D'Angelis et al v. Bank of America, N.A. et al

Filing 7

MEMORANDUM & ORDER Dismissing Parties. For the reasons outlined in the Order, the claims of all Plaintiffs, except those of the first-named Plaintiff Nicholas D'Angelis, are sua sponte SEVERED and are DISMISSED WITHOUT PREJUDICE to commencing se parate actions. Any plaintiff wishing to commence a separate action must do so within 30 days of this Order. The statute of limitations for any claim asserted herein is tolled for a period of 30 days from the date of this Order. Parties Gary Belange r, Andrea Hall Bell, Estelle C. Bervine, James Bevan, Marie J. Blain, Geno Bobo, James Brosious, Marjorie Ann Caesar, Shanise L. Callahan, Bruce A. Clifton, Angela Coleman, Ruth Cowles, Jacqueline Darby-Jones, Son T. Diep, Robert Douglas, Myrei C. Ed wards, Bradley Evans, Brian Farley, Jacki L. Fields, Steven Fields, Marinus Francois, Thomas Frankye, Roger Gaffney, Tina Gaffney, Seth Garcia, Deborah Francis Gavin, Angela Gordon, Erander M. Guss, Tammy Haack, Terry Haack, Alanka Hankerson, Denise Hardy, Alphonse Harris, Jr, Cheryl Harrison-Murray, Angela Hartis, Kenneth E. Hill, Matthew Hoff, Charlie Hollingsworth, Michael Todd Irvan, Santosha Jackson, Tyrone Jackson, Wayne Johnson, Edwin Jones, Elizabeth Jones, Hermenegilda Jones, Margaret J ones, Michael Jones, Mary K Karklins, John T. Lassiter, Hector L. Lebron, Laurna Legree, Harry D. Leiphart, Matthew Lindsey, Juan Lozada, Ronald F. Marquardt, Brenda Martin, Kevin Martin, Lynette McCoy, Eddie McIntyre, Alisha Medina, Thomas Miller, W illiam M. Milmon, Christopher P. Nolan, Giovanna Palladino, Martino Palladino, Mary Ann Porter, Alicia Powell, Cherrywood Reid, Twan Rhyne, Rodney Richards, Latonda Richardson, Maria L. Roberson-Fields, Martha Roberts, Michael Roberts, Bianca Robinso n, Lashawn Robinson, Angelita B. Rodriguez, John Roes 1-100, Gerald Romar, Andrea Russell, Bertha Samuel, Jonathan Samuel, John Sangis, Ralph Saro, Arthur Satterwhite, Rosita Scarlett, Christophe Senah, John Smith, Latravius Smith, Mark A. Smith, Mon ica Smith, Adele M. Starkovich, Leroy Stover, Patty Sturdivant, Mayra D. Sucrevaldes, Susan Sullivan, Pamela Tarzia-Tyler, Sabrina Taylor, Jennifer L. Tete, Richard K. Thompson, Bolanle Tomiye, Mark Trudeau, Irene Tsilimos, Winifred Wafer, Paul D. Wa klee, Henry Walker, Derwin West, Varene Williams, Leslie Williamson, Mark Williamson, Lynn Yaichner, Carlos Zambrana, Darrin Bagwell, and Robert J. Battinieri, Jr. are TERMINATED from this action. Ordered by Judge Joanna Seybert on 1/16/2014. (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
NICHOLAS D’ANGELIS, MARINUS FRANCOIS,
CHARLIE HOLLINGSWORTH, ROSITA
SCARLETT, EDWIN JONES, ELIZABETH JONES,
WILLIAM M. MILMON, SETH GARCIA, ROBERT
J. BATTINIERI JR, CHERRYWOOD REID, SON T.
DIEP, MARY ANN PORTER, TERRY HAACK,
TAMMY HAACK, PATTY STURDIVANT, RUTH
COWLES, MARY K KARKLINS, LATRAVIUS
SMITH, DENISE HARDY, ANDREA RUSSELL,
IRENE TSILIMOS, MICHAEL TODD IRVAN,
ERANDER M. GUSS, GERALD ROMAR,
MARTINO PALLADINO, GIOVANNA
PALLADINO, BIANCA ROBINSON, MARJORIE
ANN CAESAR, MICHAEL ROBERTS, MARTHA
ROBERTS, BOLANLE TOMIYE, LASHAWN
ROBINSON, WINIFRED WAFER, RONALD F.
MARQUARDT, LESLIE WILLIAMSON, MARK
WILLIAMSON, JOHN T. LASSITER, EDDIE
MCINTYRE, GENO BOBO, PAUL D. WAKLEE,
JAMES BROSIOUS, JOHN SANGIS, HECTOR L.
LEBRON, RALPH SARO, MATTHEW LINDSEY,
HARRY D. LEIPHART, JAMES BEVAN, ROGER
GAFFNEY, TINA GAFFNEY, JACQUELINE
DARBY-JONES, SANTOSHA JACKSON,
TYRONE JACKSON, LAURNA LEGREE,
ARTHUR SATTERWHITE, MONICA SMITH,
JOHN SMITH, MICHAEL JONES,
HERMENEGILDA JONES, ALISHA MEDINA,
ALICIA POWELL, ADELE M. STARKOVICH,
ALANKA HANKERSON, RODNEY RICHARDS,
JUAN LOZADA, SABRINA TAYLOR, ANGELA
COLEMAN, LYNETTE MCCOY, MATTHEW
HOFF, MARK A. SMITH, BRENDA MARTIN,
KEVIN MARTIN, GARY BELANGER, ANGELA
HARTIS, SHANISE L. CALLAHAN, CHRISTOPHE
SENAH, JONATHAN SAMUEL, BERTHA
SAMUEL, BRIAN FARLEY, THOMAS FRANKYE,
DERWIN WEST, CHERYL HARRISON-MURRAY,
RICHARD K. THOMPSON, DEBORAH FRANCIS
GAVIN, LEROY STOVER, MAYRA D. SUCREVALDES,
KENNETH E. HILL, ANGELA
GORDON, BRADLEY EVANS, LYNN
YAICHNER, MARIA L. ROBERSON-FIELDS,

