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Johnson-Gellineau v. Stiene & Associates, P.C.

United States District Court, S.D. New York

March 30, 2018

NICOLE JOHNSON-GELLINEAU, Plaintiff,
v.
STEINE & ASSOCIATES, P.C.; CHRISTOPHER VIRGA, ESQ.; RONNI GINSBERG, ESQ.; JPMORGAN CHASE BANK NATIONAL ASSOCIATION; and WELLS FARGO BANK NATIONAL ASSOCIATION, as Trustee for Carrington Mortgage Loan Trust, Series 2007-FRE1, Asset-Backed Pass-Through Certificates, Defendants.

          Nicole Johnson-Gellineau Beacon, NY Pro Se Plaintiff

          Matthew J. Bizzaro, Esq. L'Abbate, Balkan, Colavita & Contini, LLP Garden City, NY Counsel for Defendants Steine & Associates, P.C., Christopher Virga, Esq., and Ronni Ginsberg, Esq.

          Brian P. Scibetta, Esq. Buckley Madole, P.C. Iselin, N.J. Counsel for Defendants JPMorgan Chase Bank National Association and Wells Fargo Bank National Association

          OPINION & ORDER

          KENNETH M. KARAS, District Judge.

         Nicole Johnson-Gellineau (“Plaintiff”) brings this Action against the law firm Steine & Associates, P.C., attorneys Christopher Virga, Esq. (“Virga”) and Ronni Ginsberg, Esq. (“Ginsberg”) (collectively, “Attorney Defendants”), JPMorgan Chase Bank National Association (“Chase”), and Wells Fargo Bank National Association, as Trustee for Carrington Mortgage Loan Trust, Series 2007-FRE1, Asset-Backed Pass-Through Certificates (“Wells Fargo”) (collectively, “Bank Defendants”), seeking damages for alleged violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. (See Compl. (Dkt. No. 2).) Before the Court are the Attorney Defendants' Motion To Dismiss and the Bank Defendants' Motion To Dismiss. (See Dkt. Nos. 34, 39.) For the following reasons, the Bank Defendants' Motion is granted and the Attorney Defendants' Motion is denied.

         I. Background

         A. Factual Background

         The following facts are drawn from Plaintiff's Complaint and documents attached to it, (Compl.), and are taken as true for the purpose of resolving the instant Motion.[1]

         On December 18, 2006, Plaintiff took out a $262, 880.00 loan. (Compl. ¶ 14.) She executed a note payable to Fremont Investment & Loan (“Fremont”) or any transferees, denominated “the Lender, ” (id. Ex. A at A (“Note”)), and the loan was secured by a mortgage on her home, located at 149 Wilkes St., Beacon, NY 12508 (the “Property”), in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for Fremont and Fremont's successors in interest, (id. Ex. A at B (“Mortgage”)). The Mortgage noted that:

         The Note, or an interest in the Note, together with this Security Instrument, may be sold one or more times. [Plaintiff] might not receive any prior notice of these sales.

The entity that collects the Periodic Payments and performs other mortgage loan servicing obligations under the Note, this Security Instrument, and Applicable Law is called the “Loan Servicer.” There may be a change of the Loan Servicer as a result of the sale of the Note. There also may be one or more changes of the Loan Servicer unrelated to a sale of the Note. Applicable Law requires that [Plaintiff] be given written notice of any change of the Loan Servicer.

(Mortgage ¶ 20; see also Pl.'s Opp. To Defs.' Mot. to Dismiss (“Pl.'s Banks Mem.”) (Dkt. No. 45) 5.) The Mortgage was recorded on March 3, 2008 in the Dutchess County Clerk's Office. (Compl. Ex. A at B.) On August 26, 2008, Plaintiff entered into a Loan Modification Agreement (“Modification”) with EMC Mortgage Corporation (“EMC”), as servicer for Wells Fargo, “as Trustee under the applicable agreement (“Lender”) [and] current holder of the Note and Mortgage.” (Id. Ex. A at B (“Modification”).) The Modification modified the principal balance of the loan to $279, 763.22. (Id.)

         Plaintiff defaulted on the loan in either September or October of 2009. (Compl. ¶¶ 32, 35.) A notice of default was mailed to Plaintiff on October 30, 2009. (Compl. Ex. A at 34 (“Brunton Aff.”) ¶ 8; Compl. ¶ 35.)[2] The assignment of the mortgage from Fremont to Wells Fargo was recorded in Dutchess County on March 5, 2010. (Compl. Ex. A at B (“Assignment Recording”).)[3] “Chase then became servicer for Wells Fargo, as trustee.” (Compl. ¶ 36; Brunton Aff. ¶ 1.) However, “Wells Fargo exercised control or had the right to exercise control over the collection activities of Chase.” (Compl. ¶ 48.)

