Full opinion text
ORDER NICHOLAS G. GARAUFIS, District Judge. This court has reviewed the unopposed Report and Recommendation (“R & R”) of Magistrate Judge Viktor V. Pohorelsky dated March 18, 2010. (Docket Entry #290, No. 04-CV-4775; Docket Entry # 313, No. 04-CV-5620.) Finding no clear error, the court adopts Judge Pohorelsky’s thorough and well-reasoned R & R pursuant to 28 U.S.C. § 636(b)(1). Accordingly, the Motion for Summary Judgment by Better Homes Depot, Inc. and Madison Home Equities, Inc. (Docket Entry # 279, No. 04-CV-4775; Docket Entry # 310, No. 04-CV-5620) and the Motion for Summary Judgment by Defendani/Third-Party Plaintiff Leo White and Plaintiffs Linda Council and Kimberly Council (Docket Entry # 282, No. 04-CV-4775; Docket Entry # 313, No. 04-CV-5620) are DENIED. SO ORDERED. REPORT AND RECOMMENDATION POHORELSKY, United States Magistrate Judge: The parties in the above-captioned cases have moved for summary judgment, and Judge Garaufís has referred the motions to me for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Both cases arise out of materially similar transactions, which consist of the plaintiffs’ purchase of a dwelling from the defendant Better Homes Depot, Inc. (“Better Homes” or “BHD”) financed by a mortgage issued by the defendant Madison Home Equities, Inc. (“Madison” or “MHE”). The allegations sound primarily in fraud, conspiracy, deceptive trade practices, and federal housing discrimination in connection with those transactions. The Better Homes defendants have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 against the plaintiffs, Leo White, Linda Council, and Kimberly Council, while White and the Councils have cross-moved for partial summary judgment on many of their claims. For the reasons that follow, the undersigned finds that genuine issues of material fact remain, and respectfully recommends that both BHD motions be DENIED and that the White and Council motions be DENIED as well. BACKGROUND The facts on which the court relies will be drawn from the Local Civil Rule 56.1 Statements of Fact that the parties have filed, as well as from the exhibits attached to the parties’ moving papers, and from the pleadings, admissions, and prior discovery rulings that occurred. The transactions in question both occurred in 1999, when Leo White and the Councils separately purchased residential properties in Brooklyn, New York from Better Homes, with financing provided by Madison. At issue are the defendants’ alleged representations that the properties were or would be converted into legal four-family (White) and two-family (the Councils) homes, that Certificates of Occupancy would be obtained, and that the premises would be substantially repaired and renovated. Their respective experiences with the defendants — including their discussions, the transactions at issue, and the events that ensued — are separately described below. Leo White At the time that White first approached Better Homes about purchasing a home, he was a 21 year-old African-American hotel doorman earning roughly $2,100 per month. He had not graduated high school. White was interested in purchasing a multi-family dwelling in the Bedford-Stuyvesant section of Brooklyn. To enable him to carry the mortgage that would be necessary, White wanted to have rent-paying tenants. Thus, he planned to live with his family on one floor, and collect rent from tenants on the other floors. Because White’s aunt had previously purchased a home from BHD financed by an MHE mortgage, she took White to BHD and MHE offices to begin inquiries about buying and financing a home. Over a period of approximately one month, White had numerous meetings with Better Homes and Madison agents, including Glen John and Charles Styles, and was shown an estimated 20 houses. Although he initially agreed to purchase a different property, White ultimately settled on the purchase of a house at 164 Macon Street. The premises at 164 Macon Street, which were built around 1899, consisted of a basement and four floors. The apartments on the first and second floors each have one bedroom, while the third and fourth floor apartments each have two bedrooms. It appears that the property did not have a Certificate of Occupancy (“CO”) for use as a four-family dwelling at the time; White testified that the existing CO was for use as a three-family house. White testified, however, that BHD promised to perform any necessary repairs so that the property could be legally categorized as a four-family dwelling. White also testified that he was told by BHD and MHE agents — including John, Styles, Eric Fessler (the President of Better Homes), and Nadine Malone (the President of Madison Home Equities) — that he would be able to rent the three other units in the home, and realize approximately $3,600 per month in rental revenue. Never having purchased a home before, however, White did not independently verify that information. Nor did he obtain an independent engineering inspection or appraisal, or independently investigate the house’s market value or condition. White was not represented by an attorney when he signed the contract of sale, and does not remember speaking with or consulting anyone about its terms prior to signing. He did not object to any of the contract terms, and testified that he had read through and understood the document. The MHE mortgage that White used to finance the purchase of 164 Macon Street was insured by the Federal Housing Administration (the “FHA”). The rental income he expected to realize was included on his mortgage application, subject to verification in the appraisal. At the behest of Madison, the residence was appraised by Robert Dosch, an employee of CLA Appraisals. His appraisal report contained the following provision: “The appraiser has based his or her appraisal report and valuation conclusion for an appraisal that is subject to satisfactory completion, repairs, or alterations on the assumption that completion of the improvements will be performed in a workmanlike manner.” The appraisal amount in his report essentially matched the purchase price, and was calculated on the basis that the legal occupancy status of the property was a four-family dwelling. Dosch’s appraisal indicated that White would be able to rent each unit for $1,200 per month. White remained without counsel until the closing, when he was represented by C. Peter David, an attorney who had been recommended to him by BHD or MHE. Better Homes had informed White that David’s legal services were included as part of his down payment. WTiite stated that at the closing David told White that he had looked through the paperwork, and that everything was proper. Prior to the closing, Better Homes performed a number of cosmetic repairs or renovations on White’s home, including installation of ceramic flooring and stoves, painting, carpeting, sheet-rocking, and fixing a leak, and White indicated his satisfaction with the work. Roughly one year after moving in, however, the roof began to leak. White also experienced leaks in some of the piping, and encountered other problems with the chimney and windows. Shortly thereafter, the boiler broke, costing White approximately $2,000. White did not ask Better Homes to make repairs. Ultimately, although White did not realize the level of rental income he had anticipated, he continuously had at least one paying tenant in the premises, and frequently