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Hutter v. Countrywide Bank, N.A.

United States District Court, S.D. New York

August 22, 2014

NANCE HUTTER, Plaintiff,
v.
COUNTRYWIDE BANK, N.A., a subsidiary of COUNTRYWIDE FINANCIAL CORPORATION; WATERMARK CAPITAL, INC.; and EVOLUTION MORTGATE, INC., Defendants

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For Nance M. Hutter, Plaintiff, Counter Defendant: Stephen A. Katz, LEAD ATTORNEY, Stephen A. Katz, P.C, New York, NY.

For Country Wide Bank, N.A., a subsiddiary of Country Wide Financial Corporation, Watermark Capital, Inc. and Evolution Mortgage, Inc., Defendant: Bj Phoenix Finneran, David Barry Chenkin, Kenneth C. Rudd, Zeichner Ellman & Krause LLP, New York, NY.

For Evolution Mortgage Inc., Defendant: Mark I. Masini, LEAD ATTORNEY, Mark I. Masini, P.C., Garden City, NY; Michael Evan Janus, LEAD ATTORNEY, Janus Law, P.C., Garden City, NY; Scott Tod Ackerman, LEAD ATTORNEY, Sackstein Sackstein and Lee, LLP, Garden City, NY.

For Watermark Capital Inc., Defendant: John T. Serio, LEAD ATTORNEY, Grandinette & Serio, Mineola, NY; Scott Tod Ackerman, LEAD ATTORNEY, Sackstein Sackstein and Lee, LLP, Garden City, NY.

For Evolution Mortgage, Inc., ADR Provider: Scott Tod Ackerman, Sackstein Sackstein and Lee, LLP, Garden City, NY.

For Country Wide Bank, N.A., a subsiddiary of Country Wide Financial Corporation, Watermark Capital, Inc. and Evolution Mortgage, Inc., Cross Claimant, Cross Defendant: David Barry Chenkin, Kenneth C. Rudd, Zeichner Ellman & Krause LLP, New York, NY.

For Evolution Mortgage Inc., Watermark Capital Inc., Evolution Mortgage Inc., Cross Defendants: Scott Tod Ackerman, LEAD ATTORNEY, Sackstein Sackstein and Lee, LLP, Garden City, NY.

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MEMORANDUM OPINION AND ORDER

NELSON S. ROMÁN, United States District Judge.

On October 22, 2009, Plaintiff Nance Hutter (" Plaintiff" ) commenced the instant action against, inter alia, Watermark Capital, Inc., a California mortgage broker (" Watermark" ), Evolution Mortgage, Inc., a New York mortgage broker (" Evolution) (together " Brokers" ), and Countrywide Bank, N.A., which has been acquired by Bank of America, N.A. (" Countrywide" ), (collectively " Defendants" ), seeking monetary damages and rescission of a $1.785 million mortgage loan provided to her by Countrywide on December 11, 2006.

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Plaintiff's Third Amended Complaint (" TAC" ) alleges that (1) Countrywide violated the Truth in Lending Act, 15 U.S.C. § § 1601-1667f (" TILA" ), by failing to give her proper notice of her right to cancel the loan; (2) Defendants violated the New York Deceptive Practices Act, N.Y. Gen. Bus. Law § § 349 to 350-e, (" GBL" or " GBL § 349" ), by engaging in unfair and deceptive conduct aimed at consumers that was misleading in a material way; (3) Countrywide and Evolution violated the Real Estate Settlement Procedures Act, 12 U.S.C. § § 2601-2617 (" RESPA" ), because Countrywide paid Evolution kickbacks and unearned fees; (4) and Watermark violated the New York Licensed Mortgage Bankers Law, N.Y. Banking Law § § 589-599 (" Banking Law" ), by brokering Plaintiff's mortgage loan even though it was neither licensed by the State of New York nor exempt from the licensing requirement.

