Deans et al v. Bank of America et al

Filing 35

MEMORANDUM OPINION AND ORDER. For the foregoing reasons, defendants' motion to dismiss 17 is GRANTED. Deans's claims are dismissed with prejudice. The Clerk of the Court is requested to close this case. Re: 17 MOTION to Dismiss filed by Bank of America, Deutsche Bank National Trust Company. (Signed by Judge Richard J. Holwell on 10/24/2011) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ELROY DEANS,
Plaintiff,
-against-

10 Civ. 9582 (RJH)

BANK OF AMERICA, DEUTSCHE BANK
NATIONAL TRUST COMPANY, JOHN DOE,
JANE DOE,

MEMORANDUM OPINION
AND ORDER

Defendants.

Richard J. Holwell, District Judge:
Plaintiff pro se Elroy Deans (“Deans”) commenced this action on December 23, 2010,
against Bank of America, Deutsche Bank National Trust Company (“Deutsche Bank”), and the
John and Jane Doe defendants, alleging fraud, civil conspiracy to commit mail fraud and wire
fraud, fraudulent and negligent misrepresentation, and violations of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., the Real Estate and Settlement Procedures
Act (“RESPA”), 12 U.S.C. § 2601 et seq., and the Truth In Lending Act (“TILA”), 15 U.S.C.
§ 1601 et seq.1 Now before the Court is defendants’ motion to dismiss. Because Deans’s claims
are time-barred, the motion to dismiss is GRANTED and Deans’s complaint is dismissed with
prejudice.
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There appears to be some confusion as to which of Deans’s complaints is operative in this action. Defendants
argue for dismissal of the amended complaint, and the docket sheet reflects an amended complaint having been filed
on March 21, 2011. (See ECF No. 24.) But Deans appears to believe that his March 21, 2011 complaint is
inoperative, (see, e.g., Pl.’s Opp’n ¶¶ 21, 26), and Magistrate Judge Andrew J. Peck struck Deans’s March 21, 2011
amended complaint by memo endorsement on April 4, 2011, (see ECF No. 15). Defendants’ arguments for
dismissal apply with equal force, however, to both complaints, and therefore it makes no difference which complaint
is operative here.

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BACKGROUND
The following facts, taken from the complaint and other judicially noticeable documents,
are taken as true for the purposes of this motion.2
On December 6, 2002, plaintiff Deans, along with Penrose Deans, entered into an
“Installment Contract for Sale of Real Estate” (the “Installment Contract”) with the Secretary of
Veterans Affairs regarding a property at 2004 Crotona Avenue, Bronx, New York 10466 (the
“Crotona Property”). (Kaiser Decl. Ex. 2 (“Installment Contract”).) Deans agreed to pay
$305,110 to the Secretary, payable in 360 monthly installments of $1,828.63 as well as $110 in
cash. (Id. ¶ 4.) In the case of a default that continued for thirty days, the Secretary had the right
to accelerate the installment payments and to enforce Deans’s obligations under the Installment
Contract in a legal or equitable proceeding or to terminate Deans’s rights under the Installment
Contract by declaration, legal proceeding, or equitable proceeding. (Id. ¶ 15.) The Installment
Contract further provided that “in consideration of [Deans] occupying said premises before the
delivery of a deed conveying the title thereto, . . . such possession shall be that of a tenant from
month to month and that a relationship of landlord and tenant shall have been created and
established.” (Id. ¶ 22.)
The sum total of Deans’s factual allegations are that “on or about 12/22/2002 the
defendant commitied [sic] mortgage fraud to the plaintiff by not recording the mortgage,
mortgage of deed of trust or the loan.” (Am. Compl. § III.C; see also Compl. § III.C (“[O]n or
about 12/22/2002 the defendant commited [sic] mortgage fraud by not recording the mortgage,
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These documents include an Installment Contract for Sale of Real Estate, which is integral to the complaint
because Deans’s allegations concern a mortgage and foreclosure, and public records, such as Deans’s litigation
history in state court and the recorded deed to the property in question. See Pani v. Empire Blue Cross Blue Shield,
152 F.3d 67, 75 (2d Cir. 1998) (“It is well established that a district court may rely on matters of public record in
deciding a motion to dismiss under Rule 12(b)(6) . . . .”); Int’l Audiotext Network, Inc. v. Am. Tel. and Tel. Co., 62
F.3d 69, 72 (2d Cir. 1995) (“Although the amended complaint in this case does not incorporate the Agreement, it
relies heavily upon its terms and effect; therefore, the Agreement is ‘integral’ to the complaint, and we consider its
terms in deciding whether IAN can prove any set of facts that would entitle it to relief.”).

