Opinion
21634/2007.
Decided March 26, 2008.
For the Plaintiff(s): DAVID M. HARRISON, ESQ., Brooklyn, New York.
For the Defendant(s): ARGENT MORTGAGE COMPANY, LLC., AMERIQUEST MORTGAGE COMPANY, AMERIQUEST FUNDING II REO SUBSIDIARY, LLC., DORSEY WHITNEY, LLP., New York, New York.
For the Defendant(s): DUMO OPUIYO, TARIK DAVIS, ESQ., Brooklyn, New York.
For the Defendant(s): CHRISTINA BANK TRUST COMPANY, AS OWNER TRUSTEE OF THE SECURITY NATIONAL FUNDING TRUST, KNUCKLES KOMOSINSKI, P.C., Tarrytown, New York.
For the Defendant(s): UM ACQUISITION, LLC., and UM CAPITAL, LLC., THOMAS P. MALONE, ESQ., New York, New York.
Remaining defendants have not appeared.
Defendants Argent Mortgage Company, LLC., Ameriquest Mortgage Company, LLC, and Ameriquest Funding II REO Subsidiary, LLC ("collectively "Ameriquest") move for an order pursuant to CPLR § 3211 (a)(1) and (a)(7) seeking dismissal of plaintiff Thelma Modeste's complaint as to defendants Ameriquest.
FACTS
Plaintiff, along with her husband, Kirt Modeste, formerly owned the property located at 131 East 35th Street, Brooklyn, New York, having acquired title by deed dated December 9, 1998. Plaintiff alleges that during the time she and her husband owned the premises, the existing mortgage had fallen into default. Upon the advisement of a "real estate/ mortgage broker," plaintiff and Kirt Modeste transferred ownership of the property to Sherri-Ann Cartey, who at the time was the fiancé; e of plaintiff's son. The transfer was effectuated by deed dated January 28, 2004. Simultaneous with the transfer of title to Cartey, a mortgage on the property was executed by Cartey in favor of New Century Mortgage Corporation (New Century) to secure a loan of $229,500.00, the proceeds of which were used to satisfy the existing mortgage on the property. According to plaintiff, while title had been transferred to Cartey, she continued to function as the property's "owner," paying the mortgage and other expenses related to the premises as well as collecting rent.
Plaintiff alleges that in late 2004, she experienced trouble paying New Century the monthly mortgage payments. Thereafter, she was solicited by defendant Maurice McDowall (hereinafter "McDowell"), the principal of defendant Lost Found Recovery, LLC (hereinafter "Lost Found"), who offered to assist plaintiff in obtaining refinancing of the New Century mortgage. McDowall allegedly advised plaintiff that the property must be transferred to another "straw buyer" through whom financing could be obtained. Following the payoff of the New Century mortgage, plaintiff would receive a "cash out" and Lost Found would work to repair plaintiff's credit rating for the next twelve months, after which title to the property would be transferred back to plaintiff from the straw buyer.
On December 1, 2004, Cartey executed a power of attorney in favor of McDowall which authorized McDowall to perform real estate transactions on her behalf. On January 28, 2005, McDowall thereafter executed a deed transferring title from Cartey to defendant Dumo Opuiyo (hereinafter "Opuiyo"). Simultaneously, Opuiyo executed and delivered two mortgages on the property to Argent, totaling $325,000.00, but plaintiff alleges that following this closing, neither she nor Cartey received any of the proceeds promised after satisfaction of the New Century mortgage. Thereafter, Opuiyo made no payments under the Argent mortgages resulting in the commencement of a foreclosure action.
PRIOR PROCEEDINGS
Plaintiff commenced the instant action seeking, inter alia, to cancel the Argent mortgages on the ground that plaintiff did not receive adequate consideration therefor and that the mortgages were procured by the fraud of McDowall and Opuiyo, of which Argent had actual or constructive notice. Plaintiff further alleges that Argent was negligent in underwriting the loan to Opuiyo in that it failed to conduct a sufficient investigation which would have led to the discovery of similar schemes in which Opuiyo was involved. The Ameriquest defendants, which constitute the original lender (Argent) and the subsequent assignees of the mortgages, seek dismissal under CPLR 3211(a)(1) and (7) on the grounds that plaintiff had no interest in the property at the time it was conveyed to Opuiyo, that the Ameriquest defendants no longer hold the mortgages at issue and are thus no longer proper parties, and that Argent had no duty to plaintiff when it underwrote the loans to Opuiyo.
See, e.g., Mathurin v. Lost Found Recovery, LLC., 2008 NY Slip Op 28108 (Jacobson, J.).
LAW AND APPLICATION
The court for purposes of a motion pursuant to CPLR § 3211 must accept the factual allegations contained in the complaint as true. See Becker v. Schwartz, 46 NY2d 401, 408, 413 NYS2d 895, 386 NE2d 807 (1978). The pleading must also be afforded a liberal construction in making a determination as to whether the facts as alleged fit within any cognizable legal theory. See Leon v. Martinez, 84 NY2d 83, 87-8, 614 NYS2d 972, 638 NE2d 511 (1994).
In determining whether a complaint is sufficient to withstand a motion pursuant to CPLR 3211 § (a) (7), the sole criterion is whether the factual allegations contained in the complaint state a cause of action cognizable at law. See Guggenheimer v. Ginzburg, 43 NY2d. 268, 275, 401 NYS2d 182, 372 NE2d 17 (1977). To succeed on a motion to dismiss pursuant to CPLR 3211 § (a)(1), the documentary evidence forming the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of plaintiff's claims.See Trade Source, Inc. v. Westchester Wood Works, Inc., 290 AD2d 437, 736 NYS2d 605 (2nd Dept. 2002).
The documentary evidence submitted by Ameriquest, the validity of which is not disputed by plaintiff, conclusively establishes that plaintiff had no legal interest in the subject property on January 28, 2005 when the mortgage transactions occurred. Therefore, plaintiff has no standing to challenge the validity of the transactions. "Standing to sue requires an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant's request." Caprer v Nussbaum , 36 AD3d 176 , 182, 825 NYS2d 55 (2nd Dept. 2006). Without both capacity and standing, a party lacks authority to sue. See Graziano v County of Albany , 3 NY3d 475 , 479, 787 NYS2d 689, 821 NE2d 114 (2004). A plaintiff generally has standing only to assert claims on behalf of himself or herself. Although there are certain situations, which are not present here, where representative or organizational standing is permitted, one does not as a general rule have standing to assert claims on behalf of another. See Caprer v Nussbaum, supra at 182.
Capacity is a threshold question involving the authority of a litigant to present a grievance for judicial review. Ibid.
While plaintiff may have thought of herself as the functional owner of the property, occupying the property and assuming all the obligations associated with titled ownership, the fact is plaintiff did not possess any legal title on January 28, 2005 and had no privity with the parties involved in the transactions occurring on that date. Plaintiff's name does not appear on any of the documents executed during the transactions and plaintiff has no obligations under the mortgages executed against the property. Since it was Cartey who was divested of the property on January 28, 2005, it is only Cartey who has standing to assert a cause of action to void the deed to Opuiyo, void the mortgages to Ameriquest based on fraud and/or to recover any proceeds from the Argent loan (which are claimed to have been improperly diverted) due her as seller.
As a result, the motion of defendants Ameriquest to dismiss the complaint as against them must be granted. The complaint is hereby dismissed as against defendants Ameriquest, and is further dismissed against defendants/mortgage assignees Christiana Bank Trust Company, UM Acquisition, LLC and UM Capital, LLC.
This constitutes the decision and order of the Court. Defendants Ameriquest are directed to settle order in accordance with this decision.