Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Chery v. Nationstar Mortgage LLC

United States District Court, S.D. New York

August 3, 2018

NERY CHERY, Plaintiff,
v.
NATIONSTAR MORTGAGE LLC, NATIONSTAR MORTGAGE HOLDINGS INC., FORTRESS INVESTMENT GROUP LLC, and WELEY R. EDENS, Defendants.

          OPINION & ORDER

          HONORABLE PAUL A. CROTTY, UNITED STATES DISTRICT JUDGE

         Plaintiff Nery Chery brings this action alleging violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., against Defendants Nationstar Mortgage LLC, Nationstar Holdings, Inc., Fortress Investment Group LLC, and Wesley R. Edens, Defendants now move to dismiss the complaint for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), failure to state a claim under Rule 12(b)(6), and because Plaintiffs claims are precluded by res judicata and collateral estoppel. The motion to dismiss is granted.

         BACKGROUND

         On April 26, 2006, Mela Kissoon Persuad executed a promissory note reflecting that she had received a loan of $810, 000 from BNC Mortgage, Inc. ("BNC"). See Chirch Decl. Ex. A, Promissory Note. To secure the $810, 000, Persuad executed a mortgage ("Mortgage") on property located at 108-51 48th Avenue, Cornona, New York, 11368 ("Property"), and delivered it to the nominee for BNC, Mortgage Electronic Registration Systems, Inc. ("MERS"). See Chirch Decl. Ex. B, Mortgage. Persuad defaulted on her mortgage payments, and MERS instituted a foreclosure action against Persuad and other defendants in the Supreme Court of the State of New York, Queens County, on or about February 21, 2007 ("Foreclosure Action"). See Chirch Decl. Ex. C, Summons and Complaint in Mortg. Elec. Registration Sys., Inc. v. Mela Kisson Persuad, et al, Index No. 4996/2007. On January 3, 2008, the state court entered a judgment in favor of MERS. See Chirch Decl. Ex. D, Judgment of Foreclosure and Sale.

         Plaintiff subsequently moved for leave to intervene in the Foreclosure Action, and the state court granted the motion. See Chirch Decl. Ex. E, Foreclosure Action 2010 Order at 2. On June 3, 2009, Plaintiff filed an answer in the Foreclosure Action, asserting various defenses and counterclaims seeking to set aside and void the Mortgage. See Id. Specifically, Plaintiff alleged that she was the original owner of the Property, and that she was the victim of a "mortgage rescue scam," in which certain nonparties fraudulently induced her to transfer ownership of the Property by promising that title would be transferred back to her, and then sold it to Persuad, a straw purchaser, instead of returning the title to Plaintiff. See Id. at 4.

         MERS moved to dismiss Plaintiffs defenses and counterclaims, and the state court granted the motion on April 12, 2010. See Id. at 2, 8. The court also denied Plaintiffs cross-motion to amend her answer to assert claims against MERS and third-party claims against BNC for fraud and misrepresentation. See Id. With respect to the fraud and misrepresentation allegations, the court found that Plaintiff had failed to allege:

any misrepresentation made by BNC Mortgage or [MERS, ] . . . [any] allegation which would support a finding of vicarious liability on the part of BNC Mortgage or [MERS] for the alleged misrepresentations and fraud perpetrated by [certain nonparties] . . . [or] any basis upon which to find BNC Mortgage or MERS guilty of conspiracy to defraud or aiding and abetting fraud.

Id. at 5. Subsequently, the court issued an Amended Judgment of Foreclosure and Sale on July 26, 2013. See Circh Decl. Ex. F, Amended Judgment of Foreclosure and Sale.

         On September 26, 2013, the Mortgage was assigned to Nationstar Mortgage LLC. See Chirch Decl. Ex. G, Mortgage Assignment. On August 30, 2014, in accordance with the Amended Judgment of Foreclosure and Sale, the court-appointed referee deeded the Property to Nationstar Mortgage LLC. See Chirch Decl. Ex. H, Referee's Deed. Eviction proceedings commenced in New York City Civil Court, and warrants of eviction were issued in September 2015. See Chirch Decl. Ex. J, State Court Action 2016 Order, at 2. On January 29, 2016, Plaintiff filed an Emergency Order to Show Cause seeking to stop the eviction on the ground that she was not served with proper notice, but the civil court found mat she had been served properly. See id.

         On July 26, 2016, Plaintiff brought an action in Queens County Supreme Court ("State Court Action") against the same Defendants as in this action, alleging two causes of action under RICO and four causes of action under state law. See Chirch Decl. Ex. I, State Court Complaint. On December 27, 2016, the state court dismissed the State Court Action against Defendants. See Chirch Decl. Ex. J, State Court Action 2016 Order. The court held that Plaintiffs claims were barred by res judicata and collateral estoppel because they arose from the same transaction or occurrence that formed the basis of the Foreclosure Action, and because Plaintiff failed to demonstrate the absence of a full and fair opportunity to contest the prior determinations in the Foreclosure Action. See Id. at 3-4.

         On March 15, 2017, Plaintiff filed with this Court a complaint and an order to show cause to stop her eviction ("2017 Action"). See No. 1:17-cv-1875 Dkt. 1, 3. That same day, the Court (Cote, J., sitting in Part I) denied Plaintiffs application for an order to show cause, noting that "[t]his is the third litigation over the foreclosure. The plaintiff has failed to prevail in the two prior state court litigations, the second of which included a RICO claim. There is a failure to show a likelihood of success." See id., Dkt. 3. On interlocutory appeal, the Second Circuit affirmed this order on August 8, 2017. See id., Dkt. 6. On December 20, 2017, the Court dismissed the 2017 Action without prejudice for lack of activity. See id., Dkt. 7.

         On February 12, 2018, Plaintiff initiated a new action by filing yet another complaint and order to show cause with the Court, raising the same issues as in the 2017 Action. See Dkt. 1, 11. Once again, the Court denied Plaintiffs application, and the Second Circuit affirmed. See Dkt. 11, 16. Defendants now move to dismiss Plaintiffs claims with prejudice.

         DISCUSSION

         A. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.