgment of foreclosure on August 29, 2002. On December 16, 2003, knowing that the first mortgage was in default and the Property in foreclosure, Gunn purchased the Property and the second mortgage by quitclaim deed, which he recorded on March 4, 2004.

The sheriff's sale of the Property was stayed twice while the Johnsons filed for bankruptcy, first under Chapter 13 in 2003, and then under Chapter 7 in 2004. In October 2004, after the bankruptcy stay was lifted, U.S. Bank sought to proceed with the foreclosure and sheriff's sale. In November 2004, Gunn moved to stay the sale, arguing that U.S. Bank lacked standing to bring the foreclosure proceeding because the assignment from EquiCredit DE to U.S. Bank was never recorded. The sale was stayed and the assignment recorded on December 30, 2004.

Beginning in October 2006, U.S. Bank again sought to proceed with the foreclosure and sheriff's sale, but the sale did not occur until December 9, 2008 because Gunn continued to challenge U.S. Bank's standing. Gunn thereafter continued to challenge the validity of the sale. On February 25, 2010, the Delaware Superior Court found that U.S. Bank was the real party in interest to the foreclosure proceedings and the sheriff's sale was proper. The court acknowledged that EquiCredit DE's assignment of its interest in the first mortgage to the trusts did not occur until after U.S. Bank initiated the foreclosure proceedings, but concluded that the delay was "legally insignificant." On June 30, 2012, the Delaware Supreme Court affirmed this decision.

On November 12, 2010, the Superior Court granted a writ of possession to U.S. Bank; the Delaware Supreme Court affirmed the writ of possession on May 26, 2011. On December 27, 2011, Gunn moved to vacate the final judgment and void the writ of possession, and requested an evidentiary hearing. On March 21, 2012, the Superior Court denied Gunn's motion, again holding, that the "sheriffs sale was authorized and, by the time of the sale, the loan was in serious default."*fn4

II.Instant Action

On July 26, 2011, Gunn instituted this action, alleging that-as a part of a racketeering enterprise or scheme to defraud the IRS, investors, unsuspecting homeowners, and the Delaware courts-the Defendants committed various illegal or fraudulent actions, including money laundering, wire fraud, and mail fraud. Gunn ...


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