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FILED: KINGS COUNTY CLERK 04/05/2023 03:56 PM INDEX NO. 507596/2023
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/05/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---------------------------------------------------------------------X Index No.: 507596/2023
SHAUNDER MAYNARD,
Plaintiff,
-against-
ABDULLA ALMURADI, PATRESHA WALKER, ISKYO
ARONOV AKA ISAAC ARONOV, JAMES M.
CAFFREY, ESQ., US BANK NATIONAL
ASSOCIATION, AS TRUSTEE FOR CITIGROUP
MORTGAGE LOAN TRUST, INCE. 2006-HE3, NEW
CENTURY MORTGAGE CORPORATION, FRENKEL
LAMBERT WEISS WEISMAN AND GORDAN, LLP,
JOHN DOE(S),
Defendants.
----------------------------------------------------------------------X
MEMORANDUM OF LAW IN IN SUPPORT OF
DEFENDANT’S MOTION TO DISMISS THE PLAINTIFF’S COMPLAINT
FRENKEL LAMBERT WEISS WEISMAN & GORDON, LLP
53 Gibson Street
Bay Shore, New York 11706
(631) 969-3100
Attorneys for Defendant, Frenkel Lambert Weiss Weisman & Gordon, LLP
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PRELIMINARY STATEMENT
The Defendant, Frenkel Lambert Weiss Weisman & Gordon, LLP (“FLW”), submits this
Memorandum of Law, along with the accompanying Affirmation of Keith L. Abramson, Esq.
(“Abramson Affirmation”) and the exhibits annexed thereto, in support of its Motion to Dismiss
the Plaintiff’s Complaint pursuant to CPLR §§ 3211(a)(3), (5) and (7).
The Complaint purports to assert four (4) causes of action against FLW, each of which
contains allegations related to a residential mortgage foreclosure action, under Kings County
Supreme Court Index No. 28641/2007 (the “Foreclosure Action”), in which FLW represented the
foreclosing mortgagee as plaintiff, therein obtaining a Judgment of Foreclosure and Sale, dated
March 1, 2018 and entered on April 2, 2018. A copy of the entered Judgment is annexed to the
Abramson Affirmation, submitted herewith, as Exhibit “A”. The Plaintiff in the instant action,
Shaunder Maynard (“Plaintiff” or “Maynard”), was not a party to the Foreclosure Action, despite
her numerous attempts to intervene and prevent the sale of the mortgaged premises. Ultimately,
the mortgaged premises were sold at a foreclosure auction on March 16, 2023. A copy of the
Referee’s Report of Sale is annexed to the Abramson Affirmation as Exhibit “B”.
As demonstrated herein, supra, the allegations of the Complaint, considered in the light
most favorable to Plaintiff, fail to state a cause of action against FLW, and therefore the
Complaint must be dismissed pursuant to CPLR §3211(a)(7). Moreover, even if a cause of
action cognizable at law were somehow gleaned from the four corners of the Complaint, the
individual causes of action pled by Maynard are legally insufficient to withstand a motion to
dismiss pursuant to CPLR § 3211(a)(3) and (5) based on the Plaintiff’s lack of standing and the
expiration of the statute of limitations.
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STATEMENT OF FACTS
This is an action brought by the former owner of real property that was the subject of a
mortgage foreclosure action brought by defendant US BANK NATIONAL ASSOCIATION, AS
TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST, INCE. 2006-HE3 (“US Bank”),
under Kings County Supreme Court Index No. 28641/2007 (the “Foreclosure Action”), in which
FLW represented US Bank. A Judgment of Foreclosure and Sale, dated March 1, 2018, was
entered in the Kings County Clerk’s Office on April 2, 2018 (See Exhibit “A”), and the real
property was sold on March 16, 2023 (See Exhibit “B”).
By the Plaintiff’s own admissions, Plaintiff engaged in a scheme to defraud, on or about
February 28, 2005, when she conveyed the mortgaged premises to her friend, Maxine Housen,
and again on or about October 5, 2006, when she arranged for Maxine Housen to transfer title to
another individual, Patresha Walker. See Exhibit “C”, ¶¶ 11-27, annexed to the Abramson
Affirmation. Because the Plaintiff no longer had a recorded interest in the mortgaged premises
on August 3, 2007, the date on which the Foreclosure Action was commenced, she was not
named as a party defendant in the action. Nevertheless, Maynard made two unsuccessful
attempts to intervene in the Foreclosure Action, both of which were denied because she failed to
demonstrate an actual interest in the mortgaged premises. See Exhibit “D”. In recent weeks,
Maynard attempted to prevent the sale of the property by bringing Orders to Show Cause, asking
both the Supreme Court and the Appellate Division to impose a temporary restraining order,
which were denied. See Exhibit “E”.
By the instant action, Maynard seeks declaratory and injunctive relief against FLW and
others, seeks to collaterally attack the Judgment in the Foreclosure action, in which she was not
permitted to intervene, and seeks damages for slander of title (against FLW and others) and for
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alleged violation of the Fair Debt Collection Practices Act against FLW. The Complaint fails to
set forth factual allegations sufficient to support a claim for relief against FLW, among other
deficiencies described herein, supra, and must therefore be dismissed as a matter of law.
