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Presidio Group, LLC v. GMAC Mortgage

December 3, 2008


The opinion of the court was delivered by: Ronald B. Leighton United States District Judge



THIS MATTER comes before the Court upon Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) brought by defendants, GMAC Mortgage, LLC and General Motors Acceptance Corporation ("GMACM") [Dkt. #49]. The Court has reviewed the materials submitted in support and opposition to the motion. Oral argument is not necessary for the Court to resolve the issues presented by the motion. For the following reasons the Court GRANTS the Motion to Dismiss.


In their Second Amended Complaint [Dkt. #29], plaintiffs allege that Defendant, Richard Cano, perpetrated a fraudulent scheme against them resulting in the loss of $82,000. They assert claims against Cano and his employers, GMAC Mortgage LLC and General Motors Acceptance Corp., based on Federal and State racketeering statutes, 18 U.S.C. §1961 and RCW 9A.82.080(1)(a), (2)(a), and (3)(a), the State Consumer Protection Act, RCW 19.86.010 and various common law theories. In their 195-page Second Amended Complaint plaintiffs allege Cano was employed at GMACM as senior loan officer in GMACM's Vancouver office. Complaint ¶¶51, 65, 267-268. The acts complained of occurred during late November 2005, through December 2005, during which time Cano was employed at GMACM. ¶¶8, 51. While employed at GMACM, plaintiffs allege Cano requested plaintiffs "wire monetary funds for Cano's benefit in order for Cano to satisfy the $387,000.00 monetary funds transfer tax and associated charges . . . in order for Cano to obtain immediate release of and access to Cano's monetary funds held in escrow. . . ."


Cano directed the plaintiffs to wire the funds to Darmstad Clearing & Contracting, Ltd. ("Darmstad"). ¶9. Based on Cano's representations plaintiffs believed that "Cano owned, managed, controlled, operated, directed, managed, and/or governed the business affairs and/or activities of Darmstad." ¶¶12, 20. Based on "Cano's verbal and written instructions, directions, and/or commands and justifications" plaintiffs wired a total of $82,000.00 to Darmstad in December 2005. ¶14. Payment was made "for the express purpose of facilitating and furthering the ability of Cano to satisfy the $387,000 obligation Cano owed to Lloyds TSB Bank." ¶14.

Plaintiffs allege that "Cano, by and through Darmstad received plaintiffs' $82,000." ¶21. Cano's objective in wiring the money to Darmstad was to "convert the nature of those feloniously acquired monetary funds into legitimate funds, and to insulate and immunize those monetary funds . . . ." ¶22. According to plaintiffs, Darmstad is a "Nigerian 429 scam" and Cano's "alter ego." ¶¶59, 60. Plaintiffs further allege that "Cano, directly and/or indirectly, received monetary benefits from Darmstad in order to pursue business activities and maintain Cano's ability to live and work." ¶58.

According to plaintiffs, GMACM's only involvement in the transaction relates to an email Cano sent to plaintiffs attaching copies of "The Cooperative Bank instrument entitled 'BANK GUARANTEE', dated 28 November 2005." ¶14. The guarantee purported to confirm "the existence of an escrow account holding £10,000,000 British Pounds Sterling, to remain in escrow for the benefit of Cano." ¶15. Plaintiffs do not allege any facts explaining how the email implicates GMACM. The guarantee was not signed by GMACM. ¶15. There are no other facts alleged regarding the November 28th email.

Plaintiffs allege that based on Cano's representations they believed that £10,000,000, once released, "would fund plaintiffs [sic] various real estate development projects, one in particular, the Deffenbaugh Project situated in Clark County, Washington, and provide monetary funds to plaintiffs so plaintiffs could acquire a personal residential property." ¶¶268-269. Plaintiffs allege they had applied for but did not qualify for a mortgage loan through GMACM. ¶34. The loan application does not appear to form the basis of any of the plaintiffs' claims.

After receiving the guarantee, "Cano reassured and reconfirmed to plaintiffs the legitimacy and safety of [sic] nature of the matter represented by Cano." ¶17. On May 19, 2006, after the funds had been wired by plaintiffs, Plaintiffs Ramona Kauhi came to the GMACM office where Cano was employed to confront Cano regarding "the status of funds in the escrow account in London, United Kingdom." ¶31. Only Ramona Kauhi and Cano participated in the May 19th meeting. ¶¶31-38. According to plaintiffs, Cano held two meetings at GMACM with Marilyn and Jerry Chau regarding false documents prepared by Cano while Cano worked for his prior employer, Countrywide. ¶61. Neither the Chaus nor Countrywide are parties to this lawsuit. Plaintiffs contend that Cano left his previous employment at Countrywide "for having engaged in felonious and fraudulent conduct." ¶266. Plaintiffs allege that after December 31, 2006, and after "discovering the felonious and wrongful conduct of Richard Cano" at GMACM, GMACM permanently closed its Vancouver office. ¶65.

In their motion to dismiss, defendants argue that plaintiffs' Second Amended Complaint fails to allege facts sufficient to support any cause of action against Cano's unsuspecting employers. Unfortunately, plaintiffs' response merely consists of a recitation of randomly selected cases that enunciate basic legal principles regarding fraud generally and RICO specifically. Plaintiffs fail to address or even mention the basic premise of defendants' motion: that as employers who did not participate in or benefit from their employees' fraud, they are not liable for the plaintiffs' damages. A review of plaintiffs' Second Amended Complaint reveals that they have failed to assert facts that support any theory of liability against moving defendants.


FRCP 12(b)(6) Motion to ...

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