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Lee v. E* Trade Financial Corp.

United States District Court, Second Circuit

August 6, 2013

CLAUDIA MARIE LEE, Plaintiff,
v.
E*TRADE FINANCIAL CORP., E*TRADE FINANCIAL, BANK OF AMERICA CORP., MATTHEW J. AUDETTE, JEFFREY J. WALDMAN, and BRUCE R. THOMPSON, Defendants.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge.

Plaintiff Claudia Marie Lee ("Lee"), proceeding pro se, brings this action against E*Trade Financial Corporation ("E*Trade"), Bank of America Corporation ("BoA"), Matthew J. Audette ("Audette"), Jeffrey J. Waldman ("Waldman"), and Bruce R. Thompson ("Thompson") (collectively, "defendants"), alleging that defendants defrauded her in connection with the mortgage that they issued, or caused to be issued, to Lee to finance her purchase of a condominium in Egg Harbor Township, New Jersey. Defendants move to dismiss Lee's Second Amended Complaint on various grounds. For the reasons that follow, defendants' motions to dismiss are granted.

I. Background

A. The Parties[1]

Lee is a resident of New York City, New York. Defendant Matthew J. Audette is the Chief Financial Officer of defendant E*Trade Financial Corporation.[2] Second Amended Complaint 2. Defendant Bruce R. Thompson is the Chief Financial Officer of Bank of America Corporation.[3] Id. at 3. Defendant Jeffrey J. Waldman is an attorney retained by Lee to represent her in connection with her purchase of the mortgage at issue. Id.

B. Facts[4]

In 2006, Lee purchased a condominium located at 18 Heather Croft in Egg Harbor Township, New Jersey, as a second home for her "senior handicapped retired parent" to "live out the last years of her life." Complaint ¶ III.C. Lee alleges that she applied for a 30-year, fixedrate mortgage at a rate of 6.25%, requiring a 20% down payment, from E*Trade on E*Trade's "Mortgage website." Id. ¶ III.C-1. According to Lee, the terms of that mortgage were modified twice: first, when the rate was raised to 6.5%; and second, "around 11 days before Closing [in] a phone call, " in which Lee was told that unless she could make a 30% down payment, she would "have to have a split mortgage" at the rates of 8.5% and 6.5%. Id.

Lee alleges that she "called and E-mailed [her contact at E*Trade, ] Dora Jover several times before the Closing and [Jover] ignored all [of Lee's] cancelation requests." Id. Lee alleges that Jover "capriciously and unilaterally... cause[d] THE ONE MORTGAGE to carry an interest of 8.5%, AND THE SECOND ONE at 6.5%, while detrimentally tagging a monumental 30% down payment which [Lee had] informed her she could not afford." Second Amended Complaint ¶ 4 (emphasis in original). Lee also alleges that Jover failed to disclose the total monthly payment amounts Lee would owe, "and after two weeks of hesitation she gave [her] 3/4 of the amount; she excluded the taxes which were included in the mortgage monthly payment and excluded the second mortgage amount that she was planning." Complaint ¶ III.C-1. According to Lee, "[a]ll three mortgage employees of E-Trade clearly knew [she] could not afford 18 Heather Croft with the monthly Net Pay salary [she] earned." Id. Thus, she alleges, she "was financial bait for E-Trade which would either force [her] into foreclosure or scare [her] to spend all [her] retirement funds to pay for this mortgage." Id.

Lee also alleges that various documents that she received at the closing - which occurred on August 28, 2006, see Complaint ¶ III.B - were inaccurate. Complaint ¶ III.C-1. One, the Uniform Residential Loan Application, "included Dora Jover's changed interest rate, and Dora stating 18 Heather Croft was to be [her] primary residence." Id. Additionally, she alleges that Jover "left off [her] real primary residence's monthly Maintenance fees as well as increased the present market value of [her] NY apartment, and... did not state [Lee's] actual credit card balances; she made them hundreds less." Id. Furthermore, Lee asserts, "[t]he real estate taxes and Heather Croft Condo Association Dues on this form were inaccurate as they were scheduled to increase in 30 days of closing." Id.