MARIE J. BLAIN, CARLOS ZAMBRANA,
VARENE WILLIAMS, MARGARET JONES,
BRUCE A. CLIFTON, HENRY WALKER, STEVEN
FIELDS, JACKI L. FIELDS, ALPHONSE HARRIS
JR., ANDREA HALL BELL, THOMAS MILLER,
TWAN RHYNE, MARK TRUDEAU, JENNIFER L.
TETE, LATONDA RICHARDSON, ANGELITA B.
RODRIGUEZ, MYREI C. EDWARDS, PAMELA
TARZIA-TYLER, CHRISTOPHER P. NOLAN,
ROBERT DOUGLAS, DARRIN BAGWELL,
SUSAN SULLIVAN, WAYNE JOHNSON,
ESTELLE C. BERVINE, & JOHN ROES 1-100
Plaintiffs,
-against-

MEMORANDUM & ORDER
13-CV-5472(JS)(AKT)

BANK OF AMERICA, N.A., EVERHOME
MORTGAGE COMPANY, GREEN TREE
SERVICING LLC, BAYVIEW LOAN SERVICING
LLC, M & T BANK CORPORATION, BRANCH
BANKING AND TRUST COMPANY,
NATIONSTAR MORTGAGE, LLC, & METLIFE
HOME LOANS, LLC,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Michael E. Herskowitz, Esq.
Michael Andrew Lehrman
The Hoffman Law Group, P.A.
1999 Flatbush Avenue, Suite 201
Brooklyn, NY 11234
For Defendants:

No appearances.

SEYBERT, District Judge:
On October 2, 2013, plaintiffs, a group of over 100
current and former homeowners from twenty-eight different states
(collectively

“Plaintiffs”)

and

100

“John

Roe”

plaintiffs,

commenced this action against eight different mortgage providers
and

servicers

from

five

different
2

states

(collectively,

“Defendants”).

The Complaint seeks damages based on allegations

that Defendants engaged in a variety of fraudulent and improper
conduct during the origination and servicing of each Plaintiff’s
discrete home mortgage loan.

Based on these allegations, the

Complaint alleges violations of the Federal Truth in Lending
Act, 15 U.S.C. §§ 1601, et seq., the Real Estate Settlement
Procedures

Act,

12

U.S.C.

