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Kissi v. EMC Mortgage Corp.

June 23, 2009

DAVID KISSI, PLAINTIFF,
v.
EMC MORTGAGE CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

This matter is before the Court on a motion to dismiss filed on behalf of EMC Mortgage Corporation and David Panzer, Esq. in which Joseph V. Buonassissi, II, Esq. has joined. For the reasons discussed below, the defendants' motion to dismiss will be granted.

I. BACKGROUND

Plaintiff David Kissi ("Kissi") and his wife, Edith R. Truvillion ("Truvillion"), purchased real property at 4303 Ammendale Road in Beltsville, Maryland (the "Ammendale Road property") in December 1999 for $110,000 with funding from Ameriquest of California.*fn1 See Memorandum in Support of EMC Mortgage Corporation and David Panzer's Joint Motion to Dismiss ("Defs.' Mot."), Exhibit ("Ex.") 1 (Declaration of David S. Panzer) ("Panzer Decl."), Ex. A at E196 (Affidavit in Support of a Statement Asserting the Exact Amount of Principal and Interest Owed to EMC for 4303 Ammendale Rd., Beltsville, MD 20705 and a Request to Reinstate Mortgage or Grant Us 90 Days to Shop Around for a New Lender).*fn2 In 2004, Kissi and Truvillion secured a mortgage on the property of $210,000 from Wells Fargo Bank, N.A., of which approximately $100,000 was a cash payment to the mortgagors. Id. at E53 (State of Maryland Land Instrument Intake Sheet); see id. at E196. On August 16, 2004, Truvillion executed a Promissory Note, see id. at E56 (Deed of Appointment of Substitute Trustees), and both Kissi and Truvillion executed a Deed of Trust securing the Promissory Note, id. at E25-43 (Deed of Trust). The Promissory Note provided for an adjustable interest rate. Id. at E47-49 (Adjustable Rate Rider). The Ammendale Road property appeared to be an investment property as it was not the Kissi's and Truvillion's principal residence. Id. at E52 (Finance Affidavit). EMC Mortgage Corporation ("EMC") became the holder of the Promissory Note, and EMC appointed Joseph V. Buonassissi, II ("Buonassissi") and others as substitute trustees in July 2005. Id. at E56.

A. The Defendants' Representations

Kissi and Truvillion defaulted on the Promissory Note and the Deed of Trust. Id. at E89 (Statement Under Oath as to Mortgage Debt and Military Affidavit) ¶ 5. On July 27, 2005, Buonassissi and the other substitute trustees initiated foreclosure proceedings in the Circuit Court for Prince George's County, Maryland against the Ammendale Road property. Id. at E23-24 (Order to Docket, Case No. CAE 05-15718). As of the filing of the foreclosure case, Kissi and Truvillion owed EMC $226,320. Id. at E89 ¶ 6. On March 23, 2006, one day before the foreclosure sale of the Ammendale Road Property, Kissi and Truvillion filed an objection to the foreclosure sale and made a counterclaim for fraud demanding damages of $100 million. Id. at E91-92 (Objection to the Foreclosure Sale on 3/24/06 of 4303 Ammendale Rd., Beltsville, MD 20705 Combined with a Tort Complaint Seeking $100 Million for Fraud and Misrepresentation Against Joseph V. Buonassissi, II Personally and Against EMC Mortgage of Texas Re: Mortgage Loan #0003236643). In relevant part, their objection stated:

I am charging the Plaintiffs with negligent misrepresentation and fraud . . . for attempting to steal our property located at 4303 Ammendale Rd., Beltsville, MD 20705 through an illegal foreclosure sale set for 3/24/06. That the Plaintiffs owed a duty to us to have conducted due diligence and to have provided us with each monthly mortgage principal and interest payment going back to the first payment we made in 1999 . . . . But the Plaintiffs chose to ignore our request and sought to foreclose on our property without giving us adequate advanced notice of the sale on 3/24/06. And neither could they provide us with a breakdown of all our monthly mortgage payments. That the Plaintiffs knew or they should have known as our fiduciary agents that we trusted that they have kept proper documents . . . and also to comply with the Forbearance Agreement we had ratified with EMC Mortgage.*fn3

Id. at E91 (emphasis added). The foreclosure sale took place on March 24, 2006, and the proceeds of the sale were $310,000. Id. at E471 (Auditor's Account 'A'). The net proceeds of the sale, after deducting the usual costs and expenses and attorneys fees, did not cover the outstanding principal and interest, resulting in a deficit of $62,427.92. Id.; see also id. at E472 (Report of Auditor and March 21, 2007 Order of Ratification of Report of the Auditor). On March 28, 2006, the Circuit Court issued a memorandum declaring Kissi's "objection to the sale . . . moot as the sale ha[d] taken place as scheduled." Id. at E94 (Memorandum of Court). Construing Kissi's objection as a counterclaim against EMC and Buonassissi, the Circuit Court instructed these parties to respond. Id. at E95 (Memorandum of Court).