more. When he failed to make his mortgage payments, foreclosure proceedings were initiated and While filed a bankruptcy petition in 2003. The Councils The Councils, who are also African-American, learned of Better Homes after seeing signs on a house listing BHD as the seller, as well as from newspaper advertisements. Because the Councils were unable to remain in the apartment they occupied at the time, there was some urgency in finding a house or, at a minimum, another place to live. Although similarly inexperienced in real estate transactions, Linda Council and her daughter, Kimberly, had both earned college degrees and had done post-graduate work when they first came into contact with BHD and MHE. Linda worked for the United States Postal Service, and together with Kimberly, they were earning approximately $74,000 per year. After contacting BHD by telephone, they were shown several properties by Mitch Lewis, a Better Homes agent. They ultimately became interested in a house at 102 Etna Street. The property was undergoing extensive repair and renovation, and the basement was being redone. Linda Council expressed to Lewis her interest in obtaining rental income from the basement unit, and both Linda and Kimberly testified that Lewis represented to them that they would be able to rent out the basement for up to $1,200 a month. While the house was undergoing renovation, Better Homes and Lewis “always made it clear that they would fix the house ... to [their] specifications and what had to be done to the house.” Linda Council said she was specifically told that the dwelling was a two-family house, that the basement would be fixed and thus able to be rented out. She was assured that “everything was going to be done that needed to be done, that the house would be up to HUD’s codes, everything would be in working condition.” Like White, however, the Councils did not have an independent engineering inspection or appraisal performed, nor did they independently investigate the house’s market value or condition. In contrast to White, the Councils were represented by an attorney, Stephen Weinstock, prior to signing the contract of sale. Weinstock had been recommended by Better Homes, who, according to Linda Council, had agreed to pay Weinstock’s fees if the Councils retained him for the closing. Weinstock was not associated professionally with Better Homes or Madison at the time. He had previously been employed, however, by the firm that represented both Better Homes and Madison at the closing — Ackerman, Raphan & Sultzer — and Weinstock had previously represented MHE in other real estate transactions. Council was at first cautious that an attorney with offices in the same building as Better Homes would represent her, but was reassured by Weinstock that he worked independently of Better Homes, that the transaction was “backed” by HUD, and that he had her best interests at heart. In addition, Council recalls being told of the “package” deal afforded by Better Homes’ “legwork,” and that everything was set up and could be completed in the same building. Both Linda and Kimberly Council testified that Better Homes represented itself as a “one-stop” shop that would take care of everything, essentially a “package deal” for minorities and first-time home buyers. Weinstock assured her that he had read the contract of sale, and that he understood and approved of the terms. He said he would ensure that everything was legal, and he “reiterated numerous times that [the transaction] had to meet HUD’s approval.” Madison was recommended to the Councils by Better Homes, and after executing the contract of sale, they met with MHE to provide financial information. Linda Council asserted that they would be able to make the monthly mortgage payments, though she may have been under the impression that the rental income would help with the monthly payment as well. The rental income was included on the application, subject to verification in the appraisal. Like White, the Councils’ home was appraised by Robert Dosch at the behest of Madison. The appraisal carried the same provision as the one Dosch provided in connection with White’s home: “The appraiser has based his or her appraisal report and valuation conclusion for an appraisal that is subject to satisfactory completion, repairs, or alterations on the assumption that completion of the improvements will be performed in a workmanlike manner.” His appraisal for the Councils’ home also essentially matched the purchase price, and the value was calculated on the basis that their home would hold legal occupancy status as a two-family dwelling. The estimated rental income listed in the appraisal was $900 per month. At the closing, when Linda Council inquired whether signing the closing documents was in their best interests and whether their rights would be protected, she was given the same assurances she was given when the contract of sale was signed. Council stated she was not given enough time to read all the closing documents, but was told by Weinstock, “Don’t worry about it. HUD has a stamp of approval on the house being the way it’s supposed to be.” He assured the Councils that the terms of the mortgage were “aboveboard,” and that the transaction was “endorsed by HUD.” Better Homes paid the closing costs, and the Councils ultimately executed a number of documents at or prior to closing without objection. Better Homes performed repairs and renovations at the Councils’ property both before and after the closing. The work included replacement of the flooring and sinks in accordance with specifications provided by the Councils, and other renovations involving the cabinets, ceiling, stove, and bathrooms. Linda Council testified that Weinstock had encouraged her prior to and at the closing to proceed with the transaction despite the renovations that remained to be done, and reassured her that BHD would complete the unfinished work. Better Homes also did some renovation work to the Councils’ basement, installing sheet rock, carpeting, and tiles, which was completed by May 1999 when Kimberly Council and her family moved into it. Roughly one year after moving in, the roof began to leak. Council contacted Better Homes, but the leak was not fixed until 2004. Kimberly Council lived with her family in the basement for approximately three years, but was forced to move out because it became “unlivable.” The Councils testified that they were never able to rent out the basement to a paying tenant because it remained unfinished, did not function properly, was “falling apart,” and was uninhabitable. In addition, the basement was cited by the Buildings Department in a summons for an “illegal conversion” because the house was not a legal two-family home. While Better Homes was at first somewhat responsive, eventually Council was told by someone at Better Homes (whom Council remembered as “Steve”) that she was the home owner and that the issues identified (specifically with respect to the leaking roof) were her responsibility. Eventually, foreclosure proceedings were initiated against the property, and the Councils sought bankruptcy protection in 2003. Other Facts Relevant to the Transactions The contracts of sale signed by White and the Councils state that their houses were being sold “as is” — except that at closing, the plumbing, heating, and electrical systems would be in working order, and the roof would not have