§§ 2601,

et

seq.,

twenty-eight

different state consumer protection statutes, as well as state
law claims for breach of contract, breach of implied covenant of
good

faith

and

concealment,

fair

dealing,

fraud,

fraud

the

following

promissory

in

the

estoppel,

inducement,

fraudulent
and

unjust

enrichment.
For

reasons,

the

claims

of

all

Plaintiffs, with the exception of the claims of the first-named
plaintiff, Nicholas D’Angelis, are sua sponte SEVERED pursuant
to Rules 20 and 21 of the Federal Rules of Civil Procedure and
are DISMISSED WITHOUT PREJUDICE to commencing separate actions
related to each mortgage originated and serviced by Defendants.
BACKGROUND1
Plaintiffs are a group of over 100 current and former
homeowners from twenty-eight different states.2

(Compl. ¶ 60-

The following facts are drawn from the Complaint and are
presumed to be true for the purposes of this Memorandum and
Order.
1

3

165.)
located

Defendants are eight mortgage providers and servicers
in

five

different

states.3

(Compl.

¶ 169-175.)

Defendants allegedly received financing from the United States
Department of Treasury in exchange for their participation in
the Treasury Department’s Home Affordable Modification Program
(“HAMP”).4

(Compl. ¶ 1.)
According to the Complaint, each plaintiff took out a

separate
Defendants

mortgage
have

with

serviced

one

of

the

Plaintiffs’

eight
loans

Defendants,
“[f]or

a

and

period

The Complaint also includes 100 “John Roe” plaintiffs and
alleges “Plaintiffs’ counsel is aware of and has provided
services to unnamed ROE Plaintiffs, each of whom sustained
actual injury. The unnamed ROES sue under their names
fictiously because they either wish to maintain their privacy or
because Plaintiffs’ counsel have [sic] not completed the due
diligence necessary to properly plead their claims as of the
filing of this Complaint.” (Compl. ¶ 166.)
2

Defendants are organized under the laws of at least three
different states but the Complaint does not name the states of
incorporation for three of Defendants.
3

HAMP is a federal program created by the Treasury Department in
2009 pursuant to the Emergency Economic Stabilization Act of
2008. Gorbaty v. Wells Fargo Bank, N.A., Nos. 10-CV-3291, 10CV-3354, 2012 WL 1372260, at *14 (E.D.N.Y. Apr. 18, 2012)
(citing Rivera v. Bank of Am. Home Loans, No. 09–CV–2450, 2011
WL 1533474, at *1 (E.D.N.Y. Apr. 21, 2011). HAMP was “designed
to help three to four million financially struggling homeowners
by modifying loans to a level that is affordable for borrowers.”
Id. “HAMP provides financial incentives to loan servicers and
investors to encourage them to modify the terms of existing
private mortgages where foreclosures may be avoidable and
modification is in the financial interests of the involved
parties.” Id. (footnote omitted) (quoting Phu Van Nguyen v.
Bank of Am. Home Loan Servs., LP, No. 10–CV–01712, 2010 WL
3894986, at *1 (N.D. Cal. Oct. 1, 2010)).
4

4

ranging from months to several years prior to the commencement
of

this

broadly

action . . . .”
and

generally

(Compl.

allege

¶¶ 2,

that

60-165.)

Defendants

Plaintiffs

engaged

in

a

variety of fraudulent and improper practices in connection with
the servicing and origination of Plaintiffs’ individual loans,
including,

but

not

limited

to,

operating

a

“fraudulent

loan

modification program” and engaging in “deceptive and predatory
lending practices.”
modification,

(Compl. ¶¶ 1-56.)

Plaintiffs

allege

that

With respect to loan
Defendants

defrauded

Plaintiffs by “purporting to offer the possibility of a loan
modification

agreement,”

when,

in

reality,

Defendants

had

no

intention of providing loan modifications, but only desired to
drive Plaintiffs “into default to enable Defendants to pursue
foreclosure

against

[Plaintiffs].”

(Compl.

¶¶

28-32.)

The

Complaint lists numerous ways in which Defendants implemented
their fraud but the Complaint does not specify which misconduct
applies
(See

to

which

generally

Plaintiffs

plaintiff,

Compl.)

allege

defendant,

With

that

respect

Defendants

or
to

loan

transaction.

lending

fraudulently

practices,
induced

Plaintiffs into unfavorable loan agreements by “offering loans
with terms that would never have been accepted by Plaintiffs
based on their financial means, had it not been for Defendants’
misrepresentation of material terms.”
the

allegations

related

to

loan
5

(Compl. ¶¶ 33-42.)

modification,

the

Like

Complaint

includes countless ways Defendants engaged in improper lending
practices

but

Plaintiffs

do

not

include

a

single

factual

allegation linked to a specific party or transaction.

