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Obanya v. Select Portfolio Servicing, Inc.

United States District Court, E.D. New York

January 19, 2017

BOLA OBANYA, Plaintiff,
v.
SELECT PORTFOLIO SERVICING, INC., and MERSCORP HOLDINGS INC., f/k/a MERS/ MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, Defendants.

          MEMORANDUM & ORDER

          NICHOLAS G. GARAUFIS, United States District Judge.

         Plaintiff Bola Obanya brings this action prose against Defendants Select Portfolio Servicing, Inc. ("SPS"), and MERSCORP Holdings Inc., alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692p, New York Executive Law § 63(12), and New York Real Property Law ("NYRPL") Article 9, in connection with Plaintiffs mortgage. (See 2d Am. Compl. (Dkt. 23).) Plaintiff also seeks to quiet title on the property. (See Id. at 9-10.) Before the court is an August 23, 2016, Report & Recommendation ("R&R") from Magistrate Judge Lois Bloom recommending that this action be dismissed with prejudice. (R&R (Dkt. 35).) Plaintiff filed timely objections. (See Pl.'s Obj. (Dkt. 36).) For the reasons stated below, Plaintiffs objections are OVERRULED, Judge Bloom's R&R is ADOPTED IN FULL, and Plaintiffs claims are DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         A. Procedural History

         Plaintiff initiated this action on September 8, 2014. (Compl. (Dkt. 1).) Defendants moved to dismiss. (Mot. to Dismiss (Dkt. 11).) The court referred Defendants' motion to Judge Bloom for an R&R (the "Initial R&R") pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1). (Order Referring Mot. (Dkt. 18).) Judge Bloom's Initial R&R identified various defects in the Complaint. (Aug. 28, 2015, R&R (Dkt. 19).) Plaintiff filed objections, which the court construed as "an attempt to amend the Complaint." (Sept. 30, 2015, Order (Dkt. 22) at 3.) The court adopted Judge Bloom's recommendation to dismiss the Complaint without prejudice, and to allow Plaintiff an opportunity to formally amend her pleadings. (Id.)

         Plaintiff filed the Second Amended Complaint on October 26, 2015. (2d Am. Compl.) Defendants once again moved to dismiss all claims. (See Nov. 9, 2015, Ltr. (Dkt. 24); Nov. 24, 2015, Order ("[Defendants'... letter is deemed to constitute their motion to dismiss plaintiffs amended complaint.").) The court once again referred Defendants' motion to Judge Bloom for an R&R. (Nov. 12, 2015, Order (Dkt. 25).) Plaintiff submitted a letter opposing dismissal (Pl.'s Resp. (Dkt. 28)), and further elaborated upon her opposition at a January 21, 2016, conference (the "Status Conference") before Judge Bloom (see Status Conf. Tr. (Dkt. 33)).

         B. Judge Bloom's R&R

         On August 23, 2016, Judge Bloom issued an R&R recommending dismissal of all claims. (R&R.) Specifically, Judge Bloom recommended that:

(1) Plaintiffs FDCPA claims should be dismissed because Plaintiff fails to establish that any Defendant is a "debt collector" within the meaning of the FDCPA, and, in any event, fails to properly allege any actionable FDCPA violation (id. at 5-8);
(2) Plaintiffs New York Executive Law claim should be dismissed for lack of standing 04 at 8);
(3) Plaintiffs NYRPL claim should be dismissed because it is foreclosed by clear New York precedent (id at 8-9 (citing Matter of MERSCORP, Inc. v. Romaine, 861N.E.2d81(N.Y.2006)));
(4) Plaintiff lacks standing to seek quiet title or other declaratory relief (id at 9-10); and
(5) The court should dismiss the Second Amended Complaint with prejudice because Plaintiff has already been given an opportunity to amend her pleadings and nonetheless failed to remedy errors ...

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