leaks. The contracts state that “[ejxcept as otherwise expressly set forth in this contract, none of Seller’s covenants, representations, and warranties or other obligations contained in this contract shall survive closing.” Finally, the contracts contain a standard merger clause: “All prior understandings, agreements, representations and warranties, oral or written, between Seller and Purchaser are merged in this contract; it completely expresses their agreement and has been entered into after full investigation, no party relying upon any statement made by anyone else that is not set forth in this contract.” Riders to the contracts of sale contain representations concerning the legal occupancy of the respective dwellings. For White, the rider states that the “seller represents that the premises is a legal four family dwelling,” and for the Councils an identical representation is made that the premises are a legal one-family dwelling. The riders do not indicate that BHD was responsible for making, or had agreed to make any necessary repairs or renovations to the premises. When asked about an engineer’s inspection of the Councils’ property detailing the work that would need to be done to the house, Weinstock testified that “normally such a writing would be added to the contract as a rider [and] signed by all the parties.” Purchaser acknowledges and represents that Purchaser is fully aware of the physical condition and state of repair of the Premises and of all other property included in this sale, based on Purchaser's own inspection and investigation thereof, and that Purchaser is entering into this contract based solely upon such inspection and investigation and not upon any information, data, statements or representations, written or oral, as to the physical condition, state of repair, use, cost of operation or any other matter related to the Premises or the other property included in the sale, given or made by Seller or its representatives, and shall accept the same "as is” in present condition and state of repair, subject to reasonable use, wear, tear, and natural deterioration, between the date hereof and the date of Closing (except as otherwise set forth in paragraph 16(f)) [sic] without any reduction in the purchase price or claim of any kind for any change in such condition b[y] reason thereof subsequent to the date of this contract. Purchaser and its authorized representatives shall have the right, at reasonable times and upon reasonable notice (by telephone or otherwise) to Seller, to inspect the Premises before Closing. Although the nature of the relationship between BHD and MHE remains the subject of dispute, the contracts of sale contain the following disclosure provision: “It is hereby disclosed that there is a relationship between the seller and the lender.” The plaintiffs contend that the full extent of the relationship was not made known. MHE would frequently lend money (in the millions, cumulatively) to BHD so that BHD could purchase the properties for eventual re-sale; in turn, BHD would frequently refer home buyers to MHE for the mortgages necessary to purchase the homes. FHA insurance protected MHE in the event of the borrower’s default, and MHE often sold the mortgages it originated to another party. The buying institution would pay MHE fees in proportion to the principal, that is, a higher loan amount would generate higher fees when the mortgage was sold. The Riders to the contracts of sale make the sales “subject to the purchaser obtaining a mortgage commitment from Madison Home Equities, Inc., for a 25/30 year fixed or variable rate mortgage in the amount of ...” The abstract company, Paragon Abstract, which dealt with title documents, was also the same in both transactions, as was the “closer” for title purposes, Gail Zucker. As it happens, Zucker was Pessler’s sister, and that relationship was not disclosed. Discovery Sanctions As part of their argument in support of their motions for the summary judgment the plaintiffs seek to rely on sanctions imposed on some of the defendants for their spoliation of evidence. Specifically, I found that in the event of a trial, the jury should be given the following instruction: The defendants Better Homes Depot, Inc. and Eric Fessler, have admitted that they failed to produce or intentionally destroyed documents concerning the sale or repair of various properties which they were obligated to retain and provide to the court in this litigation. You may presume that the documents destroyed or not produced would have been important to the plaintiffs in proving whether promised repairs had been made at all and the extent of the repairs. You may infer from these circumstances and the evidence presented that Better Homes Depot, Inc. and Eric Fessler made no or minimal repairs to some or all of these properties before they were sold by Better Homes Depot, Inc. and Eric Fessler notwithstanding any other evidence that another party may have produced regarding repairs. Decision and Order, dated September 28, 2007, at 5 (Docket Nos. 171 (04-CV-4775); 199 (04-CV-5620)). In addition, I ordered that Better Homes and Eric Fessler should be precluded from offering, at trial or in connection with any other proceeding in these actions, any documentary evidence concerning the sales of the properties identified on Schedule A of the Defendani/Third Party Plaintiffs First Set of Document Requests to Third-Party Defendant Better Homes Depot, Inc. with a Date of sale during the period from January 1, 1999 through May 80, 2000 (hereafter the “Limited Schedule A”) which are not contained in documents that they previously produced and which were covered by the plaintiffs’ discovery requests to them, including without limitation documents not previously produced concerning repairs, contractors hired, contracts made, work performed, applications filed, building permits obtained and expenses incurred, [and] whether or not Fessler has give[n] testimony about any such documents. Id. DISCUSSION A. Legal Standards on Summary Judgment Summary judgment will be granted if no genuine issue of material fact remains to be decided and the undisputed facts warrant judgment for the moving party as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Inst. for Shipboard Educ. v. Cigna Worldwide Inc. Co., 22 F.3d 414, 418 (2d Cir. 1994). If a reasonable jury could return a verdict in favor of the non-moving party, a material issue of fact remains in,contention and the motion for summary judgment must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On the other hand, if the evidence in favor of the nonmovant is “merely colorable” or so insufficient such that no rational trier of fact could find in its favor, summary judgment may be granted. Id. at 248-50 (citing Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967)). Any ambiguities and all inferences must be drawn in favor of the non-movant, and the court must view the evidence in the light most favorable to the non-movant. See Tufariello v. Long Island R.R. Co., 458 F.3d 80, 85 (2d Cir.2006); Inst. for Shipboard Educ., 22 F.3d at 418; Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir.1990). The court is charged not with weighing the evidence or even with determining the truth, but with ensuring that genuine issues of fact remain in dispute. See Century Pacific, Inc. v. Hilton Hotels Corp., 528 F.Supp.2d 206, 218 (S.D.N.Y.2007) (citing cases). The burden of proving that no material issue of fact remains in dispute rests on the moving party. Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995). If the moving party meets that initial burden by making an evidentiary showing suggesting that no material factual issues remain, the burden then shifts to the non-moving party to produce evidence raising a material question of fact. See Fed. R. Civ. Pro. 56(e); Miner v. Clinton County, 541 F.3d 464, 471 (2d Cir.2008); Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir.1998). Thus, to avoid summary judgment, the non-movant must set forth specific factual allegations. Kurisoo v. Providence and Worcester R.R. Co., 68 F.3d 591, 594 (2d Cir.1995); Fahle v. Braslow, 913 F.Supp. 145, 149 (E.D.N.Y.1996) (citations omitted). In this vein, conclusory, ipse dixit assertions are not sufficient to defeat summary judgment. Western World Ins. Co. v. Stack Oil Inc., 922 F.2d 118, 121 (2d Cir.1990). “ ‘The mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient’ to defeat summary judgment. Rather, ‘there must be evidence on which the jury could reasonably find for the [non-movant].’ Moreover, the opposing party must set forth ‘concrete particulars’ showing that a trial is needed.” Cousin v. White Castle System, Inc., No. 06-CV-6335, 2009 WL 1955555, at *4 (E.D.N.Y. July 6, 2009) (quoting Anderson, 477 U.S. at 252). Although the non-movant need not produce evidence in a form that would be admissible at trial, it cannot rest on the pleadings, and must set forth specific facts in affidavits, depositions, answers to interrogatories, or admissions on file, which together demonstrate a genuine issue for trial. Fed. R. Civ. Pro. 56(e); Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548; United States v. Rem, 38 F.3d 634, 643-44 (2d Cir.1994); Patterson v. County of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir.2004); Grrennan v. Nassau County, No. 04-CV-2158, 2007 WL 952067, at *5 (E.D.N.Y. Mar. 29, 2007). That said, a non-movant who bears the burden of proof at trial is not required to submit affidavits, but may oppose the motion on the basis of the pleadings, depositions, and admissions on file. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Patterson, 375 F.3d at 219. Moreover, a “verified pleading, to the extent that it makes allegations on the basis of the plaintiffs personal knowledge, and not merely on information and belief, has the effect of an affidavit and may be relied on to oppose summary judgment.” Patterson, 375 F.3d at 219 (citing Fitzgerald v. Henderson, 251 F.3d 345, 361 (2d Cir.2001)). The materiality of the facts is determined by the substantive law governing the claims, and whether they “might affect the outcome of the suit under the governing law[.]” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Local Civil Rule 56 also directs litigants to file statements and counter-statements of material facts about which there is no dispute, and also requires that each factual statement be followed by a citation to admissible evidence, in accordance with Federal Rule 56(e). The court, in its discretion, may “overlook a party’s failure to comply with local rules, including Rule 56.1.” Locke v. St. Augustine’s Episcopal Church, 690 F.Supp.2d 77, 83 (E.D.N.Y.2010) (citing Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir.2001)). Even in the absence of a Rule 56.1 statement altogether, courts have proceeded to rule on the basis of the underlying evidence. See Locke, 2010 WL 743924, at *5 (granting summary judgment for defendant despite failure to file Rule 56.1 statement); Doe v. Nat’l Bd. of Podiatric Med. Examiners, No. 03-CV-4034, 2004 WL 912599, at *3 (S.D.N.Y. Apr. 29, 2004) (“Plaintiffs motion will not be denied simply for failure to file a Local Rule 56.1 statement.”); United States v. Abady, No. 03-CV-1683, 2004 WL 444081, at *2-3 (S.D.N.Y. Mar. 11, 2004) (defendant’s failure to submit Rule 56.1 statement notwithstanding, court examines underlying evidence and substance of the claim before granting summary judgment for plaintiff). Lastly, a court “may in its discretion, opt to ‘conduct an assiduous review of the record’ even where one of the parties has failed to file such a [Rule 56.1] statement.” Holtz, 258 F.3d at 73 (quoting Monahan v. New York City Dep’t of Corrections, 214 F.3d 275, 292 (2d Cir.2000)). B. Standing As a threshold matter, Better Homes maintains that the bankruptcy filings deprive White and the Councils of standing to assert their claims against the Better Homes defendants, and that those claims must therefore be dismissed. In support, they argue that the plaintiffs did not list the instant suits in the schedule of assets filed in their respective bankruptcy cases, and that the trustees of the bankruptcy estates have not abandoned these assets. Therefore, they argue, the causes of action remain the property of the bankruptcy estate, and the plaintiff-debtors lack standing to prosecute these claims on their own behalf. While this standing argument may have had some resonance if the plaintiffs had filed for bankruptcy protection under Chapter 7 (regulating liquidation) or Chapter 11 (regulating reorganization), White and the Councils filed under Chapter 13 (regulating the debts of individuals with regular income), which allows them to bring suit against the Better Homes defendants and does not deprive them of standing. See Olick v. Parker & Parsley Petroleum Co., 145 F.3d 513, 515 (2d Cir.1998). Filing under Chapter 13 changes the calculus when it comes to issues of standing in civil causes of action. “While Chapter 7 and Chapter 11 debtors lose standing to maintain civil suits — which must be brought and/or maintained by their bankruptcy trustees — it is clear that Chapter 13 debtors like plaintiff are not subject to this restriction.” Murray v. Bd. of Educ. of City of New York, 248 B.R. 484, 486 (S.D.N.Y.2000) (court’s emphasis) (citing Olick, 145 F.3d at 513). Olick “conclude[d] that a Chapter 13 debtor, unlike a Chapter 7 debtor, has standing to litigate causes of action that are not part of a case under title 11.” 145 F.3d at 515. Olick goes on to quote the legislative history drawn from remarks in the Congressional Record: “[Cjertainly it is intended that the [Chapter 13] debtor has the power to sue and be sued.” 145 F.3d at 516 (quoting 124 Cong. Rec. H. 11,106; S. 17,423). While Olick and Murray present different facts from the cases at bar, the common thread — that Chapter 13 debtors, unlike their Chapter 7 or Chapter 11 counterparts, do not lose standing to bring a civil cause of action — plainly applies here. There is no reason that the broad principle applied in those cases ought to be restricted to the specific facts raised in those cases, the defendants’ attempts to distinguish them notwithstanding. Any distinctions offered do not raise differences material enough to warrant a different outcome. Numerous other cases also stand for the proposition that Chapter 13 debtors are not deprived of standing to assert pre-petition causes of action. See, e.g., Cable v. Ivy Tech, 200 F.3d 467, 472-74 (7th Cir.1999); In re Stewart, 373 B.R. 801 (Bankr.S.D.Ga.2007); In re Griner, 240 B.R. 432, 435-39 (Bankr.S.D.Ala.1999); In re Freeman, 72 B.R. 850, 854 (Bankr.E.D.Va.1987) (“The reality of a filing under Chapter 13 is that the debtors are the true representatives of the estate and should be given the broad