United States District Court, E.D. New York
MEMORANDUM & ORDER
Nicholas G. Garaufis United States District Judge.
action, pro se Plaintiff Winston Scully alleges
misconduct relating to a residential mortgage by Defendants
Chase Bank USA, NA (a.k.a. JP Morgan Chase, Chase Bank, and
Chase) ("Chase"); and U.S. Bank National
Association ("U.S. Bank"). (See Am. Compl. (Dkt.
16).) On October 17, 2016, Defendants filed a motion to
dismiss or, in the alternative, for summary judgment
("Defendants' Motions"). (Defs. Mots. (Dkt.
24).) The court referred Defendants' Motions to
Magistrate Judge Robert M. Levy for a report and
recommendation ("R&R"). (Nov. 28, 2016, Order
(Dkt. 25) (citing 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P.
72(b)(1)).) On May 31, 2017, Judge Levy issued an R&R
recommending that Defendants' Motions be granted.
(R&R (Dkt. 26).) Plaintiff then moved to withdraw the
Amended Complaint and dismiss all claims without prejudice.
(Pl. Mot. to Withdraw (Dkt. 27).) Plaintiff also filed
objections to the R&R. (Pl. Objs. (Dkt. 28).) For the
reasons stated below, Plaintiffs motion to withdraw is
DENIED; Plaintiffs objections to the R&R are OVERRULED;
and the R&R is ADOPTED IN PART. The court GRANTS
Defendants' motion to dismiss and DENIES AS MOOT
Defendants' motion for summary judgment. The case is
court assumes the parties' familiarity with the prior
proceedings in this action, and reviews the factual and
procedural background only as necessary to adjudicate the
parties' pending motions.
Plaintiff s Allegations
resides at a property located on the Grand Central Parkway in
Queens County, New York (the "Property"). (Am.
Compl. ¶ 1.) The Property was encumbered by a mortgage.
(See id. ¶ 5(iv) (referring to
"plaintiffs note and mortgage"); Pl. Ltrs. (Am.
Compl., Ex. 6) (referring to a "Promissory Note made
payable to VirtualBank").) The court discerns five
distinct legal claims in Plaintiffs allegations,
of which rest on the premise that neither Defendant ever had
a valid claim to the promissory note underlying mortgage, and
that Defendants therefore did not have a valid claim to
collect on or reassign the mortgage itself. (See,
e.g., Pl. Mot. to Am. (Dkt. 13) at 1 (arguing that Chase
"was never the owner of the promissory note and
[therefore] had no legal right to assign [the] mortgage to
from October 2008 to November 2013, Chase allegedly
"engaged in an unlawful and illegal act to collect
mortgage payments from Plaintiff totaling $164, 917.80"
(the "Payment Claim"). (Id. ¶ 5 (i).)
second claim concerns an "Assignment of Mortgage"
filed in February 2013 with the City Register of the City of
New York, which purported to reassign a mortgage on the
Property from Chase to U.S. Bank. (Id. ¶ 5(ii);
see also Assignment of Mortgage (Am. Compl., Ex. 4)
(Dkt. 16 ECF p. 16-19).) Plaintiff asserts that this
reassignment was "without any legal basis" (the
"Assignment Claim"). (Am. Compl. ¶ 5(ii).)
third and fourth claims relate to an attempted foreclosure on
the Property. In April 2014, U.S. Bank "filed a Notice
of Pendency with the county Clerk, Queens County, " and
also "filed a Summons and Foreclosure Complaint 
against the Plaintiff' in New York Supreme Court. (Am.
Compl. ¶ 5(iv).) On March 13, 2015, the state court
dismissed the action for lack of standing, and offered the
[U.S. Bank] did not submit an affidavit by someone with
personal knowledge of the facts that stated how and when it
became the holder or assignee of the note and mortgage . . .
. Without evidence that it possessed or was assigned the
original note at the time [the foreclosure action was
initiated, U.S. Bank] cannot rely on its possession of a copy
of the note to establish its standing.
U.S. Bank Nat'l Assoc, v. Scully (the
"Foreclosure Dismissal"), No. 5436/14,
slip op. at 3 (N.Y. Sup. Ct, Mar. 13, 2015). Plaintiff argues
that, dismissal notwithstanding, he suffered
"irreparable harm" as a result of "the
Wrongful Foreclosure" action (the "Wrongful
Foreclosure Claim"). (Am. Compl. at 3.) In particular,
he alleges that his "credit rating was adversely
affected" by the foreclosure proceedings (the
"Credit Rating Claim"). (Id. ¶ 5(v).)
requests the following relief: compensatory and punitive
damages; quiet title to the Property (the "Quiet Title
Claim"); and an order removing the foreclosure from
Plaintiffs credit report. (Id.)
R&R and Subsequent Filings
March 31, 2017, Judge Levy issued an R&R recommending
that the case be dismissed. (See generally R&R.)
Judge Levy recommended that the Payment and Assignment Claims
be dismissed for lack of standing (id. at 7-10), and
that the Credit Rating and Quiet Title Claims be dismissed
based on Plaintiffs failure to plead sufficient facts
(id. at 10-11). The R&R did not construe the
Wrongful Foreclosure Claim as a separate cause of action, and
therefore did not address it.
parties had 14 days from receipt of the R&R to file any
objections. (Id. at 12.) See also 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b)(2). Within that 14-day
window, Plaintiff not only filed objections, but also moved
to withdraw the Amended Complaint and dismiss the action
without prejudice. (Pl. Objs.; PL Mot. to Withdraw.)
Defendants responded to Plaintiffs objections and also oppose
the motion to withdraw. (Defs. Opp'n to Pl. Mot to
Withdraw & Resp. to Pl. Objs. (Dkt. 30).)
court denies Plaintiffs motion to withdraw the Amended
Complaint. Plaintiff has not offered any justification for
the court to dismiss the action without prejudice in lieu of
adjudicating Defendants' Motions. Turning to the R&R,
the court finds Plaintiffs objections to be without merit
except insofar as Plaintiff points out the R&R's
silence on Plaintiffs Wrongful Foreclosure Claim. The court
finds that Plaintiffs claims must all be dismissed under
Federal Rule of Civil Procedure 12(b). In light of this
holding, the court need not address Defendants' motion
for summary judgment or the portions of the R&R that
Plaintiffs Motion to Withdraw