Baril v. JPMorgan Chase Bank N.A.
Filing
38
MEMORANDUM OPINION AND ORDER #105006: re: 15 MOTION to Dismiss and/or for Summary Judgment. filed by JPMorgan Chase Bank N.A. The Court has considered all of the arguments raised by the parties. To the extent not specifically address ed, the arguments are either moot or without merit. For the foregoing reasons, the defendants motion to dismiss or alternatively for summary judgment is granted. The Clerk is directed to enter judgment dismissing the Second Amended Complaint. The Clerk is also directed to close all pending motions. (Signed by Judge John G. Koeltl on 11/25/2014) (js) Modified on 11/26/2014 (ca).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
STEVEN BARIL,
Plaintiff,
14 Civ. 02364 (JGK)
- v.-
MEMORANDUM OPINION AND
ORDER
JPMORGAN CHASE BANK, N.A.,
Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiff, Steven Baril, proceeding pro se, brings this
diversity action against the defendant JPMorgan Chase Bank, N.A.
(“Chase”) alleging claims of fraudulent misrepresentation,
fraudulent inducement, and fraudulent concealment.
The
defendant now moves to dismiss the Second Amended Complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, or, in the alternative, to convert the motion to a
motion for summary judgment pursuant to Rule 12(d) of the
Federal Rules of Civil Procedure.
For the reasons explained
below, the defendant’s motion to dismiss or for summary judgment
is granted.
I.
Unless otherwise indicated, the following facts are
accepted as true for purposes of the pending motion.
On May 28, 2010, Chase foreclosed Baril’s mortgage on his
home and purchased the home at the foreclosure sale.
Compl. at ¶¶ 10-11.
Sec. Am.
On June 17, 2010, Baril brought an action
against Chase in the Rockingham Superior Court, in Brentwood,
New Hampshire, alleging that the foreclosure on Baril’s mortgage
was wrongful and orchestrated without requisite legal standing.
See id. at ¶¶ 12, 20.
On or about August 16, 2010, a Landlord
and Tenant Writ was served by Freddie Mac on Baril to evict him
from his home.
Id. at ¶ 17.
On or about October 31, 2011,
Chase presented a settlement agreement and release (“SAR”) to
Baril for his consideration while he was preparing for trial on
the wrongful foreclosure claim.
Id. at ¶¶ 18, 19.
On November
2, 2011, Baril was evicted from his home by the Rockingham
County Sherriff.
Id. at ¶ 20.
Also on November 2, 2011,
Patricia L. Green signed the SAR as Vice President of Chase.
Id. at ¶ 24.
at ¶ 27.
On November 8, 2011, Baril executed the SAR.
Id.
Baril accepted a check for $35,000 from Chase in
accordance with the terms of the SAR.
Id. at ¶¶ 41(b), 65.
Baril alleges that the Patricia L. Green who signed the SAR
as a representative of Chase is the same person as Linda Green,
an alleged robo-signer for Wells Fargo bank in 2002, and not a
duly authorized agent of the defendant.
Id. at ¶¶ 28-30, Ex. C.
On March 28, 2014, the plaintiff brought this action
against defendant Chase, and subsequently filed amended
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complaints on May 16, 2014 and July 30, 2014.
The defendant now
moves to dismiss the second amended complaint or for summary
judgment.
This Court has jurisdiction under 28 U.S.C. § 1332(a)(2)
based on diversity of citizenship. For the reasons explained
below, Chase’s motion to dismiss the Second Amended Complaint or
for summary judgment is granted.
II.
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
the allegations in the complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff’s favor.
McCarthy v. Dun & Broadstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007).
The court’s function on a motion to dismiss is “not to
weigh the evidence that might be presented at a trial but merely
to determine whether the complaint itself is legally
sufficient.”
1985).
Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
The Court should not dismiss the complaint if the
plaintiff has stated “enough facts to state a claim to relief
that is plausible on its face.”
U.S. 544, 570 (2007).
Bell Atl. Corp. v. Twombly, 550
“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, 556 U.S. 662, 678
3
(2009).
While the Court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that a
court must accept as true all of the allegations contained in
the complaint is inapplicable to legal conclusions.”
Id.
When faced with a pro se complaint, the Court must
“construe [the] complaint liberally and interpret it to raise
the strongest arguments that it suggests.”
Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010) (citation and internal
quotation marks omitted).
