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Wiedis v. Dreambuilder Investments, LLC

United States District Court, S.D. New York

July 17, 2017


          Attorneys for Plaintiffs DIAZ, REUS & TARG, LLP Richard N. Wiedis, Esq.

          Attorneys for Defendants VERNER SIMON Paul W. Verner, Esq.


          ROBERT W. SWEET U.S.D.J.

         Defendants Dreambuilder Investments, LLC ("DBI"), Peter Andrews ("Andrews"), Greg Palmer ("Palmer") and Elizabeth Eiss ("Eiss") (collectively, the "Defendants") have moved pursuant to Federal Rule of Civil Procedure 12(b)(6), Rule 9(b), and the Private Securities Litigation Reform Act ("PSLRA"), 15 U.S.C. § 78 u-4(b) (1)-(3) (A), to dismiss the complaint of Plaintiffs Julie Wiedis ("Wiedis") and Equity Trust Corporation, Custodian F/B/O Julie Wiedis ("Equity Trust") (collectively, the "Plaintiffs") seeking to recover sums alleged due under certain promissory notes (the "Complaint").

         Based upon the conclusions set forth below, Defendants' motion to dismiss the securities claim is granted, Defendants' motion to dismiss the state claims is denied, and Plaintiffs are granted leave to replead within twenty-one (21) days.

         Prior Proceedings

         On November 30, 2016, Plaintiffs filed their Complaint, (Dkt. 1), which was amended on December 14, 2016, (Dkt. 20), and alleges four causes of action: breach of contract on promissory notes, common law fraud, and securities fraud in violation of Sections 10(b) and 17(a) of the Securities Act and Rule 10(b) (5) .[1]

         The Complaint sets forth the following allegations, which are assumed true for the purpose of this motion to dismiss. See Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012).

         Wiedis is a Princeton, New Jersey resident. (Compl. ¶ 2.) Equity Trust is located in Westland, Ohio, and is an Individual Retirement Account ("IRA") custodian that held retirement savings Wiedis withdrew to invest with DBI. (Compl. ¶¶ 3-4.) Andrews is a New York City resident and the Chief Executive Officer ("CEO") of DBI. (Compl. ¶ 5.) Palmer is a Kingston, New Hampshire resident and a member of DBI. (Compl. ¶ 6.) Eiss is a New York resident and was DBI's Chief Operating Officer ("COO") from 2007 to 2012. (Compl. ¶ 7.)

         In the second half of 2008, Wiedis made loans with DBI, $50, 000 of which came from her Equity Trust IRA. (See Compl. ¶ 11-13.) In exchange for these loans, DBI and Andrews provided Wiedis with debt security agreements entitled "Promissory Note and Security Agreement" ("PNSA"), one dated August 8, 2008, in the amount of $30, 000 and another dated November 1, 2008, in the amount of $20, 000. (Compl., Exs. 1-2.) These PNSAs had interest rates of 14% and 18% respectively and each had a term of twenty-four months. (Compl. ¶¶ 15-16.) These PSNA loans were stated by DBI to be collateralized by DBI's ownership interests in mortgage notes, some of which Wiedis could access from a DBI online portal. (See Compl., Exs. 1-2.)

         On October 8, 2008, Wiedis made a loan of $8, 000 with DBI, which came from her savings. (Compl. ¶¶ 26-27.) In exchange for this loan, Wiedis received a similar PNSA (the "$8, 000 PNSA"). (See Compl. ¶ 28.) The $8, 000 PNSA has similar terms to the other PNSAs, such as 18% interest rate per annum for a term of twenty-four months, though it was not allegedly viewable on the DBI online portal. (See Compl. ¶¶ 27-28; see Compl. Exs. 4-5.)

         In May 2009, prior to either the $30, 000 or $20, 000 PNSA reaching maturity, DBI "rolled-over" or combined the two loans into a single $50, 000 PNSA (the "$50, 000 PNSA"). (Compl. ¶ 20.) The $50, 000 PNSA had a term of two years and an interest rate of 18% per annum. (Compl. ¶ 20.)

         According to the Complaint, the purchased Notes had the following maturity dates: the August 1, 2008, Note matured on September 26, 2010; the October 1, 2008, Note matured on November 22, 2010; the November 1, 2008, Note matured on March 26, 2010[2]; and the May 1, 2009, Note matured on June 15, 2011. (See Compl. ¶¶ 15, 16, 21, 28.)

         When Wiedis entered into these PNSAs with Defendants, Plaintiffs allege that the following representations by Defendants were made knowingly false: that Wiedis never had an actual enforceable legal right in the supposed collateral securing the PNSAs, (Compl. ¶¶ 18, 24); that Wiedis would earn and be paid 18% interest on the PSNAs, (Compl. ¶¶ 20, 76); and that Defendants would pay costs associated with collection on the PNSAs, including reasonable attorney's fees, (Compl. ¶¶ 23, 76)

         In September 2009, DBI changed its loan security structures, specifically by converting loans in debt owned by DBI into equity in an investment fund overseen by DBI and others, a proposal which DBI promised was "secure" and offered "high-yield returns." (Compl. ¶¶ 33, 38; see Compl. ¶¶ 33-40.) In an September 8, 2009, email signed by Andrews and Eiss, Defendants described some of the DBI changes:

[DBI] is making changes to its investment security structure and how our investors are secured. These changes are the result of launching out Distressed Mortgage Fund and the associated shift in ownership of the assets we manage. Until now, all assets were solely owned by DBI and could be directly pledged as security to individual investors. Going forward, all assets purchased and managed by DBI are owned jointly by DBI (the majority owner) and our partners in the fund. As a result, our investors can no longer be secured directly by individual loans and instead will be secured by the entity that owns the individual loans.

(Compl. ¶ 34; Compl., Ex. 5.) Plaintiffs allege that, around October 16, 2009, as part of these changes, Eiss spoke with Wiedis over the phone and informed Wiedis that she was required to relinquish her secured interest in the $50, 000 and $8, 000 Notes securing her PNSAs in exchange for shares in a newly-made fund of unspecified assets. (Compl. ¶ 40.) The Complaint does not indicate whether Wiedis accepted or contracted such an agreement. (See Compl. ¶ 40.)

         Plaintiffs allege that Defendants omitted material facts about the new investment arrangement, including, but not limited to: details about how Wiedis' money would actually be invested; when interest payments would be made; how the payment amounts would be calculated; the number of other investors who would have prior interests to collecting payments before Wiedis; and specific details concerning when and how Wiedis would receive repayment of her investment principal. (See Compl. ¶ 39.) Plaintiffs further allege that DBI practices failed to keep true, complete, and accurate books and records showing assets and liabilities, including the amounts owned to various investors. (Compl. ¶ 63.)

         From 2010 through 2014, Plaintiffs point to the following statements made by Andrews, Palmer, and Eiss which they allege were false and misleading:

February 12, 2010 (Email from Andrews and Eiss): "We are also designing a program by which our investors will be compensated for . . . interest payment delays." (Compl., Ex. 6);
April 1, 2010 (Email from Andrews and Eiss): "DBI has continued to maintain its strong performance into 2010. ...

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