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Thomas Dunn v. Deutsche Bank National Trust Company

October 11, 2011




Plaintiff Thomas Dunn ("Plaintiff") commenced this action pro se on June 24, 2011, seeking to enjoin Defendant Deutsche Bank National Trust Company ("Defendant") from proceeding in its foreclosure action against Plaintiff and from evicting him from his home in Cicero, New York. Dkt. No. 1 ("Complaint"); Dkt. No. 3 ("Motion for injunctive relief"). Plaintiff also requests that the Court vacate: (1) an order of summary judgment issued by the Supreme Court of the State of New York in Onondaga County ("New York state court"); (2) the sale of Dunn's property; (3) Defendant's certificate of title; and (4) Defendant's motion for writ of possession/eviction filed in New York state court. Mot. at 6.

The Court denied Plaintiff's request for a temporary restraining order ("TRO"), but held a hearing on June 30, 2011, as to whether a preliminary injunction should issue. Dkt. No. 9. Defendant filed a Cross-Motion to dismiss the Complaint on July 29, 2011, and a second hearing on the matter was held on September 21, 2011. Dkt. No. 10 ("Cross-Motion"); Dkt. No. 16. At the hearing, Plaintiff announced his intent to file an additional Motion, now presently before the Court, to amend his Complaint by joining as defendants Mortgage Electronic Registration Systems, Inc. ("MERS") and Bank of America, Inc. ("Bank of America"). Dkt. Nos. 17 and 18 ("Motion to amend").*fn1 For the reasons given below, Plaintiff's Motions are denied and Defendant's Cross-Motion is granted.


Plaintiff entered a mortgage transaction on May 24, 2004, whereby he promised to pay $202,500.00 to an entity named Mortgage Electronic Registration Systems, Inc., ("MERS"), acting solely as a nominee for Aegis Funding Corporation. Pl. Exs. 2-3, Dkt. Nos. 3-2 and 3-3. On August 9, 2006, Defendant filed a Summons and Complaint in New York state court, claiming that Plaintiff had defaulted on the note and seeking foreclosure and sale of the property. Pl. Ex. 1, Dkt. No. 3-1. Plaintiff filed an answer simply stating that he denied the allegations in the summons. Def. Ex. E, Dkt. No. 10-7. The state court granted a judgment of foreclosure in favor of Defendant on January 8, 2009, and Plaintiff did not appeal from the judgment. Def. Ex. F, Dkt. No. 10-8.

Plaintiff then filed for relief pursuant to Chapter 13 of the United States Bankruptcy Code in the United States Bankruptcy Court in the Northern District of New York ("the bankruptcy court"). Cross-Mot. at 9. The bankruptcy court granted Defendant relief from the automatic stay of proceedings in New York state court on September 23, 2009. Def. Ex G, Dkt. No. 10-9. Defendant moved for a writ of assistance against Plaintiff in state court on April 20, 2011, which is still before the New York state court pending resolution of the present matter. Cross-Mot. at 6. Defendant also served Plaintiff with a notice to quit the premises effective June 30, 2011. Mot. at 6. Plaintiff subsequently brought the present action in federal court, alleging that MERS improperly assigned the mortgage to Defendant, that Defendant does not in fact own the mortgage note, and therefore lacked standing to bring a foreclosure action against Plaintiff in New York state court. See id. at 4-6.


A. Preliminary Injunction

"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). In this Circuit, a court shall grant a motion for a preliminary injunction only where the party seeking the injunction can show "(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor." NXIVM Corp. v. Ross Inst., 364 F.3d 471, 476 (2d Cir. 2004); see also Faiveley Transp. Malmo AB v. Wabtec Corp, 559 F.3d 110, 116 (2d Cir. 2009). "Such relief . . . is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Moore v. Consol. Edison Co. of N.Y., Inc., 409 F.3d 506, 510-511 (2d Cir. 2005) (quotations and citations omitted).

B. Motion to Dismiss

In considering a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(1), the plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence.

Aurrechione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). Furthermore, subject matter jurisdiction may not be established by drawing inferences from the pleadings favorable to the plaintiff. Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998); see also London v. Polishook, 189 F.3d 196, 199 (2d Cir. 1999) (the party invoking subject matter jurisdiction must "proffer the necessary factual predicate -- not just an allegation in a complaint -- to support jurisdiction."). Thus, the district court may refer to evidence outside the pleadings, including affidavits or other evidence submitted by the parties, in determining whether subject matter jurisdiction exists. Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002); Arndt v. UBS AG, 342 F. Supp. 2d 132, 137 (E.D.N.Y. 2004). Finally, "[i]f the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action." FED. R. CIV. P. 12(h)(3).

Additionally, the Second Circuit requires courts to be more cautious when dismissing pro se complaints. Easton v. Sundram, 947 F.2d 1011, 1015 (2d Cir. 1991). The Court must liberally construe pro se submissions, McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999), and interpret them "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nonetheless, a party's pro se status does not exempt him from "compliance with ...

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