United States District Court, W.D. New York
WILLIE L. JOHNSON, JR., Plaintiff,
BANK OF AMERICA, N.A., Defendants.
DECISION AND ORDER
G. LARIMER, United States District Judge.
Willie L. Johnson, Jr. commenced this action on or about June
2, 2016, in New York State Supreme Court, Monroe County,
against Bank of America, N.A.
(“BANA”).Plaintiff asserted several claims arising
out of a loan contract between him and BANA.
the action was pending in state court, plaintiff filed an
amended complaint on October 5, 2016. The amended complaint
asserts seven causes of action, related to the same loan
contract that formed the basis for the original complaint.
removed the action to this Court on October 25, 2016, based
on federal question jurisdiction, since one of
plaintiff's claims is premised on an alleged violation of
the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. § 1692 et seq.
has now moved to dismiss the complaint, for failure to state
a claim upon which relief can be granted, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff
has filed a response in opposition to the motion.
motion is based on its argument that plaintiff's claims
are time-barred. An understanding of defendant's
arguments requires some familiarity with the underlying facts
and procedural history of this case.
entered into a loan contract with BANA in or about late July
2007. Dkt. #5-5 at 6. In June 2008, plaintiff filed a
complaint against BANA with the New York State Consumer
Protection Board (“CPB”) alleging, inter
alia, that “the monthly payment keep [sic]
changing.” Dkt. #5-5 at 2. Plaintiff does not appear to
dispute defendant's contention that the CPB found that
complaint to be meritless. At any rate, there is no
indication that the CPB proceeding remains pending or that
the CPB granted plaintiff any relief or issued any findings
in his favor.
then filed a lawsuit against BANA in state court. Although
that complaint is dated September 3, 2013, it appears that it
was not served upon BANA until March 19, 2014. Dkt. #1-1 at
18. The complaint asserted claims under the FDCPA, and the
New York General Business Law, § 349. That action was
dismissed by the state court on November 4, 2015 for failure
to prosecute. Dkt. #1-1 at 27.
stated, plaintiff filed another state court action on June 2,
2016. That complaint alleged that BANA had breached the loan
contract in several ways.
September 27, 2016, the state court denied both BANA's
motion to dismiss, and plaintiff's cross-motion for leave
to amend the complaint. With respect to the latter motion,
the state court pointed out several procedural deficiencies
with plaintiff's motion, but added that because
“Defendant has not yet answered, Plaintiff does not
technically even need court approval to employ an Amended
Complaint.” Dkt. #8-7 at 4.
did file an amended complaint on October 5, 2016. It asserts
seven causes of action: (1) violation of N.Y. Gen. Obl L.
§ 5-501; (2) violation of N.Y. Banking L. § 14-a;
(3) violation of N.Y. Gen. Bus. L. § 601; (4) violations
of N.Y. Gen. Bus. L. §§ 703 and 706; (5) violations
of N.Y. Gen. Bus. L. § 380-m; (6) breach of contract;
and (7) fraud, and violations of the FDCPA and N.Y. Gen. Bus.
L. § 349. Dkt. #5-3.
then removed the action to this Court, and followed that with
a motion to dismiss. The basis for the motion is that
plaintiff's claims are barred by their respective
statutes of limitations.
response, plaintiff “concedes that the first five
Causes of Action are not timely.” Plaintiff's Mem.
of Law (Dkt. #9). Thus, the only dispute here is over ...