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Trakansook v. Astoria Federal Savings and Loan Association

April 18, 2007


The opinion of the court was delivered by: Gold, S., U.S.M.J.



Plaintiff, Nongyaw Trakansook ("Trakansook"), brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants Astoria Federal Savings and Loan ("Astoria") and 39 Wood Realty Corp. ("39 Wood") violated her Fifth and Fourteenth Amendments rights by taking her property without just compensation. Defendants move to dismiss the complaint on various grounds, while plaintiff moves for leave to amend her complaint to include a new cause of action under the Equal Credit Opportunity Act ("ECOA"), alleging discrimination on the basis of her age, gender and national origin. See Plaintiff's Memorandum of Law ("Pl.'s Mem.") at 3; Aff. of Paul E. Kerson ("Kerson Aff.") ¶ 7. The parties have consented to my presiding over this case for all purposes. Docket Entry 12. For the reasons set forth below, defendants' motion to dismiss the complaint is granted in all respects and plaintiff's motion for leave to amend is denied.


The pertinent facts are generally not in dispute and appear in the complaint, the parties' motion papers, and the relevant state court record. Plaintiff Trakansook, who is now 65 years old, was born in Thailand and moved to the United States in 1968. Pl.'s Mem. at 1. Until recently, Ms. Trakansook owned her own home at 96-11 Alstyne Avenue, Corona, Queens County, New York (the "property"), on which defendant Astoria held the mortgage. Compl. ¶¶ 1, 7. In 1998, Trakansook failed to make the required payments on her mortgage, and Astoria commenced foreclosure proceedings in the Queens County Supreme Court. Compl. ¶ 7; Savino Aff. ¶¶ 6-7. Astoria obtained a "Judgment of Foreclosure and Sale" and proceeded to sell the house to defendant 39 Wood on June 14, 2002. Compl. ¶ 10; Savino Aff. ¶ 8.

The state court record reveals the following sequence of events.*fn1 In September of 1998, defendant Astoria commenced foreclosure proceedings against plaintiff. State Court Brief for Plaintiff-Appellant Astoria Savings and Loan ("Astoria State Court Br."), 2004 WL 3717885, at *2. Trakansook and Astoria subsequently entered into a stipulation providing that Trakansook would pay $28,379.00 by September 20, 1999 to reinstate the mortgage, and that her failure to do so would constitute her consent to entry of a judgment of foreclosure. Id.

On October 26, 1999, Astoria moved for a judgment of foreclosure based upon its claim that Trakansook failed to make the required payment.*fn2 Id. Trakansook then brought a series of motions attempting to avoid foreclosure. Id. at *3. Her efforts were ultimately unsuccessful and, on April 5, 2002, a court-appointed referee auctioned the premises. Id. at *2-4. On the same day, Justice Peter O'Donoghue signed an order to show cause sought by Trakansook -- her third -- and stayed the sale of the property. Justice O'Donoghue subsequently denied Trakansook's application for relief, however, and Astoria turned the deed to the property over to its new owner, defendant 39 Wood. Id. at *5.

Trakansook then brought yet another motion. On August 15, 2002, Justice Durante of the New York Supreme Court entered an order providing that Trakansook could redeem the property within 20 days, but that Astoria would be permitted to deliver the deed to 39 Wood if she failed to do so. Id. at *6-7. The order was served on Trakansook's attorney on September 13, 2002.


On or about October 1, 2002, Trakansook provided several checks to Astoria totaling $120,955.12, the principal amount due on the mortgage, but failed to include payment of $18,286.19 in foreclosure fees and costs. Astoria State Court Br. at *7; Trakansook Aff. ¶ 4.However, with the checks she did provide, Trakansook included a letter from her attorney representing that the remaining funds due would be tendered promptly. Astoria State Court Br. at *7. Although Trakansook asserts she thereafter delivered a genuine check for the remaining balance, Tr. at 7, Astoria contends that Trakansook provided only a photocopy of a check and not a negotiable instrument. Astoria State Court *7.

The events most directly leading to the action now pending before this court followed. On March 6, 2003, defendant Astoria moved to have Trakansook held in default of Justice Durante's August 15, 2002 order. Id. at *9. In a decision dated September 26, 2003, Justice Durante found that Trakansook had "made a good faith tender of the full amount due" and refused to declare her in default. Compl. ¶ 7, Ex A; Astoria State Court Br. at *9-10. Astoria appealed from Justice Durante's ruling, and submitted its brief on appeal on June 25, 2004. Astoria State Court Br. at *1. On May 16, 2005, the Appellate Division, Second Department reversed Justice Durante's order and reinstated the judgment of foreclosure and sale. Compl. ¶ 8 and Ex. C; Astoria Fed. Sav. & Loan, et al. v. Trakansook, 18 A.D.3d 586 (2d Dept. 2005). The Appellate Division reasoned as follows:

[I]n order to validly redeem one's property, the mortgagor must pay the amount due for principal and interest and the costs of the action, together with the expenses of the proceedings to sell, if any. In this case, the respondent did not actually pay the $18,219.49 in foreclosure costs and disbursements as demanded. . . . A good faith effort in submitting a photocopy of a check was not sufficient to redeem the property.

Id. at 587-88 (internal citations and quotations omitted). Although Trakansook sought leave to appeal to the New York Court of Appeals, her application was denied on November 22, 2005. Compl. ¶ 9, Ex. D; Astoria Fed. Sav. & Loan Ass'n v. Nong Yaw Trakansook, 5 N.Y.3d 880 (2005).

Trakansook also commenced her own state court litigation. In September of 2002, apparently at the same time or just shortly before she tendered the check or photocopy, Trakansook brought a separate action in state court as plaintiff against both Astoria and 39 Wood, seeking to set aside and vacate the sale of her home and reclaim the premises. That action was dismissed in July of 2003, and the order of dismissal was affirmed on appeal. See Trakansook v. 39 Wood Realty Corp., et al., 18 A.D.3d 633 (2d Dept. 2005).

On April 7, 2006, Trakansook filed her complaint in this court. Trakansook's federal complaint, brought pursuant to 42 U.S.C. § 1983, alleges that defendants violated her Fifth Amendment rights. Compl. ¶ 13. Trakansook seeks an order from this court vacating the foreclosure and sale and awarding her title to the property, $750,000 in compensatory damages, and attorneys fees and costs. Trakansook seeks the same relief in her proposed amended complaint, which differs from her original pleading only in that it seeks to add a claim under the ECOA. Docket Entry 13.

Defendants' Motion to Dismiss

i. Legal Standard

In both her original and proposed amended complaint, plaintiff alleges that the defendants and the state courts violated her federal rights under the Fifth, and presumably, the Fourteenth Amendments by taking her private property without just compensation.*fn3 Defendants argue, among other things, that the Rooker-Feldman Doctrine deprives this court of jurisdiction over plaintiff's claim because it is essentially an appeal from a state court judgment. Defendants contend in the alternative that plaintiff's claim is precluded by res judicata.

A court deciding a 12(b)(6) motion must accept the allegations in the complaint as true and draw all inferences in favor of the nonmoving party. Patel v. Searles, 305 F.3d 130, 135 (2d Cir. 2002); Thomas v. City of New York, 143 F.3d 31, 37 (2d Cir. 1998). "A complaint will only be dismissed if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him ...

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