LEGAL ARGUMENT
I. THE FIRST AND THIRD CAUSES OF ACTION
The first cause of action purports to seek injunctive relief against all defendants, though
it appears to seek injunctive relief only against US Bank, and other relief against additional
parties, and does not seek any relief against FLW. On the one hand, Maynard seeks “to compel
the determination of claims of the true ownership of the subject premises” (Complaint, ¶ 31),
though FLW does not claim – and has never claimed – any interest in the subject premises1. As
such, FLW is not a proper party defendant to this cause of action. On the other hand, Maynard
seeks “a determination as to the legal status of the parties to the Note and Mortgage”2
(Complaint, ¶ 37). With respect to this allegation, neither Maynard nor FLW is a party to the
Note and Mortgage, and therefore both are improper parties to a cause of action seeking a
judicial determination of such matters. Finally, Maynard seeks “injunctive relief against
defendant, “US Bank” and that the Kings County Supreme Court action be enjoined”3
(Complaint ¶ 47). Here again, FLW is not a proper party to this cause of action, which seeks
only to enjoin US Bank from proceeding with the Foreclosure Action.
1
It is assumed that the “subject premises” refers to the real property located at 1170 E. 42nd St., Brooklyn, NY
11210.
2
It is assumed that the “Note and Mortgage” refers to the loan documents executed by Patreesha Walker in favor
of New Century Mortgage Corporation, dated October 5, 2006, in the amount of $480,000.00.
3
It is assumed that the “Kings County Supreme Court action” refers to the Foreclosure Action (Index No.
28641/2007).
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Thus, the nature of the claim set forth by Maynard in her first cause of action is both
ambiguous and uncertain, and as such, the Complaint fails to satisfy the basic pleading
requirements of CPLR 3013. See, Foley v. D’Agostino, 21 A.D.2d 60, 62-63 [1st Dept. 1964]
(holding that the “primary function of pleadings is “that of adequately advising the adverse party
of the pleader’s claim or defense”). Moreover, to the extent that Maynard seeks to assert a cause
of action against FLW, it is manifest from the four corners of the Complaint that no such cause
of action exists. As a stranger to the Note and Mortgage, Maynard lacks standing to seek a
judicial determination as to the legal status of the parties to those legal instruments, and FLW,
also a non-party to the Note and Mortgage, is – in any event – an improper party defendant.
The first cause of action, at least to the extent asserted against FLW, fails to allege the
material elements of a claim upon which relief can be granted. In toto, the allegations are no
more than conclusory statements, in the absence of a factual predicate, asserting that US Bank
had no authority to enforce any claim against the property (Complaint, ¶ 32); accusing the
defendants, generally, of attempting to “unjustly enrich from the sale on a fraudulent claim”
(Complaint, ¶ 33); and alleging that the defendants “wrongfully interfered with or threaten [sic]
to interfere with Plaintiff’s use and enjoyment of the Property” (Complaint ¶ 36). “Statements in
a pleading shall be sufficiently particular to give the court and parties notice of the transactions,
occurrences, or series of transactions or occurrences, intended to be proved and the material
elements of each cause of action or defense.” Foley v. D’Agostino, 21 A.D.2d 60, 62 [1st Dept.
1964], citing CPLR 3013. Here, there are no factual allegations of conduct specific to FLW, nor
any particularized request for injunctive relief against FLW, and therefore the first cause of
action for injunctive relief fails to state a cause of action against FLW and must be dismissed
pursuant to CPLR 3211(a)(7).
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Similarly, Maynard’s third cause of action, which seeks “a declaration of rights and
duties of the parties… to determine the actual status and validity of the loan, deed of trust,
nominated beneficiaries, actual beneficiaries, loan servicers, trustees instituting foreclosure
proceedings and related matters”, fails to state a cause of action against FLW. First, the subject
upon which Maynard seeks a declaration of rights and duties is not defined in the pleading. Even
assuming that “the loan” refers to the Note and Mortgage sued upon in the Foreclosure Action, it
is unclear what is intended by “deed of trust, nominated beneficiaries, actual beneficiaries, loan
servicers, trustees instituting foreclosure proceedings and related matters” (Complaint, ¶ 56).
Here again, the pleading fails to satisfy even the most basic pleading requirements of CPLR
3013. See, Foley v. D’Agostino, 21 A.D.2d 60, 62-63 [1st Dept. 1964] (holding that the “primary
function of pleadings is “that of adequately advising the adverse party of the pleader’s claim or
defense”). To the extent that Maynard seeks to assert a cause of action against FLW, it is again
apparent that no such cause of action exists. FLW, as attorney for US Bank in the Foreclosure
Action, does not claim – and has never claimed – any rights in connection with the real property
that was the subject of the Foreclosure Action, nor with respect to the underlying loan. Further,
FLW, in its representation of US Bank, owed no duty to Maynard, who had no recorded interest
in the real property and no relation to the Note and Mortgage that were the subject of said action.
Accordingly, FLW is not a proper party defendant to an action seeking a declaration of rights
and duties related to such matters.
For the reasons set forth above, the first and third causes of action fail to state a cause of
action against FLW and must be dismissed pursuant to CPLR 3211(a)(7).
II. THE FIFTH CAUSE OF ACTION
The fifth cause of action seeks damages for slander of title against all defendants. The
elements of a cause of action for slander of title are: “(1) a communication falsely casting doubt
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on the validity of [the] complainant’s title, (2) reasonably calculated to cause harm, and (3)
resulting in special damages.” 39 College Point Corp. v. Transpac Capital Corp., 27 A.D.3d
454, 455 [2d Dept. 2006], quoting, Brown v. BethlehemTerrace Assoc., 136 A.D.2d 222, 224)
(internal quotation marks omitted) (additional citations omitted). By way of example, “[t]here is
no doubt that the act of wrongfully filing of record an unfounded claim to the property of another
is actionable as slander of title…” 39 College Point Corp. v. Transpac Capital Corp., 27 A.D.3d
at 455, quoting, Hanbidge v. Hunt, 183 A.D.2d 700, 701 (internal quotation marks omitted)
(additional citations omitted).
