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Mary Lee Ward v. Bankers Trust Company of

March 29, 2011

MARY LEE WARD, PLAINTIFF,
v.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A., SHAMMEEM A. CHOWDHURY, BRUCE GOLDSTEIN, WILLIAM J. GARRY, AND ANDREW FISHER DEFENDANTS.



The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.

MEMORANDUM AND ORDER

On May 6, 2009, Plaintiff pro se Mary Lee Ward filed this civil action for monetary damages and injunctive relief against Defendants Bankers Trust Company of California ("Bankers Trust"), Shammeem A. Chowdhury, Bruce Goldstein, William J. Garry, and Andrew Fisher. Plaintiff claims that the Defendants defrauded her in connection with a home mortgage loan, a New York state-court action to foreclose the mortgage and sell the property, and a subsequent summary eviction proceeding.*fn1 This Court has dismissed Plaintiff's claims with respect to all Defendants except Goldstein and Garry for failure timely to serve under Federal Rule of Civil Procedure 4(m). (See Order Adopting Report and Recommendations, Doc. No. 29 (dismissing as to Bankers Trust and Fisher); Order Adopting Report and Recommendations, Doc. No. 42) (dismissing as to Chowdhury).)
Presently before the Court are Goldstein's and Garry's motions to dismiss under Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court GRANTS Defendants' motions in their entirety. Although Plaintiff has couched her claim, in part, in terms of "various civil and constitutional rights violations, [it] essentially amounts to an [appeal of] the disposition of the [state-court] foreclosure action.' " Swiatkowski v. Citibank, No. 10-CV-114 (JFB), 2010 WL 3951212, at *11 (E.D.N.Y. Oct. 7, 2010) (quoting Swiatkowski v. New York, 160 Fed. App'x. 30, 32 (2d Cir. 2005)); see Bankers Trust Co. of Cal. v. Ward, 28683/1996 (Sup. Ct. Kings County Feb. 10, 2009); (Compl. 1--3, Doc. No. 1).*fn2 Under the Rooker-Feldman doctrine, federal district courts lack subject matter jurisdiction over what are, in effect, appeals taken from state courts. The sole federal avenue of appeal for a disappointed state-court litigant is to petition for review by the United States Supreme Court. See Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 87 (2d Cir. 2005).

BACKGROUND

The following facts are taken from Plaintiff's Complaint, and are assumed to be true for purposes of deciding Defendants' motions to dismiss. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). The Court also takes judicial notice of state court and other filings, as matters of public record. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998); Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992). In 1995, Ward gave a mortgage on property located at 320 Tompkins Avenue, Brooklyn, New York (the "property"), to Bankers Trust, or its predecessor in interest. The mortgage was recorded on September 6, 1995. See Bankers Trust Co. of Cal.v. Ward, 703 N.Y.S.2d 504, 505 (App. Div. 2d Dep't 2000); Compl. Ex. 3, at 11--12 (deed reciting mortgage). In 1996, Bankers Trust, or its predecessor in interest, commenced foreclosure proceedings in New York Supreme Court, Kings County. (Judgment of Foreclosure and Sale at 1, Bankers Trust Co. of Cal. v. Ward, No. 28683/1996 (N.Y. Sup. Ct. Feb. 22, 2008); Def. Garry Mot. to Dismiss Ex. E, at 3, Doc. No. 43- 6.) Fisher and Defendant Garry represented Bankers Trust in connection with the foreclosure proceedings. (Judgment of Foreclosure and Sale, supra, at 1; Def. Garry Mot. to Dismiss Ex. E, at 3.) In November of 1998, Bankers Trust won an order granting summary judgment for foreclosure. Bankers Trust, 703 N.Y.S.2d at 504. In 2000, the Appellate Division reversed, citing issues of fact involving the propriety of the original loan transaction and "whether [Ward] was effectively advised of her rescissionary rights under the Federal Truth in Lending Act." Id. at 505. The foreclosure sale was cancelled. (See Compl. Ex. 6, at 20.) The case was restored to the calendar, and motion practice resumed.