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note [sic] adding me to the title of the property.”).) Deans alleges that the defendants have
started a “wrongful foreclosure,” that he has “bad credit” as a result, and “cannot get a loan for
anything.” (Am. Compl. § III.C; see also Compl. § III.C.)
On October 30, 2003, Deutsche Bank purchased the deed to the Crotona Property from
Department of Veterans Affairs. (See Kaiser Decl. Ex. 3.) Tax bills for the property were to be
sent to Countrywide Home Loans, now known as BAC Home Loan Servicing, LP, and sued
herein as Bank of America. (Id. at 6.)
On June 24, 2005, Deutsche Bank sued Deans in New York state court to terminate all of
his rights under the Installment Contract, alleging that Deans had defaulted on his obligations
under the Installment Contract. (Kaiser Decl. Ex. 4.) Deutsche Bank moved for summary
judgment, which was initially denied on October 18, 2006, by Justice Kenneth L. Thompson.
(Id. Ex. 5.) Deutsche Bank then moved to vacate the October 18, 2006 order, a motion which
was granted on July 9, 2008. (Id. Ex. 6.) Justice Thompson also granted Deutsche Bank’s
motion for summary judgment, noting that he had held the motion “in abeyance pending a
hearing on August 2, 2007 to address whether defendants [including Deans] made the required
payments under the subject contract,” but that the hearing was “adjourned seven times,” the
motion was then “marked submitted as defendants were not prepared to proceed with the
hearing,” and that he was granting Deutsche Bank’s motion for summary judgment based on the
motion papers before him. (Id.) Deans moved for reargument before Justice Thompson, a
motion which was denied. (Id. Ex. 7.)
Deans filed suit in this Court on December 23, 2010. On March 10, 2011, Deans moved
for default judgment, which was denied by Magistrate Judge Andrew J. Peck on March 14, 2011.
(ECF No. 9.) Deans moved for reconsideration, which Judge Peck also denied. (ECF No. 14.)

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Deans then objected to Judge Peck’s decision before the undersigned, but his objections were
denied on April 14, 2011. (ECF No. 22.) Defendants moved to dismiss on April 4, 2011.
DISCUSSION
I. Legal Standard for a Rule 12(b)(6) Motion To Dismiss
To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege “enough facts to
state a claim to relief that is plausible on its face.” Starr v. Sony BMG Music Entertainment, 592
F.3d 314, 321 (2d Cir. 2010) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). If the factual averments permit no reasonable
inference stronger than the “mere possibility of misconduct,” the complaint should be dismissed.
Starr, 592 F.3d at 321 (quoting Iqbal, 129 S. Ct. at 1950). Thus, “[w]here a complaint pleads
facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Iqbal, 129 S. Ct. at 1949 (quoting
Twombly, 550 U.S. at 557). In applying this standard of facial plausibility, the Court accepts all
factual allegations as true, but it does not credit “mere conclusory statements” or “threadbare
recitals of the elements of a cause of action.” Id.
“[A] pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007). Accordingly, “the submissions of a pro se litigant must be construed liberally and
interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (internal quotation marks and emphasis omitted).