Here, the Complaint alleges that the defendants “engaged in mortgage fraud and
slandered the title to the premises by unlawful deed conveyances.” (Complaint, ¶ 66). At the
outset, Maynard fails to identify the unlawful deed conveyances referred to in her Complaint.
Where a cause of action is based upon misrepresentation or fraud, “the wrong shall be stated in
detail” (CPLR 3016). Moreover, the facts on which a pleading rests must be stated. The mere
allegation of unlawful deed conveyances, without identifying the very instruments constituting
the alleged wrong, renders the Complaint legally insufficient as a matter of law. That
deficiency, by itself, is sufficient to defeat Maynard’s claim. More significant, there is no
dispute that, at all times relevant to the allegations, Maynard did not have title to the premises,
having conveyed her interest in 2005, by deed, to her friend Maxine Housen (See Exhibit “C”).
Therefore, as a matter of law, Maynard cannot demonstrate a communication falsely casting
doubt on the validity of her title because she did not have valid title to the premises.
Accordingly, the allegations of the Complaint fail to state a cause of action for slander of title
and must be dismissed pursuant to CPLR 3211(a)(7).
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III. THE SIXTH CAUSE OF ACTION
The sixth cause of action is for violation of the Fair Debt Collection Practices Act
(FDCPA) and is asserted solely against FLW. This claim must also be dismissed as a matter of
law for failure to state a cause of action, lack of standing, and expiration of the statute of
limitations.
The FDCPA is codified at 15 U.S.C. § 1692 and contains numerous provisions. Without
reference to any specific provisions of the statute, the Complaint alleges that the firm: (1)
“violated the law and court orders by cutting corners to unlawfully foreclose and slander title to
the subject premise”; (2) “made misleading representations and affirmations to the standing of
defendant, [US Bank], in the foreclosure action in Kings County Supreme Court Index #
28641/07”; (3) continued an action that was commenced by a firm that was under investigation
and settled for $4million [sic] to end the investigation regarding their faulty business practices;
(4) was “well aware that the loan given to Walker derived from a fraudulent transaction”; and (5)
“fraudulently continued acting as if the named Plaintiff both existed and had a valid claim”. See,
Complaint, ¶¶ 69-70; 73-75.
Initially, because the Complaint fails to allege a violation of any particular provision of
the FDCPA, it fails to provide notice of the transactions, occurrences or events upon which the
cause of action rests, and as such it fails to set forth a valid cause of action. Foley v. D’Agostino,
21 A.D.2d 60, 62 [1st Dept. 1964], citing CPLR 3013. Moreover, the Complaint fails to identify
any of the provisions of “law and court orders” that were allegedly violated, nor the conduct
constituting such violations. The Complaint also fails to identify the representations and
affirmations that were allegedly made by FLW, which, according to the Complaint, were
misleading. The allegation that FLW continued an action that had been commenced by another
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law firm, regardless of whether that law firm was under investigation or settled a lawsuit
regarding faulty business practices, is not – as a matter of law –a violation of the FDCPA.
No facts are alleged to support Maynard’s allegation that FLW was aware that the loan
given to Walker derived from a fraudulent transaction. Indeed, if the loan given to Walker
derived from a fraudulent transaction, the very fraud alleged was committed by Maynard, and the
evidence shows only that Maynard was aware of such fraud (See, Exhibit “C”, ¶¶ 11-27). Thus,
by her own admission, Maynard comes to the court with unclean hands and seeks to profit from
her own fraud, which equity must not allow. And finally, the allegation that FLW “fraudulently
continued acting as if the named Plaintiff both existed and had a valid claim” is nonsensical. US
Bank’s existence and the validity of its claim (in the Foreclosure Action) is evidenced by the
Judgment of Foreclosure and Sale (See, Exhibit “A”). Accordingly, the Complaint must be
dismissed for failure to state a cause of action (CPLR 3211(a)(7)).
Moreover, because Maynard fails to identify the particular sections of the FDCPA under
which she is suing, she is unable to establish her standing to sue. “The class of persons who can
enforce a given section of the FDCPA must be determined by reference to the class identified in
and protected by that particular section”. Gabriel v. Newrez LLC, 2023 WL 2587506 (U.S.
District Ct., EDNY, March 21, 2023). Maynard has not demonstrated that she was the recipient
of any communication from FLW in connection with debt collection efforts. The Foreclosure
Action was based upon a Note and Mortgage executed by Patreesha Walker, not Maynard, and
Maynard is neither a debtor with respect to the debt underlying the Foreclosure Action, nor even
a party to the Foreclosure Action. As such, Maynard is not a “consumer” as defined by 15
U.S.C. § 1692(a)(3) and lacks standing to sue under 15 U.S.C. 1692(c). See Id. In other words,
Maynard is not the consumer with respect to the debt owed to US Bank relative to the
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Foreclosure Action, nor does she stand in the shoes of the consumer. Therefore, in addition to
the requirement that Maynard establish that she was a recipient of a false or misleading
communication from FLW, something she does not even allege, Maynard would have to
establish that she suffered some “injurious exposure” to the challenged communication. Barasch
v. Estate Information Services, LLC, Not Reported in F.Supp.2d, 2009 WL 2900261 [U.S.
