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Adams v. Sheehan

United States District Court, E.D. New York

January 5, 2015

DEA C. ADAMS, Plaintiff,
v.
KENNETH SHEEHAN, ANNARESE MARCANO, ROSICKI, ROSICKI ASSOCIATES, P.C., BIJAL K. JANI, DEUTSCHE BANK NATIONAL TRUST COMPANY, JPMORGAN MORTGAGE ACQUISITION TRUST 2007-CH2, AND, J.P. MORGAN ACCEPTANCE CORPORATION 1, Defendants.

MEMORANDUM AND ORDER

ROSLYNN R. MAUSKOPF, District Judge.

On October 3, 2013, plaintiff Dea C. Adams ("Adams" or "Dea Adams"), proceeding pro se, commenced this action against Kenneth Sheehan, Annarese Marcano, Rosicki, Rosicki & Associates, P.C. ("Rosicki Rosicki"), Bijal K. Jani, Deutsche Bank National Trust Company, JPMorgan Mortgage Acquisition Trust 2007-CH2, and J.P. Morgan Acceptance Corporation 1 (collectively, "defendants"). (Compl. (Doc. No. 1).) Viewed liberally, Adams's complaint alleges violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq., related to property located in Freeport, New York. ( See Compl. ¶¶ 2-4.)

On May 29, 2014, defendant Rosicki Rosicki, on behalf of itself and its employees Kenneth Sheehan, Annarese Marcano, and Bijal K. Jani, moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). (Doc. No. 18.) On June 2, 2014, Deutsche Bank National Trust Company, JPMorgan Mortgage Acquisition Trust 2007-CH2, and J.P. Morgan Acceptance Corporation 1, separately moved to dismiss the complaint pursuant to Rule 12(b)(6). (Doc. No. 19).

For the reasons that follow, defendants' motions are GRANTED.

BACKGROUND[1]

This lawsuit stems from a pending foreclosure action in New York Supreme Court in which defendants are seeking to dispossess Adams of real property located at 100 Bedford Avenue in Freeport, New York ("the Premises").[2] Specifically, on September 29, 2006, James C. Adams ("Mr. Adams"), a non-party to this federal action, obtained a mortgage loan for $214, 500 from JPMorgan Chase Bank, N.A. ("JPMorgan"), to purchase the Premises. JPMorgan subsequently assigned the mortgage to defendant Deutsche Bank National Trust Company ("Deutsche Bank").

Mr. Adams failed to make the initial loan payment that became due on March 1, 2010, or to tender any subsequent payments. Shortly thereafter, ostensibly following the death of Mr. Adams, title to the Premises was transferred to plaintiff Dea C. Adams as trustee under the James C. Adams Irrevocable Trust, by deed dated May 19, 2010. However, the mortgage was not satisfied and Dea Adams did not assume the obligations under the note. On May 1, 2013, Deutsche Bank[3] commenced a foreclosure action in Nassau County Supreme Court. Because the Premises was conveyed to Adams as trustee, she is the named defendant in that foreclosure action. ( See Defs' Mem. in Supp. of Mot. to Dism. (Doc. Nos. 18-1, 19-1) at 1-2.)

Adams, pro se, filed a motion to dismiss the foreclosure action alleging lack of standing, lack of privity, fraud, false pretenses, and fraudulent concealment. On December 16, 2013, Supreme Court Justice Thomas A. Adams denied that motion, ruling that the "plaintiff ha[d] established standing to maintain the action, " and that there was "no evidence of fraud on the part of [the] plaintiff or its successors." ( See Mem. of Law in Supp. of Deutsche Bank's Mot. to Dism. (Doc. No. 19-1) at 2-3.)

Two months earlier, on October 3, 2013, Dea Adams had commenced the instant lawsuit in the Eastern District of New York. In her complaint, Adams alleges violations of the FDCPA by Rosicki Rosicki and three of its employees who are involved in the foreclosure action ("the Rosicki defendants"), and by Deutsche Bank. In particular, Adams alleges that, in December 2011, the Rosicki defendants violated § 1692g of the FDCPA by engaging in "unlawful collection activity" without according her due process. ( See Compl. ¶ 2.)[4] Adams further alleges that they violated § 1692f by "threatening to interfere with her business interests where no right to possession of the property existed as collateral through an enforceable security interest." (Id. ¶ 4.)[5] Additionally, she claims that each defendant violated §1692e by making "false and misleading representations" in connection with the collection of a debt. (Id. ¶ 3.)[6] Defendants' motions to dismiss followed.

DISCUSSION

I. Standard on Motion to Dismiss

In order 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, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint need not contain "detailed factual allegations, '" but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. As relevant here, a motion to dismiss on statute of limitations grounds is construed by the Court as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. See Jowers v. Lakeside Family & Children's Servs., 435 F.Supp.2d 280, 282 (S.D.N.Y. 2006) (internal quotations omitted); accord Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989).

"Although a pro se plaintiff must satisfy pleading requirements, the Court is obligated to construe a pro se complaint liberally.'" Malachi v. Postgraduate Ctr. For Mental Health, No. 10-CV-3527 (RRM) (LB), 2013 WL 782614, at *1 (E.D.N.Y. Mar. 1, 2013) (quoting Harris v. Mills, 572 F.3d 66, 71-72 (2d. Cir. 2009)). In other words, the Court holds pro se pleadings to a less exacting standard than complaints drafted by attorneys, see Erickson v. Pardus, 551 U.S. 89, 94 (2007); Boykin v. KeyCorp, 521 F.3d 202, 213-14 (2d Cir. 2008) (citation omitted), and reads such pleadings to "raise the strongest arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (internal citations omitted). Nevertheless, the Court "need not argue a pro se litigant's case nor create a case for the pro se which does not exist, " Molina v. New York, 956 F.Supp. 257, 259 ...


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