         On June 3, 2013, Wells Fargo commenced a foreclosure action against Plaintiff and other unnamed defendants with an interest in the Property in the New York Supreme Court, Dutchess County. (Decl. of Brian P. Scibetta, Esq. in Supp. of Defs.' Mot. to Dismiss (“Scibetta Decl.”) (Dkt. No. 35) Ex. 3 (“Foreclosure Compl.”).)[4] Steine & Associates, P.C. represented Wells Fargo in the foreclosure action. (Id.; see also Compl. ¶ 45.) On June 28, 2013, Plaintiff filed a Verified Answer, Affirmative Defenses and Counter Claims in the foreclosure action. (Scibetta Decl. Ex. 4.) As one of her affirmative defenses, Plaintiff argued that Wells Fargo lacked standing to foreclose because it was not “the true and lawful owner of [the] Note and Mortgage.” (Id. ¶ 31.) On August 10, 2015, the New York Supreme Court issued an Order that granted Wells Fargo's motion for summary judgment, struck Plaintiff's Verified Answer, and appointed a Referee “to ascertain and compute the amount due to [Wells Fargo] upon the [N]ote and [M]ortgage upon which [the foreclosure] action was brought and to examine and report whether the mortgaged premises can be sold in one parcel.” (Scibetta Decl. Ex. 5 at 2.)

         On December 30, 2015, Plaintiff received in the mail a Notice of Hearing & Referee's Oath and Report (“Notice of Hearing”) in connection with the foreclosure proceeding. (Compl. ¶ 21; id. Ex. A (“Notice of Hearing”).) The Notice of Hearing was signed by Virga, “on behalf of Steine & Associates, P.C., ” and indicated that the Attorney Defendants “are attorneys for [Wells Fargo] . . . as the plaintiff in [the] foreclosure action.” (Compl. ¶ 21; Notice of Hearing.) The document also included a Referee's Oath and a Report, supported by a statement of computation and exhibits and concluding that Plaintiff owes Wells Fargo “on the . . . Note and Mortgage . . . $430, 431.62” and “that the mortgaged premises should be sold in one parcel.” (Notice of Hearing at Referee's Report of Amount Due ¶¶ 2, 6; see also Compl. ¶ 21.) Gary Brunton, a Vice President at Chase, also filed an affidavit in the foreclosure action dated December 8, 2015, on behalf of Chase, “the loan servicer for [Wells Fargo], ” attesting that, based upon his review of Chase's business records and his own personal knowledge of how they are kept and maintained, Plaintiff is in default and itemizing the sums of money due and owing to Wells Fargo under the Note and Mortgage. (Brunton Aff. ¶¶ 1, 4, 6, 7.)[5] “Mailing the Notice of Hearing was a step in the process of obtaining a money judgment and liquidation of Plaintiff's place of abode, and part of a strategy to make collection of a debt by way of foreclosure and sale more likely.” (Compl. ¶ 22.) “At the time Plaintiff received the Notice of Hearing, Plaintiff was an unrepresented consumer in the foreclosure action and remains so.” (Id. ¶ 23.)

         “On January 12, 2016, within thirty days of receiving the Notice of Hearing, Plaintiff mailed [the Attorney Defendants] . . . a Consumer Notice of Dispute . . . disputing the entire debt, and requiring Defendants to cease and desist from collection efforts and communications under [15 U.S.C.] § 1692c(c) unless certain information is provided to Plaintiff, including among other things ‘the name of the creditor to whom the debt is owed.'” (Id. ¶ 26 (citing id. Ex. B. (“Consumer Notice of Dispute of Debt, 15 U.S.C. § 1692g”)).) Chase responded “with two non-responsive letters that use [the] terms ‘investor, ' [and] ‘owner, ' but not ‘creditor, '” and therefore “did not validate or provide the information to which [Plaintiff] was entitled, including the name of the creditor to whom the debt is owed.” (Id. ¶ 27.) Chase's first letter, dated January 20, 2016, stated that Chase “service[s] the mortgage on behalf of the investor” and provides the contact information “for the owner of the mortgage loan, ” Wells Fargo. (Id. Ex .G.) The second letter, dated January 21, 2016, providing “loan details, ” information about the “[l]oan origination”-including that “servicing of this loan transferred to [Chase] on May 1, 2007”-and “the name and contact information for the investor of this loan, ” Wells Fargo. (Id.)[6] The Attorney Defendants did not respond to Plaintiff's mailing. (Compl. ¶ 27.)

