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Juergens v. Urban Title Services

February 4, 2008

MARY JUERGENS, PLAINTIFF,
v.
URBAN TITLE SERVICES, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Currently pending before the Court are the Motions to Dismiss Plaintiff's Second Amended Complaint filed by Defendants First Mount Vernon Mortgage, L.L.C. ("FMVLLC") and Dale Duncan ("Duncan"), as well as two Motions for Partial Summary Judgment filed by Plaintiff, Mary Juergens. Plaintiff brings this thirty-six count action against ten individual and corporate Defendants, asserting claims based on two disparate loans extended to Plaintiff, each of which was secured by a condominium located at 1230 23rd Street, NW, Apartment 505, Washington, D.C. 20037 (the "Condo"). Plaintiff alleges that the first loan was extended by Urban Title Services, Inc. ("UTS"), and that Defendants William Kenney ("Kenney"), Robert William Carney ("Carney"), and Paul Erb ("Erb") (collectively, with UTS, the "UTS Defendants"), each played a role in the extension of the UTS Loan. Plaintiff alleges that the second loan was extended by a combination of Defendants FMVLLC, Duncan, First Mount Vernon Industrial Loan Association, Inc. ("FMVILA"), and Arthur Bennett ("Bennett") (collectively the "FMV Defendants"). Finally, Plaintiff alleges that Defendant Brickshire Settlements, LLC ("Brickshire") served as the Settlement Agent on the loan extended to Plaintiff by the FMV Defendants.

On May 25, 2007, the Court issued a Memorandum Opinion and Order regarding Plaintiff's then-operative Amended Complaint. See Juergens v. Urban Title Servs., 246 F.R.D. 4 (D.D.C. 2007). That Opinion denied without prejudice Plaintiff's previous motion for partial summary judgment on the issue of whether she transferred legal ownership of the Condo to a limited liability company via a properly executed and acknowledged deed in accordance with District of Columbia law, concluding that genuine issues of material fact existed. Id. That Opinion also denied without prejudice the FMV Defendants' previous motions to dismiss, which the Court determined had been converted to motions for summary judgment, and as to which genuine issues of material fact also existed. Id. In that Opinion, the Court noted that Plaintiff's opposition to the FMV Defendants' motions to dismiss raised for the first time a number of allegations not included in her Amended Complaint. Noting that Plaintiff could not amend her complaint through her Opposition, and in light of the fact that the FMV Defendants' motions to dismiss had been converted to motions for summary judgment, the Court granted Plaintiff leave to amend her complaint to add additional allegations, and thus pursue discovery on those claims.

Plaintiff has now filed her Second Amended Complaint, which Defendants FMVLLC and Duncan have again moved to dismiss for failure to state a claim. In addition, although discovery has yet to be conducted in this case, Plaintiff has filed a new Motion for Partial Summary Judgment on the issue of the whether she transferred legal ownership to the Condo to a limited liability company, and has also filed a second Motion for Partial Summary Judgment on the issue of the alleged lack of consideration for that transfer. Plaintiffs Motions for Partial Summary Judgment are opposed by all of the FMV Defendants, as well as Brickshire.*fn1

Upon a searching review of the memoranda filed with respect to the pending motions, the exhibits thereto, the relevant case law and statutes, and the entire record herein, the Court shall grant Defendant FMVLLC's motion to dismiss Plaintiffs' Second Amended Complaint, shall deny Defendant Duncan's motion to dismiss, and shall deny without prejudice Plaintiff's Motions for Partial Summary Judgment. The Court's conclusions with respect to Plaintiff's Motions for Partial Summary Judgment are based upon the presence of genuine issues of material fact, which must be resolved through discovery. As a result, as set forth in the accompanying Order, the parties shall be precluded from filing any additional dispositive motions prior to the completion of discovery in this matter.

I. BACKGROUND

The Court assumes familiarity with the factual background of this case, which is set forth in detail in its May 25, 2007 Memorandum Opinion, see generally Juergens,245 F.R.D. 4, and therefore discusses herein only those facts that are relevant to the motions currently pending before the Court. In particular, although Plaintiff's Second Amended Complaint includes a variety of allegations regarding the loan extended to her by the UTS Defendants, the Court does not recount the bulk of those allegations because Plaintiff's claims as to the UTS Defendants are irrelevant to the motions at issue in this Opinion.

