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Anthony Johnson v. Multi-Solutions

August 22, 2011

ANTHONY JOHNSON,
PLAINTIFF,
v.
MULTI-SOLUTIONS, INC.; VICTOR WEXLER AND LARRY BLOUGH, D/B/A MULTI-SOLUTIONS; JAMES DANIELS; GATEWAY HOME EQUITY, INC. D/B/A GATEWAY FUNDING DIVERSIFIED MORTGAGE SERVICES D/B/A IVY MORTGAGE.; CARL GENSIB; AND BANK OF AMERICA F/K/A COUNTRYWIDE HOME LOANS, INC.,
DEFENDANTS.



The opinion of the court was delivered by: Thompson, U.S.D.J.

NOT FOR PUBLICATION

OPINION

I. INTRODUCTION

This matter has come before the Court upon the Motions for Summary Judgment filed by Defendants Countrywide Home Loans, Inc. ("Countrywide") and Gateway Home Equity, Inc. ("Gateway") [docket # 91, 92]. The Court has decided the motions upon the submissions of the parties and without oral argument, pursuant to Fed. R. Civ. P. 78(b). For the reasons stated below, the Defendants' motions are granted.

II. BACKGROUND

This case involves a sale-leaseback agreement entered into by Plaintiff Anthony Johnson and Multi-Solutions, Inc. Plaintiff now claims that this transaction was a foreclosure rescue scam. He therefore seeks to have the property restored to his ownership and requests damages for various statutory claims.

In 2004, Plaintiff inherited a residence located at 854 Greenwood Avenue, Trenton, NJ 08609 (the "Property"). (Gateway Br. in Supp. Ex. A, Anthony Johnson Dep. 9:15-23, 10:24-11:2) [91]. The same year, Plaintiff obtained a $60,000 mortgage on the property through Ameriquest Mortgage Company ("AMC"). (Id. at 11:9-17.) In 2006, Plaintiff defaulted on his mortgage payments. (Id. at 52:4-8.) After the Property was listed for sheriff's sale, Victor Wexler and Larry Blough from Multi-Solutions Inc. ("MSI") sent Plaintiff a letter offering to help him avoid foreclosure. (Id. at 13:3-22.) Plaintiff signed an "exclusivity agreement" indicating that he would deal solely with MSI in attempting to avoid foreclosure. (Id. at 15:10-20.) Plaintiff apparently understood MSI's solution to be a "lease/buy-back," whereby he would add an investor to his deed, pay that investor $1,300 monthly mortgage payments for one year, take the investor off the deed at the end of the year, and proceed with a new mortgage in Plaintiff's name alone. (Id. at 16:16-17:2.) However, the actual agreements signed by Plaintiff resulted in Plaintiff's wholesale transfer of the property and Plaintiff's obligation to pay monthly rent to the new owner. (Id. at 28:20-24); (see also Johnson Dep. Ex. 9). Specifically, Plaintiff deeded the Property to investor James Daniels, (Johnson Dep. Ex. 2, Deed), and Daniels then leased the Property back to Plaintiff, (see Johnson Dep. Ex. 9, Letter Agreement Re: Lease of Property -- 854 Greenwood Avenue, Trenton, NJ 08609 ("Lease")). In carrying out this transaction, closing agent Carl Gensib produced two HUD-1 settlement statements: one fraudulently indicating that Plaintiff had received $88,148.67 as proceeds of sale,*fn1 (see Johnson Dep. Ex. 3, HUD-1 Uniform Settlement Statement), and the other memorializing the "true intent of the parties"-namely, that Daniels would use the sale proceeds to pay off Plaintiff's previous mortgage, (Johnson Dep. 33:6-34:5); (see also Johnson Dep. Ex. 9, Lease). Daniels executed a new mortgage on the Property in favor of Gateway. In connection with the mortgage, Gateway received the fraudulent HUD-1 settlement statement. (See Joseph Alvini Aff. ¶ 2.) Gateway's loan file does not contain any record of a sale-leaseback between Plaintiff and Daniels, nor does it contain the true and accurate HUD-1 settlement statement. (See id. at ¶ 6.) Gateway later assigned the loan to Countrywide. After Daniels defaulted, Countrywide scheduled foreclosure proceedings and a sheriff's sale. (William T. Marshall Decl. Ex. 8, Laura Scurko Decl. ¶ 3.) Countrywide assigned its bid for the sheriff's sale to the Federal National Mortgage Association ("Fannie Mae"), which bid successfully and thereby obtained title to the property. (Id. at ¶ 5.)

On October 20, 2008, Plaintiff filed a Complaint [1] against Defendants MSI, Daniels, Gateway, and Gensib, alleging claims under the Truth in Lending Act ("TILA"), the Home Ownership and Equity Protection Act ("HOEPA"), the Credit Repair Organizations Act ("CROA"), the Real Estate Settlement Procedures Act ("RESPA"), and the New Jersey Consumer Fraud Act ("NJCFA"). Plaintiff later filed the First Amended Complaint [17] on February 9, 2009. Defendant Gateway filed a motion to dismiss Plaintiff's First Amended Complaint, which we denied because Defendant had failed to address Plaintiff's "implied borrower" theory or the equitable tolling issue. (See Mem. & Order, July 20, 2009, at 3--5) [31]. In the same order, we granted Plaintiff leave to amend to clarify certain causes of action and to add Countrywide as a Defendant, given that Countrywide is the assignee of the Daniels-Gateway loan. (Id. at 5.) Plaintiff subsequently filed the Second Amended Complaint ("SAC") on October 15, 2009 [40]. Like the previous complaints, Plaintiff's SAC brings claims based on TILA, HOEPA, RESPA, and the NJCFA.*fn2 (SAC ¶¶ 97--109.) Defendants Countrywide and Gateway now move for summary judgment as to all claims against them [91, 92].

III. ANALYSIS

A. Legal Standard for Summary Judgment

Summary judgment is appropriate if the record shows "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding whether summary judgment should be granted, a district court considers the facts drawn from "the pleadings, the discovery and disclosure materials, and any affidavits" and must "view the inferences to be drawn from the underlying facts in the light most favorable to the party opposing the motion." Fed. R. Civ. P. 56(c); Curley v. Klem, 298 F.3d 271, 276--77 (3d Cir. 2002) (internal quotations omitted). In resolving a motion for summary judgment, the Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 251--52 (1986). Specifically, summary judgment should be granted if the evidence available would not support a jury verdict in favor of the nonmoving party. Id. at 248--49.

B.Summary Judgment as to Gateway

1.Standing Under TILA and HOEPA

In order to assert a claim under TILA and HOEPA, Plaintiff must be a "consumer of credit." Johnson v. Novastar Mortg., Inc., 698 F. Supp. 2d 463, 468 (D.N.J. 2010); see 15 U.S.C. § 1601(a) (stating that TILA's purpose is "to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices"); id. § 1602(aa) (stating that HOEPA governs "a consumer credit transaction that is secured by the consumer's principal dwelling, other than a residential mortgage transaction, a reverse mortgage transaction, or a transaction under an open end credit plan . . . ."). Specifically, in order to show an injury under TILA and HOEPA, "‗Plaintiff must have been doing business with Defendant.'" Novastar, 698 F. Supp. at 468(quoting Talley v. Deutsche Bank Trust Co., No. 07-4984, 2008 WL 4606302, at *2 (D.N.J. Oct. 15, 2008)). Where the parties have entered into a sale-leaseback arrangement rather than a formal ...


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