Neely v Flagstar Bank, FSB

[*1] Neely v Flagstar Bank, FSB 2016 NY Slip Op 50263(U) Decided on March 4, 2016 Supreme Court, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 4, 2016
Supreme Court, Dutchess County

Theresa Neely, Plaintiff, —against—

against

Flagstar Bank, FSB, NATIONSTAR MORTGAGE, INC., ELECTRONIC REGISTRATION SYSTEMS, INC., KONDAUR CAPITAL CORPORATION, MORTGAGE LENDERS NETWORK, USA, JOHN DOES 1-10, Defendants.



1815/2015



THERESA NEELY

Plaintiff, Pro Se

5101 Route 9G

Tivoli, New York 12583

AFIYA M. JORDAN, ESQ.

HOGAN LOVELLS US, LLP

Attorneys for Defendants

FLAGSTAR BANK, FSB and MORTGAGE

ELECTRONIC REGISTRATION SYSTEMS, INC.

s/h/a ELECTRONIC REGISTRATION SYSTEMS, INC.

875 Third Avenue

New York, New York 10022

BRENDA BEAUCHAMP, ESQ.

AKERMAN, LLP

Attorneys for Defendant

NATIONSTAR MORTGAGE, LLC

666 Fifth Avenue, 20th Floor

New York, New York 10103
James D. Pagones, J.

Defendants Flagstar Bank, FSB (hereinafter "Flagstar") and Mortgage Electronic Registration Systems, Inc. s/h/a Electronic Registration Systems, Inc. (hereinafter "MERS") move to dismiss the plaintiff's complaint, pursuant to CPLR 3211(a)(7). Defendant Nationstar Mortgage, LLC (hereinafter "Nationstar") also moves to dismiss the plaintiff's complaint, pursuant to CPLR 3211(a)(1) and CPLR 3211(a)(7).

The following papers were read:

Amended Notice of Motion-Affirmation-Exhibits 1-6-1-9

Affidavit of Service

Memorandum of Law-Affidavit of Service10-11

Notice of Motion-Affirmation-Exhibits A-F-Affidavit-12-22

Exhibit A-Affidavit of Service

Memorandum of Law23

Affidavit in Opposition-Annexed Exhibits-24-26

Affidavit of Service

Affidavit in Opposition-Exhibit A-27-29

Affidavit of Service

Reply Affirmation-Exhibit A-Affidavit of Service30-32

Reply Memorandum of Law33

Upon the foregoing papers, the motion is decided as follows:

Plaintiff's complaint alleges that on or about September 29, 2005, plaintiff and her late husband entered into a consumer loan transaction with the defendant Mortgage Lenders Network, USA to finance the purchase of real property located at 5101 Route 9G, Tivoli, New York. The complaint alleges that on or about May 6, 2006, Mortgage Lenders Network, USA transferred the mortgage but never transferred or sold the note. Thereafter, a loan refinance was provided by Nationstar. After refinance, Nationstar transferred the mortgage to Flagstar but did not transfer the note. In March of 2014, plaintiff alleges that she sent a letter to Flagstar requesting a copy of the note, mortgage and all transfers or sales of the mortgage or note. She alleges that Flagstar was unable to produce the requested documents. Plaintiff's complaint alleges seven causes of action: (a) the first cause and second cause of action allege that the defendants are not entitled to collect on the debt, i.e. that the defendants lack standing to proceed; (b) the third cause of action alleges that plaintiff seeks to quiet title to the property; (c) the fourth cause of action alleges that defendants slandered title to the plaintiff's property; (d) the fifth cause of action alleges that she was defrauded by the preparation and filing of the mortgage documents and the respective assignments thereof; (e) the sixth cause of action alleges negligence in the maintenance, [*2]accounting and servicing of the loan records; and, (f) the seventh cause of action alleges that the defendants violated the Rosenthal Fair Debt Collection Practices Act.

When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action (see Guggenheimer v. Ginzburg, 43 NY2d 268 [1977]). In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Nonnon v. City of New York, 9 NY3d 825 [2007]). Whether a plaintiff can ultimately establish its allegations is not part of the calculus (see EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11 [2005]).

Standing

Foreclosure of a mortgage may not be brought by one who has no title to it (see U.S. Bank, Nat. Ass'n v. Sharif, 89 AD3d 723 [2nd Dept 2011]). However, standing to prosecute a foreclosure action is not an independent cause of action, rather it is properly pled as a defense to a foreclosure action (see Homecomings Financial, LLC v. Guldi, 108 AD3d 506 [2nd Dept 2013]; Deutsche Bank Nat. Trust Co. v. Haller, 100 AD3d 680 [2nd Dept 2012]; Wells Fargo Bank Minnesota, Nat. Ass'n v. Mastropaolo, 42 AD3d 239 [2nd Dept 2007]). Accordingly, dismissal of plaintiff's first cause of action is warranted.

