UDDIN v. GOODSON et al

Filing 94

OPINION. Signed by Judge William H. Walls on 3/8/17. (DD, ) N/M

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

FATEMA UDDIN,
Plaintiff,
v.

OPINION

CHRISTOPHER J. GOODSON; GOODSON LAW
OFFICE; FIVE STAR FUNDING, LLC; LUTFUR
UDDIN; FARUK SIDDIQUE; JOHN CARUSO;
PREAKNESS REAL ESTATE, LLC; A-i
ELEGANT TOURS; and SHELIM KHALIQUE,

Civ. No. 2:15-cv-$025 (WHW) (CLW)

Defendants.
Walls, Senior District Judge

Plaintiff Fatema Uddin complains of an alleged scheme through which she was
convinced by Defendants “to stop paying [her] mortgage under the stated reason that it was the
only way for [her] to obtain a loan modification” and then to engage in an improper “short sale
buyback scheme” through which she ultimately lost the deed to her family home. Compl., ECF
No. 1

¶J 1-5. Plaintiff alleges that her attorney, Defendant Caruso, acted as a conduit to

perpetuate the fraud and criminal activity of the co-defendants by failing to adequately and
competently represent her. Defendant Caruso moves to dismiss the complaint as to himself for
failure to comply with the Affidavit of Merit (“AOM”) requirements of N.J.S.A

§ 2A:52A-27.

Decided without oral argument under Fed. R. Civ. Pr. 78, Defendant Caruso’s motion is granted.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are drawn from the complaint, ECF No. 1, unless otherwise noted:
Plaintiff, who is described by the complaint as being an “unsophisticated factory worker Bengali
immigrant,” became involved in a series of schemes through which she and her husband

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attempted to reduce the amount of principal and interest owed on their mortgage. Id.

¶ 1. These

schemes began after Plaintiff experienced financial troubles in 2011 and was referred by a family
friend, Defendant Faruk Siddique, to Defendant Lutfur Uddin for help. Id.

¶J 25-31.

Lutfur Uddin, acting as an agent of Defendant Christopher Goodson and Defendant
Goodson Law Office, charged Plaintiff $15,000 to serve as a “loan modification mortgage
specialist.” Id.

¶J 2, 31.

In exchange, he “guaranteed to obtain.

.

.

for Mrs. Uddin.

.

.

a

significant principal reduction and low interest rate” and convinced her that she could obtain
such a modification only “if she was in default and had a ‘distressed property.” Id.

¶J 33, 37.

Plaintiff stopped paying her mortgage in April of 2012, and Wells Fargo, which held the
mortgage as a successor in interest to World Savings Bank, filed a foreclosure action against her
in October of that year. Id.

¶J 38, 48.

Lutfur Uddin promised Plaintiff that he and Goodson Law

Office attorneys would “handle everything” and “protect Mrs. Uddin’s interests.” Id.

¶ 51. No

appearance was filed in the Wells foreclosure action, but the complaint was dismissed without
prejudice on December 6, 2012. Id.

¶ 53-54.

In 2013, Lutfur Uddin informed Plaintiff that Wells Fargo had denied her application for
a loan modification, although he did not provide her with documentation that any such
application had been submitted. Id.

¶J 57,

59. He then advised Plaintiff that she “could still keep

her property at a substantially reduced principal balance and monthly mortgage payment through
a short sale with Wells.” Id.

¶ 60.

Lutfur Uddin then arranged for Faruk Siddique to acquire Plaintiffs distressed property
through a short sale, after which the Uddins would “reacquire their.
from Siddique, who would “hold it temporarily,’ for a fee.” Id.

.

.

home at a reduced price”

¶J 61, 64. He advised Plaintiff

that “after Mrs. Uddin’s short sale closing her distressed property would be transferred back to

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Mrs. Uddin for the sum of $100,000.” Id.

¶ 71. According to the complaint, the “Uddins,

unsophisticated in real estate matters [and] transactions, were unaware and had no reason to
believe that Lutfur’s version of a short sale was wholly illegal.” Id.

¶ 73.

Defendant Caruso represented Plaintiff during the short sale transaction, despite the fact
that they had never met before the day of the short sale closing. Id.

¶J 69-70. Defendant Caruso

also failed to provide Plaintiff with an interpreter at the short sale closing. In reliance on
Defendant Caruso’s representation, Plaintiff executed a deed transferring title for her property to
Siddique on March 5, 2014. Id.

¶ 77.

Defendant Faruk Siddique was a straw buyer, and after the short sale he transferred title
through a quit claim deed to Defendant Preakness Real Estate LLC on June 6, 2014, without
informing Plaintiff. Id.

¶J 96-97. Preakness Real Estate was wholly owned by Defendant Shelim

Khalique, and the funding for these transactions was provided by Defendant A-i Elegant Tours,
a limousine and bus company that is also wholly owned by Khalique. Id.

¶J 111-113. These

funds were transferred from A-i to Goodson Law Office and then to Defendant Five Star
Funding, a company wholly owned by Defendant Goodson. Id.

