Ganje v. Yusuf

• Decision Date: 05 November 2015
• Parties: David L. GANJE, Appellant, v. Lateef YUSUF et al., Defendants, Franklin Credit Management Corporation, Respondent.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 954

19 N.Y.S.3d 355

2015 N.Y. Slip Op. 08024

David L. GANJE, Appellant,

v. Lateef YUSUF et al., Defendants,Franklin Credit Management Corporation, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 5, 2015.

Zachary A. Waksman, Easton, Massachusetts, for appellant.

O'Hare Parnagian, LLP, New York City (Robert A. O'Hareof counsel), for respondent.

Opinion

EGAN JR., J.P.

Appeal from an order of the Supreme Court (Platkin, J.), entered November 12, 2014 in Albany County, which, among other things, granted a motion by defendant Franklin Credit Management Corporation to dismiss the complaint against it.

In 2007, Home Vest Capital, LLC, the holder of an unpaid promissory note executed by defendant Lateef Yusuf, retained plaintiff, an attorney, to commence a collection action against Yusuf. Pursuant to a contingent fee arrangement, plaintiff was entitled to 25% of any money paid and/or collected from Yusuf. In January 2008, plaintiff obtained a default judgment against Yusuf on behalf of Home Vest for $134,710.03. The judgment in question served as a lien on Yusuf's real property located at 650 Chauncey Street in Brooklyn.

In February 2009, Home Vest filed a chapter 7 bankruptcy petition, wherein it listed plaintiff and Varde Investment Partners, L.P. as two of its creditors. Prior to such filing, Home Vest and Varde had executed two separate agreements that, ultimately, resulted in Varde acquiring title to Home Vest's portfolio of performing and nonperforming loans. In December 2008, Varde assigned this portfolio, which apparently included the underlying judgment against Yusuf, to SCD Recovery, LLC. SCD, in turn, sold and assigned the portfolio to Bosco Credit VI, LLC (hereinafter Bosco Credit) in May 2012. Ultimately, the judgment against Yusuf was assigned to Bosco Credit VI Trust Series 2012–1 (hereinafter Bosco Trust) in December 2013.¹

In the interim, in May 2013, plaintiff received an email from an individual who identified himself as the listing agent representing Yusuf in a short sale of the Chauncey Street property. This listing agent indicated that the first mortgagee had approved of the sale of the property and inquired as to whether plaintiff knew the identity of the entity holding or servicing the second mortgage on those premises. Plaintiff replied that he had no contact information for this creditor. Four months later, plaintiff emailed both the listing agent and an apparent representative of the relevant title company-advising them of both the judgment docketed against Yusuf on behalf of Home Vest and the corresponding charging lien for counsel fees. Plaintiff, who acknowledged that the listing agent was in negotiations with “the apparent but unconfirmed assignee” of the judgment, indicated that he would provide “a satisfaction of judgment lien as against [the] property” once the agents had identified “the current assignee or owner with authority to settle the [j]udgment” and confirmed the settlement terms; plaintiff further asked that such agents “advise the judgment creditor in writing of the terms” outlined in plaintiff's email. Although the title agent acknowledged the need to establish the chain of assignments and suggested that defendant Franklin Credit Management Corporation (hereinafter defendant) might be Home Vest's successor in interest, the listing agent subsequently advised plaintiff that he had been in touch with defendant relative to the short sale of Yusuf's property and that defendant “seem[ed] to have no knowledge of any judgment.”

In October 2013, Yusuf sold the property to defendant 650 Chauncey Street LLC for $180,000. The listing agent informed plaintiff of the sale in November 2013 and indicated that Yusuf “was able to negotiate a full settlement of the lien and judgment with the current lien holder.” Thereafter, in March 2014, plaintiff reached out to defendant requesting, among other things, copies of the closing documents relative to that sale. When such documents, including a purported satisfaction or release of judgment, were not forthcoming, plaintiff commenced this action asserting—insofar as is relevant to this appeal-causes of action against defendant sounding in fraudulent concealment, unjust enrichment, aiding and abetting fraud and enforcement of an attorney charging lien. In response, defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(1), (5), (7) and (10). Plaintiff then cross-moved for, among other things, leave to amend the complaint to add Bosco Credit and Bosco Trust as named defendants. Supreme Court granted defendant's motion to dismiss the complaint against it based upon documentary evidence and granted so much of plaintiff's cross motion as sought to add the respective Bosco entities as parties to this action. Plaintiff now appeals, contending that Supreme Court erred in dismissing the complaint against defendant.

We affirm. A motion to dismiss pursuant to CPLR 3211(a)(1)is properly granted “where the documentary evidence utterly refutes plaintiff's...