latitude essen tial to control the progress of their case.”). There is less of a distinction between the debtor and the estate under Chapter 13 than under Chapter 7 or Chapter 11. Here, the “estate” for purposes of the creditors’ recovery, consists of little but the future earnings of the debtor. See Olick, 145 F.3d at 516 (recognizing that in Chapter 13 proceedings, the “creditors’ recovery is drawn from the debtor’s earnings, not from the assets of the bankruptcy estate; it is only the Chapter 13 debtor who stands to gain or lose from efforts to pursue a cause of action that is an asset of the bankruptcy estate.”). It does not appear that any creditor could benefit from bringing the instant cause of action. Perhaps tellingly, the defendants have not cited any federal case in which a court has dismissed a cause of action brought by or asserted against a Chapter 13 debtor on the basis of a lack of standing. Lastly, it seems unduly burdensome to require the plaintiffs to have listed the instant lawsuits as a property right in their bankruptcy petitions, when there is evidence that as of the bankruptcy filings, they remained unaware that whatever grievances they held towards Better Homes could be litigated as a cognizable cause of action. It appears that the plaintiffs were contacted regarding this cause of action only after filing for bankruptcy, and that it was the possible foreclosure and bankruptcy actions that ultimately initiated the meeting with counsel and the realization of these causes of action. White, for example, met with Richard Wagner, one of the attorneys in both cases — who has unfortunately since passed away — only after the commencement of the bankruptcy case. In any case, this point will be explored in further detail below, as it constitutes a more central consideration in the discussion regarding statutes of limitation and equitable tolling. The plaintiffs should therefore be entitled to maintain these actions to the extent that individual claims survive summary judgment. C. Statute of Limitations and Equitable Tolling Statute of limitations issues are raised with respect to the three statutory claims that White and the Councils have brought. For the deceptive practices claim under New York General Business Law Section 349(h), the statute of limitations is ordinarily three years, which begins to run when the injury occurs. Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris, Inc., 178 F.Supp.2d 198, 271 (E.D.N.Y.2001), rev’d in part on other grounds, 344 F.3d 211 (2d Cir.2003); Gaidon v. Guardian Life Ins. Co. of America, 96 N.Y.2d 201, 727 N.Y.S.2d 30, 750 N.E.2d 1078, 1082 (N.Y.1999); N.Y. Civil Practice Law and Rules § 214(2). For the discrimination claims, both the Fair Housing Act (“FHA”) and the Equal Credit Opportunity Act (“ECOA”) set forth a two-year statute of limitations period. 15 U.S.C. § 1691e(f); 42 U.S.C. § 3613(a)(1)(A). The ECOA starts the clock on the “date of the occurrence of the violation,” while the FHA period begins to run on the “occurrence or the termination of an alleged discriminatory housing practice[.]” All three statutory claims in both cases were brought in 2004, beyond the limitation periods, if the dates of the transactions are used as the dates of injury or violation. Were the inquiry that simple, it would end there and those statutory claims would be dismissed. However, there is an issue of when the limitations period actually began, which the plaintiffs raise by virtue of an equitable tolling argument. Generally speaking, equitable tolling allows plaintiffs to overcome an expired statute of limitations when they were “induced by fraud, misrepresentation, or deception to refrain from timely commencing an action.” Gleason v. Spota, 194 A.D.2d 764, 765, 599 N.Y.S.2d 297 (N.Y.App.Div.1993); see also Cardiello v. The Money Store, Inc., No. 00-CV-7332, 2001 WL 604007, at *4-5 (S.D.N.Y. June 1, 2001). The main consideration is whether the defendant “fraudulently concealed from the plaintiff his cause of action during the time in which the plaintiff could have brought that action.” Cardiello, 2001 WL 604007, at *4 (emphasis in original); see also Bailey v. Glover, 21 Wall. 342, 88 U.S. 342, 349, 22 L.Ed. 636 (1874) (establishing the modern framework and theory for equitable tolling). In such circumstances, the limitations period begins to run when the plaintiff “discovered, or by reasonable diligence could have discovered, the basis of the lawsuit.” Fitzgerald v. Seamans, 553 F.2d 220, 228 (D.C.Cir.1977). The federal equitable tolling standard requires plaintiffs to establish three elements: (1) that the defendant concealed the existence of the cause of action from the plaintiff; (2) that the plaintiff brought suit within the applicable limitations period upon learning of the cause of action; and (3) that the plaintiffs ignorance of the claim did not result from a lack of diligence. New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1083 (2d Cir.1988) (citing authorities); Baskin v. Hawley, 807 F.2d 1120, 1131 (2d Cir.1986); Cerbone v. Int’l Ladies Garment Workers Union, 768 F.2d 45, 48 (2d Cir.1985); City of Detroit v. Grinnell Corp., 495 F.2d 448, 460 (2d Cir.1974). With regard to the first prong, concealment is proven by showing that “the defendant took affirmative steps to prevent the plaintiffs discovery of his claim or injury or that the wrong itself was of such a nature as to be self-concealing.” Hendrickson Bros., 840 F.2d at 1083. In similar circumstances, plaintiffs can be said to have learned of the cause of action or have become aware of it from the time they conferred with an attorney. See Council v. Better Homes Depot, Inc., No. 04-CV-5620, 2006 WL 2376381, at *10-11 (E.D.N.Y. Aug. 16, 2006) (citing Jones v. Ford Motor Credit Co., No. 00-CV-8830, 2002 WL 88431, at *5 (S.D.N.Y. Jan. 22, 2002); Polonetsky v. Better Homes Depot, Inc., 97 N.Y.2d 46, 735 N.Y.S.2d 479, 760 N.E.2d 1274 (2001)). The evidence adduced satisfies, for purposes of summary judgment, all three prongs. First, the nature of the scheme alleged by the plaintiffs is inherently self-concealing. Several courts in cases alleging similar schemes against these same defendants have so concluded. See Laboy v. Better Homes Depot, Inc., No. 03-CV-4271, 2004 U.S. Dist. LEXIS 30091, at *10-17 (E.D.N.Y. July 16, 2004); Phillips v. Better Homes Depot, Inc., No. 02-CV-1168, 2003 WL 25867736, at *24-26, 2003 U.S. Dist. LEXIS, at *72-77 (E.D.N.Y. Nov. 12, 2003); Polonetsky, 735 N.Y.S.2d 479, 760 N.E.2d at 1277-78. While that observation alone does not discharge the plaintiffs’ obligation to come forward with admissible evidence tending to show concealment, it does help to explain the relative lack of evidence the plaintiffs have pointed to in arguing for equitable tolling. The plaintiffs, however, do cite sufficient evidence in the record that the Better Homes defendants took affirmative steps to conceal any wrongdoing, such as referring the plaintiffs to two frequently used attorneys (who the plaintiffs contend did not represent their interests), failing to disclose the extent and nature of the relationship between Better Homes and Madison, regularly using the same appraisal company and abstract company, having the properties appraised contingent on certain repairs, renovations, certificates or licenses being performed or obtained, and misrepresenting the legal occupancy status for the White