¶J

10, 120.

After this transaction was complete, Khalique informed Plaintiff that he would not
convey the property back to her and announced his intention to evict her family from the home.
Id.

¶J 101-103. Defendants Goodson and Goodson Law Office then filed multiple complaints for

possession of the property in 2014 and 2015. Id.

¶

110. As a result of this scheme, Plaintiff

alleges that Defendants received “upfront fees, undisclosed disbursements, real estate
commissions for both the purchase and sale of the Uddins’ property [and] several hundred
thousand dollars in the form of equity stripped from the Uddins’ home.” Id.

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¶ 121. Plaintiff

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alleges that Defendant Caruso conspired with the other Defendants to facilitate and orchestrate
the fraudulent short sale of her home. Id. ¶13.
Plaintiff brings a RICO claim under 18 U.S.C.

§

1962(a) against Defendants Christopher

Goodson, Lutfur Uddin, Shelim Khalique, and John Caruso. Id.

¶ 124.

She also brings two RICO

claims against these defendants, as well as Defendant Faruk Siddique, under 18 U.S.C.
(c) and (d). Id.

¶J 136,

§

1962

143. She alleges violations of the federal Real Estate Settlement

Procedures Act, 12 U.S.C.

§ 2601, et seq.,

damages totalling $370,940. Id.

¶ 177.

against all Defendants. Id.

¶ 149. Plaintiff seeks

She also moves under N.J.S.A. 2A:62-1 for a ruling “to

determine Plaintiffs legal and equitable ownership of the subject property by way of a quiet-title
action.” Id.

¶J 180-193. finally, she moves for the Court to issue a declaratory judgment voiding

the deed conveyances that took place on March 5, 2014 and June 6, 2014, as well as a
declaratory judgment that Defendants have no right or interest in the subject property. Id.

¶J 194-

205.
Plaintiff brought suit in this District on November 11, 2015. This Court has subject
matter jurisdiction over Plaintiffs federal law claims under 28 U.S.C.

§

1331 and has

supplemental jurisdiction over Plaintiffs state law claims under 28 U.S.C.

§

1367.

Defendant John Caruso moves to dismiss Plaintiffs claims against him as a result of
Plaintiffs failure to file an Affidavit of Merit (“AOM”) within 120 days of the filing of
Defendant Caruso’s Answer as required by N.J.S.A

§ 2A:52A-27. Defendant Caruso filed his

Answer on June 15, 2016. ECf No. 35. 120 days from this date was October 13, 2016. To this
date, no AOM has been filed by Plaintiff. Plaintiff has not opposed Defendant Caruso’s motion.

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STANDARD OF REVIEW
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.s. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
claim is plausible on its face “when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “A
pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of
action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further
factual enhancement.” Id. (internal quotations and alterations omitted). “[W]here the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘shown’—that the pleader is entitled to relief.” Id. at 679.
New Jersey’s Affidavit of Merit statute, N.J.S.A.

§ 2A:53a-27 (the “AOM statute”)

requires that a complainant who alleges professional negligence against certain designated
professionals, must produce an affidavit from an expert attesting to the merits of the claim.
Professional malpractice or negligence claims proceeding in federal courts in New Jersey must
also comply with the AOM statute. RTC Mortg. Trust 1994 N-i v. fidelity Nat ‘1 Title Ins. Co.,
981 F. Supp. 334, 346-47 (D.N.J. 1999). The statute provides that:
In any action for damages for personal injuries, wrongful death or property damage
resulting from an alleged act of malpractice or negligence by a licensed person in his
profession or occupation, the plaintiff shall provide each defendant with an affidavit of
an appropriate licensed person that there exists a reasonable probability that the care, skill
or knowledge exercised or exhibited in the treatment, practice or work that is the subject
of the complaint, fell outside acceptable professional standards or treatment
practices.... The person executing the affidavit shall be licensed in this or any other state;
have particular expertise in the general area or specialty involved in the action, as
evidenced by board certification or by devotion of the person’s practice substantially to
the general area or specialty involved in the action for a period of five years[.]
...

...

N.J.S.A.

§ 2A:53a-27.
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The AOM must be served on a defendant within sixty days of the filing of the
defendant’s Answer. The sixty-day period may be extended upon a showing of good cause or
extraordinary circumstances but must be provided, regardless of circumstances, no later than 120
days from the filing of the defendant’s Answer. Ferreira v. Rancocas Orthopedic Associates,
178 N.J. 144, 146 (N.J. 2003).
Under the AOM statute, the submission of an appropriate affidavit is considered an
element of the claim. Meehan v. Antonettis, 226 N.J. 216, 228 (N.J. 2016). Consequently, failure
to properly submit an AOM requires dismissal of the complaint for failure to state a claim. Id.
Because the purpose of the AOM statute is to eliminate frivolous malpractice filings, allowing
repeated filings afler a dismissal would be “manifestly repugnant” to the legislative purpose of
the statute. Cornblatt v. Barow, 153 N.J. 218, 242 (N.J. 1998). Dismissals for failure to comply
with the AOM statute are with prejudice in all but extraordinary circumstances. Id.
When plaintiffs fail to file an opposition to a motion to dismiss, the Court must address
the unopposed motion to dismiss on its merits. Wiggins v. String, No. 12-3 176, 2013 WL
1222676, at *2 (D.N.J. Mar. 25, 2013). To decline to analyze the merits of a motion to dismiss
simply because it is unopposed would be to impermissibly sanction plaintiffs for their failure to
respond. Stackhouse v. Mazurkiewicz, 951 F. 2d 29, 30 (3d Cir. 1991).