Now pending before the Court is Plaintiff's motion for leave to amend the TAC. Her Proposed Fourth Amended Complaint (" PFAC" ) supplements factual allegations, alters factual allegations, adds new and previously dismissed parties, and apparently adds a new claim. As to joinder of parties, Plaintiff'seeks to add former defendant Joseph Sciacca (" Sciacca" ), President of Evolution, to Claims 2, 3, and 4; former defendant Nicholas Joutz (" Joutz" ), President of Watermark, to Claims 2 and 4; and Charles Dragna (" Dragna" ), Secretary and alleged principal of Watermark--who was not previously a named defendant--to Claims 2 and 4. Plaintiff also seeks to include Countrywide and Evolution as defendants on Claim 4.

In opposition, Defendants, Sciacca, Joutz, and Dragna assert that Plaintiff's proposed amendments are prejudicial at this late stage in the proceedings and that the proposed amendments would be futile. They also suggest Plaintiff's motion is brought in bad faith only in order to delay the inevitable resolution of the action. Additionally, Countrywide moves for sanctions (1) against Plaintiff's counsel pursuant to 28 U.S.C. § 1927 for unreasonably and vexatiously multiplying the proceedings, and (2) against Plaintiff and Plaintiff's counsel pursuant to Rule 11(c) for filing pleadings containing factually and legally unsupportable contentions.

For the following reasons, Plaintiff's motion to amend is denied, Countrywide's § 1927 motion for sanctions is denied, and Countrywide's Rule 11 motion for sanctions is granted. Knowledge of the factual background and procedural history is presumed.

I. LEGAL STANDARD FOR MOTION TO AMEND PLEADINGS

A party may amend a pleading once as a matter of course or at any time before trial with leave of the court. Fed.R.Civ.P. 15(a)(1)-(2). If a party seeks leave to amend a pleading, " [t]he court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a)(2). Nonetheless, " [r]easons for a proper denial of leave to amend include undue delay, bad faith, futility of amendment, and perhaps most important, the resulting prejudice to the opposing party." State Teachers Ret. Bd. v. Fluor Corp, 654 F.2d 843, 856 (2d Cir. 1981) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (" In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be 'freely given.'" )).

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A. Undue Delay and Prejudice

" The rule in this Circuit has been to allow a party to amend its pleadings in the absence of a showing by the non[-]movant of prejudice or bad faith." AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 725 (2d Cir. 2010) (quoting Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993)). " Mere delay, . . . absent a showing of bad faith or undue prejudice, does not provide a basis for the district court to deny the right to amend." Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981)); accord Block, 988 F.2d at 350. Thus, if the underlying facts and circumstances upon which the moving party relies support a claim or defense sought to be added, the party should generally be allowed to test that claim or defense on the merits. United States ex rel. Maritime Admin. v. Cont'l Ill. Nat'l Bank & Trust Co. of Chicago, 889 F.2d 1248, 1254 (2d Cir. 1989) (quoting Foman, 371 U.S. at 182); accord EEOC v. Nichols Gas & Oil, Inc., 518 F.Supp.2d 505, 508 (W.D.N.Y. 2007).

On the other hand, a district court may " deny leave to amend where the motion has been made after an inordinate delay, no satisfactory explanation is offered for the delay, and the amendment would prejudice the defendant." Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990). Moving to amend pleadings after the close of discovery may constitute an inordinate delay even if certain testimony adduced during discovery purportedly gives the opposing party " full and fair notice" of a new theory not alleged in the operative complaint. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 201-02 (2d Cir. 2007). This is because a defendant that received notice in the complaint of the asserted claims and the grounds on which they rest " may conduct . . . trial preparation accordingly and is not required, based on the plaintiff's subsequent conduct in litigation, to anticipate future claims that a plaintiff might intend to pursue." Id. at 202; cf. Berman v. Parco, 986 F.Supp. 195, 217 (S.D.N.Y. 1997) (Peck, M.J.) (report and recommendation) (noting that a court " may deny a motion to amend when the movant knew or should have known of the facts upon which the amendment is based when the original pleading was filed, particularly when the movant offers no excuse for the delay" ).

