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Kissi v. Panzer

October 26, 2009

DAVID KISSI, PLAINTIFF,
v.
DAVID PANZER, 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 the joint motion to dismiss filed on behalf of defendants EMC Mortgage Corporation and David Panzer, Esq.*fn1 For the reasons discussed below, the Court will grant the defendants' motion and will dismiss this action as against all the defendants.

I. BACKGROUND

In order to place the allegations of the plaintiff's complaint in context, the Court refers to a prior decision in a related case:

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. 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. On August 16, 2004, Truvillion executed a Promissory Note, and both Kissi and Truvillion executed a Deed of Trust securing the Promissory Note. The Promissory Note provided for an adjustable interest rate. 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.

Kissi v. EMC Mortgage Corp., 627 F. Supp. 2d 27, 29-30 (D.D.C. 2009) (internal citations to the record omitted), appeal docketed, No. 09-7077 (D.C. Cir. July 21, 2009). The plaintiff and his wife defaulted on the loan, and on July 27, 2005, Buonassissi and the other substitute trustees initiated foreclosure proceedings in the Circuit Court for Prince George's County, Maryland. Id. David Panzer, Esq. ("Panzer") represented EMC in the foreclosure case and in the appeal of the foreclosure case before the Maryland Court of Special Appeals.*fn2 Memorandum in Support of EMC Mortgage Corporation and David Panzer's Joint Motion to Dismiss ("Defs.' Mem."), Exhibit ("Ex.") 1 ("Panzer Decl.") ¶ 4.

In this action, the plaintiff alleges that EMC, Panzer, and the seven other defendants "conspired in bad faith to fraudulently acquire the [p]laintiff's property located at 4303 Ammendale Rd., Beltsville, MD" in violation of 18 U.S.C. §§ 1952 and 1957 (2006). Complaint ("Compl.") at 2. He further alleges that Elias and Cecilia Osefo purchased the Ammendale Road property at a foreclosure sale for $310,000 and, in turn, sold the property to Patrick Ogbeide for $421,000 in a transaction involving William Ampofo, Benedict Akanegbu and Avalar Smart Choice Realty. Id.

According to the plaintiff, "the [d]efendants have developed a pattern of taking various assets of mainly African American property owners through perjury and false pretenses." Id. at 3. The Osefos allegedly obtained "a subsidized interest rate loan because they had sworn falsely that 4303 Ammendale was going to be their principal residence," yet they "never lived there even though Federal/Maryland credit statutes require homeowners who are beneficiaries of government housing programs to stay put in such properties as their principal residence[s]." Id. at 2. "The new buyer, Patrick Ogbiede[,] subsequently lost the same property through foreclosure in 2008 after claiming it as his principal residence, but never living in it, thereby defrauding the lender." Id. at 3.

In this action, the plaintiff demands "82% of the net proceeds" of the Osefos' sale of the Ammendale Road property to Ogbiede, plus damages of $10 million. Id. at 3.

II. DISCUSSION*fn3

On November 5, 2008, EMC and Panzer filed a joint motion to dismiss on three grounds:

(1) that the Court lacks personal jurisdiction over them, (2) that venue in this district is improper, and (3) that the complaint fails to state a claim upon which relief can be granted.*fn4 Defs.' Mem. at 7-13, 19-22. On December 1, 2008, the plaintiff filed a document entitled, "A 28 USC § 1746 Affidavit (#1901) Supplement to Opposition to Dismiss Request for Transfer to Maryland" [Dkt. #6], with exhibits, which the Court construes collectively as his opposition to the defendants' motion to dismiss ("Pl.'s Opp'n"). However, this opposition offers no meaningful response to the arguments the defendants set forth in their motion. Instead, the plaintiff's submission pertains almost entirely to the criminal and bankruptcy proceedings in the United States District Court and the United States Bankruptcy Court for the District of Maryland, and refers to parties who are not named defendants to this action. See generally Pl.'s Opp'n at 1-5. The Maryland proceedings have concluded, and this Court has no authority to review them or to relieve the plaintiff of their consequences.

Because the plaintiff's opposition fails to address the defendants' arguments, the Court may treat the defendants' motion as conceded. See Palmer v. GMAC Commercial Mortgage, 628 F. Supp. 2d 186, 193 (D.D.C. 2009) (citing Fox v. Am. Airlines, Inc., 295 F. Supp. 2d 56, 58 (D.D.C. 2003), aff'd, 389 F.3d 1291 (D.C. Cir. 2004)) ("Where a party addresses some but not all arguments raised in a motion to dismiss, courts in this district treat such arguments as conceded."); Delaney v. District of Columbia, 612 F. Supp. 2d 38, 41 n.3 (D.D.C. 2009) (granting as conceded two motions to dismiss because the plaintiff failed to file a response to them); Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (holding that "when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded"); Stephenson v. Cox, 223 F. Supp. 2d 119, 122 (D.D.C. 2002) (dismissing various counts of complaint as conceded, noting that ...


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