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3:11-mc-00012-DAK ) Debtor. ) ) David D. Hartley, Jr., ) ) Plaintiff. ) Daniel L. McGookey (Reg. No. 0015771) ) Richard Barry Hardy III (Reg. No. 0068067) vs. ) Lauren McGookey (Reg. No. 0086407) ) McGOOKEY LAW OFFICES, LLC BAC Home Loans Servicing, L.P., et. al. ) 225 Meigs Street, Sandusky, OH 44870 ) Phone: 419-502-7223 Fax: 419-502-0044 Defendants. ) Counsel for Plaintiff ____________________________________) David D. Hartley, Jr. PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT SHELLIE HILL’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT Now comes Plaintiff, David Hartley, Jr. (“Plaintiff”), by and through Counsel, and hereby submits his Memorandum in Opposition to Defendant Shellie Hill’s (“Hill”) Motion to Dismiss Plaintiff’s Complaint as follows: MEMORANDUM IN OPPOSITION I. BACKGROUND FACTS
On May 29, 2003, Plaintiff executed a promissory note (“the Note”) and a mortgage (“the Mortgage”) in favor of America’s Wholesale Lender (“AWL”), to refinance his residence at 531 E. Main Street, Bellevue, Ohio 44811 (“the Residence”). Mortgage Electronic Registration Systems, Inc. (“MERS”) was named as nominee of the Mortgage. On December 11, 2009, Defendant BAC Home Loans Servicing, L.P. (“BAC”) filed a complaint for foreclosure of the residence in the Huron County Common Pleas Court (“the Foreclosure Complaint”). In the
the typical robo-signer simply attests under oath that he or she has personal knowledge of the statements made. BAC stated that “it is the holder” of the Note. and swears that those statements are true and accurate without even have read the document. In that case. Further. and other legal documents used in foreclosures en masse so that homeowners can be removed from their homes by banks as quickly and cheaply as possible. robo-signers will generally sign the document outside the presence of the notary who later notarizes them. Tr. However. 2010 attached to the Complaint as “Exhibit__” This very activity was declared to be illegal by former Ohio Attorney General Richard Cordray in the case of State of Ohio v. In fact. Unger. There were no endorsements of any kind on the Note.Foreclosure Complaint. Hill executed the Assignment as “Secretary and Vice President” of MERS. she regularly signed affidavits used in foreclosure actions on behalf of MERS as Assistant Secretary or Vice President of MERS. CV 09 711343. even though MERS never had an interest in the Mortgage or Note.2 Robo-signers may sign thousands of such documents per month. Sampson & Rothfuss (“LSR”). the law firm representing BAC in the Foreclosure Action. The Assignment was prepared by Lerner. even though she was actually employed by LSR at the time. assignments of mortgage. an Assignment of Mortgage (“the Assignment”) was attached to the Complaint. GMAC Mortgage and Jeffrey Stephan. See Dep. in the rush to generate these documents. which purportedly transferred the Mortgage and the Note from MERS to BAC. There is very good reason to believe that Hill is a “robo-signer. including affidavits attested to be made of personal knowledge. thereby rendering the documents fraudulent and invalid. pages ___ attached hereto as “Exhibit A” 2 3 See New York Times Article of ____.3 1 Defendant Hill gave a deposition in the case of The Bank of New York v.”1 Robo-signers are individuals whose sole job responsibility is to sign affidavits. when she has never had any communication with MERS and is not employed by MERS. but it did not allege to be the owner of Plaintiff’s Note. Hill admitted that as an employee of LSR. The above practices fail to comport with legal requirements. nor were there any allonges negotiating it to any other party. Cuyahoga County Case No. A copy of the Complaint filed in that action is attached to the Complaint herein as “Exhibit A” 2 .