In determining whether the opposing party would be prejudiced, courts within the Second Circuit generally consider " whether the assertion of the new claim or defense would '(i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction.'" Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 284 (2d Cir. 2000) (quoting Block, 988 F.2d at 350). " [T]he longer the period of an unexplained delay, the less will be required of the nonmoving party in terms of a showing of prejudice." Block, 988 F.2d at 350 (quoting Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 47 (2d Cir. 1983)).

B. Futility

Leave to amend may alternatively be denied " on grounds of futility if the proposed amendment fails to state a legally cognizable claim or fails to raise triable issues of fact." AEP Energy, 626 F.3d at 725-26 (quoting Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110-11 (2d Cir. 2001)); accord Ruotolo, 514 F.3d at 191 (quoting Foman, 371 U.S. at 182). To determine futility, courts

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apply the summary judgment standard " when the motion to amend is filed after the close of discovery and the relevant evidence is before the court." Summit Health, Inc. v. APS Healthcare Bethesda, Inc., No. 11-cv-9718 (ER) (LMS), 993 F.Supp.2d 379, 2014 WL 288050, at *18 (S.D.N.Y. Jan. 24, 2014) (citing Milanese, 244 F.3d at 110). Thus, courts may deny motions to amend where the " evidence in support of the plaintiff's proposed new claim creates no triable issue of fact and the defendant would be entitled to judgment as a matter of law" under Rule 56(a). Milanese, 244 F.3d at 110. A triable issue of material fact exists when " the evidence is such that a reasonable jury could return a verdict for the [party moving to amend her pleadings]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " Statements that are devoid of any specifics, but replete with conclusions, are insufficient" to create triable issues of fact. Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (plaintiffs " must do more than simply show that there is some metaphysical doubt as to the material facts" ); FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (plaintiffs " may not rely on conclusory allegations or unsubstantiated speculation" (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998))).

II. PLAINTIFF'S PROPOSED AMENDMENTS

In considering the following proposed amendments, the Court is mindful of the circumstances in which Plaintiff expressed her desire to amend the complaint. The TAC was filed November 15, 2011. According to the Discovery Plan and Scheduling order entered May 24, 2012, the deadline to join parties was November 28, 2012, with amended pleadings allowed on consent or by court order. The deadline for expert discovery was extended a number of times from January 30, 2013, as was the December 5, 2012, deadline for conducting fact depositions.

On November 7, 2013, after the close of discovery, the parties appeared before the Court at a conference to discuss the progression of the action. The parties represented that discovery was compete. Plaintiff expressed that she hoped to depose another witness proffered by Countrywide.[1] Defendants each expressed their intentions to file motions for summary judgment, and Countrywide noted its desire to file a Daubert motion to preclude expert testimony should summary judgment not dispose of the case. After a lengthy discussion, Plaintiff notified the Court of her desire to file a Fourth Amended Complaint to assert that Defendants had conspired to violate the Banking Law, that Hutter's husband acted as her agent, and that Dragna and Joutz should be joined as parties. Plaintiff also asserted her desire to remove the allegation that she was told an adjustable rate loan was right for her. The Court set a briefing schedule for the motion to amend.

On November 11, 2013, Plaintiff wrote to the Court requesting permission to propose additional changes in her motion to amend the complaint. These changes would include assertions that Countrywide failed to ensure Plaintiff could repay her loan due to its business model of selling loans to securitization trusts, that Plaintiff'suffered from duress and incapacity on the day of her loan closing, that she suffered certain consequential damages for which she would seek recovery, that Evolution's president Sciacca should be rejoined as a

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defendant, that Countrywide violated Banking regulations by doing business with Watermark, and that Watermark and Evolution were Countrywide's agents.

Given the lengthy nature of this action commenced in 2009, the numerous extensions of discovery deadlines, and Plaintiff's delay in seeking to amend, " dilatory motive on the part of the movant" seems " apparent" to the Court. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Nonetheless, the Court considers each proposed amendment in turn.