“Even in a pro se case,
however, . . . threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.”
Id. (citation omitted).
Thus although the Court is
“obligated to draw the most favorable inferences” that the
complaint supports, it “cannot invent factual allegations that
[the plaintiff] has not pled.”
Id.
A federal district court sitting in diversity jurisdiction
must apply the choice-of-law principles of the forum state, in
this case New York.
Klaxon Co. v. Stentor Elec. Mfg. Co., 313
U.S. 487, 496–97 (1941).
Under New York law, “the first step in
any case presenting a potential choice of law issue is to
determine whether there is an actual conflict between the laws
of the jurisdictions involved.”
GlobalNet Financial.com, Inc.
v. Frank Crystal & Co., 449 F.3d 377, 382 (2d Cir. 2006)
4
(quoting In re Allstate Ins. Co., (Stolarz), 613 N.E.2d 936, 937
(N.Y. 1993)).
The differences, if any, between common law fraud in New
Hampshire, where the plaintiff resides and executed the SAR, and
New York, the defendant’s principal place of business, are
immaterial.
Compare Tessier v. Rockefeller, 33 A.3d 1118, 1124
(N.H. 2011) (stating that the elements of actual fraud in New
Hampshire are (1) a misrepresentation; (2) knowledge of the
representation’s falsity; (3) made for the purpose of inducing
another to act or refrain from action; (4) justifiable reliance;
and (5) pecuniary loss), with Wynn v. AC Rochester, 273 F.3d
153, 156 (2d Cir. 2001) (“Under New York law, to state a claim
for fraud a plaintiff must demonstrate: (1) a misrepresentation
or omission of material fact; (2) which the defendant knew to be
false; (3) which the defendant made with the intention of
inducing reliance; (4) upon which the plaintiff reasonably
relied; and (5) which caused injury to the plaintiff”).
Accordingly, New York Law may be applied to determine the
elements of a claim for fraud against the plaintiff in
connection with his execution of the SAR in New Hampshire.
Furthermore, both parties’ briefs assume that New York law
controls, and such “implied consent . . . is sufficient to
establish choice of law.” Krumme v. WestPoint Stevens Inc., 238
F.3d 133, 138 (2d Cir. 2000) (quoting Tehran–Berkeley Civil &
5
Envtl. Eng’rs v. Tippetts–Abbett–McCarthy–Stratton, 888 F.2d
239, 242 (2d Cir. 1989)).
Therefore, New York law will be
applied.
III.
The plaintiff asserts three causes of action: fraudulent
misrepresentation, fraudulent inducement, and fraudulent
concealment.
As mentioned above, “[u]nder New York law, to
state a claim for fraud a plaintiff must demonstrate: (1) a
misrepresentation or omission of material fact; (2) which the
defendant knew to be false; (3) which the defendant made with
the intention of inducing reliance; (4) upon which the plaintiff
reasonably relied; and (5) which caused injury to the
plaintiff.”
Wynn, 273 F.3d at 156.
Where a plaintiff pleads
fraud by omission, “it must prove additionally that the
plaintiff had a duty to disclose the concealed fact.”
Merrill
Lynch & Co. Inc. v. Allegheny Energy, Inc., 500 F.3d 171, 181
(2d Cir. 2007).
Allegations of fraud are governed by the heightened
pleading standard set forth in Federal Rule of Civil Procedure
9(b).
Rule 9(b) provides that “[i]n alleging fraud or mistake,
a party must state with particularity the circumstances
constituting fraud or mistake.
Malice, intent, knowledge, and
other conditions of a person’s mind may be alleged generally.”
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Fed. R. Civ. P. 9(b).
In order to meet the heightened pleading
standard provided by Rule 9(b), a complaint must “(1) specify
the statements that the plaintiff contends were fraudulent, (2)
identify the speaker, (3) state where and when the statements
were made, and (4) explain why the statements were fraudulent.”
ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d
Cir. 2007); see also Sher v. Allstate Ins. Co., 947 F. Supp. 2d
370, 385 (S.D.N.Y. 2013).
A.
The plaintiff’s first and second causes of action are for
fraudulent misrepresentation and fraudulent inducement.
Under
New York law, these two claims can be treated together as common
law fraud.