intended to deceive courts and homeowners by making the following false or misleading representations: • that she was an officer of MERS. AWL. this Motion must be denied. For the reasons set forth below. BAC had the right to foreclose as owner and holder of Plaintiff’s Note and Mortgage. since it LAW AND ARGUMENT 3 . • that by virtue of the Assignment. II. • that as an officer of MERS she had the authority to transfer Plaintiff’s mortgage obligation from the loan originator. • that the Assignment is a valid. legal document serving to assign the Mortgage. “Exhibit A”. supra. when in reality she was an employee of LSR. as part of a practice and pattern. A. and the Note. to BAC. Such an Assignment certainly is material to the transaction. Plaintiff filed this Case as an adversary action in the United States Bankruptcy Court against Defendants for the fraudulent conduct that took place in the foreclosure proceeding.Here. to her employer’s client. when in actuality the transaction was in essence BAC transferring the Note to itself. Defendant Hill has filed a Motion to Dismiss Plaintiff’s Adversary Complaint. BAC. the evidence strongly suggests that Hill uniformly and methodically. SUMMARY Defendant Hill’s Motion to Dismiss must be denied by this Court for several reasons. As demonstrated below. Presently. Plaintiff’s claims against Defendant Hill are based on the fact that Defendant fraudulently signed an Assignment of Mortgage that was created by BAC’s attorneys to evidence a transfer of the Note and Mortgage to BAC. these deceptions give rise to various causes of action by Plaintiff against Defendant Hill.
. Plaintiff also properly asserted his RICO claim. Defendant Hill was attempting to establish that her employer’s client. as Plaintiff alleged a RICO enterprise and/or pattern of corrupt activity. BAC was entitled to bring the original foreclosure action against Plaintiff. Plaintiff has clearly set forth factual allegations supporting numerous claims against the Defendant which are all actionable. Thus. Defendant Hill argues that Plaintiff has failed to state a claim upon which relief can be granted. 129 4 .is clearly meant to lead the reader that BAC’s attorneys had the authority to assign the Note and Mortgage.” Fed. . Iqbal. Civ. Plaintiff properly alleged a claim of fraud. Plaintiff properly alleged punitive damages against Defendant Hill for her egregious conduct. The statement of the claim in the complaint simply must contain sufficient factual matter. The Federal Rules require only “a short and plain statement of the claim showing that the pleader is entitled to relief. THE MOTION TO DISMISS STANDARD Under Fed. accepted as true. as Plaintiff alleged an independent unlawful act by Defendant Hill. and justifying relief.’ Ashcroft v. Pro. R. 550 U. 8(a)(2) & (d)(1). privity. The goal of this Rule is provide the defendant with “fair notice of what the . B. Plaintiff properly asserted four claims against Defendant Hill. 12(b)(6). R. to BAC. claim is and the grounds upon which it rests. to ‘state a claim to relief that is plausible on its face. as Plaintiff asserted that there was reliance. By signing this document. Civ. dismissal is proper if a complaint fails to state a claim on which relief can be granted. the assignment affected and caused damage to Plaintiff. v. 555 (2007). Twombly. P. and direct. concise. Plaintiff further properly asserted a claim of conspiracy.S. 544.” Bell Atlantic Corp. and injury from Defendant Hill’s actions. Thus. However.” and allegations must be “simple. Finally.
Defendant Hill alleges that Mortgages follow the Notes they 5 . Allard v. Inc. 550 U. Weitzman. in reviewing such a motion. THE ASSIGNMENT PRESENTED BY DEFENDANT BAC IS MATERIAL TO PLAINTIFF BECAUSE DEFENDANT BAC MUST PROVE THAT IT IS BOTH THE OWNER OF PLAINTIFF’S NOTE AND MORTGAGE IN ORDER TO FORECLOSE.2d 434. 1949 (2009) (quoting Twombly.S. Faber (1991).) C. As provided in Civ. at 556).” Capital One Bank v. (citing Twombly.2d 1236. Further. courts cannot consider matters outside the complaint in determining such motions.S. 2010-Ohio-4421 (5th Dist. Ribar.1988). Rodgers. this Court can only consider the “four corners of the complaint.3d 673. 12(B). In other words. 859 F..’ but it asks for more than a sheer possibility that a defendant has acted unlawfully. 677 (6th Cir. App. 1998). Bloch v. the court may not grant a Rule 12(b)(6) motion based on a disbelief of a complaint's factual allegations. When ruling on a Rule 12(b)(6) motion to dismiss. a complaint should not be dismissed under 12(b)(6) if it contains “either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory. Fanny Farmer Candy Shops. In other words. 550 U.S. AND DEFENDANT HAS NOT PROVEN THAT IT IS THE OWNER OF EITHER PLAINTIFF’S NOTE OR MORTGAGE. 1937. “In reviewing a defendant’s motion to dismiss this court must take all factual allegations of the complaint as true and must draw all reasonable inferences in favor of the plaintiff.R. Defendant argues that the Assignment presented by Defendant BAC in the original foreclosure action has no legal effect on Plaintiff because an Assignment is merely incident to the debt it secures. Finally. 57 Ohio St. 1240 (6th Cir. “The plausibility standard is not akin to a ‘probability requirement. Rather all factual allegations must be considered true. Byrd v.” Id.Ct. 156 F. 436 (6th Cir. 991 F.1993).3d 56. the court must construe the complaint liberally in a light most favorable to the non-moving party. at 570). Ct.” Scheid v.
