Weaver v. Indymac Federal Bank, FSB

Filing 104

ORDER: for 92 Report and Recommendations 98 Report and Recommendations. For the reasons stated above, this Court concurs with the June 8, 2010 Report and Recommendation and February 16, 2011 Report and Recommendation of Magistrate Judge Lisa Smit h. The Court hereby adopts both Reports, in their entirety, as Orders of this Court. As such, the motions to dismiss of the moving Defendants (Docket Nos. 23, 43, 46,53, 65,67) are granted and the Amended Complaint is therefore dismissed as to Defend ants Davies, Oliveria, Houlihan Lawrence, Clove Branch Road, and Barry. The moving Defendants' motions to dismiss the cross-claims (Docket Nos. 27, 42, 44, 55, 61) are hereby dismissed as moot. Plaintiffs motion to consolidate (Docket No. 40) i s denied. Motions terminated: 27 MOTION to Dismiss. filed by Houlihan Lawrence Real Estate, Inc., John Oliveira, 65 MOTION to Dismiss filed by Kevin P. Barry, Attorney at Law, 53 MOTION to Dismiss filed by Clove Branch Road, LLC, 67 MOTION t o Dismiss the amended complaint filed by Houlihan Lawrence Real Estate, Inc., John Oliveira, 42 MOTION to Dismiss filed by Houlihan Lawrence Real Estate, Inc., John Oliveira, 43 MOTION to Dismiss filed by Joan Davies, 23 MOTION to Dismis s filed by Houlihan Lawrence Real Estate, Inc., John Oliveira, 46 MOTION to Dismiss filed by Kevin P. Barry, Attorney at Law, 40 MOTION Motion For Consolidation filed by Everette Weaver, 61 FIRST MOTION to Dismiss Cross-claims of Co-defendants Joan Davies and Kevin P. Barry filed by Clove Branch Road, LLC, 44 MOTION to Dismiss filed by Joan Davies, 55 MOTION to Dismiss filed by Clove Branch Road, LLC. (Signed by Judge Richard Owen on 9/29/11) (pl) Modified on 9/29/2011 (pl).

llSDCSDNY
DOCUMENT
ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DOC II:

DATE F'-IL-E-D-:-q""'t.-f'J..-Cj""~-f
itl'---/­

EVERETTE WEAVER,
Plaintiff,
09 Civ. 5091 (RO)
v.

INDYMAC FEDERAL BANK, FSB, et aI.,
Defendants.

ORDER
OWEN, District Judge:

Pro se Plaintiff Everette Weaver brings this action against Indymac Federal Bank, FSB

("IndyMac"), Joan Davies, John Oliveira, Houlihan Lawrence Real Estate, Inc., Clove Branch
Road, LLC ("Clove Branch Road"), and Kevin P. Barry, Attorney at Law. Plaintiff asserts
claims for violations of federal and state statutes, and claims under New York common law.
Before the Court are the following motions: motions to dismiss the Amended Complaint, filed
by Defendants JOM Davies, JOM Oliveira, Houlihan Lawrence Real Estate, Inc., Clove Branch
Road, LLC, and Kevin P. Barry, Attorney at Law (thc "moving Defendants."); motions to
dismiss cross-claims brought by those Defendants; and an "informal motion" submitted by the
Federal Deposit Insurance Corporation ("FDIC") as Receiver for IndyMac Federal Bank, FSB
and IndyMac Bank, FSB, seeking dismissal of this action as against IndyMac Bank for lack of
subj ect matter j urisdiction.

