United States District Court, E.D. New York
Plaintiff: THOMAS J. FINN Law Offices of Thomas J. Finn, Esq.
Defendants: JACQUELINE DELLA CHIESA LISA M. CONFUSIONE Stagg,
Terenzi, Confusione & Wabnik LLP CHRISTOPHER P. KOHN
Frenkel Lambert Weiss Weisman & Gordon, LLP
MEMORANDUM AND ORDER
FREDERIC BLOCK Senior United States District Judge
Plotch LLC (“APL”) sued Wells Fargo Bank, N.A.
(“Wells Fargo”) and World Savings Bank,
FSB(“WSB”) (coll ectively, “Wells
Fargo”) under New York State property law seeking a
declaration of its interest in a condominium unit and to
cancel a mortgage held by WSB and its successor in interest,
Wells Fargo. Wells Fargo moves to dismiss the Amended
Complaint under Federal Rules of Civil Procedure 12(b)(6) and
12(b)(1), arguing that its mortgage has priority over
APL's interest in the unit and is not subject to
cancellation. Wells Fargo also argues that APL lacks standing
to challenge the mortgage and that its claims do not satisfy
the amount-in-controversy requirement to invoke federal
diversity jurisdiction. Although Wells Fargo's arguments
regarding the amount in controversy and standing are without
merit, the Court agrees with its remaining contentions. The
motion to dismiss is granted.
motion to dismiss under Rule 12(b)(6) and 12(b)(1), the Court
accepts factual allegations in the complaint as true and
draws all reasonable inferences in the plaintiff's favor.
See Town of Babylon v. Fed. Hous. Fin. Agency, 699
F.3d 221, 227 (2d Cir. 2012). However, the requirement to
accept factual allegations as true is “inapplicable to
legal conclusions, ” Krys v. Pigott, 749 F.3d
117, 128 (2d Cir. 2014, and to matters that are
“contradicted by more specific allegations or
documentary evidence, ” L-7 Designs, Inc. v. Old
Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011). The Court
limits its consideration “to facts stated on the face
of the complaint, in documents appended to the complaint or
incorporated in the complaint by reference, and to matters of
which judicial notice may be taken.” Leonard F. v.
Israel Disc. Bank of New York, 199 F.3d 99, 107 (2d Cir.
1999). “To survive 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.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
Amended Complaint, APL alleged as follows. APL is a New York
limited liability company with its principal place of
business in New York. Defendant Wells Fargo has its principal
place of business in San Francisco, CA. It acquired WSB in
2006. See Am. Compl. at ¶¶ 4-5.
owns condominium unit 32-2 at Mirador Estates Condominium I
in Staten Island, NY (“the Property”). See
Id. at ¶¶ 8, 27-30. The Property
includes an undivided interest in the common areas of the
condominium buildings and land. See Am. Compl. Ex. A (Legal
Description of Property). Each condominium owner at Mirador
Estates covenants to pay monthly “common charges”
to a Board of Managers of Mirador (“the Board”).
Id. ¶¶ 12-19. The Board may file a lien
and foreclose against a unit if the owner fails to pay the
common charges. Id.
1992 to 2009, non-party Kauser Khan (“Khan”)
owned the Property. Id. ¶ 9. By 2003, he had
fallen behind in common charge payments, and, on June 2,
2003, the Board recorded a lien (the “2003 Common
Charge Lien”) on the Property. Id. ¶ 19.
2003, Khan granted a mortgage to WSB for $135, 000.
Id. ¶ 21. That mortgage was satisfied in April
2006. Id. ¶ 31. In March 2006, Khan granted WSB
a second mortgage for $195, 000 (“2006
Mortgage”). Id. ¶¶ 22-23;
Id. Ex. D. The first paragraph of the property
description attached to the 2006 Mortgage read as follows:
THE REAL PROPERTY ABOVE DESCRIBED IS A UNIT(S) SHOWN ON THE
PLAN OF A CONDOMINIUM PREPARED AND CERTIFIED BY EDWARD LURIA,
A.I.A./ AND FILED IN THE OFFICE OF REGISTER OF THE BOROUGH OF
STATEN ISLAND, RICHMOND COUNTY IN THE 23RD DAY OF JULY, 1984,
AS FILE NO. C-54 AS DEFINED IN THE DECLARATION OF CONDOMINIUM
ENTITLED MIRADOR ESTATES CONDOMINIUM I MADE BY AMOUR ESTATES,
INC. UNDER ARTICLE 9-B OF THE NEW YORK REAL PROPERTY LAW
DATED MAY 31, 1984, AND RECORDED IN THE OFFICE OF THE
REGISTER OF RICHMOND COUNTY, ON THE 23RD DAY OF JULY, 1984,
IN REEL 29 AT PAGE 9586 COVERING THE PROPERTY THEREIN
Am. Compl. Ex. D at 19 (Ex. A to 2006 Mortgage). The
remainder of the description specified the Property in metes
and bounds using terms nearly identical to those contained in
the Legal Description attached to APL's Amended
Complaint. Compare Am. Compl. Ex. A with Am.
Compl. Ex. D at 19-20. The property description in the 2006
Mortgage concluded with the following: “BEING THE SAME
PROPERTY CONVEYED TO KAUSAR KHAN BY DEED FROM GUL ZAMIN AND
KAUSAR KHAN RECORDED 11/03/2003 IN DEED BOOK 16325 PAGE 266,
RECORDED IN THE RICHMOND COUNTY, NEW YORK.” Am. Compl.
Ex. D at 20. The 2006 Mortgage was recorded in April 2006.
See Am. Compl. Ex. D (Recording and Endorsement Cover Page).
2007, the Board initiated foreclosure proceedings against
Khan, resulting in a state court Judgment of Foreclosure
entered on July 1, 2009. See Am. Compl. ¶ 28.
WSB was not a party to the foreclosure proceedings, nor was
Wells Fargo. See Am. Compl. at ¶¶ 32-34, Ex. E. APL
purchased the Property at public auction in September 2009
for $16, 000. See Am. Compl. ¶ 30, Ex. F.
claims that the 2006 Mortgage is fraudulent, void, and
unrecordable under N.Y. Real Property Law (“RPL”)
§ 329 because its legal description of the Property
contradicted public records by omitting the condominium
common elements. Am. Compl. ¶¶ 24-26, 47-53. APL
further claims that, because WSB was not named as a defendant
in the state foreclosure action, the 2006 Mortgage is subject
to reforeclosure under N.Y. Real Property Actions and
Proceedings Law (“RPAPL”) §§ 1503,
1505, 1521, 1523, 1531, and 1541. Am. Compl. ¶¶
32-36, 54-59. APL seeks: (1) a declaration that the 2006
Mortgage is subject to cancellation and removal from public
record; (2) an order canceling and removing the 2006 Mortgage
from the public record; (3) a declaration that the Defendants
have a valid interest in the property resulting from the 2006
Mortgage; (4) an order fixing a time ...