District Ct., EDNY 2009], citing Sibersky v. Goldstein, No. 03-7993, 155 F.App’x 10, 11-12 (2d
Dir. Sept. 21, 2005) (citing Wright v. Finance Service of Norwalk, Inc., 22 F.3d 647, 650 (6th Cir.
1994) (en banc)). Thus, Maynard has not only failed to state a cause of action for a violation of
the FDCPA; she has also failed to allege facts necessary to demonstrate that she is within the
class of persons intended to be protected by the provisions of the FDCPA, demonstrating that she
lacks standing to sue for any such violation, and therefore the cause of action must be dismissed.
The sixth cause of action must also be dismissed based upon expiration of the statute of
limitations. Here again, because the specific conduct by which Maynard alleges FLW violated
the FDCPA is not alleged in the Complaint, it is impossible to know precisely when the alleged
cause of action accrued for statute of limitations purposes. However, the allegations center
around the Foreclosure Action, which resulted in a Judgment of Foreclosure and Sale, dated
March 1, 2018 and entered on April 2, 2018 (See Exhibit “A”). “The FDCPA provides that an
action to enforce any liability created by the act must be commenced within one year from the
date on which the violation occurs”. Somin v. Total Community Management Corp., 494
F.Supp.2d 153, 158 (U.S. Dist. Ct., EDNY, June 26, 2007), citing 15 U.S.C. § 1962k. And
“there is no question that the latest date upon which the one year period begins to run is the date
when a plaintiff receives an allegedly unlawful communication.” Id., citing Bates v. C & S
Adjusters, Inc., 980 F.2d 865, 868 n. 2 (2d Dir. 1992). Here, Maynard does not identify the
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alleged unlawful communication, so we are left to guess when any such communication, if one
exists, was made. In any event, because the basis of Maynard’s allegations relate to
representations allegedly made by FLW as to US Bank’s standing during the course of the
Foreclosure Action, such representations could only have occurred prior to March 1, 2018, when
the Court issued the Judgment of Foreclosure and Sale (See Exhibit “A”). Thus, as a matter of
law, Maynard’s claim is barred by the statute of limitations and must be dismissed pursuant to
CPLR 3211(a)(5).
CONCLUSION
Each of the four (4) causes of action alleged in the Complaint by Maynard against FLW
must be dismissed pursuant to CPLR 3211(a)(7) for failure to state a cause of action. With
respect to the Plaintiff’s request for injunctive and declaratory relief (First and Third causes of
action), FLW does not claim any interest in the real property and is not a party to the Note and
Mortgage, which are the subject of those claims, and is therefore not a proper party defendant to
those causes of action. Regarding the cause of action for slander of title (Fifth cause of action),
the facts alleged in the Complaint, even if true, fail to establish the elements of the cause of
action; indeed, the undisputed fact that Maynard was not in title is sufficient to defeat this claim.
And finally, with respect to the cause of action for violation of the FDCPA, the factual
allegations of the Complaint are again insufficient to even raise the possibility that FLW violated
the statute. Notwithstanding the insufficiency of the pleading, the sparse allegations
demonstrate, in any event, that Maynard lacks standing to assert such a claim. Moreover, the
cause of action, as alleged, pertains to communications that could only have occurred more than
one year prior to commencement of this action, rendering it time-barred pursuant to 15 U.S.C. §
1962k. For all of the foregoing reasons, the instant action must be dismissed.
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WHEREFORE, it is respectfully requested that the Court grant the within Motion to
Dismiss the Plaintiff’s Complaint as against the Defendant, Frenkel Lambert Weiss Weisman &
Gordon, LLP.
Dated: Bay Shore, NY
April 5, 2023
FRENKEL LAMBERT WEISS WEISMAN & GORDON, LLP
By: _________________________
Keith L. Abramson
53 Gibson Street
Bay Shore, New York 11706
(631) 969-3100
Attorneys for Defendant, Frenkel Lambert Weiss
Weisman & Gordon, LLP
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CERTIFICATION BY ATTORNEY
Keith L. Abramson, an attorney duly admitted to practice law before the Courts of the State
of New York, a member of the firm of Frenkel, Lambert, Weiss, Weisman & Gordon, LLP
(“FLW”), attorneys for the Defendant, FLW, pursuant to Uniform Rule Section 130-1.1-a, states
as follows:
1. I hereby certify, under the penalty of perjury and as an officer of the Court, that, to
the best of my knowledge, information and belief, formed after an inquiry reasonable
under the circumstances, the presentation of the within paper or the contentions
therein are not frivolous as defined in subsection (c) of section 130-1.1, including
that the substance of the factual statements therein are not false.
2. Word Count. According to the word-processing system used to prepare the
document, the total number of words in this memorandum of law, exclusive of the
caption, table of contents, table of authorities, signature block, and this Certification,
is 3,327.
3. 3. I hereby certify that the within document complies with the word count limit
pursuant to 22NYCRR 202.8 - b.
