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Limtung v. Wells Fargo Bank, N.A.

United States District Court, E.D. New York

June 26, 2017

HIN Y. LIMTUNG, Plaintiff,
WELLS FARGO BANK, N.A., el al., Defendants.


          ROSLYNN R. MAUSKOPF United States District Judge

         Plaintiff 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).


         The 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.)

         On 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.[1] (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.)

         Limiting 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 ¶ 1.)

         On 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, 42).)[2]


         I. Standard of Review

         Pursuant 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).

         When a 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).[3]

         II. FDCPA

         "The 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.

         Here, 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 ...

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