United States District Court, S.D. New York
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
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.
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
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.
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:
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.)
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. ¶
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”).) “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.
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.”).) 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.)
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.) “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.
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.) The Attorney Defendants did not respond to
Plaintiff's mailing. (Compl. ¶ 27.)
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.) “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).)
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.”).) “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. ¶
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).)
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)).
Standard of Review
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
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).
“[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
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.)
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