Limtung v. Thomas
| Docket Number | 19-CV-3646 (RPK) (MMH) |
| Decision Date | 28 September 2021 |
| Parties | HIN Y. LIMTUNG, Plaintiff, v. PETER S. THOMAS, 3170 CRESCENT LLC., WELLS FARGO BANK, N.A., WELLS FARGO BANK, N.A., c/o Marix Servicing, LLC, WELLS FARGO BANK, N.A., c/o Slene Finance LP, MARGOLIN & WEINREB LAW GROUP, LLP., WILMINGTON SAVINGS FUND SOCIETY, FSB, not in its individual capacity, but solely as Trustee of the Primestar-H Fund I Trust, WILMINGTON SAVINGS FUND SOCIETY, FSB, not in its individual capacity but solely as Trustee of the Primestar-F Fund II Trust, WELLS FARGO BANK, N.A. not in its individual or banking capacity, but solely as Trustee for SRMOF II 2011-1 Trust, its Successor and Assigns, c/o Selene Finance LP, EMC MORTGAGE LLC, DOONAN, GRAVES & LONGORIA LLC, STEVEN J. BAUM, P.C., JANE DOE 1-4, RICHARD ROE 1-4, UNKNOWN TRUST 1-4, SUPRIYA KICHLOO, ANTONIO DISAVERIO, PETER V. MAIMONE, EMC MORTAGE CORPORATION, and SELENE FINANCE LP, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
This is the second federal case that pro se plaintiff Hin Limtung has brought alleging a conspiracy among financial institutions, real-estate companies, and law firms to deprive him of his house. Plaintiff first alleged such a conspiracy in a 2016 lawsuit. That suit was dismissed for failure to state a claim. Afterward, plaintiff initiated this action against fourteen defendants, many previously named in the 2016 lawsuit. Plaintiff alleges fraud and violations of 42 U.S.C. § 1983 and the Racketeer Influenced and Corruption Organizations (“RICO”) Act, 18 U.S.C § 1961 et seq. He also seeks a declaratory judgment that the deed transferred to the property's new owner is a forgery. Defendants have filed seven motions to dismiss. For the reasons explained below, plaintiff's Section 1983 claim is dismissed. Because I am prepared to dismiss plaintiff's claims for RICO violations and request for a declaratory judgment on grounds not raised by the defendants I will afford plaintiff forty-five days to submit a supplemental memorandum of law rebutting those grounds for dismissal.
The following facts are drawn from the complaint and assumed true for the purposes of this order.
Plaintiff owns a house at 31-70 Crescent Street in Astoria, New York. Second Am. Compl. ¶¶ 18, 21 (Dkt. #27). On August 6, 2007, defendant Wells Fargo Bank and its attorney, defendant Steven J. Baum, P.C., foreclosed on the property in the Supreme Court of the State of New York. Id. ¶ 19. Plaintiff represented himself in the foreclosure lawsuit and argued that Wells Fargo Bank did not own the note and mortgage and that he was not in default. Id. ¶¶ 20, 21. In later motions in state court, plaintiff argued that Wells Fargo Bank and its attorneys committed fraud against him during the foreclosure proceeding. Id. ¶ 22.
On February 19, 2009, the state court granted summary judgment to Wells Fargo Bank. Id. ¶ 23. The state court then appointed Arthur W. Lonschein as a referee. Id. ¶ 24. According to plaintiff, Lonschein determined that Wells Fargo Bank and its attorneys had committed fraud, including by concealing plaintiff's mortgage payments to make plaintiff appear to be in default. Id. ¶¶ 25-27. Plaintiff also alleges that Lonschein determined that Wells Fargo Bank did not actually own the note and mortgage on the property. Id. ¶ 29.
Following Lonschein's determination, Wells Fargo Bank allegedly conspired with numerous law firms, corporations, and individuals to substitute defendant Peter S. Thomas as the referee. Id. ¶ 35. To obtain the substitution, the conspirators submitted false affidavits stating that EMC Mortgage Corporation owned the note and mortgage and changed the caption of the case without a court order. Ibid. Plaintiff identifies defendants Doonan, Graves & Longoria LLC, Margolin & Weinreb Law Group, LLP, EMC Mortgage Corporation, and EMC Mortgage LLC as participants in this conspiracy. Ibid.
Once Thomas became the referee, plaintiff alleges, Thomas did not give the plaintiff notice or hold a hearing. Id. ¶ 36. Thomas's failure to conduct a hearing was part of a conspiracy involving a separate set of defendants, including Wells Fargo Bank, Wilmington Savings Fund, FSB as trustee of the Primestar-H Fund I Trust, and EMC Mortgage Corporation. Id. ¶ 37. Together, Thomas, Wells Fargo Bank, and Wilmington Savings Fund sent forged note and mortgage documents and false affidavits to the state court. Ibid. The conspirators also lied about the amount of interest charged in the mortgage, misrepresented the note and mortgage as conjoined when they had been separated, and committed securities fraud. Ibid. Plaintiff further alleges that the defendants executed similar forged note and mortgage assignment documents in various other state and federal actions. Id. ¶ 90.