         On March 17, 2016, Wells Fargo moved for a judgment of foreclosure and sale in the New York foreclosure action. (Compl. Ex. C (“Motion for Judgment of Foreclosure”).) Defendant Ginsberg filed an “Affirmation of Regularity in Support of [the] Motion.” (Id.) Ginsberg also signed the “Notice of Motion” on behalf of Steine & Associates, P.C. and mailed a copy to Plaintiff. (Compl. ¶ 28.) On April 18, 2016, the New York Supreme Court entered a Judgement of Foreclosure and Sale in favor of Wells Fargo, determining that Plaintiff owed $430, 431.62 to Wells Fargo, and ordering a sale of the Property to satisfy that debt. (Id. Ex. D (“Judgement of Foreclosure”); Compl. ¶ 29.)[7] “Plaintiff has timely appealed [the Judgment] to the [New York] Appellate Division.” (Compl. ¶ 29; see also Id. ¶ 27 (alleging that “Plaintiff has resisted” the Judgment).)

         Meanwhile, throughout 2016, Chase, in its capacity as loan servicer for Wells Fargo, mailed Plaintiff monthly statements indicating that Plaintiff's loan was in default, the amount due, and that she was “at risk of foreclosure.” (Compl. Ex. E, F; see also Id. ¶ 32.) “Chase directed [the] collection efforts of the [Attorney] Defendants and communicated the affidavit to the New York court through the [Attorney Defendants] on December 24, 2015.” (Compl. ¶ 33; see also Id. ¶ 48 (“Wells Fargo and Chase each exercised control or had the right to exercise control over the collection activities of the [Attorney] Defendants.”).)[8] “Chase did not have Plaintiff's prior consent . . . or the express permission of a court of competent jurisdiction to communicate about . . . Plaintiff's debt, nor was it reasonably necessary to effectuate a postjudgment remedy without a creditor.” (Id. ¶ 33; see also Id. ¶ 51 (same).) “Wells Fargo, in placing Plaintiff's debt with Chase and the [Attorney] Defendants . . . caused the [Attorney] Defendants to send communications to both . . . Plaintiff and the New York court, and caused Chase to send it monthly statements to Plaintiff, falsely communicating (or alternatively, failing to communicate) the name of the creditor to whom the debt is owed relating to Plaintiff's debt.” (Id. ¶ 49.)

         B. Procedural Background

         Plaintiff filed the Complaint on December 23, 2016, alleging that Defendants violated the FDCPA, 15 U.S.C. §§ 1692c(b) and 1692e. (Compl. (Dkt. No. 2).) Plaintiff was granted in forma pauperis status, (Dkt. No. 4), and the Court issued an Order of Service on March 30, 2017 to allow Plaintiff to effect service on Defendants, (Order of Service (Dkt. No. 6)). All Defendants were served. (See Dkt. Nos. 13, 22, 23, 26, 28.) On May 9, 2017, the Attorney Defendants filed a pre-motion letter indicating the grounds upon which they would move to dismiss. (Letter from Mathew J. Bizzaro, Esq., to Court (May 9, 2017) (Dkt. No. 20).) The Bank Defendants also filed a pre-motion letter the next day. (Letter from Brian P. Scibetta, Esq. to Court (May 10, 2017) (Dkt. No. 21).) Plaintiff filed letters opposing both pre-motion letters. (See Letter from Plaintiff to Court (May 16, 2017) (Dkt. No. 24); Letter from Plaintiff to Court (May 16, 2017) (Dkt. No. 25).)