A. Joinder of Non-Parties

1. Dragna and Joutz

Plaintiff asserts that based on information gathered during discovery, Dragna and Joutz, who are officers of Watermark, may be held personally liable for Watermark's wrongful acts under the GBL and Banking Law because they personally participated therein or they had the authority to control Watermark and knew of its wrongful acts. (Pl.'s Br. 3 n.4 (citing FTC v. Crescent Publ'g Grp., Inc., 129 F.Supp.2d 311, 324 (S.D.N.Y. 2001)).) According to Plaintiff, Dragna did brokerage work for Plaintiff's loan and accepted payment from Evolution for this work although he was unlicensed in New York, in violation of the Banking Law. She also avers that Joutz, as Watermark's president, knew or should have known of Dragna's conduct. Dragna asserts the action as against him is barred by a six-year statute of limitations. See N.Y. C.P.L.R. § 213. Joutz asserts that there is no evidence of his personal involvement in or knowledge of mortgage brokerage services performed by Dragna.

As to Dragna's statute of limitations argument, GBL § 349 is actually governed by a three-year statute of limitations, N.Y. C.P.L.R. § 214(2); Pike v. N.Y. Life Ins. Co., 72 A.D.3d 1043, 901 N.Y.S.2d 76 (2d Dep't 2010), which applies to liabilities created or imposed by statute. Liability under the Banking Law is likewise created or imposed by statute, see N.Y. Banking Law § 598(5) (" If any non-exempt unlicensed or unregistered person or entity engages in activities encompassed by this article, he shall be liable to any person or entity affected by such activities . . . ." ), such that the same three-year statute of limitations applies, N.Y. C.P.L.R. § 214(2). Thus, as Plaintiff's claim accrued in December 2006, the PFAC would be futile as against Dragna. Although Plaintiff asserts that the statute of limitations should be equitably tolled, based on Watermark's alleged concealment of a check, this contention is unavailing. " Equitable tolling is generally considered appropriate . . . where plaintiff was unaware of his or her cause of action due to misleading conduct of the defendant . . . ." Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (citing Miller v. Int'l Tel. & Tel. Corp., 755 F.2d 20, 24 (2d Cir. 1985)). Here, Plaintiff has made no such showing.

As to former defendant Joutz, Plaintiff was previously allowed to re-plead allegations against him " to better articulate a basis of this Court's personal jurisdiction over Joutz, if she can do so in compliance with Rule 11." (Doc. 39, Order of May 23, 2011 (Seibel, J.) ¶ 10, at 5.) In the First Amended Complaint (" AC" ), Plaintiff alleged that Joutz " created the company policies, and participated in making the decisions" leading to Watermark becoming associated with Plaintiff's loan, bringing Evolution into the deal, and illegally accepting a commission. (Doc. 7, AC ¶ 42.) The PFAC now alleges that Joutz " knew, or should have known" that Watermark illegally brokered Plaintiff's loan and that Dragna deposited a check from Evolution, written out to Dragna, into the Watermark corporate account. (PFAC ¶ ¶ 59(b), 95a(b).)

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In light of Judge Seibel's earlier ruling, the Court fails to see how the PFAC sufficiently alleges personal jurisdiction over Joutz. See generally Int'l Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Moreover, although " a corporate officer who participates in the commission of a tort, even if he acts on behalf of the corporation and in the course of his corporate duties, may ordinarily be held individually responsible," Nat'l Survival Game, Inc. v. Skirmish, U.S.A., Inc., 603 F.Supp. 339, 341 (S.D.N.Y. 1985) (citing Bailey v. Baker's Air Force Gas Corp., 50 A.D.2d 129, 133, 376 N.Y.S.2d 212 (3d Dep't 1975) (affirming trial court determination of individual liability for corporate officer who failed to warn car dealership of fire risk while dealership employees repaired tanker truck)), here Plaintiff cites to no evidence demonstrating that Joutz participated in the alleged misconduct. Plaintiff merely speculates, based on the existence of the check Evolution wrote to Dragna and which Dragna endorsed over to Watermark, that Joutz " knew about Dragna's wrongdoing and acquiesced in it." (Pl.'s Br. 7.) Plaintiff's reliance on FTC v. Crescent Publishing Group is misplaced, as the portion of that decision which she quotes deals with the Federal Trade Commission Act and otherwise relies on New York case law dealing with liability to the State of New York for repeated fraudulent or illegal acts. 129 F.Supp.2d at 324 & n.86; see also N.Y. Exec. Law § 63(12). In any event this case is distinguishable from Crescent Publishing Group, as Plaintiff points to absolutely no evidence of Joutz's active involvement in the purported scheme. 129 F.Supp.2d at 324 (noting existence of " ample evidence" of individual defendant's communications about customer disputes). Thus, the new allegations asserted in the PFAC would be futile as against Joutz. Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001). Accordingly, Plaintiff's motion seeking to assert claims as against Dragna and Joutz must be denied.

