United States District Court, E.D. New York
HIN Y. LIMTUNG, Plaintiff,
WELLS FARGO BANK, N.A., el al., Defendants.
MEMORANDUM AND ORDER
ROSLYNN R. MAUSKOPF United States District Judge
Hin Limtung, proceeding pro se, brings this action
alleging that defendants engaged in a criminal enterprise to
fraudulently foreclose on his mortgage. (See Compl.
(Doc. No. 1) at ¶ 1.) Specifically, Limtung alleges that
defendants have violated the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C.A. §§ 1961 et
seq. ("RICO"), and the Fair Debt Collections
Practices Act, 15 U.S.C. §§ 1692 et seq.
("FDCPA"). For the reasons that follow,
Limtung's complaint is dismissed. However, Limtung is
granted thirty (30) days from the date of this Memorandum and
Order to seek leave to amend the complaint in order to bring
his RICO claims in compliance with Federal Rules of Civil
Procedure ("Rules") 9(b) and 12(b)(6).
following facts are taken from Limtung's complaint and
assumed true for purposes of this Memorandum and Order. On
August 6, 2007, Wells Fargo Bank, N.A. ("Wells
Fargo") filed a foreclosure lawsuit in Queens County New
York Supreme Court against Limtung in connection with a
property at 31-70 Crescent Street, Astoria, New York, 11106.
(See Compl. at ¶ 31.) On February 19, 2009, the
court awarded Wells Fargo summary judgment, and on November
12, 2014, the court signed a Judgment of Foreclosure and
Sale. (See Compl. at ¶¶ 35, 65.) During
the pendency of the foreclosure, the mortgage was first
assigned by Wells Fargo to EMC Mortgage Corp., which
subsequently assigned it to Wilmington Savings Fund Society,
FSB as Trustee of Primestar-H Fund, which subsequently
assigned it to Wilmington Savings Fund Society, FSB as
Trustee of Primestar-F Fund 1 Trust ("WSF").
(See, Compl. at Exs. B, G, K.)
January 8, 2016, Limtung filed a lengthy complaint alleging
that defendants perpetrated a complex conspiracy to secure
foreclosure on his property through fraud. (See
generally Compl.) For example, Limtung alleges that
defendants fraudulently failed to effectuate service of a
Notice of Entry of Default Judgment in the foreclosure
action, and engaged in '"illegal and
unconstitutional" conduct when WSF became the named
plaintiff in the foreclosure after its assignment. (See,
e.g., Compl, at ¶¶ 50, 55, 57, 63, 64, 80, 81,
98.) Limtung alleges this conspiracy against Wells Fargo, its
assignees, officers of the assignees, the assignees'
servicing agents, the assignees' lawyers and notaries,
various debt collectors, and a court-appointed
mediator. (See Id. ¶¶ 2-33.) The
complaint also includes numerous conclusory statements, such
as that defendants have "actively hidden the illegal
transactions and not filed the required Filing to the
SEC" and that defendants concealed the inauthenticity of
documents associated with the foreclosure, (Compl. at
¶¶ 52-61, 160-62.)
contends that he does not "seek for the Honorable Court
to declare that the Foreclosure Judgment that was rendered by
the State was erroneous as a result of Extrinsic Fraud Court
(this is a function of the State Court's Appellate
Division) but seeks this Honorable Court's determination
on the Defendants'] actions that led to the State Court
Judgment and that violated [RICO and] the Mail and Wire Fraud
Statutes and that entitle the Plaintiff remedy of monetary
damage." (Opp'n (Doc. No 42-6) at ¶ 7.) That
is, Limtung argues that the foreclosure was procured by
fraud, and thus he is entitled to the value of the foreclosed
property: S2, 000, 000 in money damages. (Compl. at ¶
February 17, 2017. defendants Peter S. Thomas, Jason Burr,
Selene Finance LP, Wells Fargo, David McConnell, Jamie Rand,
and WSF (collectively, "moving defendants") moved
to dismiss the complaint for failure to state a claim for
which relief can be granted pursuant to Rule 12(b)(6) and
failure to plead fraud with particularity pursuant to Rule
9(b). (See Mots. Dismiss (Doc. Nos. 39, 40,
Standard of Review
to Rule 12(b)(6), a party may move to dismiss a cause of
action that "fail[s] to state a claim upon which relief
can be granted." Fed.R.Civ.P. 12(b)(6). In order to
withstand a motion to dismiss, a complaint "must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcrofl v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is plausible "when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Matson v. Bd. of Educ, 631 F.3d 57,
63 (2d Cir. 2011) (quoting Iqbal, 556 U.S. at 678).
The Court assumes the truth of the facts alleged and draws
all reasonable inferences in the nonmovant's favor.
See Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).
plaintiff proceeds pro se, the plaintiffs pleadings
should be held "to less stringent standards than formal
pleadings drafted by lawyers." Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting
Esielle v. Gamble, 429 U.S. 97, 104-05 (1976));
see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009) (noting that even after Twombly, courts
"remain obligated to construe a pro se
complaint liberally"). "[T]he mandate to read the
papers of pro se litigants generously makes it
appropriate to consider plaintiffs additional materials, such
as his opposition memorandum" at the motion to dismiss
stage. Burgess v. Goord, No. 98-CV-2077 (SAS), 1999
WL 33458, at *1 n.1 (S.D.N.Y. Jan 26, 1999) (internal
quotation marks and citations omitted). Notwithstanding the
liberal pleading standards granted to a pro se
plaintiff, if "the allegations in a complaint, however
true, could not raise a claim of entitlement to relief,
" dismissal is warranted. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 558 (2007).
FDCPA mandates that any action to enforce liability arising
under the act be commenced 'within one year from the date
on which the violation occurs.'" Boyd v. J.E.
Robert Co., No. 05-CV-2455 (KAM), 2010 U.S. Dist. LEXIS
140905, at * 18 (E.D.N.Y. Mar. 31, 2010) (quoting 15 U.S.C.
§ 1692k(d)). Specifically, "the latest date upon
which the one year period begins to run is the date when a
plaintiff receives an allegedly unlawful communication.'7
Somin v. Total Only. Mgmt. Corp., 494 F.Supp.2d 153
(E.D.N.Y. June 26, 2007). While the FDCPA is subject to
equitable tolling, it applies only in "rare and
exceptional" circumstances. Berlin v. United
Slates, 478 F.3d 489, 494 n.3 (2d Cir. 2007).
"Generally, equitable tolling applies only where
defendant has engaged in conduct to conceal wrongdoing and,
as a result, plaintiff fails to discover facts giving rise to
the claim, despite the exercise of reasonable
diligence." Somin, 494 F.Supp.2d at 158-59.
even assuming that Limtung's conclusory allegations could
make out a claim under the FDCPA, those claims are
time-barred. The most recent date that Limtung references
with respect to an "unlawful communication" under
the FDCPA is April 27, 2014. On that date, Limtung alleges
that the defendants knowingly submitted false information in
a "Referee's Report" to the state court.
(Compl, at ¶ 162.) However, Limtung fded the instant
complaint on January 1, 2016, over one after the allegedly
unlawful communication took place. As such the statute of
limitations on the FDCPA claim had run. Furthermore, Limtung
alleges that he "became aware [of] the Defendants'
Criminal Scheme on around December 26, 2014." (Compl. at
¶ 87.) Thus, Limtung cannot plausibly assert that the
defendants' wrongdoing prevented ...