After remand, Ward failed to appear and defaulted in June 2002. The state court struck Ward's answer, dismissed her counterclaim and third-party claims, and referred the foreclosure action to a referee, Gregory Poulos, for an inquest into the value of conflicting claims to the property. (See Judgment of Foreclosure and Sale, supra, at 2; Def. Garry Mot. to Dismiss Ex. E, at 4; Decision and Order at 1, Bankers Trust Co. of Cal. v. Ward, No. 28683/1996 (N.Y. Sup. Ct. July 2, 2008); Def. Garry Mot. to Dismiss Ex. H, at 1, Doc. No. 43-9.) Ward made various unsuccessful motions to vacate the default in 2002, 2004, 2006 and 2008. (See Decision and Order, supra, at 1--2, 5; Def. Garry Mot. to Dismiss Ex. H, at 1--2, 5.) In February 2008, Kings County Supreme Court Judge Ruchelsman ratified Referee Poulos' report, and rendered a "Judgment of Foreclosure and Sale" in favor of Bankers Trust. (Judgment of Foreclosure and Sale, supra, at 1; Def. Garry Mot. to Dismiss Ex. E, at 3.) Judge Ruchelsman appointed Goldstein as referee to conduct the subsequent foreclosure sale. (Judgment of Foreclosure and Sale, supra, at 3; Def. Garry Mot. to Dismiss Ex. E, at 5.) In June of 2008, Referee Goldstein sold the property at a foreclosure auction to 768 Dean, Inc. ("Dean"), a corporation owned by Chowdhury, for $345,000. (See Order Confirming Referee's Report of Sale at 2, Bankers Trust Co. of Cal. v. Ward, No. 28683/1996 (N.Y. Sup. Ct. Feb. 10, 2009); Def. Garry Mot. to Dismiss Ex. J, at 2, Doc. No. 43-11.) Delivery of the deed was stayed, however, pending resolution of Ward's motion to set aside the sale. (See Decision and Order, supra, at 2; Def. Garry Mot. to Dismiss Ex. H, at 2.) On July 2, 2008, Ward's motion was denied, Goldstein was authorized to deliver the deed, and Bankers Trust was authorized to "effectuate the conclusion of the foreclosure sale." (Decision and Order, supra, at 5; Def. Garry Mot. to Dismiss Ex. H, at 5.) On July 30, 2008, Goldstein delivered the deed to Chowdhury as Dean's owner. (Compl. Ex. 3, at 11--12.) On February 10, 2009, Supreme Court ratified Goldstein's sale to Dean. (Order Confirming Referee's Report of Sale, supra, at 2; Def. Garry Mot. to Dismiss Ex. J, at 2.) According to her Complaint, Ward has filed an appeal of the July 2, 2008 Supreme Court order denying her motion to set aside the foreclosure sale. (See Order on Application at 1, Bankers Trust Co. of Cal. v. Ward, No. 2009-11368, 2010 NY Slip Op. 72124(U) (App. Div. May 21, 2010) (granting extension of time to August 2, 2010 to perfect appeal).)

Following the foreclosure sale, Dean instituted a summary eviction proceeding against Ward in Kings County Housing Court. (See Compl. Ex 9 (Decision and Judgment, 768 Dean Inc. v. Ward, No. 090904/2008 (N.Y. Civ. Ct. Feb. 19, 2009).) Dean retained Goldstein to prosecute the action. (Compl. Exs. 9, 10). On February 19, 2009, Housing Court Judge Lau rendered a judgment of possession in favor of Dean, and ordered an eviction warrant to issue after March 1, 2009. (Compl. Ex 9.) Ward moved in the Appellate Division to stay execution of the warrant pending appeal of the July 2, 2008 Supreme Court order. (Decision & Order on Motion, Bankers Trust Co. of Cal. v. Ward, No. 2009-11368, 2010 NY Slip Op. 62805(U), App. Div. Feb. 8, 2010.) That motion was denied. Id. According to her Complaint, Ward has appealed the Housing Court order as well. (See Compl. Ex. 9, at 28--29.)