Plaintiff, Mary Juergens, alleges that she resided in and owned a condominium unit located at 1230 23rd Street, N.W., Apartment 505, Washington, D.C. 20037 (the "Condo"), and that, prior to October 2003, she owned the Condo free and clear of any encumbrances or liens, other than a condominium fee assessment of approximately $8000. Second Am. Compl. ("SAC") ¶¶ 12, 15, 23. However, in October 2003, she required a loan of $60,000 to pay off her condominium fee assessment and to perform renovations on the Condo. Id. ¶ 16. Plaintiff alleges that she spoke with Defendant Kenney, who presented himself as an agent of Defendant UTS, about securing a loan, and Defendants Kenney and UTS agreed to act as lender on a loan to be secured by a deed of trust on the Condo (the "UTS Loan"). Id. ¶¶ 17-18, 22. According to Plaintiff, the proceeds of the UTS Loan were to be used to pay Plaintiff's $8000 condominium fee assessment in full and Plaintiff was to receive approximately $52,000 in cash, less reasonable settlement costs, at closing. Id. ¶ 24. Plaintiff alleges that at the UTS Loan closing, the condo fee assessment was paid off, and Plaintiff received an escrow check in the amount of approximately $24,597.06. Id. ¶ 31. However, according to Plaintiff, she never received an accounting for the other $27,402.84 of the UTS Loan. Id. ¶¶ 31, 35.

Plaintiff next alleges that, in August 2005, she went to "the First Mount Vernon Defendants" in order to obtain a loan on the Condo, which would be used to pay off the UTS Loan. Id. ¶¶ 46, 48.*fn2 Plaintiff asserts that the loan she sought from the FMV Defendants "was a personal consumer refinance loan as opposed to a commercial loan," id. ¶ 47, and further asserts that she told Defendants Bennett and Duncan that she planned to live in the Condo after obtaining the loan, id. ¶¶ 54-55, 61. According to Plaintiff, FMVILA and FMVLLC--acting through Defendants Bennett and Duncan--indicated that they would not extend a loan as small as $60,000, and instead encouraged Plaintiff to take out a loan of $250,000 (hereinafter the "FMV Loan"). Id. ¶ 49. Plaintiff alleges that under the terms of the FMV Loan, the proceeds would be used to pay off the UTS Loan (plus accrued interest), and Plaintiff would receive approximately $190,000 in cash at closing, less reasonable settlement costs. Id. ¶ 50, 181. However, according to Plaintiff, she received only approximately $95,000 at closing, and has never received either the other $95,000 that she was allegedly due or an accounting as to that $95,000. Id. ¶¶ 100-02.

Plaintiff's Second Amended Complaint includes detailed allegations regarding the steps that allegedly led to the closing of the FMV Loan. First, Plaintiff alleges that on August 16, 2005, Defendant Duncan prepared Articles of Organization for the registration of a limited liability company known as "1230 23rd Street, LLC" (hereinafter the "LLC"). Id. ¶ 62, Ex. 2 (LLC Arts of Org.).*fn3 According to Plaintiff, she never indicated to Defendant Duncan that she wanted to establish the LLC, and Defendant Duncan did not inform her that he was going to or had established the LLC prior to August 31, 2005. Id. ¶¶ 70-71.*fn4 Nevertheless, Plaintiff alleges that Defendant Duncan filed the LLC's Articles of Organization, registered the LLC with the Commonwealth of Virginia State Corporation Commission, and was issued a Certificate of Organization for the LLC on August 22, 2005. Id. ¶ 68, Ex. 3 (Certif. of Org.). Plaintiff further asserts that in the LLC's Articles of Organization, Defendant Duncan falsely stated that Plaintiff was a Virginia resident, listed Plaintiff as the LLC's registered agent despite her ineligibility to serve as a registered agent under Virginia law, and listed the LLC's "principal office" as the address of FMVILA and FMVLLC. Id. ¶¶ 63-65. Plaintiff denies that the signature on the LLC's Articles of Organization, included as Exhibit 2 to the Second Amended Complaint, is her own genuine signature, and "states that the signature appears to be a forgery." Id. ¶ 66. Plaintiff further alleges that she was in Europe between August 10 and August 25, 2005, and thus could not have signed the Articles of Organization on the date on which they were allegedly signed. Id. ¶ 67. Plaintiff claims that Defendant Duncan falsified the information on the LLC's Articles of Organization "in order to eventually qualify Plaintiff Juergens for a loan for which she would not have qualified had truthful information been included on the form." Id. ¶ 69.