Dated: Bay Shore, New York
April 5, 2023
Keith L. Abramson
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Preview
FILED: KINGS COUNTY CLERK 04/05/2023 03:56 PM INDEX NO. 507596/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/05/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------X Index No.: 507596/2023 SHAUNDER MAYNARD, Plaintiff, -against- ABDULLA ALMURADI, PATRESHA WALKER, ISKYO ARONOV AKA ISAAC ARONOV, JAMES M. CAFFREY, ESQ., US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST, INCE. 2006-HE3, NEW CENTURY MORTGAGE CORPORATION, FRENKEL LAMBERT WEISS WEISMAN AND GORDAN, LLP, JOHN DOE(S), Defendants. ----------------------------------------------------------------------X MEMORANDUM OF LAW IN IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS THE PLAINTIFF’S COMPLAINT FRENKEL LAMBERT WEISS WEISMAN & GORDON, LLP 53 Gibson Street Bay Shore, New York 11706 (631) 969-3100 Attorneys for Defendant, Frenkel Lambert Weiss Weisman & Gordon, LLP 1 of 13 FILED: KINGS COUNTY CLERK 04/05/2023 03:56 PM INDEX NO. 507596/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/05/2023 PRELIMINARY STATEMENT The Defendant, Frenkel Lambert Weiss Weisman & Gordon, LLP (“FLW”), submits this Memorandum of Law, along with the accompanying Affirmation of Keith L. Abramson, Esq. (“Abramson Affirmation”) and the exhibits annexed thereto, in support of its Motion to Dismiss the Plaintiff’s Complaint pursuant to CPLR §§ 3211(a)(3), (5) and (7). The Complaint purports to assert four (4) causes of action against FLW, each of which contains allegations related to a residential mortgage foreclosure action, under Kings County Supreme Court Index No. 28641/2007 (the “Foreclosure Action”), in which FLW represented the foreclosing mortgagee as plaintiff, therein obtaining a Judgment of Foreclosure and Sale, dated March 1, 2018 and entered on April 2, 2018. A copy of the entered Judgment is annexed to the Abramson Affirmation, submitted herewith, as Exhibit “A”. The Plaintiff in the instant action, Shaunder Maynard (“Plaintiff” or “Maynard”), was not a party to the Foreclosure Action, despite her numerous attempts to intervene and prevent the sale of the mortgaged premises. Ultimately, the mortgaged premises were sold at a foreclosure auction on March 16, 2023. A copy of the Referee’s Report of Sale is annexed to the Abramson Affirmation as Exhibit “B”. As demonstrated herein, supra, the allegations of the Complaint, considered in the light most favorable to Plaintiff, fail to state a cause of action against FLW, and therefore the Complaint must be dismissed pursuant to CPLR §3211(a)(7). Moreover, even if a cause of action cognizable at law were somehow gleaned from the four corners of the Complaint, the individual causes of action pled by Maynard are legally insufficient to withstand a motion to dismiss pursuant to CPLR § 3211(a)(3) and (5) based on the Plaintiff’s lack of standing and the expiration of the statute of limitations. 1 2 of 13 FILED: KINGS COUNTY CLERK 04/05/2023 03:56 PM INDEX NO. 507596/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/05/2023 STATEMENT OF FACTS This is an action brought by the former owner of real property that was the subject of a mortgage foreclosure action brought by defendant US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST, INCE. 2006-HE3 (“US Bank”), under Kings County Supreme Court Index No. 28641/2007 (the “Foreclosure Action”), in which FLW represented US Bank. A Judgment of Foreclosure and Sale, dated March 1, 2018, was entered in the Kings County Clerk’s Office on April 2, 2018 (See Exhibit “A”), and the real property was sold on March 16, 2023 (See Exhibit “B”). By the Plaintiff’s own admissions, Plaintiff engaged in a scheme to defraud, on or about February 28, 2005, when she conveyed the mortgaged premises to her friend, Maxine Housen, and again on or about October 5, 2006, when she arranged for Maxine Housen to transfer title to another individual, Patresha Walker. See Exhibit “C”, ¶¶ 11-27, annexed to the Abramson Affirmation. Because the Plaintiff no longer had a recorded interest in the mortgaged premises on August 3, 2007, the date on which the Foreclosure Action was commenced, she was not named as a party defendant in the action. Nevertheless, Maynard made two unsuccessful attempts to intervene in the Foreclosure Action, both of which were denied because she failed to demonstrate an actual interest in the mortgaged premises. See Exhibit “D”. In recent weeks, Maynard attempted to prevent the sale of the property by bringing Orders to Show Cause, asking both the Supreme Court and the Appellate Division to impose a temporary restraining order, which were denied. See Exhibit “E”. By the instant action, Maynard seeks declaratory and injunctive relief against FLW and others, seeks to collaterally attack the Judgment in the Foreclosure action, in which she was not permitted to intervene, and seeks damages for slander of title (against FLW and others) and for 2 3 of 13 FILED: KINGS COUNTY CLERK 04/05/2023 03:56 PM INDEX NO. 507596/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/05/2023 alleged violation of the Fair Debt Collection Practices Act against FLW. The Complaint fails to set forth factual allegations sufficient to support a claim for relief against FLW, among other deficiencies described herein, supra, and must therefore be dismissed as a matter of law. LEGAL ARGUMENT I. THE FIRST AND THIRD CAUSES OF ACTION The first cause of action purports to seek injunctive relief against all defendants, though it appears to seek injunctive relief only against US Bank, and other relief against additional parties, and does not seek any relief against FLW. On the one hand, Maynard seeks “to compel the determination of claims of the true ownership of the subject premises” (Complaint, ¶ 31), though FLW does not claim – and has never claimed – any interest in the subject premises1. As such, FLW is not a proper party defendant to this cause of action. On the other hand, Maynard seeks “a determination as to the legal status of the parties to the Note and Mortgage”2 (Complaint, ¶ 37). With respect to this allegation, neither Maynard nor FLW is a party to the Note and Mortgage, and therefore both are improper parties to a cause of action seeking a judicial determination of such matters. Finally, Maynard seeks “injunctive relief against defendant, “US Bank” and that the Kings County Supreme Court action be enjoined”3 (Complaint ¶ 47). Here again, FLW is not a proper party to this cause of action, which seeks only to enjoin US Bank from proceeding with the Foreclosure Action. 