Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Conklin v. Maidenbaum

United States District Court, Second Circuit

August 13, 2013

DANIEL A. CONKLIN AND LISA A. CONKLIN, Plaintiffs,
v.
JEFFREY A. MAIDENBAUM, ESQ., MAIDENBAUM & ASSOCIATES, P.L.L.C., WELTMAN WEINBERG & REIS CO., L.P.A., BRANCH BANKING AND TRUST COMPANY, AMIR CALLOSOL, ESQ., AND DENISEPRINCE, ESQ., Defendants.

OPINION AND ORDER

EDGARDO RAMOS, District Judge.

Plaintiffs Daniel A. Conklin and Lisa A. Conklin (collectively, "Plaintiffs") bring this action against Jeffrey A. Maidenbaum, Esq. ("Maidenbaum"), Maidenbaum & Associates, P.L.L.C. ("Maidenbaum & Associates"), Weltman Weinberg & Reis Co., L.P.A. ("WWR"), Amir Callosol, Esq. ("Callosol"), Denise Prince, Esq. ("Prince"), and Branch Banking and Trust Company ("BBT") (collectively, "Defendants"), alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, fraud in the inducement, legal malpractice, violation of the New York State Judiciary Law § 487, breach of contract, breach of fiduciary duty, and breach of duty of good faith. Doc. 20 ("Am. Compl.").

Before the Court are two separately briefed motions to dismiss Plaintiffs' Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6), one filed by Maidenbaum, Maidenbaum & Associates, and Callosol (collectively, "the Maidenbaum Defendants"), and the other by WWR and Prince. Docs. 22, 25. For the reasons set forth below, Defendants' motions to dismiss are GRANTED.[1]

I. Factual Background

The following facts, which are taken from the Amended Complaint, are assumed to be true for the purposes of this motion.

On November 8, 2005, Plaintiffs and BBT entered into a retail note and security agreement in the amount of $173, 700.00, and a deed of trust creating a security interest in a plot of land located in Seawatch at Sunset Harbor, Brunswick County, South Carolina ("Lot 1"). Am. Compl. ¶ 12. On February 23, 2006, Plaintiffs and BBT entered into a retail note and security agreement in the amount of $171, 900.00, and a deed of trust creating a security interest in a second plot of land located in the same development ("Lot 2"). Id. ¶ 13. On December 8, 2007, Plaintiffs and BBT modified the lien on Lot 1 to $173, 473.45. Id. ¶ 14. In or about July 2009, upon information and belief, both Lot 1 and Lot 2 were foreclosed upon, by default, with title vesting in BBT. Id. ¶ 15.

A. Allegations Against WWR and Prince Concerning Lot 1

On December 22, 2009, WWR, "as agent for BBT, " issued a letter claiming that Plaintiffs owed a balance in the amount of $95, 119.43 to BBT for the loan on Lot 1.[2] Id. ¶ 17. Thereafter, WWR and Prince had several telephone conversations with Plaintiffs on their own behalf and on behalf of BBT. Id. ¶ 20. During these phone conversations, WWR and Prince allegedly represented themselves as New York licensed attorneys[3] and advised Plaintiffs that they would work for Plaintiffs to secure the best deal in settling the open claim of $95, 119.43 on Lot 1. Id. ¶ 21. Throughout 2010, Plaintiffs consulted with WWR and Prince about resolving the account with BBT; WWR and Prince undertook negotiations on behalf of Plaintiffs' cause of resolving an alleged debt with BBT associated with Lot 1. Id. ¶¶ 22-23. In or about August 2010, WWR and Prince informed Plaintiffs that they "successfully negotiated" with BBT and resolved the Lot 1 claim in exchange for a $36, 800.00 payment from Plaintiffs to BBT. Id. ¶ 24. WWR and Prince also promised that BBT had agreed to transfer Lot 1 to Plaintiffs and to restore their credit rating. Id.

WWR and Prince provided counsel to Plaintiffs and allegedly reassured Plaintiffs, upon their reluctance on paying the sum requested, that the negotiated resolution was a "good deal, " in that it would restore Plaintiffs' credit and return Lot 1 to them. Id. ¶ 25. As a result, Plaintiffs transferred the demanded sums to WWR and Prince. Id. ¶ 26.

In or about February 2010, WWR, "individually and as agent for BBT, " began debiting Plaintiffs' bank account, with Plaintiffs' consent, to satisfy the settlement with BBT for Lot 1. Id. ¶ 27. On February 26, 2010 and approximately monthly thereafter, WWR debited the following amounts from Plaintiffs' account: $1, 000.00 on February 26, 2010; $200.00 on March 26, 2010; $200.00 on April 26, 2010; $200.00 on May 28, 2010; $200.00 on June 30, 2010; $2, 000.00 on July 15, 2010; and $33, 000.00[4] on August 2, 2010. Id.

Thereafter, from August 2010 until approximately May 2011, Plaintiffs, WWR, and Prince allegedly communicated bi-weekly regarding the transfer of Lot 1 to the Plaintiffs. Id. ¶ 28. During each of these bi-weekly conversations, Plaintiffs claim that WWR and Prince were advised that the title to Lot 1 was not received by Plaintiffs and that there had been "no acknowledgement of a restoration of Plaintiffs' credit." Id. ¶ 29. Furthermore, in each telephone call from August 2010 to May 2011, either WWR or Prince allegedly informed Plaintiffs that "the matter was being looked into and that they would resolve the issue." Id. WWR and Prince also repeatedly told Plaintiffs that they did not understand why the transaction was not complete, why Lot 1 was not transferred to Plaintiffs, or why the negative credit rating was not removed from Plaintiffs' credit report. Id. ¶ 30. WWR and Prince "reaffirmed that they were continuing to work on the matter and would look into it." Id.

Plaintiffs allege that WWR and Prince "hid, obfuscated, thwarted, and denied Plaintiffs any information or knowledge about the transfer of Lot 1 and BBT's intentions regarding Plaintiffs' credit." Id. ¶ 31. Plaintiffs further allege that WWR and Prince, at all material times, had a duty to disclose this information to Plaintiffs because "they possessed superior knowledge which could not have been ascertained by Plaintiffs through the exercise of reasonable diligence." Id. ¶ 32.

In or about April 2011, Plaintiffs contacted "Michelle, " the purported supervisor of Prince who also agreed to resolve the transfer. Id. ¶ 33. Thereafter, Prince allegedly called the Plaintiffs "cursing and screaming at them for calling her supervisor." Id. ¶ 34. Consequently, "Michelle" contacted Plaintiffs and advised that they should contact BBT directly. Id. ¶ 35. From April 2011 through June 2011, Plaintiffs contacted BBT and its legal department attempting to resolve the matter. Id. ¶ 36.

In or about June 2011, BBT advised Plaintiffs that they should retain legal counsel. Id. ¶ 37. Plaintiffs allege that "as a result of [their] efforts to obtain advice as to the proceeds of the settlement, WWR and Prince gave wrongful advice and counsel so that Plaintiffs could not learn or obtain knowledge about the proceeds." Id. ¶ 38.

B. Allegations Against Maidenbaum Defendants Concerning Lot 2

On April 15, 2010, WWR and BBT, "by and through their agents, " the Maidenbaum Defendants, "commenced a consumer credit action in the Supreme Court of the State of New York, County of Orange, index XXXX-XXXX, against the Plaintiffs seeking to recover the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.