BACKGROUND
The facts supporting this action, which for the purposes of this Order the Court accepts as
true, are taken from Plaintiffs Amended Complaint and summarized in the June 8, 2010 Report
and Recommendation of Magistrate Judge Lisa Margaret Smith. The facts will not be repeated
in full in this Order. This action arises out of Plaintiffs contract for the purchase, and
subsequent purchase, of a lot in East Fishkill, New York for $250,000 in 2007.
Plaintiff Amended Complaint contains lengthy factual allegations directed at IndyMac
and the moving Defendants involving, among other things, conflicts of interests, collusion and
conspiracy, unjust enrichment, and fraud. As a consequence of Defendants' actions, Plaintiff
claims to have paid $250,000 for a lot which was worth far less.
On June 8, 2010, Magistrate Judge Lisa Margaret Smith issued a Report and
Recommendation (the "Report"), in which she recommended granting the moving Defendants'
motions to dismiss the Amended Complaint, and dismissing the various cross-claims as moot.
Plaintiff filed objections to the Report on July 14, 20 1O. On October 22, 2010, this case was
transferred to this Court. On February 16, 2011, Judge Smith issued another Report and
Recommendation in which she recommended the dismissal of Plaintiffs claims against IndyMac
Federal Bank, FSB for lack of subject matter jurisdiction, without prejudice to refiling in a forum
permitted under 12 U.s.c. § 182l(d)(6)(A). Plaintiff filed an objection to this Report and
Recommendation on April 18, 2011. Defendant Clove Branch Road opposed Plaintiffs
objection on May 5,2011 and Defendant Kevin Barry opposed the objection on May 10, 2011.

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STANDARD OF REVIEW

United States Magistrate Judges hear dispositive motions and make proposed findings of
fact and recommendations, generally in the fonn of a Report and Recommendation. District
courts review those orders under a clearly erroneous or contrary to law standard of review. 28
U.S.C. § 636(b)(I)(A). In reviewing a Report and Recommendation, a district court "may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.c. § 636(b)(1)(C). Where no timely objection has been made by
either party, a district court need only find that "there is no clear error on the face ofthe record"
in order to accept the Report and Recommendation. Nelson v. Smith, 618 F. Supp. 1186, 1189
(S.D.N.Y. 1985) (citations omitted).
A party may file "specific written objections," Fed R. Civ. P. neb), to a Magistrate
Judge's proposed findings and recommendations, and in that case, the district court has an
obligation to make a de novo detennination as to those portions of the Report and
Recommendation to which objections were made. 28 U.S.C. § 636(b)(l); First Union Mortgage

Corp., v. Smith, 229 F.3d 992, 995 (lOth Cir. 2000). A district court judge, in making a de novo
detennination, is afforded discretion in the weight placed on proposed findings and
recommendations. See United States v. Raddatz. 447 U.S. 667, 676 (l980). Objections to a
Report and Recommendation are to be "specific and are to address only those portions of the
proposed findings to which the party objects." Camardo v. General Motors Hourly-Rate

Employees Pension Plan, 806 F. Supp. 380, 381-82 (W.D.N.Y. 1992). In the event a party's
objections are conclusory or general, or simply reiterate original arguments, the district court
reviews the Report and Recommendation for clear error.

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This standard of review must be applied while remaining cognizant of the court's
obligation to construe a pro se litigant's submissions liberally in the light that they raise the
strongest possible arguments that they suggest. See Triestman v. Fed. Bureau ofPrisons, 470
F3d 471, 474-75 (2d Cir. 2006)( citations omitted).

DISCUSSION
June 8, 2010 Report and Recommendation
This Court has reviewed Magistrate Judge Smith's Report and Recommendation, as well as
Plaintiffs objections in light of the full record. The Report is well-reasoned and adequately
supported by law. Plaintiffs objections are vague and conc1usory, and fail to address the Report
and Recommendation with specificity. As explained more fully below, the Court concurs with
the Report and finds that Plaintiff has no provided no reason to upset its recommendations.

Motions to Dismiss claims against Defendants Oliveira, Houlihan Lawrence, Clove Branch
Road, and Barry
~ount

two: Failure to Disclose

It is well-established that real property value statements are not actionable under fraud
claims. Moving Defendants had no duty to disclose information about the property because they
did not have a fiduciary or confidential relationship with Plaintiff and Plaintiff has not claimed
that the moving Defendants actively concealed or otherwise thwarted Plaintiffs attempts to
acquire information about other lots. Accordingly, Plaintiffs claim for Failure to Disclose is
dismissed as to Defendants Oliveria, Houlihan Lawrence, Clove Branch, and Barry.