and Council properties. See, e.g., Barkley v. Olympia Mortg. Co., No. 04-CV-875, 2007 WL 2437810, at *16-17 (E.D.N.Y. Aug. 22, 2007) (“The act of employing ostensibly independent legal counsel as part of a predatory lending scam has been held to satisfy the concealment element [for equitable tolling purposes] by several district courts in this circuit.”) (citing Judge Garaufis’ earlier decision in Council). Certainly, it is arguable whether Weinstock and David were “independent,” and whether truly independent counsel could have allowed the plaintiffs to discover that the representations made to them by Better Homes were not wholly consistent with the terms of the contract and with the properties more generally. The proof offered by the plaintiffs may well fall short at trial, but it does not entitle the defendants to judgment as a matter of law. Secondly, it seems from the facts that both cases were brought within the relevant statutory periods after they met with independent counsel and learned of the possibility of bringing this cause of action. White did not meet with Wagner until 2004, after his bankruptcy filing, and he testified that he did not realize the CLA appraisal was inflated until he had conferred with counsel in the instant case in 2004. Nor did he realize or believe he was defrauded until he met with his attorneys in this action. In an affidavit, Kimberly Council stated that she first met with Wagner, in the instant action, in the fall of 2004, and did not learn of this cause of action until that meeting. See Council, 2006 WL 2376381, at *11; Phillips, 2003 WL 25867736, at *14-15, 2003 U.S. Dist. LEXIS 27299, at *43-44. While the Councils had met with bankruptcy attorneys prior to meeting Wagner, they did not discuss the specifics forming the gravamen of this action. Linda Council also testified that her attorneys herein brought to her attention what was wrong with the transaction and mortgage, including the alleged discrimination and inflation of the purchase price, and that she did not even realize the discrepancy surrounding the occupancy status until conferring with counsel. Therefore, both cases — brought in 2004 — were filed within the statutory periods, which would have started to run in late 2003 or 2004 after the plaintiffs met with Wagner. Thirdly, nothing indicates a lack of diligence on the part of the plaintiffs, even though there was apparently some level of dissatisfaction with the condition of the homes. Facts appear to be in dispute as to the plaintiffs’ ignorance of the claims. For example, Council testified that, despite what was in the signed contract of sale, she did not realize she was receiving a legal one-family dwelling until consulting with her attorneys. It is therefore still very much in dispute whether her ignorance of the cause of action was the result of the defendants’ success in employing Weinstock to help conceal material information, or was merely the result of a lack of due diligence. Moreover, Judge Garaufis already found that “[p]laintiffs’ ignorance of their claims during the statutory period is not an obstacle to equitable tolling, where, as here, the wrongdoing is recognized as self-concealing.” Council, 2006 WL 2376831, at *9-12 (citing Hendrickson Bros., 840 F.2d at 1083). The plaintiffs have the burden of raising genuine issues of material fact as to equitable tolling, as they are the party seeking to invoke it. See Boos v. Runyon, 201 F.3d 178, 185 (2d Cir.2000) (affirming summary dismissal wherein plaintiff failed to raise issue of material fact as to appropriateness of equitable tolling). Here, they have adequately, though not overwhelmingly, met that burden. The determination of whether the applicable limitations periods should have been equitably tolled is informed by facts that appear to be in dispute. It would be difficult to accept the defendants’ arguments on equitable tolling without relying on facts that are still in dispute and have yet to be tried. This determination requires the sort of fact-finding that is more the province of the jury than the court. See, e.g., Ramirez v. Rifkin, 568 F.Supp.2d 262, 270 (E.D.N.Y.2007) (denying summary judgment because of “material issues of fact relating to the propriety of equitable tolling that cannot be resolved on summary judgment.”). D. Caveat Emptor Lastly before turning to the substantive claims, the Better Homes defendants invoke the doctrine of caveat emptor as a defense to the causes of action that White and the Councils have asserted. With regard to a seller’s duty to disclose facts about real property, the defendants cite the “settled law in New York that the seller of real property is under no duty to speak when the parties deal at arms length. The mere silence of the seller, without some act or conduct which deceived the purchaser, does not amount to a concealment that is actionable as a fraud.” London v. Courduff, 141 A.D.2d 803, 804, 529 N.Y.S.2d 874 (2d Dep’t 1988) (emphasis added and citations omitted). New York also imposes a duty on buyers of real estate to independently ascertain or verify the value of the property at issue. See id. at 804, 529 N.Y.S.2d 874 (requiring the buyer to “satisfy himself as to the quality of the bargain”). The whole point, however, seems to be that the parties were not at arms length, but rather were vulnerable, unsophisticated, first-time home buyers hoodwinked by a sophisticated, layered, business operation involving multiple individuals and entities. While neither plaintiff performed or procured an independent inspection of the properties prior to the sales, it is entirely plausible that a jury could infer that such a failure resulted from the defendants’ having recommended attorneys who did not provide truly independent counsel, and from the defendants’ self-representation as a “one-stop shop” that would “take care of everything.” One of the key allegations is that referring buyers to a small cadre of attorneys (whom, it is alleged were actually representing the interests of the defendants) deprived the plaintiffs of the independent legal judgment that would have protected their interests and uncovered the defendants’ mischief. Likewise, the practice of using an appraiser in cahoots with the defendants arguably allowed for that tainted, inflated appraisal to determine the purchase price. Whether or not these allegations are actually true is not for the court to decide here, of course, but there is evidence that would allow for such a finding, and the doctrine of caveat emptor is not a license for sellers of real estate to fleece unsuspecting potential buyers or to engage in the conduct alleged in this case. Notably, other courts have found exceptions to the doctrine of caveat emptor when sellers “concealed facts or induced buyers to refrain from making independent inquiries into the terms of the real estate deal.” Barkley, 2007 WL 2437810, at *19 (citing cases); Banks v. Consumer Home Mortgage, Inc., No. 01-CV-8508, 2003 WL 21251584, at *9, 2003 U.S. Dist. LEXIS 8230, at *29-30 (E.D.N.Y. Mar. 28, 2003) (citing cases). Moreover, in similar cases, courts have been hesitant to accept caveat emptor as a defense where “defendants deliberately steered plaintiffs to other members of the conspiracy in order to prevent their discovery of the true value of the properties at issue.” Barkley, 2007 WL 2437810, at *19 (citing Banks, 2003 WL 21251584, at *9, 2003 