United States District Court, E.D. New York
Antoine 103 Rutland Road Freeport, Pro Se Plaintiff
Beverly Edny 103 Rutland Road Freeport, Pro Se Plaintiff
Sparrow Miller Akerman LLP, Attorney for Defendant
E. Brigandi Knuckles Komosinski & Elliot, LLP 50 Tice
Boulevard Suite 183 Woodcliff Lake, N.J. 07677 Attorney for
Defendant Knuckles Komosinski & Elliot, LLP
Jayce Manfro Knuckles Komosinski & Elliot, LLP, Attorney
for Defendant Knuckles Komosinski & Elliot, LLP
MEMORANDUM & ORDER
M. Azrack, United States District Judge
case arises out of a foreclosure action filed in state court.
Plaintiffs allege that defendants' actions during the
foreclosure proceedings violated the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692
et seq., in numerous ways. Plaintiffs also bring a
claim against defendants for intentional infliction of
emotional distress (the “IIED” claim). Before the
Court are defendants' motions to dismiss the amended
complaint pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). For the reasons stated below, the
Court grants defendants' motions and dismisses
plaintiffs' federal claims. Additionally, the Court
declines to exercise supplemental jurisdiction over
plaintiffs' IIED claim.
following facts are taken from plaintiffs' amended
complaint, the record before the Court, and filings from the
foreclosure action. In deciding a motion to dismiss, the
Court may take judicial notice of public records, including
state court filings. Blue Tree Hotels Inv. (Canada), Ltd.
v. Starwood Hotels & Resorts Worldwide, Inc., 369
F.3d 212, 217 (2d Cir. 2004). The Court also considers
exhibits-such as copies of the mortgage, mortgage
assignments, and plaintiffs' notice of dispute-which are
attached or integral to the amended complaint. Sira v.
Morton, 380 F.3d 57, 67 (2d Cir. 2004).
The Freeport Mortgage
31, 2006, plaintiff Otis Antoine executed a mortgage with
non-party Argent Mortgage Company, LLC concerning a property
located in Freeport, New York. (Miller Decl. Ex. A, ECF No.
20-2.) On June 25, 2010, through a series of assignments,
defendant CitiMortgage, Inc. (“CitiMortgage”)
obtained the mortgage. (Miller Decl. Exs. B-E, ECF Nos.
20-3-6.) The assignment to CitiMortgage was recorded at the
Nassau County Clerk's Office on July 13, 2010. (Miller
Decl. ¶ 6, ECF No. 20-1.) Plaintiffs allege that Antoine
“discovered” the assignment “in the public
recorder's office, ” but do not allege when they
discovered it. (Am. Compl. ¶ 12, ECF No. 13.)
The Foreclosure Proceeding
2008, Antoine defaulted on the mortgage. (Am. Compl.
¶ 10.) On July 29, 2011, defendant CitiMortgage, through
its attorneys at defendant Knuckles Komosinski & Elliot,
LLP (hereinafter “KK&E” and improperly named
as Knuckles, Kominski & Elliot in the amended complaint),
commenced a foreclosure action against Antoine in the Supreme
Court of New York, Nassau County. (Miller Decl. Ex. F, ECF No.
20-7.) Plaintiff Beverly Edny,  Antoine's mother and a
resident of the Freeport property, was also served in the
state action as a John Doe. (Miller Decl. Ex. H, ECF No.
CitiMortgage moved for judgment of foreclosure and sale.
CitiMortgage v. Antoine, Index No. 11220/2011 (N.Y.
Civ. Ct. Dec. 19, 2014). Plaintiffs opposed. (Miller Decl.
Ex. M, ECF No. 20-14.) Plaintiffs argued, among other things,
that defendant CitiMortgage was a debt collector under the
FDCPA and did not have standing to foreclose on the mortgage.
(Id.) Plaintiffs also challenged the validity of the
mortgage and its assignment to CitiMortgage. (Id.)
On May 13, 2015, the state court entered judgment of
foreclosure and sale over plaintiffs' objections. (Miller
Decl. Ex. O, ECF No. 20-16.)
order to show cause, plaintiffs moved to stay the sale of the
Freeport property. CitiMortgage, Index No.