J. Defendant Hill is wrong in her assessment. Jordan. v. on behalf of MERS. thus Defendant BAC was entitled to enforce the Mortgage by virtue of being the holder of the Note. App. Here. (Ct. Defendant BAC attempted to establish ownership over Plaintiff’s Mortgage by submitting an Assignment of Mortgage.. 1:07CV2282.” Gevedon v.. Savs. In re Foreclosure Cases (S. 2009-Ohio-1092. Ohio law holds that “[a]n action on a note and an action to foreclose a mortgage are two different beasts. Montgomery App. Case Nos. et seq. 93950. the Cuyahoga County Court of Appeals stated: Several judges have held that a complaint must be dismissed if the plaintiff cannot prove that it owned the note and mortgage on the date the complaint was filed. Further. Third Fed. dec. 8th Dist. 521 F. (N. at Par. rather it only claimed to be the holder of Plaintiff’s Note.” Id.D.2d 65. J. N. Cuyahoga App.). 20673. 6 . but that it owns both the Note and the Mortgage in order to foreclose on a property. No. Defendant Hill was also an employee of the firm representing BAC when she signed as an agent of MERS.g. 177 Ohio App.D. (Boyko. See. March 9. a party must prove not only that it is the holder of a note. Hopkins. In re Foreclosure Cases. In Wells Fargo Bank. Fifth Third Bank v. Bank v.3d 114. also.secure. it would not be entitled to judgment as a matter of law. (Rose. Defendant BAC did not do so. 2008-Ohio-2959. 2010-Ohio-4133. 2009). Thus. Defendant BAC was required to prove that it was both the holder AND owner of Plaintiff’s Note AND Mortgage.A. signed by Defendant Hill. Supp. Ohio 2007).). 2005-Ohio-4597. Defendant BAC never even alleged in it’s Complaint that it was the owner of Plaintiff’s Note or Mortgage. E. 19-23 (emphasis added). Cox. No..2d 650. because in order to foreclose. Ohio 2007). Hotopp. if plaintiff has offered no evidence that it owned the note and mortgage when the complaint was filed. ¶28. However.E. This is clearly troublesome. Thus. 894 N.
G. in every instance. J. § 8543). expressed a present intent to convey all rights. Secondly. R.C. before an entity assigned an interest in that property would be entitled to receive a distribution from the sale of the property. executed as of the date of the Foreclosure Complaint. 1:07CV2282. However. 177 (1904).C.” In re Ochmanek. et seq. Defendant BAC presented the Assignment of Mortgage signed by Defendant Hill that purportedly transferred the Mortgage from MERS to BAC. their interest therein must have been recorded in accordance with Ohio law. Ohio 2007). this Assignment was not recorded.C. MERS was not entitled to assign the Mortgage. Here.04. the original foreclosing parties the attached Notes and Mortgages identifying the mortgagee and promisee as the original lending institution — one other than the named Plaintiffs. title and interest in the Mortgage and the accompanying Note to the Plaintiffs named in the caption of the Foreclosure Complaint upon receipt of sufficient consideration on the date the Assignment was signed and notarized. “Thus. Ohio law holds that when a mortgage is assigned. the assignment is subject to the recording requirements of R.N. Further. with regards to real property. the Assignment documents were all prepared by counsel for the named Plaintiffs. 266 B. Creager v. Case Nos. 114. The trial Court requested clarification by requiring each Plaintiff to submit a copy of the Assignment of the Note and Mortgage.D. 71 Ohio St.). 400 (interpreting the former statute. Lastly. 16 Ohio Law Abs. Ohio 2000) (citing Pinney v. Defendant Hill worked for BAC’s law firm 7 . 173. (Boyko. the exhibits attached to the Complaints made no reference to the named Plaintiffs in the recorded chains of title/interest. 120 (Bkrtcy.R. The court stated: …this Court is obligated to carefully scrutinize all filings and pleadings in foreclosure actions. Further. Anderson (1934).D.In In re Foreclosure Cases. The Assignments.. moreover.25. (N. § 1335. which is a requirement to enforcement under the Ohio Revised Code. since the unique nature of real property requires contracts and transactions concerning real property to be in writing. Merchants’ National Bank of Defiance. § 5301.
