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Francis v. Nichols

United States District Court, S.D. New York

March 21, 2017

GARY L. FRANCIS, Plaintiff,

          Gary L. Francis New Rochelle, New York Plaintiff Pro Se.

          Robert A. Barrer, Esq. Barclay Damon, LLP Syracuse, New York Counsel for Defendants.

          OPINION & ORDER

          CATHY SEIBEL, U.S.D.J.

         This action arises out of a state court proceeding that resulted in the foreclosure of Plaintiff Gary L. Francis's home (the “Foreclosure Action”). Before the Court is the Motion to Dismiss Plaintiff's Second Amended Complaint of John M. Nichols, Jennifer M.S. Byrne, Bank of New York Mellon (“BNY Mellon”), Robert G. Hall, and Anissa Hickerson (collectively “Defendants”). (Doc. 26.) For the reasons set forth below, Defendants' Motion is GRANTED.

         I. BACKGROUND

         A. Facts

         I accept as true the facts, but not the conclusions, as set forth in Plaintiff's Second Amended Complaint (“SAC”). (Doc. 40.)[1]

         The Foreclosure Action arose out of Plaintiff's mortgage on his property at 543 Main Street, Unit #211, New Rochelle, New York, 10801 (the “Property”). (SAC ¶ 22; id. Ex. C, at 4.) On June 23, 2006, Plaintiff executed a promissory note (the “Note”), promising to pay BNY Mortgage Company LLC a principal amount of $237, 744. (Id. Ex. B, at 1.) The Note was secured by a mortgage on the Property (the “Mortgage”), Dated: the same date. (Id. ¶ 22; id. Ex. C, at 2.) The Mortgage lists BNY Mortgage Company LLC as the lender, and Mortgage Electronic Registration Systems, Inc. (“MERS”) “as a nominee for Lender and Lender's successors and assigns.” (Id. Ex. C, at 2.) The Mortgage further provides that “for purposes of recording this mortgage, MERS is the mortgagee of record.” (Id.)

         On November 21, 2012, Westchester County recorded an October 29, 2012 assignment (the “Assignment”) of the Mortgage from MERS, “acting solely as nominee for BNY Mortgage Company, LLC, ” to BNY Mellon. (Id. Ex. D, at 1-2.) The Assignment was signed by Defendant Robert G. Hall, “Assistant Secretary, ” and notarized by Defendant Anissa Hickerson. (Id. Ex. D, at 2.)

         Plaintiff's handwriting expert in the Foreclosure Action opined that differences between Hall's signatures on thirteen documents indicated that they were made by “multiple authors.” (Id. Ex. F, ¶¶ 7, 11.) Plaintiff also alleges that MERS had no authority to execute the Assignment because BNY Mortgage Company, LLC “became a living dead corporation on September 30, 2008.” (Id. ¶ 24.) Plaintiff cites a printout of the New York Department of State that lists BNY Mortgage Company, LLC's status as “INACTIVE - Merged Out (Sep 30, 2008).” (Id.; id. Ex. E, at 1.) Plaintiff concludes that the Assignment was “manufactur[ed]” and “backdate[ed]” for the purpose of initiating the Foreclosure Action. (See Id. ¶ 32.)

         On December 6, 2012, Defendant BNY Mellon, through its counsel, Defendant Byrne, filed the Foreclosure Action in the Supreme Court of New York in Westchester County. (Id. ¶ 20.) The complaint in the Foreclosure Action alleged that Plaintiff stopped making payments on the Note and Mortgage on February 1, 2011, (id. Ex. A, ¶ 9), and attached a copy of the Note and the Mortgage, (id. ¶¶ 21, 22), along with the Assignment purporting to grant BNY Mellon the right to foreclose the Mortgage, (id. Ex. A, ¶ 7). On October 29, 2015, the state court granted summary judgment in favor of BNY Mellon, and entered judgment on November 2, 2015. (Id. ¶ 27.)

         On January 21, 2016, Plaintiff moved to vacate the judgment of foreclosure and sale based on “fraud upon the court.” (Id. ¶ 28.) The alleged fraud consisted of BNY Mellon's wrongful reliance on the allegedly fraudulent Assignment to establish its standing in the Foreclosure Action. (See Doc. 28 (“Nichols Decl.”) Ex. 6, at 3.)[2] The state court denied the motion to vacate on February 10, 2016. (SAC ¶ 28.) On February 17, 2016, Plaintiff filed a notice of appeal of the state court's denial of his motion to vacate. (Id. ¶ 29.) On February 22, 2016, Plaintiff moved to stay the judgment of foreclosure and sale pending appeal, with a return date of March 11, 2016. (Id. ¶ 30; id. Ex. G, at 1.) On March 4, 2016, counsel for BNY Mellon, Defendant Nichols, opposed the motion to stay, attaching a notice of the auction on the Property set for March 17, 2016. (Id. ¶ 31; id. Ex. H.)

         Plaintiff alleges that as a result of the Foreclosure Action, he incurred expenses defending the action, and that the judgment of foreclosure and sale that was filed with the Westchester County Clerk “created a cloud upon title and made the subject property unmarketable.” (Id. ¶ 33; see Id. ¶¶ 78, 98.) He also alleges that the Foreclosure Action caused him to suffer emotional distress, (see Id. ¶¶ 38, 97, 98), and seeks actual, statutory, and punitive damages, (see Id. ¶¶ 39, 80, § VIII), as well as declaratory and injunctive relief, (see Id. § VIII).

         B. Procedural History

         On March 11, 2016, Plaintiff filed his pro se complaint, which asserted claims for violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., violation of New York General Business Law (“GBL”) § 349, and civil conspiracy, all based on an alleged conspiracy to falsify documents in the Foreclosure Action. (Doc. 1.) On April 11, 2016, Defendants submitted a pre-motion letter arguing that Plaintiff's claims failed because they were barred by the Rooker-Feldman doctrine, res judicata and/or collateral estoppel, and even if they were not barred, they failed to comply with Federal Rule of Civil Procedure 9(b). (Doc. 9.) On the same day, Plaintiff filed an Amended Complaint adding Defendants' counsel in this action, Mr. Charlton and Mr. Barrer, as defendants in this action. (Doc. 10.) On April 13, 2016, Defendants submitted a second pre-motion letter, arguing that the Amended Complaint failed for the same reasons the original complaint did. (Doc. 13.) On April 20, 2016, Plaintiff submitted a pre-motion letter responding that Mr. Barrer should withdraw as counsel because his representation of Defendants, while also being named in the Amended Complaint, presented a conflict of interest. (Doc. 15.) Plaintiff also argued that his claims were not barred by res judicata. (Id.) On April 27, 2016, I held a pre-motion conference where we discussed Defendants' arguments for dismissal. I explained to Plaintiff that he needed to articulate why and how each defendant named in the Amended Complaint was involved in the alleged violations, and that his claims for conspiracy required more than merely alleging that Defendants participated in the Foreclosure Action. I also explained that he needed to serve a summons and Amended Complaint on each named defendant.

         On May 27, 2016 Plaintiff filed the SAC, (Doc. 40), which removed Mr. Charlton and Mr. Barrer from the caption, and maintained Plaintiff's claims for violation of the FDCPA, RICO and GBL, and civil conspiracy. On June 20, 2016 Defendants filed the instant motion to dismiss the SAC. (Doc. 26.)


         A. ...

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