Bosch v. LaMattina
2012 U.S. Dist. LEXIS 147693
E.D.N.Y2012Background
- Bosch sold her Brentwood home to LaMattina for $440,000; mortgage payoff was $369,129.23; two mortgages were taken on the property; an escrow funded $21,000 to cover LaMattina’s mortgage payments for one year; Bosch signed an option contract to rent back and potentially buy back for $440,000; Bailey allegedly represented Bosch at closing without a client-attorney relationship; disputes exist about whether LaMattina paid mortgages/taxes and whether Bosch intended to sell or refinance; a September 20, 2012 Judgment of Foreclosure and Sale foreclosed the property.
- Bailey drafted the option contract and assisted at closing; Bosch alleges misrepresentation/omissions, improper disbursements, and that she signed without understanding title transfer; LaMattina and Bailey dispute whether Bosch understood terms; proceedings include multiple Rule 56.1 statements and affidavits; RESPA claims were dismissed and only state-law claims remain.
- District court retained supplemental jurisdiction over state-law claims after dismissing RESPA claims; Plaintiff’s motion practice was found procedurally defective; the court proceeded to summary judgment addressing fraud, deceptive practices, legal malpractice, and contract-related claims.
- LaMattina’s and Bailey’s payments and the status of the escrow account are disputed; if escrow funds were used to pay the mortgage, that affects damages but is contested; judgment of foreclosure and sale impacts mootness of rescission/declaratory-judgment requests.
- The court grants in part and denies in part Defendants’ summary-judgment motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fraud validly pled | Bosch asserts Bailey/LaMattina misrepresented terms and failed to inform ownership transfer. | Bailey/LaMattina challenge sufficiency and timing of fraud allegations; dispute damages. | Fraud claim survives summary judgment due to disputed facts regarding misrepresentations. |
| Deceptive Trade Practices under § 349 | Bailey’s actions in the closing were consumer-oriented and deceptive, affecting consumers generally. | Bailey argues not consumer-oriented; reliance on cases like Oswego/Canario/Genesco to limit application. | § 349 claim survives to extent facts show consumer-oriented conduct and potentially widespread impact. |
| Legal Malpractice | Bailey failed to provide competent representation and caused damages by mismanagement at closing. | Bailey disputes attorney-client relationship and damages; some benefits to Bosch claimed. | Summary judgment denied on malpractice due to disputed issue of whether Bailey represented Bosch and damages. |
| Breach of Contract (sale and option) | LaMattina breached the sale contract and option contract by improper disbursements and failure to perform. | Disbursements itemized; disputed who benefited; performance disputed; jury should decide. | Not all claims resolved; issues of liability/amounts to be decided by the jury. |
| Rescission/Declaratory Judgment mootness | Rescission/declaratory judgments should void the deed and declare nullity of transfer. | Judgment of Foreclosure and Sale forecloses and moots relief. | Claims moot; granted in LaMattina’s favor as to these reliefs. |
Key Cases Cited
- Premium Mortg. Corp. v. Equifax, Inc., 583 F.3d 103 (2d Cir. 2009) (fraud elements and reliance guidance in Second Circuit)
- Pludeman v. Northern Leasing Sys., Inc., 10 N.Y.3d 486 (N.Y. 2008) (pleading fraud with sufficient notice under CPLR 3016(b))
- Genesco Ent., a Div. of Lymutt Indus., Inc. v. Koch, 593 F.Supp. 743 (S.D.N.Y. 1984) (consumer protection scope in complex transactions)
- Oswego Laborers’ Local 214 Pension Fund v. Lederman, 85 N.Y.2d 20 (N.Y. 1995) (consumer-oriented conduct under § 349; public impact)
- Mullins v. City of New York, 653 F.3d 104 (2d Cir. 2011) (timing of arguments in replies; not to consider new claims)
- Capobianco v. New York, 422 F.3d 47 (2d Cir. 2005) (summary judgment standards; burden shifting)