A. it is necessary that this Court declare whether BAC is the owner and holder of the Note and is entitled to enforce it. Defendant Hill executed the Assignment as “Secretary and Vice President” of MERS. As discussed in In re Foreclosure Cases. However. Plaintiff is jeopardy of having the proper holder and owner could come forward and assert it’s right to Plaintiff’s note. Thompson. Further. D. 1. In U. The Assignment of Mortgage Is Not Valid Because Defendant Hill Breached Her Fiduciary Duty to MERS. Richards. Bank.. then the Court should issue appropriate orders. Defendant Hill executed an Assignment of Mortgage that purportedly transferred the Mortgage and the Note from MERS to BAC. 2010 – Ohio – 4158 (Ohio App. decided: 8/25/10) and HSBC Bank. this is not the case. v. the assignment is material to Plaintiff. as the Court stated that the Plaintiff should not be put at risk of being subjected to claims from multiple parties on the same instrument. She signed this assignment in her capacity as a 8 . USA v. as Nominee of AWL. 2nd Dist.S. there is a conflict of interest and a breach of a fiduciary duty. 2010 – Ohio – 3981 (Ohio App. THE ASSIGNMENT OF MORTGAGE WAS NOT PROPERLY EXECUTED Defendant Hill contends that the Assignment of Mortgage was executed properly. 9th Dist. N. including cancellation of the Mortgage. decided 9/3/10) the Courts reiterated this concern. If Defendant operates in both capacities. Given the conflicting evidence of this matter. this document is invalid because Defendant Hill signed this Assignment outside the presence of a notary.. Thus. and BAC. the Court must address these discrepancies before allowing Defendant BAC to foreclose on Plaintiff’s property. even though she was actually employed by LSR at the time. Otherwise.and prepared and signed this Assignment on behalf of MERS. Should this Court determine that BAC cannot prove that it is the owner and holder of the Note.
whether or not compensated or full-time or part-time.R. In Onewest Bank. Defendant Hill’s actions are a blatant conflict of interest. The Court required proof of the grant of authority from the original mortgagee. Defendant Hill also worked as an employee of LSR (Defendant BAC’s law firm) at the time she executed the assignment. to assign the subject mortgage and note on March 16. Berge v. v Drayton.01(B) states. CAMBRIDGE HOME CAPITAL. and thus. * * *. 154 Ohio App. it renders the affidavit worthless. or servant’s employment for a political subdivision.3d 281.3d 433.C. that listed MERS as a nominee. (MERS). Docket No. 2003-Ohio-4945. Thus. Bank (1996). or servant.3d 471. Thus. agent’s. 2744. at ¶32. it makes the assignment of mortgage void. INC. by way of BAC’s counsel. quoting Ed Schory & Sons. Inc. 2010). However. 2009 to INDYMAC FEDERAL BANK.” (Emphasis added. Landskroner.“Secretary and Vice President” of MERS. agent.S. 136 Ohio App. the plaintiff filed a foreclosure action based on a note executed to Cambridge. to its nominee. at the same time. F. Under O. Columbus Community Cable Access (1999). employee. 442.) An agency relationship requires a fiduciary relationship between the agent and the principal. employee’s. who is authorized to act and is acting within the scope of the officer’s.B. v. and by doing so breaches her fiduciary duty to both principals.” Landskroner v. 2010 NY Slip Op 20429 (October 21. she acted as Secretary and Vice President of MERS and as essentially an employee of BAC. Natl. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS. Soc. FSB 9 . Defendant Hill was acting as an agent for both MERS and BAC. “’Employee’ means an officer. 75 Ohio St. acquired by virtue of this special trust. A fiduciary relationship is defined as one “in which special confidence and trust is reposed in the integrity and fidelity of another and there is a resulting position of superiority or influence. LLC (CAMBRIDGE).
