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Philip Sabatino Ognibene v. Philip Sabatino Lagori et al

April 26, 2013

PHILIP SABATINO OGNIBENE, PLAINTIFF,
v.
PHILIP SABATINO LAGORI ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Robert C. Jones United States District Judge

ORDER

This case arises out of the alleged forgery of a quitclaim deed. Pending before the Court is a Motion to Dismiss or for Summary Judgment (ECF No. 28). For the reasons given herein, the Court denies the motion.

FACTS AND PROCEDURAL HISTORY

Plaintiff Philip Sabatino Ognibene has been the owner of real property at 95 E. Windmill Ln., Las Vegas, NV 89123 (the "Property") since December 11, 1992, except for a "brief period in 2003" when he transferred title to Defendant Philip Sabatino Lagori. (See Compl. ¶¶ 4--6, Jan. 20, 2012, ECF No. 1-6). When Plaintiff submitted an insurance claim based upon damage to the sustained during a windstorm in the summer of 2011, the insurance company made out the reimbursement check to Lagori instead of Plaintiff because it believed that Lagori was the of the Property. (Id. ¶¶ 8--11). Plaintiff then allegedly discovered for the first time that on June 18, 2007, a quitclaim deed (the "Quitclaim Deed") to the Property had been recorded in purportedly by Plaintiff in favor of Lagori. (Id. ¶¶ 12--13). The signature on the Quitclaim Deed is not Plaintiff's, but was allegedly forged, and Plaintiff claims not to know who appeared before the Illinois notary listed on the Quitclaim Deed, Carrie Nowak; Plaintiff was not on the date of the jurat, May 15, 2007. (See id. ¶¶ 14--17). Plaintiff allegedly believes have caused someone to forge the Quitclaim Deed, or did so himself, with the of an old photo identification card of Plaintiff's to which Lagori had access. (Id. ¶¶ 18--19). Plaintiff allegedly believes Lagori may have capitalized on their similar appearance and similar names; Lagori is Plaintiff's son. (See id. ¶¶ 20--21). Plaintiff believes it is Lagori who then executed a deed of trust ("DOT") and assignment of rents ("AOR") in favor of Defendant Signature Bank. (See id. ¶ 22). The DOT and AOR were recorded on October 16, 2007, and the DOT was later recorded again on July 18, 2008 to correct the name of the trustee.

¶¶ 24--26).

Plaintiff sued Defendants in state court on January 20, 2012 on seven causes of action: (1) quiet title; (2) declaratory relief; (3) conversion (Lagori only); (4) unjust enrichment (Lagori only); (5) fraud (Lagori only); (6) constructive fraud (Lagori only); and (7) exploitation of an person. Signature Bank answered the Complaint and filed a Cross-claim ("CC") against

Third-party Complaint ("TPC") against Nowak for indemnity, fraud, breach of contract (Lagori only), and unjust enrichment (Lagori only). (See Answer, CC, and TPC, Mar. 1, 2012, ECF No. 1-10). The clerk of the state court entered default in favor of Signature Bank and against Lagori as to the CC. (See Default, Apr. 18, 2012, ECF No. 1-13). The clerk of the state court then entered default in favor of Plaintiff and against Lagori as to the Complaint.

Default, May 2, 2012, ECF No. 1-14). Plaintiff and Signature Bank applied to the state

respective default judgments against Lagori as to the Complaint and the CC, but the state court did not decide those motions before removal.

After removal, Nowak asked this Court to dismiss the indemnity and fraud claims

Signature Bank had brought against her via the TPC, and Plaintiff asked the Court to grant him a default judgment against Lagori. The Court denied Nowak's motion but granted Plaintiff's and entered default judgment against Lagori.

Signature Bank then asked the Court to reconsider its grant of default judgment to Lagori and to set that judgment aside because it affects Signature Bank's security interest in the Property. The Court granted the motion because Signature Bank produced compelling evidence

that Plaintiff in fact obtained the subject loan with Defendant and shared the proceeds. Plaintiff produced no contrary evidence and provided no plausible explanation other than to call Signature Bank "paranoid."

Nowak has now moved to dismiss, or in the alternative, for summary judgment. The Court notes that the claims against Nowak have ...


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