         The Court held a pre-motion conference on July 11, 2017 and set a briefing schedule for the Motions to Dismiss. (See Dkt. (entry for July 11, 2017); Mot. Scheduling Order (Dkt. No. 29).) On August 11, 2017, the Bank Defendants filed their Motion To Dismiss and accompanying papers. (Notice of Mot. to Dismiss (Dkt. No. 34); Scibetta Decl. (Dkt. No. 35); Bank Defs.' Mem. (Dkt. No. 36).) The same day, after fixing docketing errors, (see Dkt. Nos. 30-33), the Attorney Defendants filed their Motion To Dismiss and accompanying papers, (Notice of Mot. to Dismiss (Dkt. No. 39); Decl. of Matthew J. Bizzaro, Esq. in Supp. of Mot. to Dismiss (“Bizzaro Decl.”) (Dkt. No. 40); Defs.' Mem. of Law in Supp. of Mot. to Dismiss (“Attorney Defs.' Mem.”) (Dkt. No. 42).) Plaintiff filed oppositions to both Motions on October 12, 2017. (Pl.'s Banks Mem. (Dkt. No. 45); Pl.'s Opp. to Mot. to Dismiss (“Pl.'s Attorneys Mem.”) (Dkt. No. 46).) The Attorney Defendants filed a reply memorandum on November 3, 2017, (Reply Mem. of Law in Supp. of Mot. to Dismiss (“Attorney Defs.' Reply”) (Dkt. No. 51)), and the Bank Defendants filed a reply memorandum on November 9, 2017, (Reply Mem. of Law in Supp. of Mot. to Dismiss (“Bank Defs.' Reply”) (Dkt. No. 53)).

         II. Discussion

         A. Standard of Review

         The Supreme Court has held that although a complaint “does not need detailed factual allegations” to survive a Motion To Dismiss, “a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (alteration and internal quotation marks omitted). Instead, a complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint, ” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face, ” id. at 570, if a plaintiff has not “nudged [his or her] claims across the line from conceivable to plausible, the[] complaint must be dismissed, ” id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” (citation omitted) (second alteration in original) (quoting Fed.R.Civ.P. 8(a)(2))); id. at 678-79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”).

         In considering Defendants' Motion To Dismiss, the Court is required to “accept as true all of the factual allegations contained in the [C]omplaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). And, the Court must “draw[] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F.Supp.2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Where, as here, a plaintiff proceeds pro se, the Court must “construe[] [his complaint] liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (internal quotation marks omitted). However, “the liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with relevant rules of procedure and substantive law.” Bell v. Jendell, 980 F.Supp.2d 555, 559 (S.D.N.Y. 2013) (internal quotation marks omitted).

         Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted). However, when the complaint is pro se, the Court may consider “materials outside the complaint to the extent that they are consistent with the allegations in the complaint, ” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013) (internal quotation marks omitted), including, “documents that a pro se litigant attaches to his opposition papers, ” Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010) (italics omitted), and “documents that the plaintiff[] either possessed or knew about and upon which [he or she] relied in bringing the suit, ” Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000).

         B. Analysis

         Plaintiff alleges that Defendants violated the FDCPA, 15 U.S.C. § 1692c(b), by sending or causing to be sent communications in connection with the collection of the debt to the New York Supreme Court, and 15 U.S.C. § 1692e, for failing to identify Plaintiff's current creditor in its attempts to collect the debt. (Compl. ¶¶ 56-58.) Defendants seek dismissal on the grounds that Plaintiff's claims are barred by the Rooker-Feldman doctrine and collateral estoppel, and, in the alternative, that the Complaint fails to state a claim under the FDCPA. (See generally Bank Defs.' Mem; Attorney Defs.' Mem.)

         1. Rooker-Feldman[9]

         “Under the Rooker-Feldman doctrine, federal district courts lack jurisdiction over cases that essentially amount to appeals of state court judgments.” Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014) (per curiam); see generally Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 415-16 (1923). This is because Congress's grant of federal jurisdiction to review final state court judgments pursuant to 28 U.S.C. § 1257 “vests authority to review a state court's judgment solely” in the hands of the United States Supreme Court. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 292 (2005). In Exxon Mobil, the Supreme Court emphasized that the doctrine is “narrow” and only applies to federal lawsuits brought by “state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Id. at 284; see also Green v. Mattingly, 585 F.3d 97, 101 (2d Cir. 2009) (noting that Exxon Mobil narrowed the Second Circuit's previously “expansive[ ]” interpretation of the Rooker-Feldman doctrine (internal quotation marks omitted)).

After Exxon Mobil, the Second Circuit reexamined Rooker-Feldman and laid out
four ‘requirements' that must be met before the Rooker-Feldman doctrine applies: First, the federal-court plaintiff must have lost in state court. Second, the plaintiff must ‘complain of injuries caused by a state-court judgment.' Third, the plaintiff must ‘invite district court review and rejection of that judgment.' Fourth, the state-court judgment must have been ‘rendered before the district court proceedings commenced'-i.e., Rooker-Feldman has no application to federal-court suits proceeding in parallel with ongoing state-court litigation.

Green, 585 F.3d at 101 (alterations omitted) (quoting Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005)). “[T]he first and fourth requirements ‘may be loosely termed procedural, ' while the second and third requirements ‘may be termed ...


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