2009. "Agents are bound at all times to exercise the utmost good faith toward their principals. “…it is clear that MERS's relationship with its member lenders is that of agent with principal. and. The principal is the one for whom action is to be taken. 18 Misc 3d 1123 (A) (Sup Ct.(INDYMAC). 2008. v Bethley. This is a fiduciary relationship. 2009 INDYMAC to ONEWEST assignment. Ms. 103 ). "is a party who acts on behalf of the principal with the latter's express. Johnson-Seck must explain to the Court. FSB. (See Sokoloff v Harriman Estates Development Corp. 35549/07). Because of this. Kings County 2009). allowing the other to act on his behalf. Indymac Bank. Deutsche Bank v Harris (Sup Ct. a Vice President of INDYMAC in the May 14. 5. Index No. implied. Next." (Maurillo v Park Slope U-Haul. 22 Misc 3d 1119 (A) (Sup Ct. Ms. Kings County 2008). v Sisk. and. who has a fiduciary relationship with the principal. Johnson-Seck claims to be: a Vice President of MERS in the March 16. Kings County. 260 NY 100. subject to his control and consent. and a Vice President of assignee/plaintiff ONEWEST. resulting from the manifestation of consent by one person to another. why a conflict of interest does not exist in the instant action with her acting as a Vice President of assignor MERS. a Vice President of ONEWEST in her June 30. a Vice President of assignee/assignor INDYMAC. 194 AD2d 142. the court noted that Ms. Feb. on May 14. and the agent is the one who acts. They must act in accordance with the highest and truest principles of morality. why she was a Vice President of both assignor MERS and assignee INDYMAC in a third case before me. It has been held that the agent. 96 NY 409 10 . Deutsche Bank v Maraj." (Elco Shoe Mfrs. why she executed an affidavit of merit as a Vice President of DEUTSCHE BANK in a fourth case before me. 146 [2d Dept 1992]). 2009-affidavit of merit. ONEWEST. and. INDYMAC subsequently assigned the subject mortgage and note to its successor. 2009 MERS to INDYMAC assignment. or apparent authority. Johnson-Seck must explain: why she was a Vice President of both assignor MERS and assignee DEUTSCHE BANK in a second case before me.. in her affidavit: her employment history for the past three years.
Plaintiff ONEWEST has not submitted any documents demonstrating how CAMBRIDGE authorized MERS. 285 NY 284 . as nominee for CAMBRIDGE. authorized MERS to assign the secured debt to plaintiff. Therefore. which subsequently assigned the subject mortgage and note to plaintiff ONEWEST. in the instant action. in Bank of New York v Alderazi. The Court grants plaintiff ONEWEST leave to renew its motion for an order of reference. Agency and Independent Contractors § 26). at 136).. P. 65 AD2d 697 [1st Dept 1978]. had authority from CAMBRIDGE to assign the DRAYTON mortgage to INDYMAC. plaintiff ONEWEST failed to demonstrate how MERS. Therefore. Recently. is an agent of CAMBRIDGE for limited purposes. quoting 2 NY Jur 2d. my learned colleague. Kings County Supreme Court Justice Wayne Saitta explained that: A party who claims to be the agent of another bears the burden of proving the agency relationship by a preponderance of the evidence (Lippincott v East River Mill & Lumber Co.." (Lexow & Jenkins.. to assign the subject DRAYTON mortgage and note to INDYMAC. Lamdin v Broadway Surface Advertising Corp. 11 ." (Lexow & Jenkins. MERS." (Lamdin.). Plaintiff has submitted no evidence to demonstrate that the original lender. 122 AD2d at 26. as nominee for CAMBRIDGE. P. It can only have those powers given to it and authorized by its principal. v Hertz Commercial Leasing Corp.C. Moore v Leaseway Transp/ Corp. in the instant action. the mortgagee America's Wholesale Lender. An agent "is prohibited from acting in any manner inconsistent with his agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his duties. Wechsler v Bowman.) "[T]he acts of a person assuming to be the representative of another are not competent to prove the agency in the absence of evidence tending to show the principal's knowledge of such acts or assent to them. v Hertz Commercial Leasing Corp. CAMBRIDGE. 79 Misc 559 ) [*15] and "[t]he declarations of an alleged agent may not be shown for the purpose of proving the fact of agency.. 108 AD2d 218 [2d Dept 1985].. 28 Misc 3d at 379-380. see also Siegel v Kentucky Fried Chicken of Long Is. if plaintiff ONEWEST can demonstrate how MERS had authority from CAMBRIDGE to assign the DRAYTON mortgage and note to INDYMAC. 122 AD2d 25 [2d Dept 1986]. as nominee for CAMBRIDGE. 272 NY 133 ).C.