Fax Telecommunicaciones Inc. v. AT&T, 138 F.3d 479,
490 (2d Cir. 1998) (stating New York law requires same elements
for fraudulent misrepresentation and fraudulent inducement).
The plaintiff alleges that Chase committed fraud by representing
that Patricia L. Green was a Vice President of Chase with the
authority to bind Chase to the SAR, and that this was false.
However, this conclusory allegation fails to meet the heightened
Rule 9(b) pleading standard.
See Fed. R. Civ. P. 9(b); Wexner
v. First Manhattan Co., 902 F.2d 169, 172-73 (2d Cir. 1990).
There are no factual allegations to support the conclusory
allegation that Patricia L. Green was not authorized to sign the
SAR on behalf of Chase, particularly in view of the fact that
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Chase performed under the SAR by paying $35,000 to the
plaintiff.
The plaintiff’s allegation that Patricia L. Green is
actually Linda Green, an alleged robo-signer and one-time
employee of Wells Fargo Bank does nothing to advance the
plaintiff’s theory of fraud.
It is true that New York courts
have routinely shown intolerance for robo-signing.
See 2132
Presidential Assets, LLC v. Carrasquillo, 965 N.Y.S.2d 694, 697
(Civ. Ct. 2013); see also OneWest Bank, F.S.B. v. Drayton, 910
N.Y.S.2d 857, 859 (Sup. Ct. 2010) (defining a robo-signer as “a
person who quickly signs hundreds or thousands of foreclosure
documents in a month, despite swearing that he or she has
personally reviewed the mortgage documents but has not done
so”).
But here, the plaintiff presents no facts that indicate
that the SAR in this case was robo-signed.
Furthermore, whether
or not Patricia L. Green is in fact the same person as the Linda
Green who robo-signed documents for Wells Fargo in 2002 says
nothing about her authority to endorse an individual settlement
agreement for Chase in 2011.
Moreover, the plaintiff concedes
that he accepted the payment of $35,000 from Chase according to
the terms of the SAR, indicating that Chase performed its
obligation under the agreement and fully bound itself pursuant
to the authority of Patricia L. Green to sign the SAR.
Baril also fails to show reasonable reliance.
By Baril’s
own admission, the promise of a $35,000 payment—a payment that
8
Chase made and Baril accepted—induced him into accepting the
SAR.
Sec. Am. Compl. ¶ 56(a)
There is no indication that, at
the time of execution, Baril even questioned the authority of
Patricia L. Green to sign the SAR.
Accordingly, it follows that
Baril relied upon the representation that consideration would be
forthcoming, not the representation of Patricia L. Green’s
authority to execute the SAR on behalf of Chase.
Finally, the plaintiff has not shown injury that was caused
by the misrepresentation he alleges.
The plaintiff claims that
Chase’s alleged misrepresentation prevented him from fully
litigating the wrongful foreclosure action to recover his home
and clear his reputation and that it ruined his financial
standing and future employment opportunities.
50.
Sec. Am. Compl. ¶
Throughout the execution of the SAR, Chase behaved as
though it fully intended to be bound by the agreement, and Baril
never questioned this.
Both parties fully performed the
agreement regardless of the authority of Patricia L. Green.
Given these facts, it is unreasonable to conclude that the
alleged injury could have arisen from Chase’s representation of
Patricia L. Green’s authority.
Rather, any injury arose from
the earlier foreclosure—wrongful or not—and plaintiff’s decision
to accept the terms of the SAR, which terminated the wrongful
foreclosure litigation, eliminating the possibility of
recovering his home and clearing his reputation.
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Any injury did
not arise from the representation of Patricia L. Green’s
authority to sign the SAR for Chase.
Therefore, the plaintiff has failed to state claims for
fraudulent misrepresentation and fraudulent inducement, and the
defendant’s motion to dismiss the first and second causes of
action is granted.
B.
The plaintiff’s third cause of action is for fraudulent
concealment.
A claim of fraudulent concealment shares the same
elements as common law fraud with the additional requirement
that “a plaintiff must also prove that the defendant had a duty
to disclose the material information.”
Banque Arabe et
Internationale D’Investissement v. Maryland Nat. Bank, 57 F.3d
146, 153 (2d Cir. 1995) (citing Brass v. American Film Techs.,
Inc., 987 F.2d 142, 152 (2d Cir. 1993); Gurnee v. Hasbrouck, 195
N.E. 683 (N.Y. 1935)).