(See

generally Compl.)
Based

on

these

general

allegations

of

improper

conduct, Plaintiffs assert ten different causes of action and
claim that they have suffered damages, including loss of their
homes, damage to their credit standing, loss of opportunity to
sell

their

expenses.

homes

prior

to

foreclosure,

(See Compl. ¶¶ 176-312.)

and

other

costs

and

However, Plaintiffs do not

specify which type of damage applies to which Plaintiff.
DISCUSSION
As

discussed

below,

Plaintiffs’

claims

are

not

properly joined pursuant to Rule 20 of the Federal Rules of
Civil Procedure and judicial economy is not served by joinder of
Plaintiffs’ claims.
I.

Permissive Joinder of Parties
Rule

20(a)(1)

permits

the

joinder

of

multiple

plaintiffs in an action if: “(A) they assert any right to relief
jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of
transactions or occurrences; and (B) any question of law or fact
common to all plaintiffs will arise in the action.”
P. 20(a)(1).

FED. R. CIV.

These elements are preconditions and both must be
6

met for joinder to be proper.

Deskovic v. City of Peekskill,

673 F. Supp. 2d 154, 159 (S.D.N.Y. 2009) (“As is clear from the
plain language of [the Rule], both criteria must be met for
joinder to be proper.”).

While “[t]he requirements of Fed. R.

Civ. P. 20(a) are to be interpreted liberally to enable the
court to promote judicial economy by permitting all reasonably
related claims for relief by or against different parties to be
tried in a single proceeding, the requirements of the rule still
must be met and constrain the Court's discretion.”

Kalie v.

Bank of Am. Corp., --- F.R.D. ----, 2013 WL 4044951, at *3
(S.D.N.Y.

Aug.

9,

2013)

(alteration

in

quotation marks and citation omitted).

original)

(internal

“If a court concludes

that [parties] have been improperly joined under Rule 20, it has
broad discretion under Rule 21 to sever [those] parties . . .
from the action.”

Id.

In determining whether claims arise out of the same
“transaction” or “occurrence” under Rule 20(a), “courts are to
look

to

the

logical

relationship

between

the

claims

and

determine ‘whether the essential facts of the various claims are
so logically connected that considerations of judicial economy
and fairness dictate that all the issues be resolved in one
lawsuit.’”
12,

22

(2d

Id. (quoting United States v. Aquavella, 615 F.2d
Cir.

1979)).

Plaintiffs

7

bear

the

burden

of

demonstrating

that

joinder

is

proper

under

Rule

20(a).

Deskovic, 673 F. Supp. 2d at 159.
Here, Plaintiffs’ claims do not arise out of the same
transaction or occurrence.

This case involves eight different

lenders and over 100 discrete loans secured at different times
for separate properties across twenty-eight different states.
It

is

well

settled

that

separate

loan

transactions

with

different lenders are separate “transactions or occurrences” and
generally are not sufficiently related to constitute a “series
of

transactions

20(a)(1).

or

occurrences”

within

the

meaning

of

Rule

See, e.g., Kalie, 2013 WL 4044951, at *4 (granting

motion to sever claims brought by sixteen plaintiffs because
each of them “entered into a different loan transaction at a
different time . . . relate to a distinct property”); Abraham v.
Am. Home. Mortg. Servicing, Inc., --- F. Supp. 2d ----, 2013 WL
2285205, at *4 (E.D.N.Y. May 23, 2013) (“It is well established
that

separate

constitute

a

loan

transactions

by

different

single

transaction

or

lenders

occurrence

and

do

claims

not
by

plaintiffs who engaged in those separate transactions generally
cannot be joined in a single action.”); Adelphia Recovery Trust
v.

Bank

of

Am.,

N.A.,

05-CV-9050,

2009

WL

636719,

at

*5

(S.D.N.Y. Mar. 5, 2009) (finding that claims against three banks
lacked

“transactional

relatedness”

and

did

not

share

common

questions of law or fact with other claims in the case because
8

the loans “were issued by different banks at different times” to
parties different from the other loans at issue in the case);
Adams v. U.S. Bank, NA, No. 12-CV-4640, 2013 WL 5437060, at
(E.D.N.Y.
because,
facts,

Sept.
inter

27,

2013)

alia,

different

(granting

“Plaintiffs'

properties

motion
claims

located

in

to

sever

involve

claims

different

different

states,

different defendants, and different analyses of underlying state
law

giving

rise

foreclosures”).

to

their

Even

claims

those

of

claims

fraud

and

asserted

by

unlawful
Plaintiffs

against a common lender defendant do not arise out of the same
“transaction” or “occurrence.”

