Maecker v. EverHome Mortgage Company

Filing 37

ORDER: Upon reconsideration pursuant to Federal Rule of Civil Procedure 60(b)(1) of the Courts entry of summary judgment in favor of defendant Everhome Mortgage Company, and for the reasons stated above and in the Magistrate Judge Hugh B. Scotts Rep ort and Recommendation, Dkt. No. 19, as modified, the Clerk is directed to: (1) vacate the Courts prior Orders, Dkt. Nos. 25, 26; (2) vacate the Judgment entered March 27, 2014, Dkt. No. 27; but (3) upon the Courts renewed grant of summary judgment i n favor of defendant Everhome for the reasons stated above and in the Report and Recommendation, and denying injunctive relief as moot, (4) enter judgment in favor of defendant Everhome on this Decision and Order. SO ORDERED -CLERK TO FOLLOW UP-. Signed by Hon. Richard J. Arcara on 11/24/14. (LAS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WILLIAM ALBERT MAECKER,
Plaintiff,
v.

DECISION AND ORDER
13-CV-305-A

EVERHOME MORTGAGE COMPANY,
Defendant.
This action, brought by the plaintiff, William Albert Maecker, pro se, alleges
the defendant, Everhome Mortgage Company, breached a contract, committed
tortious interference, abused process, and engaged in fraud, all in connection with a
loan made to plaintiff Maecker’s former wife. The loan was to purchase and
rehabilitate a residence at 133 Central Avenue, Silver Creek, New York, that plaintiff
sought to develop as an income-producing property.
Plaintiff Maecker, who was not a party to the loan made to his former wife,
alleges predecessors of defendant Everhome fraudulently “closed the loan but
failed to fund disbursements” and caused plaintiff’s extensive efforts to rehabilitate
133 Central Avenue as an income-producing property to fail. Plaintiff affirms under
penalty of perjury that the loan proceeds were not disbursed because illegal
laundering of proceeds of narcotics trafficking by the United States Central
Intelligence Agency was stopped. Plaintiff’s action is pending on diversity
jurisdiction pursuant to 28 U.S.C. § 1332.

The Court referred the case to Magistrate Judge Hugh B. Scott for the
conduct of pretrial proceedings pursuant to 28 U.S.C. § 636(b). Defendant
Everhome moved pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) to dismiss the complaint for lack of standing and for failure to state a claim
upon which relief can be granted. Plaintiff cross-moved for summary judgment,
moved to expedite the case because of some related pending litigation, and moved
to amend his complaint.
On January 6, 2014, Magistrate Judge Scott issued an Order and Report and
Recommendation that recommended defendant Everhome's motion to dismiss be
converted pursuant to Rule 12(d) to a motion for summary judgment and that
summary judgment be granted to defendant. Dkt. No. 19.1 The motion to dismiss
was converted to one for summary judgment because defendant relied upon loan
documents that were not attached to plaintiff Maecker's complaint. Magistrate
Judge Scott also recommended that plaintiff's cross-motion for summary judgment
against Everhome, his motion to amend the complaint, and his motion to expedite
the proceedings all be denied. Id.
On January 22, 2014, plaintiff Maecker requested an extension of time to file
objections to the Report and Recommendation. The Court granted plaintiff until
February 18, 2014 to object.
On February 20, 2014, plaintiff Maecker filed a lengthy affirmation, with

1

The Order and Report and Recommendation, Dkt. No. 19, is referred to as the
“Report and Recommendation” in this Decision and Order.
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exhibits, stating his various injuries were caused when predecessors of defendant
Everhome failed to fund disbursements of the loan to plaintiff’s ex-wife because their
laundering of proceeds of illegal narcotics trafficking by the United States Central
Intelligence Agency was stopped and there were no funds to disburse. See Dkt.
Nos. 22-23. On March 3, 2014, the Court unilaterally granted plaintiff an additional
extension of time to object, until March 24, 2014, so that he could object with
specific references to the reasoning of the Report and Recommendation.
Plaintiff Maecker filed amended objections to the Report and
Recommendation dated March 24, 2014. The Court reviewed plaintiff’s amended
objections, the Report and Recommendation, the record as a whole, and
determined that a response from defendant Everhome was not necessary.
Pursuant to 28 U.S.C. §636(b)(1), the Court made a de novo determination of those
portions of the Report and Recommendation to which objections were made. In
light of plaintiff's pro se status, the Court treated even his vague references to
Magistrate Judge Scott's Report and Recommendation as objections and gave them
due consideration.
After de novo review, the Court adopted the proposed findings of the Report
and Recommendation in their entirety on March 26, 2014. For the reasons set forth
in the Magistrate Judge's Report and Recommendation, defendant Everhome's
motion to dismiss was treated as a motion for summary judgment and was granted.
Plaintiff's cross-motion for summary judgment, motion to expedite and motion to