“[A] duty to disclose may arise in two
situations: first, where the parties enjoy a fiduciary
relationship, and second, where one party possesses superior
knowledge, not readily available to the other, and knows that
the other is acting on the basis of mistaken knowledge.”
Lerner
v. Fleet Bank, N.A., 459 F.3d 273, 292 (2d Cir. 2006).
The plaintiff again relies on his allegation that Patricia
L. Green lacked the authority to sign the SAR, and once again,
the plaintiff has failed adequately to plead any facts that show
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this to be true.
Because the plaintiff has failed to identify
any material information that Chase failed to disclose, it is
not necessary to consider whether the defendant had a duty to
disclose.
Therefore the defendant’s motion to dismiss the third
cause of action is granted.
IV.
Moreover, whatever the resolution of the defendant’s motion
to dismiss, the defendant’s motion for summary judgment should
also be granted.
A.
The standard for granting summary judgment is well
established.
“The [C]ourt shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986); Gallo v. Prudential Residential Servs.
L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).
“[T]he trial court's
task at the summary judgment motion stage of the litigation is
carefully limited to discerning whether there are genuine issues
of material fact to be tried, not to deciding them. Its duty, in
short, is confined at this point to issue-finding; it does not
extend to issue-resolution.”
Gallo, 22 F.3d at 1224.
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The moving party bears the initial burden of “informing the
district court of the basis for its motion” and identifying the
matter that “it believes demonstrate[s] the absence of a genuine
issue of material fact.”
Celotex, 477 U.S. at 323.
The
substantive law governing the case will identify those facts
that are material and “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a
court must resolve all ambiguities and draw all reasonable
inferences against the moving party.
See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986);
see also Gallo, 22 F.3d at 1223.
Summary judgment is improper
if there is any evidence in the record from any source from
which a reasonable inference could be drawn in favor of the
nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d
29, 37 (2d Cir. 1994). If the moving party meets its burden, the
nonmoving party must produce evidence in the record and “may not
rely simply on conclusory statements or on contentions that the
affidavits supporting the motion are not credible.” Ying Jing
Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see
also Scotto v. Almenas, 143 F.3d 105, 114–15 (2d Cir. 1998)
(collecting cases).
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B.
As discussed above, each of the plaintiff’s fraud claims
fails if Patricia L. Green was in fact authorized to sign the
SAR.
Accordingly, the defendant will succeed on its motion for
summary judgment if it shows that no reasonable inference can be
made that Patricia L. Green was not authorized to sign the SAR.
To this end, the defendant has submitted a sworn declaration and
incumbency certificate from Lauren V. Harris, an Assistant
Secretary at JPMorgan Chase Bank stating that Patricia Green was
in fact a duly appointed officer of Chase Bank and was
authorized to execute settlement agreements on the date on which
the SAR was executed.
Decl. of Lauren V. Harris, Ex. A.
Baril responds with more speculative and conclusory
allegations claiming that the declaration is actually false and
suggesting that Lauren V. Harris is herself a robo-signer.
Baril does not suggest that the declaration was robo-signed, nor
does he provide any additional evidence to suggest that the
declaration is false.
“[A] plaintiff cannot defeat a motion for
summary judgment by merely restating the conclusory allegations
contained in his complaint, and amplifying them only with
speculation about what discovery might uncover.”
Contemporary
Mission, Inc. v. U.S. Postal Serv., 648 F.2d 97, 107 (2d Cir.
1981).
Additionally, Baril provides an expert handwriting
analysis that concludes that Patricia L. Green is the same
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person as Linda Green.
discussed above,
Baril Decl. Ex. C.
However, as
even if Patricia L. Green and Linda Green are
the same person, this says nothing about Ms. Green’s authority
to endorse settlement agreements for Chase in 2011.
Therefore,
the defendant’s motion for summary judgment should be granted.
CONCLUSION
The Court has considered all of the arguments raised by the
parties.
To the extent not specifically addressed, the
arguments are either moot or without merit.
For the foregoing
reasons, the defendant’s motion to dismiss or alternatively for
summary judgment is granted.
The Clerk is directed to enter
judgment dismissing the Second Amended Complaint.
The Clerk is
also directed to close all pending motions.
SO ORDERED.
Dated:
New York, New York
November 25, 2014
_____________/s/_____________
John G. Koeltl
United States District Judge
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