1 It is assumed that the “subject premises” refers to the real property located at 1170 E. 42nd St., Brooklyn, NY 11210. 2 It is assumed that the “Note and Mortgage” refers to the loan documents executed by Patreesha Walker in favor of New Century Mortgage Corporation, dated October 5, 2006, in the amount of $480,000.00. 3 It is assumed that the “Kings County Supreme Court action” refers to the Foreclosure Action (Index No. 28641/2007). 3 4 of 13 FILED: KINGS COUNTY CLERK 04/05/2023 03:56 PM INDEX NO. 507596/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/05/2023 Thus, the nature of the claim set forth by Maynard in her first cause of action is both ambiguous and uncertain, and as such, the Complaint fails to satisfy the basic pleading requirements of CPLR 3013. See, Foley v. D’Agostino, 21 A.D.2d 60, 62-63 [1st Dept. 1964] (holding that the “primary function of pleadings is “that of adequately advising the adverse party of the pleader’s claim or defense”). Moreover, to the extent that Maynard seeks to assert a cause of action against FLW, it is manifest from the four corners of the Complaint that no such cause of action exists. As a stranger to the Note and Mortgage, Maynard lacks standing to seek a judicial determination as to the legal status of the parties to those legal instruments, and FLW, also a non-party to the Note and Mortgage, is – in any event – an improper party defendant. The first cause of action, at least to the extent asserted against FLW, fails to allege the material elements of a claim upon which relief can be granted. In toto, the allegations are no more than conclusory statements, in the absence of a factual predicate, asserting that US Bank had no authority to enforce any claim against the property (Complaint, ¶ 32); accusing the defendants, generally, of attempting to “unjustly enrich from the sale on a fraudulent claim” (Complaint, ¶ 33); and alleging that the defendants “wrongfully interfered with or threaten [sic] to interfere with Plaintiff’s use and enjoyment of the Property” (Complaint ¶ 36). “Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” Foley v. D’Agostino, 21 A.D.2d 60, 62 [1st Dept. 1964], citing CPLR 3013. Here, there are no factual allegations of conduct specific to FLW, nor any particularized request for injunctive relief against FLW, and therefore the first cause of action for injunctive relief fails to state a cause of action against FLW and must be dismissed pursuant to CPLR 3211(a)(7). 4 5 of 13 FILED: KINGS COUNTY CLERK 04/05/2023 03:56 PM INDEX NO. 507596/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/05/2023 Similarly, Maynard’s third cause of action, which seeks “a declaration of rights and duties of the parties… to determine the actual status and validity of the loan, deed of trust, nominated beneficiaries, actual beneficiaries, loan servicers, trustees instituting foreclosure proceedings and related matters”, fails to state a cause of action against FLW. First, the subject upon which Maynard seeks a declaration of rights and duties is not defined in the pleading. Even assuming that “the loan” refers to the Note and Mortgage sued upon in the Foreclosure Action, it is unclear what is intended by “deed of trust, nominated beneficiaries, actual beneficiaries, loan servicers, trustees instituting foreclosure proceedings and related matters” (Complaint, ¶ 56). Here again, the pleading fails to satisfy even the most basic pleading requirements of CPLR 3013. See, Foley v. D’Agostino, 21 A.D.2d 60, 62-63 [1st Dept. 1964] (holding that the “primary function of pleadings is “that of adequately advising the adverse party of the pleader’s claim or defense”). To the extent that Maynard seeks to assert a cause of action against FLW, it is again apparent that no such cause of action exists. FLW, as attorney for US Bank in the Foreclosure Action, does not claim – and has never claimed – any rights in connection with the real property that was the subject of the Foreclosure Action, nor with respect to the underlying loan. Further, FLW, in its representation of US Bank, owed no duty to Maynard, who had no recorded interest in the real property and no relation to the Note and Mortgage that were the subject of said action. Accordingly, FLW is not a proper party defendant to an action seeking a declaration of rights and duties related to such matters. For the reasons set forth above, the first and third causes of action fail to state a cause of action against FLW and must be dismissed pursuant to CPLR 3211(a)(7). II. THE FIFTH CAUSE OF ACTION The fifth cause of action seeks damages for slander of title against all defendants. The elements of a cause of action for slander of title are: “(1) a communication falsely casting doubt 5 6 of 13 FILED: KINGS COUNTY CLERK 04/05/2023 03:56 PM INDEX NO. 507596/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/05/2023 on the validity of [the] complainant’s title, (2) reasonably calculated to cause harm, and (3) resulting in special damages.” 