Marino v. Bank of America Home Loans et al
Filing
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MEMORANDUM OPINION & ORDER granting 8 Motion to Consolidate Cases, MOTION for Leave to Replead and Serve an Amended Complaint. Signed by Judge William K. Sessions III on 6/22/2012. (law) Text clarified on 6/24/2012 (law).
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
VERA GRETCHYN MARINO,
Plaintiff,
v.
BANK OF AMERICA HOME LOANS and
BANK OF AMERICA CORPORATION,
individually and as successors
to the interests, credits,
liabilities of COUNTRYWIDE
HOME LOANS, INC.
Defendants.
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:
: Case No. 2:11-cv-241-wks
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VERA GRETCHYN MARINO,
:
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Plaintiff,
:
: Case No. 2:11-cv-243-wks
v.
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COUNTRYWIDE HOME LOANS, INC.,
:
BANK OF AMERICA HOME LOANS, and :
BANK OF AMERICA CORPORATION,
:
individually and as successors :
to the interests, credits,
:
liabilities of COUNTRYWIDE
:
HOME LOANS, INC.
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Defendants.
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Memorandum Opinion & Order:
Defendants’ Motion to Dismiss and Plaintiff’s Motion for Leave
to Amend Complaint and Consolidate
Plaintiff Vera Gretchyn Marino, pro se, brought two actions
against Defendants Countrywide Home Loans, Inc. (“Countrywide”),
Bank of America, N.A. (“BANA”), and Bank of America Corporation
(“BAC”) (collectively, the “Defendants”), alleging fraudulent
conduct related to a mortgage agreement entered into by Marino
and Countrywide.
Marino brings this suit pursuant to 28 U.S.C.
§§ 1331, 1332, and 1337, seeking monetary damages, a rescission
of the mortgage, and a judgment enjoining the Defendants from
foreclosing her Winhall, Vermont property.
The Defendants move
to dismiss Marino’s complaints pursuant to Federal Rule of Civil
Procedure 12 (b) (6).
In light of the Defendants’ Motion to
Dismiss, Marino moves to amend her complaints.
Marino further
seeks to consolidate her two pending actions against the
Defendants.
For the reasons set forth below, the Court GRANTS
Marino thirty days for Leave to Amend Complaint and DENIES the
Defendants’ Motion to Dismiss as premature.
Additionally, the
Court GRANTS Marino’s Motion to Consolidate.
FACTUAL BACKGROUND
Marino filed two complaints on October 5, 2011.
The
complaints are identical apart from one listing an additional
defendant, Countrywide.
The complaints’ factual allegations are
extremely limited: (1) a Countrywide agent solicited Marino
“[i]n or about September, 2005,” encouraging her to mortgage her
Winhall, Vermont home and invest in real estate, stating that
real estate “was on a wonderful upswing”; (2) at some point in
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time, the agent represented that the mortgage rate would be
9.87%, which the agent warranted as a fair and legal lending
rate; and (3) Marino and Countrywide closed on a $365,000
mortgage on October 6, 2005.
Marino ultimately concludes that Countrywide’s
representations concerning her mortgage were “false or
excessive.”
She claims relief under fraudulent
misrepresentation and concealment, consumer fraud, and the Truth
in Lending Act (“TILA”) as well as various other statutes.1
Marino seeks damages in the amount of $743,000, a rescission of
the mortgage, and a judgment enjoining the Defendants from
foreclosing her Winhall property.
In response to Marino’s complaints, the Defendants moved
for Rule 12 (b) (6) dismissal, asserting the following: (1)
Marino’s complaints contain no factual allegations showing
entitlement to relief; (2) Marino’s claims based on fraudulent
misrepresentation and concealment, consumer fraud, and TILA are
time-barred; (3) all claims not time-barred rest on statutes
conferring no right to relief; and (4) Marino asserts no claim
against Defendant BANA or Defendant BAC.
1
Marino claims relief under approximately fifteen statues, some
of which do not exist: 15 U.S.C. §§ 1605, 1635, 1638, 1640, and
1641; 28 U.S.C. §§ 1331, 1337, and 2201; 9 V.S.A. §§ 104,
“1461(b),” “2453m,” and 2461; and 32 V.S.A. § 3108.
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In response to the Defendants’ Motion to Dismiss, Marino
proposes amending her complaints to include additional “facts in
support of the claims against defendants, and defendant[s’]
false representations, knowledge thereof, and my reliance upon
them.”
Marino further indicates her preparedness to identify
the Countrywide agent who made the purported false
representations.
Also, according to her Motion for Leave to
Amend Complaint, Marino is prepared to state exactly where and
when the representations were made.
In addition to her Motion for Leave to Amend Complaint,
Marino also moves to consolidate her two pending actions against
the Defendants.
DISCUSSION
I.
Plaintiff’s Complaints are Inadequately Pled, but Leave to
Amend is Appropriate.
When a plaintiff proceeds pro se, the court must read her
complaint liberally and interpret it as raising the strongest
arguments it suggests.