2. Sciacca

Plaintiff'seeks to add Sciacca, Evolution's president and CEO, as a defendant on Claims 2 through 4 alleging violations of the GBL, RESPA, and Banking Law, respectively. Sciacca was previously named as a co-defendant on these claims in the AC. In granting Sciacca's motion to dismiss the AC, Judge Seibel simultaneously granted Plaintiff " leave to plead additional facts [in the Second Amended Complaint] demonstrating that Sciacca was personally involved in the allegedly actionable conduct under New York General Business Law § []349 and RESPA, [provided] she c[ould] do so in compliance with Rule 11 of the Federal Rules of Civil Procedure." (Doc. 39, Order of May 23, 2011 (Seibel, J.) ¶ 11, at 5.) Here, Plaintiff's arguments center primarily on Sciacca's violation of Banking Regulations, which are promulgated under the Banking Law. However, Judge Seibel did not give Plaintiff leave to re-plead her Banking Law claim against Sciacca. Thus, the Court cannot allow this particular amendment. See Virgin A. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (" [W]here litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." (quoting Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir. 1964))). Additionally, as Plaintiff fails to assert any facts tending to demonstrate that Sciacca violated RESPA but merely inserts his name in the heading of this claim, (PFAC ¶ ¶ 6587), such amendment would be futile.

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As to personal involvement in the GBL violations, Plaintiff asserts that Evolution and Sciacca: (i) " wrongfully shared Evolution's $1,500 processing fee and its $13,387.50 yield spread premium with . . . Watermark . . . and . . . Dragna, in violation of Banking Law sec. 590.2(b) [sic] and Banking Reg. 38.7(a)(2)," (PFAC ¶ 57(r); accord id. ¶ 59(c)(2)); (ii) " violated Banking Reg. 39.3(x) by not disclosing to [Plaintiff] that Evolution would share its brokerage fees," ( id. ¶ 57(s)); and (iii) " nominally hired Watermark's president [sic] . . . Dragna on or about 7 September 2006 to do the mortgage-brokerage work . . . but failed to file an undertaking of accountability . . . with New York State's banking department within ten days of their hiring Dragna, in violation of Banking Reg. 38.7(b)(2)," thus " help[ing] Dragna and Watermark . . . illegally broker a mortgage loan . . . in violation of Banking Law sec. 590.2(b) [sic]," ( id. ¶ 57(t); accord id. ¶ 59(c)(1)). These allegations contained in the PFAC and Plaintiff's briefs curiously fail to mention any violation of GBL § 349.

In opposition, Sciacca asserts he cannot be held liable because corporate officers acting in furtherance of the corporate business cannot be held liable on the basis that " an agent for a disclosed principal will not be personally bound unless there is clear and explicit evidence of the agent's intention to substitute or superadd his personal liability for, or to, that of his principal." Savoy Record Co. v. Cardinal Export Corp., 15 N.Y.2d 1, 4, 203 N.E.2d 206, 254 N.Y.S.2d 521 (1964); accord Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Chukchansi Econ. Dev. Auth., 104 A.D.3d 467, 468, 961 N.Y.S.2d 110 (1st Dep't 2013); see also Yellow Book of NY, LP v. DePante, 309 A.D.2d 859, 860, 766 N.Y.S.2d 44 (2d Dep't 2003) (finding triable issue of fact on corporate officer's individual liability for breach of contract which he signed on company's behalf included clause on reverse side providing that the signer " personally undertake[s] and assume[s] the full performance hereof'). The Court notes that Sciacca proffered the same argument in his motion to dismiss the AC. ( See Doc. 14-2 ¶ ¶ 11, 15.)