39 College Point Corp. v. Transpac Capital Corp., 27 A.D.3d 454, 455 [2d Dept. 2006], quoting, Brown v. BethlehemTerrace Assoc., 136 A.D.2d 222, 224) (internal quotation marks omitted) (additional citations omitted). By way of example, “[t]here is no doubt that the act of wrongfully filing of record an unfounded claim to the property of another is actionable as slander of title…” 39 College Point Corp. v. Transpac Capital Corp., 27 A.D.3d at 455, quoting, Hanbidge v. Hunt, 183 A.D.2d 700, 701 (internal quotation marks omitted) (additional citations omitted). Here, the Complaint alleges that the defendants “engaged in mortgage fraud and slandered the title to the premises by unlawful deed conveyances.” (Complaint, ¶ 66). At the outset, Maynard fails to identify the unlawful deed conveyances referred to in her Complaint. Where a cause of action is based upon misrepresentation or fraud, “the wrong shall be stated in detail” (CPLR 3016). Moreover, the facts on which a pleading rests must be stated. The mere allegation of unlawful deed conveyances, without identifying the very instruments constituting the alleged wrong, renders the Complaint legally insufficient as a matter of law. That deficiency, by itself, is sufficient to defeat Maynard’s claim. More significant, there is no dispute that, at all times relevant to the allegations, Maynard did not have title to the premises, having conveyed her interest in 2005, by deed, to her friend Maxine Housen (See Exhibit “C”). Therefore, as a matter of law, Maynard cannot demonstrate a communication falsely casting doubt on the validity of her title because she did not have valid title to the premises. Accordingly, the allegations of the Complaint fail to state a cause of action for slander of title and must be dismissed pursuant to CPLR 3211(a)(7). 6 7 of 13 FILED: KINGS COUNTY CLERK 04/05/2023 03:56 PM INDEX NO. 507596/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/05/2023 III. THE SIXTH CAUSE OF ACTION The sixth cause of action is for violation of the Fair Debt Collection Practices Act (FDCPA) and is asserted solely against FLW. This claim must also be dismissed as a matter of law for failure to state a cause of action, lack of standing, and expiration of the statute of limitations. The FDCPA is codified at 15 U.S.C. § 1692 and contains numerous provisions. Without reference to any specific provisions of the statute, the Complaint alleges that the firm: (1) “violated the law and court orders by cutting corners to unlawfully foreclose and slander title to the subject premise”; (2) “made misleading representations and affirmations to the standing of defendant, [US Bank], in the foreclosure action in Kings County Supreme Court Index # 28641/07”; (3) continued an action that was commenced by a firm that was under investigation and settled for $4million [sic] to end the investigation regarding their faulty business practices; (4) was “well aware that the loan given to Walker derived from a fraudulent transaction”; and (5) “fraudulently continued acting as if the named Plaintiff both existed and had a valid claim”. See, Complaint, ¶¶ 69-70; 73-75. Initially, because the Complaint fails to allege a violation of any particular provision of the FDCPA, it fails to provide notice of the transactions, occurrences or events upon which the cause of action rests, and as such it fails to set forth a valid cause of action. Foley v. D’Agostino, 21 A.D.2d 60, 62 [1st Dept. 1964], citing CPLR 3013. Moreover, the Complaint fails to identify any of the provisions of “law and court orders” that were allegedly violated, nor the conduct constituting such violations. The Complaint also fails to identify the representations and affirmations that were allegedly made by FLW, which, according to the Complaint, were misleading. The allegation that FLW continued an action that had been commenced by another 7 8 of 13 FILED: KINGS COUNTY CLERK 04/05/2023 03:56 PM INDEX NO. 507596/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/05/2023 law firm, regardless of whether that law firm was under investigation or settled a lawsuit regarding faulty business practices, is not – as a matter of law –a violation of the FDCPA. No facts are alleged to support Maynard’s allegation that FLW was aware that the loan given to Walker derived from a fraudulent transaction. Indeed, if the loan given to Walker derived from a fraudulent transaction, the very fraud alleged was committed by Maynard, and the evidence shows only that Maynard was aware of such fraud (See, Exhibit “C”, ¶¶ 11-27). Thus, by her own admission, Maynard comes to the court with unclean hands and seeks to profit from her own fraud, which equity must not allow. And finally, the allegation that FLW “fraudulently continued acting as if the named Plaintiff both existed and had a valid claim” is nonsensical. US Bank’s existence and the validity of its claim (in the Foreclosure Action) is evidenced by the Judgment of Foreclosure and Sale (See, Exhibit “A”). Accordingly, the Complaint must be dismissed for failure to state a cause of action (CPLR 3211(a)(7)). Moreover, because Maynard fails to identify the particular sections of the FDCPA under which she is suing, she is unable to establish her standing to sue. “The class of persons who can enforce a given section of the FDCPA must be determined by reference to the class identified in and protected by that particular section”. Gabriel v. Newrez LLC, 2023 WL 2587506 (U.S. District Ct., EDNY, March 21, 2023). Maynard has not demonstrated that she was the recipient of any communication from FLW in connection with debt collection efforts. The Foreclosure Action was based upon a Note and Mortgage executed by Patreesha Walker, not Maynard, and Maynard is neither a debtor with respect to the debt underlying the Foreclosure Action, nor even a party to the Foreclosure Action. As such, Maynard is not a “consumer” as defined by 15 U.S.C. § 1692(a)(3) and lacks standing to sue under 15 U.S.C. 1692(c). See Id. In other words, Maynard is not the consumer with respect to the debt owed to US Bank relative to the 8 9 of 13 FILED: KINGS COUNTY CLERK 04/05/2023 03:56 PM INDEX NO. 507596/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/05/2023 Foreclosure Action, nor does she stand in the shoes of the