Plaintiff continues to allege that on or about August 30, 2005, Defendant Bennett interviewed her for the purpose of completing a "Uniform Residential Loan Application," attached as Exhibit 1 to Plaintiff's Second Amended Complaint. Id. ¶¶ 51-60, Ex. 1 (Uniform Resid. Loan Applic.). According to Plaintiff, although she provided Defendant Bennett with truthful answers to the questions on the Application, much of the information Defendant Bennett included in the Application was false. Id. ¶¶ 52-60. Specifically, Plaintiff alleges that Defendant Bennett: falsely listed Plaintiff's address as one in Virginia although Plaintiff told him that she lived in the Condo; falsely listed various sources of income, including rental income, although Plaintiff informed him that she had no income; and falsely indicated that Plaintiff did not intend to live in the Condo as her primary residence. Id. ¶¶ 52-55, Ex. 1. Plaintiff admits signing a version of a Uniform Residential Loan Application, but asserts that she "does not believe that the signature on the version . . . attached [as Exhibit 1 to her Second Amended Complaint] is her own true genuine signature," because that version "has 'filled-in' data that is false." Id. ¶¶ 56-57. Plaintiff alleges that she was never given a copy of the Uniform Residential Loan Application she signed, and did not see the version attached as Exhibit 1 to the Second Amended Complaint until the FMV Defendants filed their motions to dismiss her Amended Complaint. Id. ¶¶ 58-59. According to Plaintiff, "Defendant Bennett filled in false information on the application in order to qualify Plaintiff Juergens for a loan for which she would not have qualified had truthful information been provided on the form." Id. ¶ 60.

Plaintiff asserts that the closing of the FMV Loan was scheduled for August 31, 2005 at the offices of the FMV Defendants, and that when she arrived at the closing of the FMV Loan "she believed that the loan would be a personal consumer residential loan." Id. ¶¶ 74-75. Plaintiff alleges that upon arriving at the offices, she was taken to a conference room where Defendant Duncan presented her with a "pile of forms" to sign. Id. ¶¶ 74, 76. Plaintiff claims that she signed the forms Defendant Duncan presented to her, signing some forms in front of both Defendants Duncan and Bennett, and signing other forms in front of only one of the two. Id. ¶ 77. According to Plaintiff, no one else was physically present when she signed the forms regarding the FMV Loan. Id. ¶ 78. Plaintiff also alleges that several hours after leaving the FMV Defendants' office on the day of the closing, she "called Defendant Bennett and informed him that she did not want to proceed with this loan, but he refused to stop the loan process." Id. ¶ 97. Plaintiff does not explain why she wanted to stop the FMV Loan transaction.

According to Plaintiff, she asked for copies of the forms she signed at the FMV Loan closing, but was told by Defendants Duncan and Bennett that they needed to "process" the forms before they could give her copies. Id. ¶ 79. Plaintiff asserts that she only received documents allegedly related to the closing of the FMV Loan "from some of the Defendants" after filing the instant action. Id. ¶ 80. Those documents include: (1) the LLC Articles of Organization, see SAC, Ex. 2; (2) a HUD-1 Settlement Statement that appears to reflect Plaintiff's sale of the Condo to the LLC, see SAC, Ex. 4; (3) a Balloon Deed of Trust Note that appears to reflect a $250,000 loan from FMVILA to the LLC, see SAC, Ex. 5; (4) a Commercial Loan Balloon Deed of Trust that appears to reflect the LLC's $250,000 debt to FMVILA, see SAC, Ex. 6; (5) a Deed that appears to convey the Condo from Plaintiff to the LLC in exchange for $200,000, see SAC, Ex. 7; (6) a "Notice to Applicant for a Mortgage Loan -- Commercial Loan Disclosure," see SAC, Ex. 8; (7) a Financing Agreement apparently between the LLC and FMVILA, see SAC, Ex. 9; and (8) a Borrower Affidavit that appears to be executed by Plaintiff on behalf of the LLC, see SAC, Ex. 10. SAC ¶ 81. Plaintiff also asserts that she has obtained other documents that appear to be related to the FMV Loan, including a District of Columbia Office of Tax and Revenue Security Affidavit, see SAC, Ex. 11; an Assignment of Contracts, Income, Rents and Profits, see SAC, Ex. 12, and a Deed in Lieu of Foreclosure. Id. ¶ 82.