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amend the complaint were denied. The complaint was dismissed and judgment
entered. Dkt. Nos. 26, 27.
On April 25, 2014, plaintiff Maecker filed a notice of appeal to the United
States Court of Appeals for the Second Circuit and a motion for reconsideration in
this Court. The Court entered an indicative ruling on August 1, 2014 that the Court
would grant the motion for reconsideration if the Court of Appeals were to remand
the action for that purpose. Dkt. No. 33. The Court of Appeals did remand the
action and the mandate was entered October 29, 2014.
The Court granted plaintiff Maecker’s motion for reconsideration in a Text
Order, Dkt. No. 36, and has reconsidered its earlier grant of summary judgment.
Plaintiff stresses he has standing to sue Everhome, even though he was a non-party
to the loan made to his former wife, essentially because he suffered a loss of
“sweat equity” in 133 Central Avenue, losses of future income from the property,
and other intangible losses. However, despite his submission of loan records and
loan-administration records, plaintiff fails to establish a triable issue of material fact
on his allegations that the financial and other losses he claims to have suffered were
caused by any financial institutions’ wrongful failures timely to disburse loan
proceeds. Because plaintiff is unable to raise a triable issue of material fact on any
of his claims, summary judgment is entered pursuant to Federal Rule of Civil
Procedure 56.
The Court has considered whether pro se plaintiff Maecker was initially given

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adequate notice that the Magistrate Judge was converting the motion to dismiss
filed by Everhome to a motion for summary judgment. See Hernandez v. Coffey,
582 F.3d 303, 307–08 (2d Cir. 2009). Notice of conversion of a motion to dismiss to
a motion for summary judgment is particularly important in a pro se action in which
the pro se party may not appreciate what is at stake. Id. Plaintiff was given
substantial extensions of time to object to the Report and Recommendation, and to
respond, with clear notice of the consequences of the recommended conversion of
the motions to dismiss to one for summary judgment. Plaintiff was given a full
opportunity to make complete submissions to oppose the motions and the Court
finds he understood the consequences of the conversion.2 As stated above,
however, plaintiff submitted inadequate evidence to warrant a trial, and failed to
show how he might obtain material evidence through discovery. Plaintiff failed to
show how a trial before a jury of any cognizable factual dispute material to his
claims could be justified.
The Court has also specifically reconsidered the Report and
Recommendation in that, after the Magistrate Judge’s Report and Recommendation
was entered, litigation in a New York State Court that plaintiff Maecker asserted in
his pro se complaint was based upon the same facts as this case was finally
resolved against plaintiff. Stenroos v. Maecker, 21 N.Y. 958 (2013). Plaintiff had

2

Plaintiff Maecker had an unrelated pro se action in this Court in which he filed a
motion for discovery when opposing a motion to dismiss on October 22, 2013. Dkt. 13-CV-769A, Dkt. No. 8.
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originally requested injunctive relief staying that state court action, and the Report
and Recommendation contained a recommendation that plaintiff’s request that the
Court enjoin that proceeding be denied on the merits. Upon reconsideration, that
request for injunctive relief is denied as moot.
CONCLUSION
Upon reconsideration pursuant to Federal Rule of Civil Procedure 60(b)(1) of
the Court’s entry of summary judgment in favor of defendant Everhome Mortgage
Company, and for the reasons stated above and in the Magistrate Judge Hugh B.
Scott’s Report and Recommendation, Dkt. No. 19, as modified, the Clerk is directed
to: (1) vacate the Court’s prior Orders, Dkt. Nos. 25, 26; (2) vacate the Judgment
entered March 27, 2014, Dkt. No. 27; but (3) upon the Court’s renewed grant of
summary judgment in favor of defendant Everhome for the reasons stated above
and in the Report and Recommendation, and denying injunctive relief as moot, (4)
enter judgment in favor of defendant Everhome on this Decision and Order.
SO ORDERED.

____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: November 24, 2014

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