EMC moved to dismiss Kissi's counterclaim, arguing that the pleading failed to state claims for fraud, negligent misrepresentation, emotional distress, unjust enrichment, or breach of contract, see id. at E117-34 (Statement of Grounds and Authorities in Support of EMC's Motion to Dismiss Pro Se Counterclaim), and Buonassissi and the other substitute trustees filed a response to plaintiff's objection to the foreclosure sale, arguing that Kissi and Truvillion had adequate notice of the sale, see id. at E142-49 (Plaintiff's Response to Objection to the Foreclsoure [sic] Sale, Response to the Notice of Opposition of Ratification of Sale and Motion to Dismiss Complaint). The Circuit Court held a hearing on the motion on July 10, 2006, during which it denied and overruled Kissi's objections to the foreclosure sale. See id. at E271 (Transcript of Official Proceedings before The Hon. H.C. Dawson on July 10, 2006). The court concluded that, at the time of the March 24, 2006 foreclosure sale, Kissi and Truvillion were in default, that the default was not excused, that Kissi and Truvillion received proper notice of the sale, and that the sale was in accordance with the Maryland rules. Id. at E6 (Docket Entry 47). Subsequently, the Circuit Court denied Kissi's and Truvillion's Motion for New Trial and/or Motion to Alter or Amend Judgment, or Alternatively, Motion to Revise Judgment. Id. at E286-87 (August 21, 2006 Order). Further, the Circuit Court ordered Kissi and Truvillion to pay reasonable attorneys fees to Buonassissi and EMC. Id.

On February 8, 2007, Kissi and Truvillion filed an amended counterclaim, id. at E462-70 (First Amended Counterclaim of Defendants David Kissi and Edith Truvillion), only to withdraw it orally at a hearing on February 9, 2007, id. at E555-56 (Transcript of Official Proceedings before The Hon. H.C. Dawson on February 9, 2007). Over Kissi's objections, the Circuit Court granted EMC's and Buonassissi's motions for attorneys fees. Id. at E565-67. On April 2, 2007, the court entered judgment in favor of Buonassissi in the sum of $31,355.19 and in favor of EMC in the sum of $92,616.17. Id. at E514 (Daily Sheet); see also id. at E515 (Judgment for Buonassissi); id. at E517 (Judgment for EMC). Kissi and Truvillion appealed "the final judgment (and all adverse interlocutory orders) entered against them on April 2, 2007 through judgments in favor of [EMC and Buonassissi]."*fn4 Id. at E518-19 (Notice of Appeal).

David Panzer, Esq. ("Panzer"), of the law firm Greenberg Traurig, LLP, represented EMC in the case entitled Buonassissi, II v. Truvillion, CAE 05-15718 (the "foreclosure case"), brought in the Circuit Court of Prince George's County, Maryland, and in the appeal entitled Kissi v. EMC Mortgage Corp. of Texas, Case No. 499 (the "foreclosure appeal"), when the foreclosure case was appealed to the Maryland Court of Special Appeals. Id., Panzer Decl. ¶ 4.

B. Kissi's Complaint

Generally, Kissi alleges that EMC, Panzer and Buonassissi foreclosed on the Ammendale Road property "through fraud and misrepresentation." Complaint of $100 Million Jointly Against The Defendants For Fraudulently Taking Assets They Have No Claim Of Ownership ("Compl.") at 1. Further, he alleges that Panzer submitted a fraudulent affidavit in the foreclosure case and thereby was awarded an "inflated amount" of legal fees. See id. at 1-2.

Although Kissi names Buonassissi in the caption of the complaint, there are no factual allegations in the pleading pertaining to him. According to Kissi, the foreclosure amounted to taking Kissi's property without compensating him, thus depriving him of equity, rental income, and other financial benefits of ...


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