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Jamaine Kingston v. Deutsch Bank National Trust

April 30, 2013


The opinion of the court was delivered by: John Gleeson, United States District Judge:



Jamaine Kingston brings a pro se civil action pursuant to 42 U.S.C. § 1983 and § 1985 seeking damages and/or declaratory and injunctive relief against Deutsch Bank National Trust Company f/k/a Bankers Trust Company of California, N.A. ("Deutsch Bank"), First United Mortgage Banking Corp. ("First United"), and America's Servicing Company ("ASC"). On January 14, 2013, defendant Wells Fargo Bank, successor by merger to Wells Fargo Mortgage d/b/a/ America's Servicing Company, moved to dismiss all claims against it pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. In the alternative, ASC contends that the claims are barred by res judicata or that the complaint fails to state a claim and must be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6).

Kingston did not submit an opposition to the present motion and did not appear for oral argument on either of two dates scheduled: February 20 and March 27, 2013.*fn1 For the reasons stated below, defendant's motion is granted, and all claims are dismissed against ASC with prejudice.


A. Parties

ASC is a "servicing division of Wells Fargo Bank, N.A. and was the servicer of the mortgage loan at issue in this case." Def.'s Mem. of Law in Supp. of Mot. to Dismiss 2, Jan. 14, 2013, ECF No. 10. The loan at issue was part of a mortgage loan trust: Nomura Asset Acceptance Corporation, Mortgage Pass-Through Certificates, Series 2007-1. See Muir Decl. in Supp. of Mot. to Dismiss, Ex. 1, ECF No. 11-1. ASC acts as the servicer of loans in this trust.

B. Factual Allegations

The following facts are drawn from the complaint and from the judicially-noticed record of related state court proceedings.*fn2 On September 20, 2006, in connection with the purchase of real property located at 720 Marcy Avenue, Brooklyn, NY 11216 (the "property"), Kingston obtained a mortgage loan in the principal amount of $796,000.00 from First United Mortgage Lending Corporation.*fn3 Note, ECF No 11-2. Kingston alleges that he was "not employed nor were there income verifications in order to assure that the loan would be paid back," and he was issued a "high interest bearing loan." Compl. ¶ 12, ECF No. 1. He alleges that the defendants*fn4 "inflated[ed] the true value of the property . . . over 200%," id. ¶ 46.

On September 13, 2007, First United named Kingston as a defendant in a foreclosure action brought in the Supreme Court of the State of New York, Kings County (the "state court"). In his complaint in this Court, Kingston alleges that he did not receive proper service of a summons. Id. ¶ 14-15. First United moved for default judgment when no one appeared in the foreclosure action. The state court entered a judgment of foreclosure and served Kingston with a Notice of Sale advising him that the property would be sold at auction. Affirmation in Supp. of Order to Show Cause ¶¶ 3-4, ECF No 11-7. Kingston alleges that the state court did not request proof of the note and mortgage prior to foreclosing, Compl. ¶ 18, and that the state court entered the foreclosure order even though the "moving party" did not "legally own the property . . . [or] have legal standing" to foreclose. Id. ¶ 47.

On March 24, 2010, Kingston -- though counsel -- moved in state court to vacate the judgment of foreclosure and sale and to dismiss the foreclosure action on the ground of lack of standing to foreclose. Order to Show Cause 2-3, ECF No 11-7. In support of the motion, Kingston's counsel filed an affirmation stating: "[a] review of the file in this matter reveals substantial irregularities in the manner in which the Judgment of Foreclosure was obtained" and requesting "that the Judgment be vacated and the action dismissed." Id. ¶¶ 6, 11-13, 21-23.

The Honorable Robert J. Miller of the Supreme Court of the State of New York held oral argument on Kingston's order to show cause. On November 5, 2010, Judge Miller denied Kingston's motion and lifted the stay on the sale of the property. Order, ECF No. 11-8. On July 11, 2011 Kingston filed a pro se emergency application to show cause why the sale should not be stayed and a Temporary Restraining Order be issued, but the state court again denied his application, noting "[the] defendant's affidavit misstates the absence of a prior application for the same relief." Order, ECF No. 11-9. On December 13, 2012, Kingston attempted to make a second emergency application to vacate the judgment of foreclosure and sale and dismiss the foreclosure action. The state court again refused to sign this order, indicating that it was the third "motion for the same relief . . . . [Judge Miller] denied the first one on the merits, after oral argument, when [Kingston] had counsel . . . . That is the law of the case." Order 4, ECF No. 11-10.

A few days later, on December 20, 2012, Kingston commenced this pro se action seeking an "order to show cause to dismiss the complaint and cancel[] the lis pend[ens] and to discharge the mortgage along with vacating the judgment of foreclosure and sale." Compl. ¶ 2. Specifically, Kingston alleges that he was "pressured to purchase more than five different loans from the same lender despite the fact that [he] had no real income verification," id. ¶ 44; the defendants "inflat[ed] the true value of the property;" and the defendants "do[] not legally own the property nor do [they] have legal standing to commence such an action." Compl. ¶¶ 44, ...

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