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Glenda F. Caple, Fariq Allah, and Goreg Tehuti Atum v. Parman Mortgage Associates L.P.

September 30, 2012

GLENDA F. CAPLE, FARIQ ALLAH, AND GOREG TEHUTI ATUM, PLAINTIFFS,
v.
PARMAN MORTGAGE ASSOCIATES L.P., MICHAEL J. KANE, CHASE HOME FINANCE LLC, CHIEF EXECUTIVE OFFICER (JAMIE DIMON), PRESIDENT APRIL WILLIAMS AND CHIEF OPERATING OFFICER, OR ASSIGNEE VICE PRESIDENT, AND JP MORGAN CHASE BANK,
DEFENDANTS.



The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.

MEMORANDUM & ORDER

Before the court are objections submitted by pro se Plaintiffs Glenda F. Caple, Fariq Allah, and Goreg Tehuti Atum to Magistrate Judge Ramon E. Reyes's Report and Recommendation ("R&R"). Judge Reyes concluded that the motion to dismiss the Amended Complaint by Defendants Jamie Dimon, April Williams, and JP Morgan Chase Bank ("Chase" and, collectively, the "Chase Defendants") should be granted and that Plaintiffs' motion for default judgment against Parmann Mortgage Associates L.P. ("Parmann") should be denied.*fn1 For the following reasons, the court ADOPTS Judge Reyes's report and recommendation in its entirety. The Chase Defendants' motion to dismiss the Amended Complaint is GRANTED and Plaintiffs' motion for a default judgment as to Parmann is DENIED. The Amended Complaint is DISMISSED against the Chase Defendants with prejudice. The Amended Complaint is DISMISSED against the remaining Defendants without prejudice for failure to serve. See Fed. R. Civ. P. 4(m).

I. BACKGROUND

Plaintiffs Glenda F. Caple and her two sons, Fariq Allah and Goreg Tehuti Atum, allege multiple violations of statutory and common law stemming from a mortgage agreement between Caple and Parmann. Plaintiffs bring claims under the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1983 ("Section 1983"); the Real Estate Settlement Procedures Act of 1974, as amended, 12 U.S.C. § 2601 et seq. ("RESPA"); fictitious obligations, 18 U.S.C. § 514; the National Bank Act, as amended, codified in various sections of Titles 12, 19, and 31 of the United States Code; various common law causes of action, including fraud and the "statute of frauds"; and statutes cited as "13 Stat 108, Section 28" and "13 Stat 110, Section 37."

A. Procedural History

Plaintiffs filed this suit on July 7, 2011. (Compl. (Docket Entry #1).) After moving for a default judgment as to Parmann on November 2, 2011 (Docket Entry # 9), Plaintiffs filed an Amended Complaint on November 28, 2011, which added Chase to the caption and removed Parmann, Kane, and Chase Home Finance LLC (Am. Compl. (Docket Entry # 13)). On February 24, 2012, the Chase Defendants moved to dismiss the Amended Complaint.*fn2 (Docket Entry # 15.) The court referred this motion to Magistrate Judge Marilyn D. Go for a Report and Recommendation ("R&R") (Nov. 9, 2011, Minute Entry); the motion was reassigned to Magistrate Judge Ramon E. Reyes on February 29, 2012 (Docket Entry # 17). On April 17, 2012, Plaintiffs renewed their motion for default judgment against Parmann, reinserting Parmann and Kane in the caption. (Docket Entry # 27.) The court referred this motion as well to Judge Reyes for an R&R on April 30, 2012.*fn3 (Docket Entry # 28.) On September 7, 2012, Judge Reyes issued his R&R, recommending that the court both grant the Chase Defendants' motion to dismiss and deny Plaintiffs' motion for default judgment as to Parmann. (R&R (Docket Entry # 29).) Plaintiffs timely objected. (Pl. Obj. (Docket Entry # 30).)

B. Alleged Facts

Although Plaintiffs' allegations and arguments are confusing and disjointed, the apparent crux of their allegations is that Chase does not lawfully own Caple's promissory note or mortgage interest, freeing from her any obligation to pay. Throughout their Amended Complaint, Plaintiffs posit several theories of liability, including that Chase receives impermissible kickbacks from Plaintiffs' monthly mortgage payments (Am. Compl. ¶¶ 2-3); that there was no valid assignment of the mortgage from Parmann to Chase (id. ¶¶ 7, 11-12); that Chase materially altered the note by stamping it "Pay to the Order of Without Recourse Chase Manhattan Mortgage Corporation By April Williams" (id. ¶ 22, Ex. A); and that Parmann committed fraud by altering the promissory note without Caple's consent (Aff. of Fact in Supp. of Am. Compl. ("Caple Aff.") ¶¶ 4-5, 8).

What is clear, however, is that Caple executed and delivered a fixed rate note for $129,653.00 and a mortgage as collateral security to Parmann for the premises located at 104-12 197th Street, Hollis, New York 11412.*fn4 (Aff. in Supp. of Defs.' Mot. to Dismiss, Thomas E. Reardon ("Reardon Aff.") ¶ 6, Exs. A-B.) The note was dated February 2, 1999; the mortgage was dated February 3, 1999, and was recorded by Parmann on March 21, 1999, in the Office of the City Register of the City of New York, County of Queens, Reel 5169, Page 1986. (Id. ¶¶ 7-8, Exs. A-B.) Parmann assigned the mortgage to Chase Manhattan Mortgage Corporation*fn5 by

unrecorded assignment dated February 3, 1999. (Id. at Ex. C.)

II. STANDARD OF REVIEW

The standard of review of a magistrate judge's report and recommendation depends upon the parties' objections. The court must "make a de novo determination of those portions of the report or . . . recommendations to which objection[s] [are] made." 28 U.S.C. § 636(b)(1)(C); see also Brown v. Ebert, No. 05-CV-5579 (DLC), 2006 WL 3851152, at *2 (S.D.N.Y. Dec. 29, 2006). The court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b) (1)(C). Those portions of the R&R to which there is no specific reasoned objection are reviewed for clear error. See Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008).

When considering a motion to dismiss for failure to state a claim for which relief can be granted, a court should assume all the facts the plaintiff alleges to be true and construe the complaint in the light most favorable to the plaintiff. See In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007). Pro se litigants' allegations are construed liberally. Triestmann v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). However, a claim must be more than a mere recitation of the elements of a cause of action or series of legal conclusions. SeeAshcroft v. Iqbal, 556 U.S. 662, 677-79 (2009). The complaint instead must provide enough factual content that, when taken as true, would allow a court to draw a "reasonable inference" that ...


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