U.S. Dist. LEXIS 8230, at *30; Phillips, 2003 WL 25867736, at *16, 2003 U.S. Dist. LEXIS 27299, at *47). Here, there is evidence that the transactions were structured so that the defendants “thwarted” an independent evaluation of the property by discouraging the plaintiffs from obtaining assistance from members beyond the conspiracy alleged. See Banks, 2003 WL 21251584, at *9, 2003 U.S. Dist. LEXIS 8230, at *30. Linda Council, for example, was informed by the defendants that “everything had been taken care of,” that Weinstock had her best interests at heart, and that everything had been “laid out” for them. She also testified of being told by Better Homes that “everything,” including the provision of the mortgage, was included in the “package” that BHD was offering, and that because it was like “one-stop shopping,” “everything had been taken care of’ and all that Council needed to do was sign the papers. Better Homes had similarly represented to White that “everything would be done through them,” that they would appraise the property, and that everything would be “taken care of’ by them, while White also testified that David had told him that he had read the paperwork and that everything was “okay” and “legitimate.” The probative, admissible evidence, while hardly overwhelming, could permit a jury to infer that the plaintiffs’ central allegations on concealment are true. Lastly, the essence of the claims is not that White or the Councils were sold a lemon of a dwelling or only that the houses contained material defects that the sellers failed to disclose. The deceptions allegedly involved go beyond the “mere silence” of Better Homes to something much more invidious, including a systematically fraudulent and discriminatory scheme. The condition of the homes themselves is not necessarily at the heart of this lawsuit, as the allegations are not limited, for example, to the poor functioning of the plumbing or electrical systems. See, e.g., Ercole v. McGay, 831 N.Y.S.2d 359 (Table), 2006 WL 3490419 (N.Y. Sup.Ct.App. Term Nov. 29, 2006). Even were that the case, Linda Council testified at her deposition that Better Homes had affirmatively represented to her, prior to the sale, that repairs would be performed before she moved in or thereafter, and that everything would be in working order to make the house livable. There is also extensive deposition testimony on different problems the Councils and White encountered with respect to the poor condition of their homes and the work that had been performed. Those representations, which extend beyond mere silence or failure to disclose, are thus contradicted by evidence in the record, and since much is still in dispute, a rational trier of fact could certainly find differently. This is more than a case of buyer beware, and caveat emptor should not entitle the defendants to a grant of summary judgment in their favor. E. The Individual Claims The crux of the allegations is that BHD represented to the plaintiffs that they would be buying a four-family (White) and two-family (the Councils) dwelling, and that all repairs, renovations, and necessary improvements would be performed so that the homes would legally carry those classifications and the plaintiffs would be able to realize legal rental income to help make the mortgage payments. Because the appraisals were contingent on such work being performed and the purchase price essentially matched the appraisal price, the plaintiffs contend that they were defrauded into paying a higher purchase price than they would have otherwise paid, and that referring them to particular lawyers and using the same parties and appraisers in similar transactions allowed the defendants to execute and carry on this scheme. Because the mortgages were insured by the FHA, Madison could originate the loans and then sell them with little risk; MHE was thus largely insulated from the negative effects of the borrower’s default or inability to make payments. The defendants have moved for summary judgment on the discrimination claims under the FHA and the ECOA, and on the fraud, conspiracy, and deceptive practices claims, contending that the plaintiffs cannot establish a prima facie case for any of those causes of action. The plaintiffs have cross-moved for summary judgment on the fraud claim, the deceptive business practices claims, and the conspiracy claim with respect to Eric Fessler, Better Homes Depot, Nadine Malone, Michael Ridenow (on the conspiracy claim only) and Madison Home Equities. Additionally, they have moved for summary judgment with respect to the ECOA claim against Malone and MHE. 1. Fraud, Deceptive Practices, and Conspiracy a. Fraud The elements of fraud under New York law are met by showing (1) a misrepresentation or omission of material fact; (2) made deliberately or knowingly (with scienter)-, (3) with the intent to defraud; (4) reasonable reliance on the representation; and (5) pecuniary damages or loss. Herzfeld v. JPMorgan Chase Bank, N.A., No. 09-0213-CV, 2009 WL 4072083, at *1 (2d Cir. Nov. 25, 2009) (quoting Crigger v. Fahnestock & Co., 443 F.3d 230, 234 (2d Cir.2006)); Wynn v. AC Rochester, 273 F.3d 153, 156 (2d Cir.2001) (citations omitted). Each element must be proven at all stages, including at summary judgment, by clear and convincing evidence. See, e.g., Hilton Hotels Corp., 528 F.Supp.2d at 219 (citing cases and discussing the standard in greater detail). Although couched as a motion for summary judgment, BHD’s first argument on the fraud claim attacks the sufficiency of the complaints for failing to comply with heightened pleading standards for alleging fraud. Therefore, the court will first address this argument even though it does not implicate a failure of proof at the summary judgment stage. Rule 9(b) states that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting the fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. Pro. 9(b). A complaint must “adequately specify the statements it claims were false or misleading, give particulars as to the respect in which plaintiffs contend the statements were fraudulent, state when and where the statements were made, and identify those responsible for the statements.” McLaughlin v. Anderson, 962 F.2d 187, 191 (2d Cir.1992) (quoting Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989)); see also Goldman v. Belden, 754 F.2d 1059, 1069-70 (2d Cir.1985). That said, it is “sufficient under Rule 9(b) if plaintiffs provide an adequate basis for their allegations and give defendants enough information to put them on notice of the nature of the claim. Rule 9(b)’s requirements may be relaxed as to matters particularly within the opposing party’s knowledge.” City of New York v. Joseph L. Balkan, Inc., 656 F.Supp. 536, 545 (E.D.N.Y.1987) (citing Credit & Finance Corp. Ltd. v. Warner & Swasey Company, 638 F.2d 563, 566-67 (2d Cir.1981)); see also Union Carbide Corp. v. Montell N.V., 944 F.Supp. 1119, 1135-36 (S.D.N.Y.1996); Tribune Co. v. Purcigliotti, 869 F.Supp. 1076, 1089-90 (S.D.N.Y.1994), aff'd sub nom. Tribune Co. v. Abiola, 66 F.3d 12 (2d Cir.1995). Here, the defendants were given enough information to put them on adequate notice of the plaintiffs’ claims. The allegations in the complaint relate to specific representations made by a limited group of people over a relatively short period of time on a particular and definite subject matter. The defendants have been given sufficiently