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Wenglicki v. Tribeca Lending Corp.

July 22, 2009


The opinion of the court was delivered by: Stengel, J.



Wenglicki brought eleven (11) counts against the three defendants in the amended complaint he filed on December 4, 2008 (Document #37). He withdrew two counts, Count VII (FCEUA as to Tribeca and Franklin) and Count IX (negligence as to Avaya) in his response to the defendants' motions to dismiss. I will dismiss the three remaining counts against defendant Avaya (Counts V, VI, and X) and enter judgment in its favor because Wenglicki has failed to state a claim against Avaya. I will dismiss all counts against Tribeca except Count IV, but I will decline to exercise jurisdiction over this statelaw claim.


Wenglicki was terminated by his employer, Avaya on May 1, 2005. Compl. ¶ 13. He accepted a lump-sum severance payment of $50,000 and was granted three years of "recall rights" (the right of first refusal for a new position, should one become available). Compl. ¶¶ 14, 15. In October 2005, Avaya offered Wenglicki a new position. Compl. ¶ 17. When he accepted the new position, Wenglicki was required to give back a portion of his severance payment ($18,400) and to spend two months in Florida for training. Compl. ¶¶ 17, 19. If he had refused the job, Wenglicki would have simply forfeited the remaining time (approximately two and a half years) of recall rights. Compl. ¶ 21. He would have been permitted to keep the full severance payment amount.

Although Wenglicki had apparently already disposed of the $50,000 of severance money, he accepted Avaya's offer and refinanced his home mortgage through Tribeca, a mortgage broker and lender, to get the "pay-back" money for Avaya. See Compl. ¶ 23. On October 29, 2005, Wenglicki executed the loan documents at closing. Compl. ¶ 30.

Wenglicki believed (because Ike Stevens at Tribeca allegedly told him) that Tribeca and Franklin would consolidate his debt and pay off both of his mortgages, taxes and car payment, in addition to giving him cash to repay Avaya. Compl. ¶ 26. According to Wenglicki, Stevens told him that a title search showed no second mortgage on his home and that the loan would improve his financial condition. Compl. ¶¶ 27, 29. Stevens misrepresented that the loan would improve Wenglicki's financial situation, that the fees and costs charged him were customary, part of the finance charge and amount financed, that the loan would continue its characteristics and that certain amounts were due and owing. Id.

It was not until later that Wenglicki learned his second mortgage, taxes and car payments were unpaid. Compl. ¶¶ 31, 32. Also, his monthly payment was higher. Id. Wenglicki did have enough cash to pay back Avaya and his get job back, but he "eventually learn[ed] that Avaya had intentionally created an impossible financial situation due to its financial needs so to recoup [his] severance under the guise of employing" him. Compl. ¶ 32. After two months of Avaya training in Florida, Avaya temporarily relocated him to Tennessee, but did not pay him the relocation reimbursement it paid other employees because Wenglicki was a "new hire." Compl. ¶ 33. When the temporary, three-month relocation turned into a ten-month relocation, Avaya advised Wenglicki to apply for a hardship transfer which was denied. Compl. ¶ 36. Avaya then advised Wenglicki to file for bankruptcy. Id.

In April 2006, defendant Franklin, Wenglicki's lender and servicer or then-assignee, instituted a mortgage foreclosure action. Compl. ¶ 37. On March 7, 2008, Wenglicki filed bankruptcy. Compl. ¶ 38. See Bankr. E.D.Pa. 08-20480. Wenglicki's car was repossessed, his home was sold at sheriff's sale and he became homeless. Compl. ¶ 39. He alleges that he has suffered emotional distress, credit rating damage, financial loss including lost wages and opportunities, annoyance inconvenience and embarrassment and other things that he plans to determine during discovery. Compl. ¶ 41.


A. Claims against Avaya

i. Count V: Fraud

Wenglicki fails to plead even the most basic elements of a fraud claim. In Pennsylvania, fraud consists of five elements: (1) misrepresentation, (2) fraudulent utterance thereof, (3) maker's intention that the recipient will be induced to act, (4) justifiable reliance by recipient on misrepresentation, and (5) damage to the recipient as a proximate result. New York State Elec. & Gas v. Westinghouse Elec. Corp., 387 Pa. Super. 537, 554 (1989) (internal citation omitted). Wenglicki alleges only:

62. Defendants misrepresented and/or omitted material facts to Plaintiff, including the aforesaid (incorporated herein by reference) and as more further described as following but not limited to: (a) that the re-employment was beneficial to Plaintiff, when it was not; (b) that Plaintiff would be hired with his previous seniority, when he ...

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