The Court need not address Sciacca's argument, since it is abundantly clear that Plaintiff has wholly failed to allege facts--much less identify evidence in the record--tending to demonstrate Sciacca's personal involvement in any deceptive acts directed at consumers which were misleading in a material way. Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 25, 647 N.E.2d 741, 623 N.Y.S.2d 529 (1995); accord Spagnola v. Chubb Corp., 574 F.3d 64, 74 (2d Cir. 2009); Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000); City of New York v. Smokes-Spirits.com, Inc., 12 N.Y.3d 616, 621, 911 N.E.2d 834, 883 N.Y.S.2d 772 (2009); Goshen v. Mut. Life Ins. Co. of N.Y., 98 N.Y.2d 314, 324, 774 N.E.2d 1190, 746 N.Y.S.2d 858 (2002). Accordingly, the allegations in the PFAC against Sciacca would be futile. Plaintiff's application seeking to assert or reassert claims as against him must be denied.

B. Facts Known to Plaintiff Before Filing Suit

Plaintiff wishes to alter the theory of certain portions of the TAC. First, she seeks to remove an allegation which has been asserted since 2009, but is now admitted to be an untrue statement, that Defendants " told [Plaintiff] an adjustable-rate loan was right for her, when they knew that the loan was unsuitable because [

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Plaintiff]'s income was unlikely to increase." (TAC ¶ 57(c).) Second, Plaintiff'seeks to assert that her husband, rather than she, negotiated the loan as her agent. ( See PFAC ¶ ¶ 16a, 16b, 57(e).) Third, Plaintiff'seeks to assert that on the day of the loan closing, December 11, 2006, she " was placed under duress and coerced into signing loan documents that she was incapable of reading or comprehending" due to having suffered " a traumatic brain injury . . . in an automobile accident on 21 November 2006." ( Id. ¶ 10a.) Fourth, Plaintiff'seeks to add a prayer for relief for consequential damages suffered (a) by losing the opportunity to sell her home in 2006 and (b) by losing out on potential stock dividends and appreciation of her stock in a business she partially owned because her lower credit score, which resulted from her default on the mortgage, caused her to be denied other loans, the proceeds of which she would have contributed to the business. ( See id. ¶ c1 (Request for Damages).) Fifth, Plaintiff'seeks to assert that Countrywide violated GBL § 349 because it violated Banking Regulation 38.7(a)(2) by improperly conducting business with Watermark. ( See id. ¶ 94b.)

1. Removal of False Allegation and Assertion of Husband's Agency

A review of the court file reveals that Plaintiff has consistently alleged that Defendants told her the adjustable rate mortgage was right for her. ( See Doc. 1, Verified Compl. ¶ 143(c); Doc. 7, AC ¶ 57(c); Doc. 37, SAC ¶ 57(c); Doc. 49, TAC ¶ 57(c)). Evolution thus questions Plaintiff's good faith in proposing to remove it, as an untrue statement, after the close of discovery and immediately after Defendants informed the Court of their intentions to file summary judgment motions. Evolution also asserts that the new agency theory will require it to conduct further depositions, as it did not pursue this line of questioning in this case or any of the other cases Plaintiff has brought against it in connection with other adjustable rate mortgages because Plaintiff's husband was never alleged to be her agent. Watermark likewise asserts it did not depose Plaintiff's husband on the issue of agency, as its defense strategy was based on challenging the allegations in the TAC, the operative complaint since November 2011. Watermark thus requests the opportunity to depose Plaintiff's husband if the Court should allow Plaintiff to amend the complaint. Countrywide asserts that Plaintiff's effort to remove the admittedly false allegation ...


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