After the closing, Lee claims that she contacted E*Trade and received no response. Id. ¶ III.C-5. Lee was "told by the Century 21 Real Estate rep that [she] had 3 days to cancel the first time home buyer mortgage and [she] exercised that right and no one would respond during that period." Id.

Lee's claims against BoA arise out of the transfer of her primary mortgage, which, she alleges, was initially "paid to E-Trade, then Countrywide and then to Bank of America." Id. ¶ III.C-8. Lee states that she wrote "four Hardship letters over four years" to BoA and E*Trade Financial and that "neither bank ever responded." Id. ¶ III.C-9. She also alleges that once she "could only afford to make a partial mortgage payment, " BoA refused such payment; that BoA declined two short-sale offers on her property; and that BoA "refused [a] Deed in Lieu on 12/13/10." Id.

Lee brings claims under the Real Estate Settlement Procedures Act of 1974 ("RESPA"), 12 U.S.C. §§ 2601 et seq.; the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq.; and the Home Mortgage Disclosure Act ("HMDA"), 12 U.S.C. §§ 2801 et seq. Lee also brings state law claims for tortious interference with contracts and prospective economic relations, fraud, negligent misrepresentation, breach of fiduciary duty, and claims under the New York General Business Law § 349 and § 350, which, respectively, prohibit deceptive acts and practices and false advertising in the conduct of business.

According to Lee, her economic injuries include: "loss of excellent credit score"; "major reduction in credit ability"; "un-payable debt"; and loss of her 401(k), emergency savings, and retirement investment funds. Lee also alleges physical injuries that include "high level stress, ... caus[ing] all kinds of breathing lung problems..., heart palpitations..., H[igh] B[lood] P[ressure] bouts, loss of hair, continuous headaches and stress induced eating conditions." Complaint ¶ IV. Lee seeks $2 million in damages from defendants. Second Amended Complaint 8.

II. Procedural History

On August 25, 2012, Lee filed the original complaint in this action. Dkt. 1. On September 13, 2012, Lee filed a First Amended Complaint, adding defendants but no new factual allegations or causes of action. Dkt. 2. On October 30, 2012, the BoA defendants filed a motion to dismiss the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. 14. On November 7, 2012, the E*Trade defendants filed a motion to dismiss the First Amended Complaint pursuant to Rule 12(b)(6). Dkt. 21. On November 13, 2012, in response to those motions to dismiss and consistent with Federal Rule of Civil Procedure 15(a)(1)(B), this Court issued an order informing Lee of her opportunity to amend her First Amended Complaint in response to the motions to dismiss, and advising her that she would not be given any further opportunity to amend the First Amended Complaint to address issues raised in the motions to dismiss. Dkt. 25.

On December 13, 2012, the Court held an initial pretrial conference. At that conference, the Court stated it would stay any discovery pending resolution of the motions to dismiss.

Also on December 13, 2012, Lee submitted the Second Amended Complaint. Dkt. 39. It added defendants Audette, Waldman, and Thompson to the action. See Second Amended Complaint 2-3.

On January 15, 2013, Waldman filed a motion to dismiss the Second Amended Complaint pursuant to Rule 12(b)(6), Dkt. 49, and supporting papers, including a memorandum of law ("Waldman Br."), Dkt. 52, and the Declaration of Steven Verveniotis ("Verveniotis Decl."), Dkt. 50. That same day, the BoA defendants filed a motion to dismiss the Second Amended Complaint pursuant to Rule 12(b)(6), Dkt. 51, and supporting papers, including a memorandum of law ("BoA Br."), Dkt. 54, and the Declaration of Scott H. Kaiser ("Kaiser Decl."), Dkt. 53. Also on January 15, 2013, the E*Trade defendants filed a motion to dismiss the Second Amended Complaint pursuant to ...


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