why she executed an affidavit of merit as a Vice President of DEUTSCHE BANK in Deutsche Bank v Harris (Sup Ct. why a conflict of interest does not exist in how she acted as a Vice President of assignor MORTGAGE ELECTRONIC REGISTRATION SYSTEMS. within sixty (60) days of this decision and order. the Court must get to the bottom of Ms.. and 12 . Kings County.. volunteered. 161 of the Machado deposition. 18 Misc 3d 1123 (A) (Sup Ct. F. FSB.S. County of Kings). MORTGAGE ELECTRONIC REGISTRATION SYSTEMS. at lines 4 ." The Court reminds plaintiff ONEWEST's counsel that Ms. in this action. F. submits to the Court: (1) proof of the grant of authority from the original mortgagee.Then. LLC. INC. CAMBRIDGE CAPITAL. 5. a Vice President of assignee/assignor INDYMAC FEDERAL BANK. and assignee DEUTSCHE BANK in Deutsche Bank v Maraj. provided that plaintiff. 2010 deposition in the Machado case that she never provided me with affidavits of her employment for the prior three years and an explanation of why she wore so-many corporate hats in Maraj and Bethley. ONEWEST BANK. Brooklyn. that leave is granted to plaintiff. Kings County 2009).B. FSB in Indymac Bank. and a Vice President of assignee/plaintiff ONEWEST BANK. Johnson-Seck's employment status and her "robo-signing. and assignee INDYMAC BANK. why she was a Vice President of both assignor MORTGAGE ELECTRONIC REGISTRATION SYSTEMS. 22 Misc 3d 1119 (A) (Sup Ct. She admitted in her July 9. 35549/07).. to assign the subject mortgage and note to INDYMAC FEDERAL BANK. in Deutsche Bank v Harris. and. INC. Lot 116.S..S. why she was a Vice President of both assignor MORTGAGE ELECTRONIC REGISTRATION SYSTEMS.S. Index No. Johnson-Seck. Johnson-Seck. F. INC.. v Bethley. Feb. FSB. New York (Block 4529.5 to "gladly show up in his court and provide him everything he wants. FSB. to renew. INC. explaining: her employment history for the past three years.B." ORDERED.B. Johnson-Seck executed an affidavit of merit as Vice President of Deutsche Bank. Ms. to its nominee. Johnson-Seck. its motion for an order of reference for the premises located at 962 Hemlock Street. Kings County 2008). at p. Further. and (2) an affidavit by Erica A. ONEWEST BANK.B. Vice President of plaintiff ONEWEST BANK. F. 2008. If plaintiff renews its motion for an order of reference. plaintiff ONEWEST must address the tangled employment situation of "robo-signer" Erica A.
by submitting an affirmation. F. Because Defendant Hill acted on behalf of both MERS and BAC (as BAC’s counsel) when executing the Assignment of Mortgage. but must attest that they signed it in front of the notary. where there is a duty to disclose.B.S. must comply with the new Court filing requirement. has personally reviewed plaintiff ONEWEST BANK.B.'s documents. Defendant has not properly met their burden of proving that Plaintiff failed to state a claim for which relief can be granted.'s court filings and the accuracy of the notarizations in plaintiff ONEWEST BANK.S. 2. E. a party must state with particularity the circumstances constituting fraud or mistake. Under Rule 9(b) of the Federal Rules of Civil Procedure. Defendant asks the Court to strike Defendant Hill’s Assignment of Mortgage. PLAINTIFF HAS PROPERLY STATED CLAIMS FOR RELIEF AGAINST DEFENDANT HILL. pursuant to CPLR Rule 2106 and under the penalties of perjury.B.B. F. The Assignment of Mortgage Is Not Valid Because Defendant Hill Signed the Assignment of Mortgage Outside the Presence of a Notary. (c) made falsely with 13 .'s documents and records in the instant action and counsel for plaintiff ONEWEST BANK. F. confirms the factual accuracy of plaintiff ONEWEST BANK. knowledge. F. to allege “fraud or mistake. concealment of a fact. using the new standard Court form.B.S. announced by Chief Judge [*17] Jonathan Lippman on October 20.B. and Defendant Motions to Dismiss should be denied in its totality. and other conditions of a person's mind may be alleged generally.S.” In order to state a claim for fraud. a party must plead: “(a) a representation or. F.S. that counsel for plaintiff ONEWEST BANK. Plaintiff Has Properly Alleged Fraud Against Defendant Hill. 2010. intent.S. This argument is troublesome because as it can be signed outside the presence of a notary. The facts of this case are very similar to Onewest Bank. 1.(3) counsel for plaintiff ONEWEST BANK. F. (b) which is material to the transaction at hand. Malice. Plaintiff properly alleged claims in all four counts against Defendant.
