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Lucille Scott v. Demarco Rei

April 6, 2011


The opinion of the court was delivered by: Dennis M. Cavanaugh, U.S.D.J.:



Hon. Dennis M. Cavanaugh

This matter comes before the Court upon the separate motions of Chase Home Finance LLC ("Chase"), Gateway Funding Diversified Mortgage Services, L.P. ("Gateway"),*fn1 and William Powers ("Powers") to dismiss all claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. No oral argument was heard pursuant to Rule 78. For the reasons stated below, the motions of Chase and Gateway regarding the federal claims against them are granted and the case is remanded to the Superior Court, Chancery Division, Essex County.


Plaintiff Lucille Scott ("Plaintiff") is the victim of a foreclosure rescue scam -- a scheme commonly known as a sale-leaseback arrangement, in which she was tricked into deeding her house to a straw purchaser and then entering into a lease with an option to repurchase based on a promise that this was how she could save her home from foreclosure.

Plaintiff and her late husband William purchased their family home in Irvington, New Jersey in 1997 for $90,000. Compl. ¶ 14. In 2007, while suffering from financial difficulties, Plaintiff responded to a mailed advertisement she received from Defendant DeMarco REI, Inc. ("DeMarco"), a company purporting to help homeowners save their homes from foreclosure. Compl. ¶¶ 24, 25. She was subsequently contacted by Elaine Del Campo, a representative of the company. Compl. ¶ 26. Plaintiff completed what she believed was a mortgage application sent to her by DeMarco and returned the application to the company along with supporting documents. Compl. ¶ 29. She was informed a few days later that "Demarco could help her save her home." Compl. ¶ 31.

On September 28, 2007, Plaintiff was picked up by Del Campo and Kristin Miller, an employee or agent of Defendants Garden State Land Title, LLC ("Garden State") and Powers Kirn, LLC ("Powers Kirn") and taken to the offices of Powers Kirn for a "closing." Compl. ¶¶ 34, 39. Upon arrival, Plaintiff was introduced to Tim Muir, and told that he was to be the "property manager." Compl. ¶ 42. Plaintiff was also advised that she would be making all payments through Muir and that she should call him if she had any problems. Id. Plaintiff was then instructed to sign a stack of documents. Compl. ¶ 43. Upon doing so, she noticed the name "Samuel Agresta" on some of the papers. Compl. ¶ 44. She inquired as to who Mr. Agresta was and whether he was present and was informed that his presence was not necessary and that he "was just someone to put his name on her mortgage and that after a period of time Mrs. Scott would have everything back in her name and that she should not be worried or concerned about those details." Compl. ¶¶ 46-47.

Though Plaintiff believed that the purpose of the closing was to grant her a new mortgage, she actually executed a contract for the sale of her home to Agresta for $186,000.00. Compl., Ex. A. Additionally, Plaintiff signed a one-year lease between herself and DeMarco, in which she agreed to pay DeMarco $1,650 per month in order to remain in her home. Compl., Ex. B. The lease provided Plaintiff with an option to repurchase her home at any time for the purchase price of $167,400 and consideration of $8,981.25. Id.

After the closing, Plaintiff made biweekly payments of $825.00 to DeMarco from October 2007 until September 2009, totaling almost $39,000. Compl. ¶ 59. Plaintiff received a renewal lease on September 28, 2009. Compl. ¶ 61. The lease directed payments to Optima Property Management Group, LLC, not DeMarco or Agresta. Compl. ¶ 62. Around that same time, Plaintiff observed a man taking pictures of her house. Compl. ¶ 63. The photographer informed her that he had been sent by the bank and that the bank would be commencing a foreclosure action against the property. Compl. ¶ 64. Fearing that something was amiss, Plaintiff stopped making payments to DeMarco and placed the money in escrow instead. Compl. ¶ 65. She also contacted her pastor for assistance, and together they contacted Agresta. Compl. ¶ 66, 67. Agresta informed Plaintiff that "he did not own any property in Irvington and suggested that they talk to his son, Stephen." Compl. ¶ 68. Agresta passed away shortly thereafter. Compl. ¶ 69.

Following Agresta's death, his sons Stephen and Rocco instituted a landlord tenant action to evict Plaintiff from the property after she refused to pay rent or participate in efforts to persuade Chase to accept a short sale. Compl. ¶ 73. Plaintiff responded through counsel and disputed the Agrestas' right to possession of the property to rent. Compl. ¶ 74. After the Agrestas' attorney reviewed the loan file that Plaintiff had obtained from counsel for Powers, the Agrestas voluntarily agreed in open court to dismiss the action and deed the property back to Plaintiff. Compl. ¶ 77. In March 2009, Chase filed a foreclosure complaint seeking possession and sale of the property.

Plaintiff filed the present action on May 12, 2010, in the Superior Court, Chancery Division, Essex County. Chase subsequently removed the action to this Court on the basis of federal question jurisdiction.


In deciding a motion under Rule 12(b)(6), the district court is "required to accept as true all factual allegations in the complaint and draw all inferences in the facts alleged in the light most favorable to the [Plaintiff]." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). "[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff's "obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. "[A court is] not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986). ...

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