Potente v. Citibank, N.A.

282 F. Supp. 3d 538
CourtDistrict Court, E.D. New York
DecidedOctober 17, 2017
Docket16–cv–3969 (ADS)(AYS)
StatusPublished
Cited by5 cases

This text of 282 F. Supp. 3d 538 (Potente v. Citibank, N.A.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Potente v. Citibank, N.A., 282 F. Supp. 3d 538 (E.D.N.Y. 2017).

Opinion

SPATT, District Judge:

The Plaintiffs Ralph G. Potente ("Potente") and Richard J. Jankura ("Jankura") (collectively, the "Plaintiffs") brought this action against the Defendant Citibank, N.A. (the "Defendant" or "Citibank") for, inter alia , alleged violations of the Truth in Lending Act, 15 U.S.C. 1601 ("TILA").

Presently before the Court is a motion by the Defendant to dismiss the complaint in its entirety pursuant to Federal Rule of Civil Procedure ("FED. R. CIV. P." or "Rule") 12(b)(6). For the following reasons, the Defendant's motion is granted in its entirety.

I. BACKGROUND

A. The Factual Background

The following facts are drawn from the complaint, and for the purposes of the instant motion, are accepted as true.

The Plaintiffs reside at 47 Berry Hill Road, Oyster Bay Cove, NY 11771 (the "residence"). The Plaintiffs have lived there since 1997. The Plaintiffs apparently had an initial mortgage of $1,000,000, secured by their interest in the residence. The complaint does not state who held the initial mortgage.

In 2008, the Plaintiffs applied for a mortgage refinance with Citibank. During the application process, Citibank ordered an appraisal of the residence. The appraisal valued the residence at $2,200,000. Citibank informed the Plaintiffs of the appraisal, but the Plaintiffs claim that they *542never received a copy of the appraisal. The complaint does not state precisely when the appraisal occurred, but it happened before the final approval of the loan.

On April 18, 2008, the Plaintiffs executed a Consolidation, Extension, and Modification Agreement (the "CEMA") with Citibank. Pursuant to the refinance, the Plaintiffs borrowed $700,000 from Citibank. The Plaintiffs allege that they relied upon the purportedly inflated appraisal of $2,200,000 when they signed the CEMA and agreed to take the loan.

The CEMA loan was secured by the Plaintiffs' interest in the residence. Despite the fact that the Plaintiffs allege that it was a mortgage refinance, it is not clear from the face of the complaint whether the initial mortgage was repaid. Nevertheless, the Plaintiffs allege that the mortgage was transferred to an unknown third party.

In July of 2014, the Plaintiffs "discovered" that the $2.2 million appraisal was "grossly inflated," and that the "actual fair market value of the property at the time of the execution of the CEMA was $1,200,000." (Compl. ¶ 8).

In April of 2016, the Plaintiffs mailed a notice of rescission to Citibank. Citibank received the notice on April 22, 2016. Citibank has allegedly refused to honor the notice of rescission.

B. The Relevant Procedural Background

On July 15, 2016, the Plaintiffs commenced this action by filing a complaint. The complaint alleges four causes of action. However, one of the causes of action is merely a request for injunctive relief, which is not a cause of action. Miller v. Wells Fargo Bank, N.A. , 994 F.Supp.2d 542, 558 (S.D.N.Y. 2014) ("[I]njunctions are remedies, not causes of action ...."). The three remaining causes of action are for fraud in the factum, appraisal fraud, and violation of TILA.

The Plaintiffs did not serve the Defendant with the summons and complaint until February 23, 2017.

On April 14, 2017, the Defendant filed the instant motion to dismiss.

II. DISCUSSION

A. The Relevant Legal Standard

In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the Plaintiff. See Walker v. Schult , 717 F.3d 119, 124 (2d Cir. 2013) ; Cleveland v. Caplaw Enters. , 448 F.3d 518, 521 (2d Cir. 2006) ; Bolt Elec., Inc. v. City of N.Y. , 53 F.3d 465, 469 (2d Cir. 1995) ; Reed v. Garden City Union Free School Dist. , 987 F.Supp.2d 260, 263 (E.D.N.Y. 2013).

Under the now well-established Twombly standard, a complaint should be dismissed only if it does not contain enough allegations of fact to state a claim for relief that is "plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The Second Circuit has explained that, after Twombly, the Court's inquiry under Rule 12(b)(6) is guided by two principles:

First, although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss and [d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.

*543Harris v. Mills , 572 F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 664, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009) ).

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282 F. Supp. 3d 538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/potente-v-citibank-na-nyed-2017.