Kalie, 2013 WL 4044951, at *4

(“But the mere fact of a common lender does not alone make
joinder appropriate—more is needed: ‘[E]ven claims by plaintiffs
who engaged in separate loan transactions by the same lender
cannot

be

joined

in

a

single

action.’”

(emphasis

in

the

original) (quoting Abraham, 2013 WL 2285205, at *4 (collecting
cases)).
With

no

common

transaction

or

occurrence

among

Plaintiffs’ claims, the Court therefore finds that Plaintiffs’
claims are not properly joined under Rule 20(a).

Accordingly,

the claims of all Plaintiffs, with the exception of the claims
of the first-named plaintiff, Nicholas D’Angelis, are sua sponte
SEVERED

pursuant

to

Rule

20

of

the

Federal

Rules

of

Civil

Procedure and DISMISSED WITHOUT PREJUDICE to commencing separate
9

actions

related

to

each

mortgage

originated

and

serviced

by

Defendants.

Id. at *6 (holding that where there is “no common

transaction

or

occurrence,

severance

and

dismissal

of

the

misjoined claims is mandatory”).
II.

Severance Under Rule 21
Finally, even if Plaintiffs satisfied Rule 20(a), the

Court would reach the same result in exercising its discretion
under Rule 21 of the Federal Rules of Civil Procedure Rule 21
provides, in relevant part, that “[o]n motion or on its own, the
court

may

at

any

time,

on

just

terms,

add

or

drop

party . . . [and] sever any claim against any party.”

a

FED. R.

CIV. P. 21.
In deciding whether to sever a claim under Rule 21,
courts generally consider, in addition to the preconditions set
forth in Rule 20(a), “[1] whether settlement of the claims or
judicial
would

economy

be

avoided

would
if

be

facilitated;

severance

were

[2] whether

granted;

and

prejudice

[3] whether

different witnesses and documentary proof are required for the
separate claims.”

Crown Cork & Seal Co., Inc. Master Retirement

Trust v. Credit Suisse First Boston Corp., 288 F.R.D. 331, 333
(S.D.N.Y.

2013)

(quoting

Erausquin

v.

Notz,

Stucki

Mgmt.

(Bermuda) Ltd., 806 F. Supp. 2d 712, 720 (S.D.N.Y. 2011)).

“A

court should consider whether severance will ‘serve the ends of
justice

and

further

the

prompt
10

and

efficient

disposition

of

litigation.’”

Crown Cork, 288 F.R.D. at 332 (quoting T.S.I. 27,

Inc. v. Berman Enters., Inc., 115 F.R.D. 252, 254 (S.D.N.Y.
1987)); see also In re Ski Train Fire in Kaprun, Austria, on
November 11, 2004, 224 F.R.D. 543, 546 (S.D.N.Y. 2004).
Here,

joinder

of

over

100

different

claims

against

eight different defendants involving the application of the laws
of twenty-eight different states does not serve the interest of
judicial economy.

There will be little, if any, overlapping

discovery and each Plaintiff’s individual claims will require
distinct

witnesses

and

documentary

proof.

Kalie,

2013

WL

4044951, at *6 (finding that judicial economy not served by
joining mortgage-related claims because “each plaintiff's claims
implicate

distinct

personnel . . . .”).

loans,

locations,

dates

and

Furthermore, settlement of the claims is

likely to be facilitated if the claims relating to separate
mortgage transactions are litigated separately.
WL 5437060, at * 4.

See Adams, 2013

In addition, “[a] joint trial could lead to

confusion of the jury and thereby prejudice defendants.”

Kalie,

2013 WL 4044951, at * 6 (internal citation and quotation marks
omitted).

Thus, for these reasons, the Court also finds that

the Rule 21 factors require severance of all claims besides
those of the first-named plaintiff, Nicholas D’Angelis.

11

CONCLUSION
For

the

following

reasons,

the

claims

of

all

Plaintiffs, with the exception of the claims of the first-named
plaintiff, Nicholas D’Angelis, are sua sponte SEVERED pursuant
to Rules 20 and 21 of the Federal Rules of Civil Procedure and
are DISMISSED WITHOUT PREJUDICE to commencing separate actions
related to each mortgage originated and serviced by Defendants.
Any plaintiff wishing to commence a separate action
must

do

so

within

thirty

(30)

days

of

the

date

of

this

Memorandum and Order.
Additionally, the statute(s) of limitations for any
claim asserted herein is tolled for a period of thirty (30) days
from the date of this Memorandum and Order.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

January 16, 2014
Central Islip, NY

12