200 (2d Cir. 2004).
See McEachin v. McGuinnis, 357 F.3d 197,
Moreover, a pro se complaint should not be
dismissed without the court “granting leave to amend at least
once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.”
Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2012) (quoting Branum v.
Clark, 927 F.2d 698, 705 (2d Cir. 1991).
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Indeed, even when a
plaintiff is represented by counsel, courts should freely grant
leave to amend “when justice so requires.”
(15)(a)(2).
Fed. R. Civ. P.
However, even a pro se complaint will be dismissed
if continually pled inadequately.
See Ashcroft v. Iqbal, 556
U.S. 662, 677 (2009); Gorbaty v. Wells Fargo Bank, N.A., No. 10CV-3291, 2012 WL 1372260, at *3 (E.D.N.Y. April 18, 2012).
An adequately pled complaint must allege facts showing a
right to relief above “the speculative level.”
See Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).
When
evaluating complaints, courts ignore conclusory statements, but
take factual allegations as true.
See Iqbal, 556 U.S. at 664.
Striking all conclusory statements, the alleged facts in a
complaint must plausibly establish a cause of action.
See id.
Thus, a pleading demands more than an “unadorned, the-defendantunlawfully-harmed-me accusation.”
See id. at 678.
A heightened pleading standard applies when a plaintiff
alleges fraud.
See Fed. R. Civ. P. 9(b).
Under Federal Rule of
Civil Procedure 9(b), a plaintiff alleging fraud must “state
with particularity the circumstances constituting fraud,” which
requires that a complaint: “(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.”
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See id.; Rombach
v. Chang, 355 F.3d 164, 170 (2d Cir. 2004) (internal quotations
omitted).
Furthermore, in order to pass the pleading stage, a
plaintiff’s claims cannot be time-barred.
See Zerilli-Edelglass
v. New York City Transit Authority, 333 F.3d 74, 80-81 (2d Cir.
2003).
Marino’s claims are inadequately pled.
fraud claims fail under Rule 9(b).
First, Marino’s
Although Marino states that
a Countrywide agent falsely represented that a 9.87% mortgage
rate was fair and legal and that real estate “was on a wonderful
upswing,” Marino’s complaints do not identify the speaker, state
where and when the statements were made,2 or explain why the
statements were fraudulent.
Second, Marino’s TILA claim fails
because Marino does not explain in any way how Countrywide
violated TILA; Marino merely states that she is entitled to
relief under TILA.
Nevertheless, Second Circuit law requires that Marino be
given leave to amend, since Marino proceeds pro se and since
Marino’s complaints give at least some indication that a valid
2
Note that Marino’s complaints do state that “[i]n or about
September, 2005,” a Countrywide agent stated that real estate
“was on wonderful upswing,” but that Marino’s complaints provide
no time frame whatsoever related to the agent’s interest rate
statements. Nevertheless, Marino is prepared to state exactly
where and when all false statements were made in her Amended
Complaint.
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claim might be stated—namely, that at some specific time and
place a specific agent of the Defendants’ made some
representation, which was fraudulent for some specific reason.
II.
Consolidation is Appropriate.
When two or more actions before the court involve a common
question of law or fact, the court may consolidate the actions.
Fed. R. Civ. P. 42(a)(2).
Indeed, it is in the discretion of
the trial judge to consolidate trials or try particular issues
jointly.
See Johnson v. Celotex Corp., 899 F.2d 1281, 1284-85
(2d Cir. 1990); Walker v. Deutsch Bank, AG, No. 04 Civ. 1921,
2005 WL 2207041, at *2 (S.D.N.Y. Sept. 6, 2005).
In the name of
efficiency and consistent results, courts generally favor
consolidation where appropriate.
See Malcolm v. Nat’l Gypsum
Co., 995 F.2d 346, 353 (2d Cir. 1993); Walker, 2005 WL 2207041,
at *2.
These benefits, however, “can never be purchased at the
cost of fairness.”
National Gypsum Co., 995 F.2d at 350;
Walker, 2005 WL 2207041, at *2.
In this case, consolidation is appropriate because
efficiency calls for consolidation and because no issues of
fairness are present.
complaints.
On October 5, 2011, Marino filed two
The complaints are identical to one another, except
that one (ECF 11-cv-243) lists an additional defendant,
Countrywide.
That the other complaint (ECF 11-cv-241) fails to
include Countrywide is presumably a result of typographical
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mistake.
The Defendants raise no objection to Marino’s Motion
to Consolidate.
Consolidation is therefore appropriate in light
of inefficiencies that would otherwise result.
CONCLUSION
Because Marino proceeds pro se and because Marino’s
complaints provide some indication that a valid claim might be
stated, the Court hereby GRANTS Marino thirty days for Leave to
Amend Complaint and DENIES the Defendants’ Motion to Dismiss as
premature.
Additionally, the Court hereby GRANTS Marino’s
Motion to Consolidate.
SO ORDERED.
Dated at Burlington, this 22nd day of June, 2012.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
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