specific information with which they are able to mount a vigorous defense and counter the plaintiffs’ allegations and proof. See Glickman v. Alexander & Alexander Servs., Inc., No. 93-CV-7594, 1996 WL 88570, at *4, 1996 U.S. Dist. LEXIS 2325, at *13 (S.D.N.Y. Feb. 29, 1996). Additionally, the allegations surrounding the fraud are fairly clearly within the defendants’ knowledge. Of course, Rule 9(b)’s requirements should not be dispensed with altogether, but the court is satisfied that the fraud claims have been alleged with sufficient particularity. Moreover with respect to the heightened pleading standards, at least some of the material misrepresentations or misstatements appear to be in writings produced by the defendants, such as the appraisals and (for White), the contract of sale. In such circumstances, it is not hard to identify where and when the statements were made, and generally by whom. Contrary to BHD’s protestations, the fraud claim does not merely allege that White and the Councils did not receive what they were contractually entitled to receive. In other words, that the BHD defendants, with the same underlying conduct, may have also breached contracts does not signify that they may not, as a matter of law, be liable for fraud. See, e.g., Rosen v. Spanierman, 894 F.2d 28, 35 (2d Cir.1990); Auerbach v. Amir, No. 06-CV-4821, 2008 WL 479361, at *5-7 (E.D.N.Y. Feb. 19, 2008) (distinguishing between breach of contract and fraudulent inducement claims). Moreover, since the plaintiffs are not asserting a breach of contract claim, allowing the fraud claim to proceed does not risk the duplication that courts were concerned could result from pleading breach of contract together with fraud. See Auerbach, 2008 WL 479361, at *5-7 (citing cases). Rather, in broad strokes, the claim asserts that, by virtue of false promises, representations, and omissions, the plaintiffs were systematically defrauded into buying the properties and paying and borrowing more than they should have both for the purchase and for subsequent repairs or conversions, b. Material Misstatements or Omissions There is ample evidence, in the contract of sale, the rider, the appraisal, and elsewhere, that Better Homes represented to White that he could legally rent out the four units in his home, or as he wished, live in one himself and rent out the other three. Likewise, because of the lack of a valid CO for use as a four-family dwelling, it appears in dispute whether White may legally rent those units. While the White house was constructed prior to the issuance of certificates of occupancy (beginning in 1968), it is also in dispute whether a certificate of occupancy was legally required for White’s dwelling. Under New York City’s Administrative Code, houses that require COs include not only those erected since 1968, but those that have been altered since 1968. See N.Y.C.A.C. § 26-222. Evidence regarding alterations since 1968 at both 164 Macon Street and 102 Etna Street would thus appear to be material and in dispute. While there is evidence regarding certain cosmetic repairs and renovations on both properties, it is not clear, at least to the court, whether that work constitutes alteration as that term is used in the Administrative Code. Certainly there is evidence that despite the contract’s terms, BHD made numerous representations to the Councils that 102 Etna Street was a two-family home. Council testified that in her dealings with Lewis and BHD, she had been “assured from day one that [she] would get a two-family house,” while the house was appraised as a two-family dwelling. There is also evidence that the basement was renovated in such a perfunctory manner so that the property cannot legally carry two-family occupancy status, even apart from the fact that it did not have a valid certificate of occupancy making it a two-family dwelling. Thus, the discrepancies and inconsistencies between what was promised and what was received in both cases, raise genuine issues of material fact regarding the need for certificates of occupancy, and the occupancy status more broadly. With respect to occupancy status, the BHD defense appears to be that whether or not the premises is a legal four-family dwelling, White has been using and occupying the premises as a four-family dwelling, and has been deriving significant rental income from the other units in the home. White’s use of the home, however, does not mean that it is in fact and in law, a legal four-family dwelling, which is what BHD represented he would be receiving in the contract of sale and on the basis of prior statements. Therefore, BHD’s argument seems better placed to address damages or actual injury, rather than whether BHD’s representations as to occupancy can be a material misstatement for purposes of a fraud claim. Since injury is a necessary element to a proper fraud claim, material issues of fact remain to be determined with respect to that element. The court also does not accept BHD’s subsidiary position that White should be estopped from making these claims, or that his right to bring them has been waived by renting out the units in his house. The defendants’ valuation of the houses in the respective appraisals could also serve as a material misrepresentation of existing fact because of BHD’s purported knowledge of falsity with respect to the legal occupancy status, and BHD’s alleged false undertaking or agreement to perform the necessary repairs, renovations, or conversions. See generally Simms v. Biondo, 816 F.Supp. 814, 819-21 (E.D.N.Y.1993) (citing cases showing exceptions to the rule that statements of value are not actionable as fraud). That market value, allegedly inflated on the basis of those two false assumptions, is generally considered opinion and therefore not as demonstrably false as other possible misrepresentations, does not mean that statements of value cannot serve as the basis for a fraud claim. See Phillips, 2003 WL 25867736, at *12, 2003 U.S. Dist. LEXIS 27299, at *34-36. While statements of value may be opinion in some respect (and in real estate transactions be subject to the doctrine of caveat emptor— see id.), when sellers “actively induee[ ] a purchaser to forbear from investigating the value for themselves or otherwise dupe[ ] the purchaser through exceptional enough facts, courts will ignore this general rule and hold the seller responsible for his or her misstatements as fraud.” Id., 2003 WL 25867736, at *12, 2003 U.S. Dist. LEXIS 27299, at *35-36 (citing cases). The same is true when sellers “concealed facts or induced buyers to refrain from making independent inquiries into the terms of a real estate deal.” Barkley, 2007 WL 2437810, at *19. Along these lines, when the appraisal value is (1) based on information that the defendant knows to be untrue — here, the legal occupancy status and the need for substantial renovation — and (2) is determined in the larger context of the overall fraud scheme alleged (especially concerning the attorneys), such representations go beyond mere opinion and become actionable as part of a fraud claim because of the intent to deceive. See Wilson v. Toussie, 260 F.Supp.2d 530, 540 (E.D.N.Y.2003) (citing Simms, 816 F.Supp. at 820) (probing whether the misstatements as to value are made “in conjunction with a larger scheme or conspiracy to defraud”). In particular, there is evidence that tends to “show[] a[] scheme or deception