Quiet TitleTo maintain a quiet title claim, a plaintiff must describe in his or her complaint the nature of the interest in the real property, the source of this interest and the existence of a removable "cloud" on the property, which is an apparent title, such as in a deed or other instrument, that is actually invalid or inoperative (see Acocella v. Bank of New York Mellon, 127 AD3d 891 [2nd Dept 2015]; Guccione v. Estate of Guccione, 84 AD3d 867 [2nd Dept 2011]). The complaint seeks to quiet title as of January 11, 2013, alleging that title should be vested in her alone and each defendant should be declared to have no interest in the subject property. Glaringly absent from the plaintiff's complaint is a declaration that the moving parties claim an estate or interest in the property which is adverse to that of the plaintiff and the particular nature of such estate or interest (see RPAPL §1515[1][b]). Accordingly, dismissal of plaintiff's third cause of action is warranted.

Slander of Title

The elements of a cause of action for slander of title, are: (1) a communication falsely casting doubt on the validity of the complainant's title, (2) reasonably calculated to cause harm, and [*3](3) resulting in special damages (see 39 College Point Corp. v. Transpac Capital Corp., 27 AD3d 454 [2nd Dept 2006]). Plaintiff's complaint alleges that the defendants, by wrongfully causing the recording of the notice of default, assignment of the deed of trust, substitution of trustee, notice of trustee's sales and trustee's deed, slandered the plaintiff's title to the subject property. The Court would note that even though a mortgage is considered to be a conveyance, it does not convey title in New York and constitutes only a lien on the premises mortgaged (see 1 Mortgage and Mortgage Foreclosure in New York §3:3). The alleged wrongful recording of documents by the defendants pertaining solely to the mortgage does not effect the validity of plaintiff's title; thus, dismissal of plaintiff's fourth cause of action is warranted (id.).

Fraud

The fifth cause of action alleges that the plaintiff was defrauded by the preparation and filing of the mortgage documents and the respective assignments thereof. The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages (see Cremosa Food Co., LLC v. Amella, 130 AD3d 559 [2nd Dept 2015]). CPLR 3016(b) requires that the circumstances of the fraud must be stated in detail, including the specific dates and items (id.). The complaint does not specify with any detail any false statements made by the moving defendants. The plaintiff merely refers to a series of documents prepared and recorded by the defendants without a factual basis to do so. The plaintiff does not plead knowledge of any falsehood, her justifiable reliance upon any misrepresentation or how she has been injured by the filing of the documents. Accordingly, plaintiff's fifth cause of action is dismissed as to the moving defendants.

Negligence

To prevail on a negligence claim, a plaintiff must establish the existence of a legal duty, a breach of that duty, proximate causation, and damages (see Luina v. Katharine Gibbs School New York, Inc., 37 AD3d 555 [2nd Dept 2007]). Here, the relationship between the parties was wholly contractual in nature. It is well settled that tort may accompany a breach of contract only where the contract creates a relation out of which springs a duty, independent of the contract obligation, and that independent duty is violated (see Quail Ridge Associates v. Chemical Bank, 162 AD2d 917 [3rd Dept 1990] leave to appeal dismissed by 76 NY2d 936). Plaintiff does not plead a contractually created duty independent to any contractual duty which may have existed between plaintiff and the movants. Inasmuch as no duty other [*4]than the contractual duty arising between the parties existed, dismissal of plaintiff's sixth cause of action is warranted. (see Home & City Sav. Bank v. Jamel Realty Corp., 186 AD2d 936 [3rd Dept 1992]).

The Rosenthal Fair Debt Collection

Practices Act

Plaintiff seeks relief against the defendants pursuant to the above titled Act. The Court notes that the Rosenthal Fair Debt Collection practices Act is found in the California Civil Code at Section 1788. Accordingly, it is inapplicable to the within action pending before this Court in the State of New York. Thus, the plaintiff's seventh cause of action is dismissed.

Based upon the foregoing, the defendants' motions are granted in their entirety. Plaintiff's complaint is dismissed as to defendants Flagstar, MERS and Nationstar.

This constitutes the decision and order of the Court.

Dated:March 4, 2016

Poughkeepsie, New York

ENTER

________________________________

HON. James D. Pagones, A.J.S.C.

030416 decision & order