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Cruz v. TD Bank, N.A.

United States Court of Appeals, Second Circuit

December 18, 2013

GARY CRUZ and CLAUDE PAIN, individually and on behalf of all others similarly situated, Plaintiffs-Appellants,
v.
TD BANK, N.A., Defendant-Appellee. GERALDO F. MARTINEZ and JOSEPH CUMMINGS, individually and on behalf of all others similarly situated, Plaintiffs-Appellants,
v.
CAPITAL ONE BANK, N.A., Defendant-Appellee

Argued December 12, 2012.

Appeals heard in tandem from judgments of the United States District Court for the Southern District of New York (Castel, J., and Sullivan, J.) dismissing plaintiffs-appellants' claims under Article 52 of the New York Civil Practice Law and Rules, as amended by the Exempt Income Protection Act, 2008 N.Y. Laws ch. 575, and under New York common law.

AFFIRMED and REMANDED to permit plaintiffs to move for leave to amend their complaints.

G. OLIVER KOPPELL (Daniel F. Schreck, on the brief), Law Offices of G. Oliver Koppell & Associates, New York, New York, for Gary Cruz, Claude Pain, Geraldo F. Martinez, Joseph Cummings.

Alexander D. Bono, Ryan E. Borneman, Duane Morris, LLP, Philadelphia, Pennsylvania, for TD Bank, N.A.

Robert Plotkin, Kurt E. Wolfe, Matthew A. Fitzgerald, McGuire Woods LLP, New York, New York, Washington, D.C., and Richmond, Virginia, for Capital One Bank, N.A.

Gina M. Calabrese, St. Vincent de Paul Legal Program, Inc., Elder Law Clinic, St. John's University School of Law, Jamaica, New York, and Claudia E. Wilner, Neighborhood Economic Development Advocacy Project Inc., New York, New York, for Amici Curiae AARP, District Council 37 Municipal Employees Legal Services, The Legal Aid Society, Lincoln Square Legal Services, Inc., MFY Legal Services, Neighborhood Economic Development Advocacy Project, Inc., St. Vincent de Paul Legal Program, Inc., The Urban Justice Center.

Before: POOLER, HALL, and CHIN, Circuit Judges.

OPINION

Page 521

PER CURIAM

These appeals, heard in tandem, challenge two separate judgments entered in the United States District Court for the

Page 522

Southern District of New York (Castel, J., and Sullivan, J.), in favor of defendants-appellees TD Bank, N.A. (" TD Bank" ) and Capital One Bank, N.A. (" Capital One" ), respectively, dismissing plaintiffs' claims that the banks violated (1) Article 52 of the New York Civil Practice Law and Rules (" CPLR" ), as amended by the Exempt Income Protection Act (the " EIPA" ), 2008 N.Y. Laws Ch. 575 (codified as amended at CPLR 5205, 5222, 5222-a, 5230, 5231, and 5232), and (2) their rights under New York common law.

The facts are set forth in detail in our opinion filed in this case on March 27, 2013. See Cruz v. TD Bank, N.A., 711 F.3d 261, 264-67 (2d Cir. 2013). We ...


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