Here, Plaintiff alleges that the mortgage loan was fraudulent and violated the Truth in Lending Act, and that the foreclosure proceeding amounted to a fraud on the state court because Garry and Fisher signed court documents for Bankers Trust. (Compl. 1, 2; Pl.'s Aff. in Opp'n 6, Doc. No. 48.) Plaintiff alleges also that Garry forged Plaintiff's name on a court document. (Pl.'s Aff. in Opp'n 6) Plaintiff contends that Goldstein's execution of the foreclosure sale and transfer of title to Dean amounted to fraudulent "straw buying," and that Goldstein's representation of Dean in the Housing Court action was a conflict of interests. (Compl. 2.) Plaintiff claims that Defendants violated various criminal laws, including laws against perjury and obstruction of justice. (Compl. 3; Pl.'s Aff. in Opp'n 6.) As a result of these allegations, Plaintiff argues, the state court's ratification of the sale amounted to a deprivation of various constitutional and civil rights. (Compl. Ex. 9 at 28; Pl.'s Aff. in Opp'n 6--7.) In addition to monetary compensation, Plaintiff requests that the court "vacate the fraudulent sale of [her] home," and an order directing "[t]he return of title of 3209 Tompkins Avenue . . . to [her]." (Compl. 3.) Plaintiff also asks for "[p]rosecution to the [c]riminal [l]aws violated in addition to the [c]onstitutional violations." (Compl. 3.)

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed -- but early enough not to delay trial -- a party may move for judgment on the pleadings." The standard of review under a Rule 12(c) motion is the same standard applied under a Rule 12(b)(6) motion. Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). A motion to dismiss for failure to state a claim requires the court to examine the legal, rather than factual, sufficiency of a complaint. As required by Rule 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A court considering a motion to dismiss must "take[] factual allegations [in the complaint] to be true and draw[] all reasonable inferences in the plaintiff's favor." Harris, 572 F.3d at 71 (2d Cir. 2009) (citation omitted). A complaint need not contain " 'detailed factual allegations,' " but it must contain "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Rather, the plaintiff's complaint must include "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 570). The determination of whether "a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950 (citing Iqbal v. Hasty, 490 F.3d 143, 157--158 (2d Cir. 2007)).

While pro se plaintiffs must satisfy these pleading requirements, federal courts are "obligated to construe a pro se complaint liberally." See Harris v. Mills, 572 F.3d 66, 71--72 (2d Cir. 2009) (citations omitted). In other words, trial courts hold pro se complaints to a less exacting standard than they apply to complaints drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520--21 (1972); Boykin, 521 F.3d at 213--14 (citation omitted). Since pro se litigants "are entitled to a liberal construction of their pleadings, [their complaints] should be read to raise the strongest arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (citation and internal quotation marks omitted). When a pro se plaintiff has altogether failed to satisfy a pleading requirement, however, the court should not hesitate to dismiss his claim. See Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997) (citation omitted); see also Johnson v. City of N.Y., 669 F. Supp. 2d 444, 448 (S.D.N.Y. 2009) ("[T]o survive a motion to dismiss, even a pro se plaintiff must plead enough facts to state a claim to relief that is plausible on its face." (citation and internal quotation marks omitted)).

The Court notes that in adjudicating this motion, it is entitled to consider: "(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents 'integral' to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant's submissions if plaintiff has knowledge or possession of the material and relied on it in framing the complaint . . . and ([4]) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence." In re Merrill Lynch & Co., 273 F. Supp. 2d 351, 356--57 (S.D.N.Y. 2003) (internal citations omitted); see Liberty Mut., 969 F.2d at 1388 (2d Cir. 1992) ("A court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.") (internal quotation marks omitted); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("[T]he district court . . . could have viewed [documents submitted ...


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