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Count Three: Collusion
Plaintiffs allegations that moving Defendants conspired against Plaintiff are general and
conclusory and fail to plead the elements of a conspiracy cause of action, and as such cannot
support Plaintiffs claim for civil conspiracy or collusion against any of the moving Defendants.
Plaintiff similarly fails to state a tort claim against non-moving Defendant IndyMac that could
support a conspiracy claim against other Defendants. Accordingly, Plaintiffs claim for collusion
is dismissed as to Defendants Oliveria, Houlihan Lawrence, Clove Branch Road, and Barry.

Count Seven: Deceptive Acts and Practices under New York General Business Law § 349
This Court agrees that Plaintiffs allegations do not suffice to support a claim within the purview
of the statute, because the acts of Defendants relate solely to Plaintiffs own real estate
transaction, rather than to consumers at large. Accordingly, this claim is dismissed as to
Defendants Oliveira, Houlihan Lawrence, Clove Branch Road, and Barry.

Count Eight: Unjust enrichment
Plaintiff does not set forth any factual basis upon which this Court could find base a
finding that Defendants Oliveira, Houlihan Lawrence, Clove Branch Road, and Barry were
unjustly enriched at the expense of Plaintiff. Additionally, Plaintiffhas failed to claim that
Clove Branch Road was responsible for the faulty appraisal process, and that defendant can be
held responsible for Plaintiffs failure to exercise due diligence relating to the Contract of Sale
and closing. Plaintiff s claim for unjust enrichment, therefore, is dismissed as to Defendants
Oliveira, Houlihan Lawrence, Clove Branch Road, and Barry.

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Count Eleven: Theft by Deception
Plaintiff fails to state a claim of fraud or deceit against Clove Branch Road because
Plaintiff does not allege that Clove Branch Road made any specific misrepresentation regarding
comparable property values, nor that Plaintiffrelied on any such misrepresentations.
Accordingly, the claim against Clove Branch for "theft by deception" is dismissed.

Count Twelve: Violation of Privacy
Plaintiffs claim against Kevin P. Barry for violation of privacy fails because New York
law only recognizes a limited statutory right of privacy regarding the nonconsensual commercial
appropriate of name, portrait, or picture of a living person and does not recognize a common-law
right of privacy. According, Plaintiffs claim against Defendant Barry for violation of privacy is
dismissed.
Count Thirteen: Fraud
Plaintiffs fraud claim against Kevin P. Barry is without merit because Barry did not owe a duty
to Barry, because Plaintiff did not allege that Barry made an actionable statement about the real
estate transaction to Plaintiff, because Barry did have superior knowledge over that available to
Plaintiff, because Plaintiff did not allege that any alleged omissions by Barry affected Plaintiffs
actions in the real estate deal, and because any alleged omissions have no bearing on Plaintiff s
alleged damages. Accordingly, Plaintiffs fraud claim against Barry is dismissed.

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Count Fourteen: RICO Claims under 18 U.S.C. §§ 1962(a) and (c),
and Count Fifteen: RICO Claim under 18 U.S.C. § 1962(d)
Plaintiff conclusory statements fail to state any facts supporting an injury caused by any
alleged racketeering activity. Plaintiffs RICO claims against Defendants Oliveira, Houlihan
Lawrence, Clove Branch Road, and Barry are dismissed.

Motions of Defendant Joan Davies
Counts Two and Three: Failure to Disclose and Collusion
Because Plaintiff provides no factual allegations concerning Defendant Davies
concerning Plaintiffs failure to disclose and collusion claims, these claims are dismissed as to
Defendant Davies.

Count Seven: Deceptive Acts and Practices under New York General Business Law § 349
For the reasons stated above discussing this claim as to the other Defendants, Plaintiffs
claim is dismissed as to Defendant Davies.

Count Eight: Unjust enrichment
Because Plaintiff states that Plaintiff paid IndyMac for Davies' services, rather than
having paid Davies personally, Plaintiff s claim for unjust enrichment is dismissed.

Count Ten: Appraisal Fraud
Plaintiffs conclusory allegations regarding Defendant Davies are insufficient to support
an appraisal fraud claim. Plaintiff fails to sufficiently state that Defendant knew the appraisal

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was inflated, that she intended to defraud Plaintiff, and that Plaintiff relied on Defendant's
appraisal in agreeing to the allegedly inflated purchase price. Plaintiffs appraisal fraud claim
against Davies is therefore dismissed.

