129 A.D.3d 689
N.Y. App. Div.2015Background
- Plaintiffs (Ronald Pirrelli et al.) owned Sag Harbor house; refinanced in 2004; a third party (Dexter Dick) was added to the loan and later recorded as sole title owner via a deed the plaintiffs say they did not sign or knew about.
- Plaintiffs paid the loan until August 2005, ceased payments after discovering the deed, and brought an RPAPL article 15 quiet-title action in 2005; US Bank intervened and later brought foreclosures; foreclosures stayed in 2008.
- In 2012 plaintiffs discovered, during discovery in the quiet-title action, multiple versions of an assignment of mortgage, some allegedly back-dated or fraudulent; plaintiffs filed the instant complaint in February 2012 asserting fraud, RICO, FDCPA, GBL § 349, emotional-distress torts, and quiet-title claims against servicer/loan parties (OCWEN defendants) and foreclosure counsel (attorney defendants Shapiro & DiCaro, Julie Doyle).
- OCWEN defendants moved under CPLR 3211(a) to dismiss several causes of action; attorney defendants separately moved to dismiss claims against them.
- Supreme Court denied those branches of the motions; on appeal, the Appellate Division modified to grant dismissal of certain claims and directed dismissal of the complaint as to the attorney defendants in full, while otherwise affirming.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Quiet title standing / claim validity | Plaintiffs say deed and mortgage assignment are fraudulent; they seek quiet title against OCWEN defendants | OCWEN argued lack of standing and that claim duplicates prior action | Court: plaintiffs have standing; quiet-title cause of action against OCWEN adequately pleaded and not duplicative — denial of dismissal affirmed |
| GBL § 349 claim (consumer fraud) | Plaintiffs allege deceptive, consumer-oriented practices and concealment until 2012 | OCWEN argued time-bar and lack of consumer-oriented conduct or standing to challenge assignment | Court: statute of limitations tolled by alleged concealment; complaint sufficiently pleads consumer-oriented deceptive acts and damages — denial of dismissal affirmed |
| RICO and FDCPA claims against OCWEN defendants | Plaintiffs asserted racketeering pattern and FDCPA violations related to debt collection and fraudulent assignments | OCWEN argued no pattern of racketeering; FDCPA inapplicable to creditor/servicer and not a "debt collector" here | Court: RICO and FDCPA claims against OCWEN dismissed for failure to plead pattern and because FDCPA does not apply to creditor/servicer as pleaded |
| Claims vs. attorney defendants (quiet title, emotional distress, GBL § 349, RICO, FDCPA) | Plaintiffs sought to hold foreclosure counsel liable for conduct in foreclosure and alleged consumer-oriented conduct and torts | Attorneys argued they neither claimed an adverse property interest nor acted as debt collectors or engaged in consumer-oriented scheme; conduct not extreme or endangering safety | Court: complaint failed to state causes of action against attorney defendants; dismissal of all claims against them directed |
Key Cases Cited
- Guggenheimer v. Ginzburg, 43 N.Y.2d 268 (standard for CPLR 3211(a)(7) motion)
- Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20 (elements of GBL § 349 consumer-oriented deception and damages)
- Baumann v. Hanover Community Bank, 100 A.D.3d 814 (no tort duty from bank relationship; emotional-distress limits)
- Becher v. Feller, 64 A.D.3d 672 (RICO pattern pleading requirement)
- Vicom, Inc. v. Harbridge Merchant Servs., Inc., 20 F.3d 771 (RICO pattern analysis)
- Thompson v. Paasche, 950 F.2d 306 (RICO pattern analysis)