Plaintiff made it clear that Defendant Hill committed fraud by knowingly submitting an assignment that was material to the foreclosure of Plaintiff’s home. (Ct. Further. Here. or other legal entity.31(C) defines “enterprise” as: “any individual. (d) with the intent of misleading another into relying upon it. directly or indirectly. or associated with. Plaintiff Adequately Stated a Claim Under Ohio’s Corrupt Acitivities Act. there was no privity. sole proprietorship. Plaintiff appropriately alleged fraud under Rule 9(b). § 2923.C.32 (“Ohio RICO”) provides that. Thus. (1984).C. with the intent to mislead the Court and Plaintiff and the Court and Plaintiff justifiably relied on said false representations. Stone. association.C. Rev. 2008-Ohio-3313. Therefore. and Plaintiff was no harmed by the assignment.” 14 .” R. § 2923. quoting Cohen v. § 2923. at ¶10. (e) justifiable reliance upon the representation or concealment. App 9th Dist). union. This is not the case. Lamko Inc. “No person employed by. or group of persons associated in fact although not a legal entity.St. government agency. 10 Ohio. or any organization. partnership. any enterprise shall conduct or participate in. were made with knowledge of falsity or utter disregard for whether they were true or false. limited partnership. trust. the affairs of the enterprise through a pattern of corrupt activity or the collection of an unlawful debt. corporation.3d 167. Plaintiff properly stated the circumstances constituting fraud by Defendant Hill. 2.32. R. R. Plaintiff stated that Defendant Hill made representations with respect to this foreclosure action which were material to the proceeding. and (f) a resulting injury proximately caused by the reliance. Code § 2923.knowledge of its falsity or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred.32(A)(1).'" Jarvis v. Defendant Hill argues that Plaintiff failed to allege falsity. 169.
The defendant was a partner (with two other medical doctors) in a pain management clinic. The defendant was indicted and convicted on counts of engaging in a pattern of corrupt activity. No.E. Specifically. 1997). Morris. the defendant was an employee of the clinic and. In State v. under R. Theisler. at ¶ 6. Kondrat v. 253 (Ohio Ct. 11th Dist. at ¶ 4. was “participating in the 15 . 2007-Ohio-213. and (3) that the defendant has participated in the affairs of an enterprise or has acquired and maintained an interest in or control of an enterprise. (2) that the prohibited criminal conduct of the defendant constitutes a pattern of corrupt activity. at ¶ 25. the defendant could be convicted of acts constituting a criminal enterprise.2d 246. a plaintiff must plead the following elements with specificity: (1) [the] conduct of the defendant involves the commission of two or more specifically prohibited state or federal criminal offenses. This is not the case. drug trafficking. 2005-T-0106. Finding sufficient evidence to establish a criminal enterprise.32. The defendant was permitted by his partners to dispense prescriptions signed by a partner in blank. Id. App.Further. Id. the defendant argued that his conviction for engaging in a pattern of corrupt activity was not supported by sufficient evidence. to state a valid Ohio RICO claim.C. 2923. illegal processing of drug documents. Id. he was not licensed to practice medicine or dispense prescription medications in Ohio. Relevant to this case. Defendant argues that Plaintiff’s Complaint does not make any allegation that she committed a particular criminal offense at all. therefore. though a medical doctor. the Eleventh Appellate District examined whether. the court concluded that at a minimum. the defendant contended that there was no evidence to establish an enterprise separate from the clinic. 692 N. Id. at ¶ 2. and practicing medicine or surgery without a license.
In a case involving GMAC. And we can find nothing in the statute that requires more “separateness” than that.’ even where the employee is the corporation's sole owner. in King. a natural person. powers.'" Id. the United States Supreme Court held that an individual as president and sole shareholder of a closely held corporation. incorporation's basic purpose is to create a distinct legal entity. with legal rights. Even more recently. abused the legal system. 533 U. quoting Cedric Kushner Promotions. Other courts have identified such wrongdoing as well. That Court disregarded the robo signer’s affidavit.affairs of an ‘enterprise’” under the Statute. the Ohio Attorney General filed an Action on behalf of the Citizens of Ohio in the Lucas County. BofA belatedly acknowledged that its regular use of robo-signers constituted an abuse of the legal system and a violation of the rights of homeowners. a Maine Court recently found that the use of a robo-signer in a foreclosure action constituted a “high volume and careless approach” toward the judicial system. Common Pleas Court seeking injunctive relief and damages on account of these same practices. or whom it employs. and privileges different from those of the natural individuals who created it. and has committed fraud on the Plaintiff and the Court. who own it. 16 . 163. The court reasoned: “[L]inguistically speaking. See Federal National Mortgage Association v.S. Id. King (2001). Bradbury. Maine District Court Docket No. the court noted: “The corporate owner/employee. So finding.” Id. was a person distinct from his company. After all. v. a legally different entity with different rights and responsibilities due to its different legal status. at ¶ 37. Ltd. at ¶ 40. BRI-RE-09-65. by halting foreclosures in all 50 states. obligations. Further. 158. Further. Bridgton. is distinct from the corporation itself. Plaintiff properly identified that Defendant Hill violated the rights of homeowners. as well as BofA. and ordered sanctions against GMAC. the employee and the corporation are different ‘persons.
