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Johnson v. Bank of America, N.A.

United States District Court, W.D. New York

January 26, 2017

WILLIE L. JOHNSON, JR., Plaintiff,
v.
BANK OF AMERICA, N.A., Defendants.

          DECISION AND ORDER

          DAVID G. LARIMER, United States District Judge.

         Plaintiff 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”).[1]Plaintiff asserted several claims arising out of a loan contract between him and BANA.

         While 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.

         BANA 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.

         BANA 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.

         FACTUAL BACKGROUND

         Defendant's 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.[2]

         Plaintiff 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.

         Plaintiff 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.

         As stated, plaintiff filed another state court action on June 2, 2016. That complaint alleged that BANA had breached the loan contract in several ways.

         On 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.

         Plaintiff 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.

         BANA 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.

         In his 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 ...


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