Cross-Claims for Contribution and Indemnification
Because, as explained above, Plaintiff's claims against the moving Defendants are
dismissed, the moving Defendants' cross-claims are denied as moot.

February 16, 20ll Report and Recommendation
The Federal Deposit Insurance Corporation ("FDIC") submitted an "informal motion," as
receiver for IndyMac Federal Bank, FSB, and IndyMac Bank, FSB, in which it seeks dismissal
of this action against IndyMac Federal Bank and IndyMac Bank for lack of subject matter
jurisdiction. This motion consists ofletters from the FDIC dated March 9, 2010 and August 6,
2010, and letters from Plaintiff dated March 15,2010 and July 14, 2010. The FDIC, who is not a
party to this action, claims that the Court lacks personal jurisdiction over IndyMac Federal Bank,
FSB, IndyMac Bank, FSB, and the FDIC as receiver for these entities on the basis of Plaintiffs
alleged failure to affect service on them.! Magistrate Judge Lisa Margaret Smith issued a second
Report and Recommendation on February 16, 2011, in response to this "informal motion," in
which she found that this action should be dismissed as against IndyMac Federal Bank, FSB (and

I As more thoroughly explained in the February 16,2011 Report and Recommendation, the Office of
ThriftSupervision ("OTS") issued an order on July 11,2008 (which pre-dates this action's commencement on June
1,2009) and again on March 19,2009, in which it determined that IndyMac Bank FSB, and later IndyMac Federal
Bank, FSB. In those orders, the OTS determined that those banks were failed financial institutions, transferred the
banks' assets and liabilities, and appointed the FDIC as Conservator and Receiver.
While the caption to the Amended Complaint identified Defendant as "Indymac Federal Bank, FSB, FKA Indymac
Bank, FSB, NKA OneWest Bank, FSB," the FDIC's March 9, 2010 letter states that OneWest Bank, FSB is a
separate entity and that Plaintiff improperly served only on OneWest Bank and not on IndyMac Federal Bank or
IndyMac Bank. The FDIC further notes that is unclear which entity or entities Plaintiff intended to sue.

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IndyMac Bank, FSB and/or the FDIC, to the extent that Plaintiff intended to make them parties)
for lack of subject matter jurisdiction.
This Court concurs with the Report and Recommendation. As explained fully in the
Report, The Financial Institutions Refonn, Recovery and Enforcement Act of 1989 ("FIRREA")
limits the jurisdiction of courts over claims against failed banks. Any claims Plaintiff may have
against the FDIC as Receiver for IndyMac Federal Bank, FSB and IndyMac Bank, FSB, or
against those two entities themselves, must be adjudicated in accordance with the process
provided for in the Act. Only after that process has been followed may ajudicial determination
of such claims be made.
In recognition ofthat process, Plaintiff requests this Court grant permission to file an
action against the FDIC and an extension of time to do so. The FIRREA, however, provides that
these claims may be adjudicated only in the United States District Court for the District of
Columbia or the United States District Court for the Central District of California, as the district
in which IndyMac Federal Bank, FSB and IndyMac Bank, FSB, principally conducted business.
This Court is unable to set or extend deadlines for the filing of an action in another jurisdiction.
Accordingly, Plaintiffs claims are dismissed for lack of subject matter jurisdiction, without
prejudice to filing in a forum permitted under 12 U.S.C. § 1821(d)(6)(A).

CONCLUSION
For the reasons stated above, this Court concurs with the June 8, 2010 Report and
Recommendation and February 16, 2011 Report and Recommendation of Magistrate Judge Lisa
Smith. The Court hereby adopts both Reports, in their entirety, as Orders of this Court.

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As such, the motions to dismiss of the moving Defendants (Docket Nos. 23, 43, 46,53,
65,67) are granted and the Amended Complaint is therefore dismissed as to Defendants Davies,
Oliveria, Houlihan Lawrence, Clove Branch Road, and Barry. The moving Defendants' motions
to dismiss the cross-claims (Docket Nos. 27, 42, 44, 55, 61) are hereby dismissed as moot.
Plaintiffs motion to consolidate (Docket No. 40) is denied.

SO ORDERED.
SePtember~, 2011

RICHARD OWEN
CNITED STATES DISTRICT JUDGE

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