consumer. Therefore, in addition to the requirement that Maynard establish that she was a recipient of a false or misleading communication from FLW, something she does not even allege, Maynard would have to establish that she suffered some “injurious exposure” to the challenged communication. Barasch v. Estate Information Services, LLC, Not Reported in F.Supp.2d, 2009 WL 2900261 [U.S. District Ct., EDNY 2009], citing Sibersky v. Goldstein, No. 03-7993, 155 F.App’x 10, 11-12 (2d Dir. Sept. 21, 2005) (citing Wright v. Finance Service of Norwalk, Inc., 22 F.3d 647, 650 (6th Cir. 1994) (en banc)). Thus, Maynard has not only failed to state a cause of action for a violation of the FDCPA; she has also failed to allege facts necessary to demonstrate that she is within the class of persons intended to be protected by the provisions of the FDCPA, demonstrating that she lacks standing to sue for any such violation, and therefore the cause of action must be dismissed. The sixth cause of action must also be dismissed based upon expiration of the statute of limitations. Here again, because the specific conduct by which Maynard alleges FLW violated the FDCPA is not alleged in the Complaint, it is impossible to know precisely when the alleged cause of action accrued for statute of limitations purposes. However, the allegations center around the Foreclosure Action, which resulted in a Judgment of Foreclosure and Sale, dated March 1, 2018 and entered on April 2, 2018 (See Exhibit “A”). “The FDCPA provides that an action to enforce any liability created by the act must be commenced within one year from the date on which the violation occurs”. Somin v. Total Community Management Corp., 494 F.Supp.2d 153, 158 (U.S. Dist. Ct., EDNY, June 26, 2007), citing 15 U.S.C. § 1962k. And “there is no question that the latest date upon which the one year period begins to run is the date when a plaintiff receives an allegedly unlawful communication.” Id., citing Bates v. C & S Adjusters, Inc., 980 F.2d 865, 868 n. 2 (2d Dir. 1992). Here, Maynard does not identify the 9 10 of 13 FILED: KINGS COUNTY CLERK 04/05/2023 03:56 PM INDEX NO. 507596/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/05/2023 alleged unlawful communication, so we are left to guess when any such communication, if one exists, was made. In any event, because the basis of Maynard’s allegations relate to representations allegedly made by FLW as to US Bank’s standing during the course of the Foreclosure Action, such representations could only have occurred prior to March 1, 2018, when the Court issued the Judgment of Foreclosure and Sale (See Exhibit “A”). Thus, as a matter of law, Maynard’s claim is barred by the statute of limitations and must be dismissed pursuant to CPLR 3211(a)(5). CONCLUSION Each of the four (4) causes of action alleged in the Complaint by Maynard against FLW must be dismissed pursuant to CPLR 3211(a)(7) for failure to state a cause of action. With respect to the Plaintiff’s request for injunctive and declaratory relief (First and Third causes of action), FLW does not claim any interest in the real property and is not a party to the Note and Mortgage, which are the subject of those claims, and is therefore not a proper party defendant to those causes of action. Regarding the cause of action for slander of title (Fifth cause of action), the facts alleged in the Complaint, even if true, fail to establish the elements of the cause of action; indeed, the undisputed fact that Maynard was not in title is sufficient to defeat this claim. And finally, with respect to the cause of action for violation of the FDCPA, the factual allegations of the Complaint are again insufficient to even raise the possibility that FLW violated the statute. Notwithstanding the insufficiency of the pleading, the sparse allegations demonstrate, in any event, that Maynard lacks standing to assert such a claim. Moreover, the cause of action, as alleged, pertains to communications that could only have occurred more than one year prior to commencement of this action, rendering it time-barred pursuant to 15 U.S.C. § 1962k. For all of the foregoing reasons, the instant action must be dismissed. 10 11 of 13 FILED: KINGS COUNTY CLERK 04/05/2023 03:56 PM INDEX NO. 507596/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/05/2023 WHEREFORE, it is respectfully requested that the Court grant the within Motion to Dismiss the Plaintiff’s Complaint as against the Defendant, Frenkel Lambert Weiss Weisman & Gordon, LLP. Dated: Bay Shore, NY April 5, 2023 FRENKEL LAMBERT WEISS WEISMAN & GORDON, LLP By: _________________________ Keith L. Abramson 53 Gibson Street Bay Shore, New York 11706 (631) 969-3100 Attorneys for Defendant, Frenkel Lambert Weiss Weisman & Gordon, LLP 11 12 of 13 FILED: KINGS COUNTY CLERK 04/05/2023 03:56 PM INDEX NO. 507596/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/05/2023 CERTIFICATION BY ATTORNEY Keith L. Abramson, an attorney duly admitted to practice law before the Courts of the State of New York, a member of the firm of Frenkel, Lambert, Weiss, Weisman & Gordon, LLP (“FLW”), attorneys for the Defendant, FLW, pursuant to Uniform Rule Section 130-1.1-a, states as follows: 1. I hereby certify, under the penalty of perjury and as an officer of the Court, that, to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of the within paper or the contentions therein are not frivolous as defined in subsection (c) of section 130-1.1, including that the substance of the factual statements therein are not false. 2. Word Count. According to the word-processing system used to prepare the document, the total number of words in this memorandum of law, exclusive of the caption, table of contents, table of authorities, signature block, and this Certification, is 3,327. 3. 3. I hereby certify that the within document complies with the word count limit pursuant to 22NYCRR 202.8 - b. Dated: Bay Shore, New York April 5, 2023 Keith L. Abramson 12 13 of 13