With the exception of the LLC Articles of Organization, each of these documents is dated August 31, 2005, and each appears to reflect Plaintiff's signature either individually or on behalf of the LLC. See SAC, Exs. 2, 4-12. Nevertheless, Plaintiff alleges that she "does not believe that the signatures on the versions of the documents that are attached as exhibits to [the Second Amended Complaint] are her own genuine signatures." Id. ¶ 83. Plaintiff further asserts that she "does not recall signing any documents that reference" the LLC because she had no knowledge of the LLC's existence on August 31, 2005 and "would not have signed such documents on behalf of a business entity about which she had no knowledge." Id. ¶ 84. Plaintiff also "contends that she would never have knowingly signed any document that would result in the transfer of legal ownership to [the Condo], whether to a Limited Liability Company that she controlled or any other business entity." Id. ¶ 85.

Plaintiff continues to allege, upon information and belief, that Defendants Bennett and Duncan are the agents of Defendant Brickshire "and act as such when signing HUD-1 Settlement Statements and conducting settlements on behalf of Brickshire," including when they conducted the settlement on the FMV Loan and when they signed the HUD-1 Settlement Statement regarding the FMV Loan. Id. ¶¶ 86-88. Furthermore, in an allegation that is seemingly alternative to her claim that she did not sign the documents described above, Plaintiff alleges that the FMV Defendants and Defendant Brickshire "prepared and presented documents for [her] signature without explaining the legal effect of such documents to [her] in an effort to charge her a higher rate of interest, and also to circumvent District of Columbia mortgage and fair lending laws." Id. ¶ 96.

Plaintiff raises a number of other arguments regarding the documents. First, Plaintiff takes issue with what appears to be the notary block on each document, asserting that there is no way to identify the "purported Notary Public" who witnessed the documents, and asserting that the documents do not include a "notarial seal or stamp." Id. ¶¶ 89-91. According to Plaintiff, Defendants Duncan and Bennett were the only individuals present when she signed documents regarding the FMV Loan, and neither Defendant is a notary in the Commonwealth of Virginia. Id. ¶ 92.*fn5 Plaintiff thus concludes that the various documents described above "are of no legal effect" because they "require a valid notarization and acknowledgment." Id. ¶ 95.

Plaintiff also asserts that a "close reading" of the HUD-1 described above "reveals numerous false statements, inconsistencies and ambiguities that, in total lead to the conclusion that the [FMV Loan] was a sham loan designed to circumvent District of Columbia mortgage and fair lending laws." Id. ¶¶ 98-99. In particular, Plaintiff asserts that the amount listed on the HUD-1 as the pay off figure for the UTS Loan "does not take into consideration amounts that [she] paid . . . in order to reduce the amount owed on that loan prior to the closing on the [FMV Loan]." Id. ¶ 103. Plaintiff alleges that, because she never received a pay off statement regarding the UTS Loan, the FMV Defendants and Brickshire owe her "the difference between the amount that was allegedly remitted to pay off the [UTS Loan] and the amount that was actually owed, which is unknown at this time." Id. ¶¶ 103-04.

Plaintiff next claims that, although the Balloon Deed of Trust Note described above purports to reflect a $250,000 loan from FMVILA to the LLC, because that Note includes an apparent personal guarantee by Plaintiff Juergens, the purported loan to the LLC is in fact a "'residential' refinance loan, subject to all of the protections found in District of Columbia residential mortgage and fair lending laws." Id. ΒΆΒΆ 105-06. Finally, Plaintiff alleges that she never received a variety of ...


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