After years of resisting the foreclosure in state court, on November 9, 2015, plaintiff filed for bankruptcy. See Id. ¶ 38. The next day, plaintiff alleges, Thomas told plaintiff that the property would be sold despite the bankruptcy action. Ibid. Although plaintiff asked for a mandatory hearing to contest Thomas's findings, Thomas refused and sold the property. Id. ¶¶ 40-41. Thomas's conspiracy to sell the property involved Margolin & Weinreb Law Group, LLP. Id. ¶ 39.
Plaintiff alleges both that Thomas transferred the deed to defendant 3170 Crescent LLC (“Crescent”), id. ¶ 42, and that Thomas's signature on the deed was forged, id. ¶ 43. Defendant Supriya Kichloo notarized the alleged forgery. Id. ¶ 43. Crescent and defendant Antonio Disaverio then registered the forged deed. Ibid.
After the deed was transferred, Crescent waged a violent campaign to remove plaintiff from the property. On June 20, 2019, Disaverio and other unidentified Crescent employees broke down the door, threatened plaintiff, and damaged the building. Id. ¶ 44. They only stopped when the police arrived. Ibid. Six days later, Disaverio and his accomplices broke into the building again and attacked plaintiff until the police intervened. Id. ¶ 45. On July 31, 2019, Crescent's “hooligans” told plaintiff that if he refused to vacate the house, they would “come back to do ‘the [p]laintiff' in a ‘Mafia like' action.” Id. ¶ 46. Plaintiff also discovered “that the doors to his private quarters were broken” while he was out of the house. Ibid. A month later, Crescent employees entered the house and destroyed a video camera surveillance system. Id. ¶ 47. Plaintiff alleges that they entered the house on two further occasions, destroying video cameras and threatening him. Id. ¶¶ 48-49.
On September 18, 2019, 3170 Crescent LLC, Disaverio, and defendant Peter V. Maimone submitted the forged deed to New York City Civil Court in an eviction proceeding against plaintiff. Id. ¶¶ 47-48, at 23.[*]
In 2016, plaintiff brought an action in federal court under RICO and the Fair Debt Collections Practice Act (“FDCPA”), 15 U.S.C. § 1692 et seq., against a similar group of defendants. See Compl., Limtung v. Steven J. Baum, P.C., No. 16-CV-100 (Dkt. #1) (“2016 Compl.”). The complaint alleged “that defendants perpetrated a complex conspiracy to secure foreclosure on his [31-70 Crescent Street] property through fraud.” Order dated June 26, 2017 at 2 (“Mauskopf Order”) (Dkt. #52). The events comprising the alleged conspiracy included the use of false note and mortgage documents between 2012 and 2014 and the improper sale of the house in 2015. 2016 Compl. ¶¶ 45-53, 74.
Several defendants-including Peter S. Thomas, Selene Finance LP, and Wells Fargo Bank-moved to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) and failure to plead fraud with particularity pursuant to Federal Rule of Civil Procedure 9(b). Mauskopf Order at 3. Judge Roslynn R. Mauskopf granted the motions. She found plaintiff's FDCPA claims were time-barred and that the fraud predicates in his RICO claim were not plead with particularity. Id. at 5-8. Judge Mauskopf gave plaintiff leave to amend. Id. at 8-9. Plaintiff filed three proposed amended complaints, each about 300 pages long. Judge Mauskopf denied leave to amend and dismissed the case. Order dated Mar. 20, 2019 at 5 (Dkt. #79) (“Second Mauskopf Order”).
Plaintiff filed this case on June 21, 2019. See Compl. (Dkt. #1). The operative Second Amended Complaint includes five causes of action.
First, plaintiff brings a claim under 42 U.S.C. § 1983 against Thomas. Plaintiff alleges that Thomas violated plaintiff's Fifth Amendment due process rights and First Amendment right to petition the government for redress of grievances. See Second Am. Compl. at 13; id. ¶ 49, at 23-24. Plaintiff asks for compensatory damages of $ 1.5 million. Id. ¶ 127.
Second plaintiff brings a RICO claim against Thomas, Kichloo, Crescent, Disaverio, Maimone, Wells Fargo Bank, Steven J. Baum P.C., Doonan, Graves & Longoria, LLC, Margolin & Weinreb Law Group, LLP, Wilmington Savings Fund as trustee of the “[Primestar-F Fund I Trust], ” Selene Finance LP, and Wells Fargo Bank as trustee for SRMOF II 2011-1 Trust. Id. at 24. Plaintiff alleges that the defendants committed the predicate offenses of federal wire fraud, 18 U.S.C. § 1343, federal fraud, 18 U.S.C. § 1028, state law forgery, N.Y. Penal § 170.10, state law criminal possession of a forged instrument, N.Y. Penal § 170.25, state law burglary, N.Y. Penal §§ 140.20, 140.25, and state law extortion, N.Y. Penal § 155.05(2)(e). Second Am. Compl. ¶¶ 52, 57. The events that gave rise to those offenses include the 2014 submission of the allegedly forged note and mortgage assignment documents to the state courts, the 2015 sale of the property despite plaintiff's bankruptcy protections, the alleged...
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