DISCUSSION
1. The AOM statute applies to Plaintiffs claims as to Defendant Caruso
a. Defendant Caruso is a “licensed person” under the statute

The AOM statute defines “licensed person” as including any person who is licensed as an
attorney admitted to practice law in New Jersey. N.J.S.A.

6

§ 2A:53a-26. As a lawyer, licensed to

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practice law in New Jersey, Defendant Caruso falls within the AOM statute’s definition of a
licensed person.
b. The statute is applicable to the claims asserted by Plaintiff against Defendant
Caruso

Regardless of whether a plaintiffs claims are rooted in tort, contract, or some other body
of law, the AOM statute applies “if the claim’s underlying factual allegations require proof of a
deviation from the professional standard of care applicable to that specific profession.” Couri v.
Gardner, 173 N.J. 328, 340 (N.J. 2002). If such proof is required, an AOM is a required element
of the claim. Id. Tort claims brought against licensed professionals that allege ordinary, but not
professional negligence, are not subject to the AOM statute. Id. at 340-41.
Here Plaintiff alleges that Defendant Caruso failed to adequately represent her in his
negotiation of the short sale closing of her home. Compl.

¶ 131. Plaintiff has asserted various

legal claims against Defendant but all are rooted in the same alleged facts: that Defendant Caruso
conspired with the other Defendants to induce Plaintiff to enter into a fraudulent and illegitimate
real estate agreement. Plaintiff alleges that Defendant Caruso was a “puppet,” provided to her by
Defendants Uddin, Siddique, Goodson and Goodson Law Office with the intent to defraud her.
Id.

¶

139. Specifically, she states that Defendant Caruso did not “adequately and competently

represent [her]” by failing to have a Bengali interpreter present, and failing to explain the
documents to the Plaintiff prior to signing. Mot. to Dismiss, Ex. C, ECF No. 54-5 ¶10.
Adjudication of the claim that Defendant Caruso did not “adequately and competently”
represent Plaintiff clearly requires proof of a deviation from a professional standard. Plaintiff is
not merely alleging that Defendant Caruso committed fraud. Rather, she alleges that in his
capacity as an attorney, he failed to adhere to a professional standard of “adequate and
competent” representation. Proof of what that standard looks like is essential in order to properly
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adjudicate the claims against Defendant Caruso. Consequently, the AOM statute is applicable to
Plaintiffs claims against Defendant. The lack of an AOM justifies dismissal of Plaintiffs claims
as to Defendant Caruso.

2. No extraordinary circumstances exist to justify a dismissal of Plaintiffs claims
without prejudice

To prevent the “draconian results of an inflexible application” of the AOM statute, New
Jersey courts have fashioned the equitable remedy of dismissal without prejudice for failure to
file an AOM where a plaintiff can demonstrate “extraordinary circumstances” that prevented
compliance with the statute. Meehan, 226 N.J. at 229. Courts have consistently held that attorney
carelessness does not constitute “extraordinary circumstances” sufficient to justify a dismissal
without prejudice. Taylor v. Plousis, 101 F. Supp. 2d 255, 270 (D.N.J. 2000). Nor does
ignorance of the law, or failure to seek or obtain legal counsel. Id.
As alleged in the Complaint, Plaintiff is an “unsophisticated factory worker Bengali
immigrant.” Compl.

¶ 1.

She does not speak, read or write English. id.

¶ 7.

The Court is also

mindful that Plaintiff has changed counsel and been without counsel at multiple points during
this lawsuit. However, Plaintiff was represented by counsel at all time periods relevant to the
filing of an AOM. Furthermore, Plaintiffs counsel was made aware of the missing AOM at a
case management conference, and still failed to correct the issue. Plaintiffs lack of
sophistication and knowledge of the law is irrelevant given that she was, at all relevant times,
represented by counsel. Because Plaintiff has not opposed Defendant Caruso’s motion to
dismiss, the Court has not been made aware of any other facts that could give rise to a finding of
extraordinary circumstances sufficient to justify a dismissal without prejudice.

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CONCLUSION
Defendant’s motion is granted. Plaintiff’s claims are dismissed with prejudice as to
Defendant Caruso only. An appropriate order follows.

D&e:”/’

,20 17

Unite States Senior District Judge

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