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II. Deans’s Claims Are Time-Barred
Deans’s only factual allegation concerns a December 22, 2002 event. Defendants argue
that all of his claims are therefore time-barred. The Court agrees.
Under New York law, for fraud and fraudulent misrepresentation actions, “the time
within which the action must be commenced shall be the greater of six years from the date the
cause of action accrued or two years from the time the plaintiff or the person under whom the
plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it.”
N.Y. C.P.L.R. § 213(8). Six years from December 22, 2002, was December 22, 2008, which is
over two years before Deans commenced this action. Deans appears to argue that his fraud and
fraudulent misrepresentation causes of action are not time-barred under the second prong of the
statute of limitations, apparently because he believed that the Installment Contract had been
superseded by a subsequent mortgage. (See Pl.’s Opp’n ¶¶ 7-12, 30.) Even if that were a reason
that Deans could not have discovered the fraud on December 22, 2002, it does not explain why
he could not have discovered it with reasonable diligence on June 24, 2005, as the Installment
Contract and the documents transferring the deed from the Department of Veterans Affairs to
Deutsche Bank were attached to Deutsche Bank’s complaint in the state court action. Two years
after that point is June 24, 2007, which is still well before Deans’s action was filed.
The remainder of Deans’s causes of actions require less discussion. A TILA damages
action must be brought “within one year from the date of the occurrence of the violation.” 15
U.S.C. § 1640(e). Here, that would be December 22, 2003.
For RESPA, “[t]here are only three private causes of action that can be raised under
RESPA. These actions arise under [12 U.S.C.] sections 2605, 2607 and 2608. For violations of
sections 2607 and 2608, there is a one year statute of limitations . . . .” Johnson v. Scala, No. 05

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Civ. 5529 (LTS)(KNF), 2007 WL 2852758, at *5 (S.D.N.Y. Oct. 1, 2007). A three-year statute
of limitations governs the third cause of action. Id. The latest a RESPA action could have been
brought, therefore, was December 22, 2005.
Actions under the FDCPA must be brought “within one year from the date on which the
violation occurs.” 15 U.S.C. § 1692k(d). Again, that would be December 22, 2003.
To the extent Deans’s civil conspiracy claim sounds in state-law fraud, “[t]he statute of
limitations for civil conspiracy is the same as that for the underlying tort,” Brady v. Lynes, No.
05 Civ. 6540 (DAB), 2008 WL 2276518, at *9 (S.D.N.Y. June 2, 2008), and that claim is timebarred for the same reason that his fraud and fraudulent misrepresentation claims are timebarred. To the extent it is based in civil RICO, “[c]ivil RICO claims are subject to a four-year
statute of limitations,” which runs from “when the plaintiff has ‘inquiry notice’ of his injury,
namely when he discovers or reasonably should have discovered the RICO injury.” Koch v.
Christie’s Int’l PLC, --- F. Supp. 2d ----, 2011 WL 1142905, at *5 (S.D.N.Y. 2011). Here,
Deans had inquiry notice since at least 2005, when Deutsche Bank commenced its action against
him and included the Installment Contract and the documents transferring the deed to it in its
state-court complaint. The latest he could have brought a civil RICO action under that measure
would have been June 24, 2009.
Under New York law, actions based in negligence have a three-year statute of limitations.
See Ross v. Louise Wise Servs., Inc., 868 N.E.2d 189, 197 (N.Y. 2007). Deans’s negligencebased causes of actions therefore are tardy by over five years.
“Pro se plaintiffs might not have the legal ken of attorneys. But . . . the length of a
limitation period for instituting suit in federal court inevitably reflects a value judgment
concerning the point at which the interests in favor of protecting valid claims are outweighed by

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the interests in prohibiting the prosecution of stale ones.” Springs v. Bd. of Educ., No. 10 Civ.
1243, 2010 WL 4068712, at *2 (S.D.N.Y. Oct. 14, 2010) (citing Carey v. Int’l Bhd. of Elec.
Workers Local 363 Pension Plan, 201 F.3d 44, 47 (2d Cir. 1999)). “Indeed, statutes of limitation
are not to be disregarded by courts out of a vague sympathy for particular litigants.” Id. Deans’s
claims fail to fall within any of the applicable statutes of limitations. His claims must therefore
be dismissed.

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CONCLUSION

For the foregoing reasons, defendants' motion to dismiss [17] is GRANTED. Deans's

claims are dismissed with prejudice. The Clerk of the Court is requested to close this case.

SO ORDERED.

Dated: New York, New York

,..

=,2011

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United States District Judge

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