2) two or more persons. 4) existence of an unlawful act independent [*42] from the actual conspiracy. 650 N. resulting in actual damages. Stofer. United Rentals.” Kenty v.” Michigan Paytel Joint Venture v. “Liability attaches for a civil conspiracy when a plaintiff can prove that two or more defendants agreed to injure another by unlawful action and committed an overt act in furtherance of the conspiracy.3d 399 (6th Cir. the two of them worked as an enterprise to wrongfully executes affidavits. 419. She has stated the existence of a malicious combination of two or more persons (BAC and Hill). Inc. Plaintiff Properly Alleged Civil Conspiracy. supra. Transamerica Premium Ins. injury to the person or property (depriving Plaintiff of the Residence.E. and the existence 17 . 620-21 (7th Cir.2d 600.2002).Because Defendant Hill is an alleged robo-signer used by BAC. City of Detroit. Defendant’s Motion to Dismiss must be denied on this Count. Thus. The principal element of a conspiracy is agreement among the parties.2d 863 (1995). 3) injury to person or property. 287 F.3d 527. the Ohio Eighth District Court of Appeals stated: “the elements which comprise a claim of civil conspiracy involve: 1) a malicious combination. A civil conspiracy under Ohio law consists of a “malicious combination of two or more persons to injure another in person or property. Plaintiff has clearly stated a claim of civil conspiracy meeting all of the above elements. Co. Keizer..2004). assignments and other legal documents necessary to process foreclosures as quickly and efficiently as possible for a number of different companies. 541 (6th Cir. in a way not competent for one alone. A civil conspiracy requires an agreement between two or more persons and a concerted action to accomplish a criminal or unlawful purpose or to accomplish a lawful purpose by criminal or unlawful means. 72 Ohio St. Hanrahan.3d 415. Scanlon v. v. Hampton v.” Here. 3. 600 F.1979). 355 F.
4. No. No. and malicious. CONCLUSION For the foregoing reasons. Par. and the actions in fact did. cause serious and substantial harm to the Plaintiff. Plantiff has properly alleged wrongful conduct by Defendant Hill. `Plaintiff Properly Alleged Punitive Damages Under Ohio Law. 0068067) McGOOKEY LAW OFFICES. Defendants’ Motions on this ground must be denied. Defendants’ Motions to Dismiss should be denied. Thus. McGookey Daniel L. Defendants’ Motions in this regard must be denied. /s/ Daniel L. let alone punitive damages. LLC Counsel for Defendant Rhonda McLaughlin CERTIFICATE OF SERVICE 18 . However. 0015771) Richard Barry Hardy III (Reg. wanton. Therefore.of an unlawful act independent of the conspiracy (defrauding the Court and Plaintiff by use of a false and fraudulent Affidavit. 45-46. BAC and Hill’s actions were willful. and failing to speak up when it had a duty to do so). Plaintiff is clearly basing her claim for punitive damages on the wrongful conduct described in detail in the preceding portion of the Complaint.” Complaint. Defendants argue that there is no action for damages. McGookey (Reg. Count Seven sets forth a claim against BAC and Hill for punitive damages. III. Plaintiff clearly recognizes this principle in her Complaint by stating: “BAC and Hill undertook and committed the foregoing actions with the knowledge that there was a substantial probability that their actions would.
LLC 19 . 0015771) McGOOKEY LAW OFFICES. /s/ Daniel L.I hereby certify that a true and correct copy of the foregoing Plaintiff’s Memorandum in Opposition to Shellie Hill’s (“Hill”) Motions to Dismiss was served upon all counsel of record by CM/ECF notification on _______. McGookey (Reg. 2011. McGookey Daniel L. No.
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