11220/2011. Again, plaintiffs argued, among other things,
that defendant CitiMortgage did not have standing to
foreclose on the Freeport property. (Miller Decl. Ex. P, ECF
No. 20-17.) CitiMortgage opposed. The Freeport property was
sold at referee's auction on September 8, 2015. (Miller
Decl. Ex. S, ECF No. 20-20.) The state court declined to sign
the order to show cause and allowed the sale to proceed on
October 29, 2015. (Miller Decl. Ex. R, ECF No. 20-19.)
the motion to stay was pending, Edny served CitiMortgage with
a “Consumer Notice of Dispute of Debt” dated July
20, 2015. (Am. Compl. ¶ 16, Ex. B, ECF No. 13-2.) To
date, defendant CitiMortgage has not responded to this notice
with a verification of the mortgage. (Id. ¶
The Instant Action
filed this suit against CitiMortgage and KK&E on
September 14, 2015. (ECF No. 1.) In October 2015, both
defendants requested a pre-motion conference to discuss
anticipated motions to dismiss. (ECF Nos. 5, 6.) On January
22, 2016, plaintiffs filed an amended complaint. (ECF No.
13.) On March 2, 2016, the Court accepted the amended
complaint. Both defendants then moved to dismiss the amended
complaint pursuant to Rules 12(b)(1) and 12(b)(6).
(See ECF Nos. 20, 23.) In the amended complaint
plaintiffs allege multiple violations of the FDCPA.
Plaintiffs also reiterate their arguments that CitiMortgage
did not have standing to foreclose on the Freeport property
and that the mortgage and its assignment to CitiMortgage were
Standard for a Motion to Dismiss
survive a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), a plaintiff must allege sufficient facts
“to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is facially plausible only
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). Mere labels and legal
conclusions will not suffice. Twombly, 550 U.S. at
555. In reviewing a motion to dismiss, the Court must accept
the factual allegations set forth in the complaint as true
and draw all reasonable inferences in favor of the plaintiff.
Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d
Cir. 2006). Affirmative defenses, such as a time bar, are
appropriately decided on a 12(b)(6) motion if it is clear
from the face of the complaint that a limitations period has
run. Mosdos Chofetz Chaim, Inc. v. RBS Citizens,
N.A., 14 F.Supp.3d 191, 209 (S.D.N.Y. 2014) (citing
Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d
406, 425 (2d Cir. 2008)). When deciding a motion to dismiss,
a court may consider materials attached to the complaint,
materials integral to the complaint, and materials
incorporated into the complaint by reference. Sira,
380 F.3d at 67. Furthermore, the Court may take judicial
notice of public records, such as state court proceedings.
Blue Tree Hotels Inv. (Canada), Ltd., 369 F.3d at
faced with a pro se complaint, the Court must
“construe [the] complaint liberally and interpret it to
raise the strongest arguments that it suggests.”
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)
(internal quotation marks and alteration omitted).
amended complaint, plaintiffs claim that defendants violated
the FDCPA by foreclosing on the Freeport property. In
particular, plaintiffs allege that defendants: (1) attempted
to enforce the mortgage in an improper venue in violation of
15 U.S.C. § 1692i; (2) failed to provide disclosures in
violation of 15 U.S.C. § 1692e(11); (3) failed to
provide disclosures in violation of 15 U.S.C. §
1692g(a); (4) failed to cease collection activities until
verifying a debt in violation of 15 U.S.C. § 1692g(b);
(5) communicated with Antoine in violation of 15 U.S.C.
§ 1692c(a); (6) created the false belief that a
non-creditor was participating in a debt collection in
violation of 15 U.S.C. § 1692j; and (7) engaged in
harassing, oppressive, abusive, false, deceptive, misleading,
unfair, and unconscionable practices in violation of 15
U.S.C. §§ 1692d-f.
argue that the FDCPA claims are (1) barred by the
Rooker-Feldman doctrine, (2) precluded by the state
court judgment of foreclosure, and (3) not plausibly pled.
Defendants further argue that Antoine's claims should be
dismissed because Edny, Antoine's pro se
co-plaintiff, does not have the authority to litigate the
action on Antoine's behalf. As explained below, the Court
dismisses the FDCPA claims because: (1) plaintiffs have
failed to state plausible claims to relief, and (2) review of
issues already litigated before the state court is barred by
preclusion principles. Because the allegations in the amended
complaint are so clearly ...