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Krajeski v. Bank of America, N.A.

United States District Court, E.D. New York

January 2, 2020

BANK OF AMERICA, N.A., et al., Defendants.



         On March 8, 2019, plaintiff Holly Krajeski (“Plaintiff”) filed a pro se complaint in this Court against defendant Bank of America. (Compl. (the “Complaint”), ECF No. 1.) Though “Does 1 through 100” are listed in the caption, the Complaint only makes allegations against Bank of America. (Id.) Bank of America (“Defendant”) has moved to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 14.) For the reasons stated below, the Court grants Defendant's motion and dismisses the Complaint in its entirety.

         I. BACKGROUND

         The following facts are taken from the Complaint, the record before the Court, and filings from the related state court foreclosure action. In deciding a motion to dismiss, the Court may consider public records, including state court filings, and exhibits, such as copies of the mortgage and mortgage assignments, which are attached or integral to the Complaint. See Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004); Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004).

         A. Plaintiff's Mortgage

         On August 20, 2008, Plaintiff, along with non-party Anthony Krajeski, executed a note and mortgage for the property located at 160 Coram-Mount Sinai Road; Coram, New York 11727 (the “Subject Property”). (Declaration of Michael E. Blaine, (“Blaine Decl.”), Ex. A-B, ECF Nos. 14- 3, 14-4.) The mortgage was later assigned to Defendant, and this assignment was subsequently recorded in the Suffolk County Clerk's Office on March 10, 2012. (Blaine Decl., Ex. C, ECF No. 14-5.) Three years later, on July 15, 2015, the parties executed a Loan Modification Agreement. (Blaine Decl., Ex. D, ECF No. 14-6.) It stipulated that Defendant would forgive $365, 750.20 of Plaintiff's outstanding loan balance, and that the loan would be reinstated with a new principal balance of $184, 750.01 as if no default had occurred. (Id. at 4.)

         B. The Foreclosure of Plaintiff's Mortgage

         Shortly after execution of the Loan Modification Agreement, Plaintiff again defaulted on the loan. Defendant filed a foreclosure complaint in New York Supreme Court, Suffolk County, on November 4, 2016. (Blaine Decl., Ex. E, ECF No. 14-7.) The state court issued a Judgement of Foreclosure and Sale regarding the Subject Property on October 19, 2017. (Blaine Decl., Ex. F, ECF No. 14-8.) The Subject Property was then sold at a foreclosure auction on October 29, 2018. (Blaine Decl., Ex. G, ECF No. 14-9.)

         C. Plaintiff's Initial Lawsuit Against Defendant

         Approximately one month after Defendant filed the foreclosure complaint in state court, Plaintiff filed a complaint against Defendant in this Court on December 16, 2016 (the “2016 Action”). See Krajeski v. Bank of America, N.A., et al., 16-CV-6963, ECF. No. 1. Plaintiff alleged that Defendant violated N.Y. G.B.L. § 349 (“GBL § 349”) and committed fraud and misrepresentation in connection with the Loan Modification Agreement. In particular, she claimed Defendant charged her fees to which it was not entitled and falsely described the purpose of other fees it charged her because such fees were impermissible under the Loan Modification Agreement. Plaintiff argued that since she was not obligated to pay such fees, Defendant “falsely rendered the Modified Loan delinquent.” Id. at 4.

         On April 12, 2017, the parties filed a stipulation by which they agreed that Plaintiff's complaint would be dismissed in its entirety, with prejudice, and each party would bear its own costs and attorneys' fees. See id., ECF No. 11. This Court issued an Order effectuating the Stipulation of Dismissal with Prejudice on April 13, 2017. See id., ECF No. 12.

         D. The Instant Litigation

         On March 8, 2019, approximately sixteen months after the state court issued the foreclosure judgment, Plaintiff filed the instant Complaint against Defendant in which she asserts claims for fraud, misrepresentation, and a violation of GBL § 349. (Compl., ECF No. 1.)

         A substantial portion of the Complaint is a verbatim recitation of the allegations advanced in the complaint she filed in the 2016 Action. The instant Complaint does, though, contain certain additional allegations. Plaintiff states that on or about June 2, 2017, Defendant offered her another loan modification. (Id. at 3.) Although she attaches a copy of the offer letter to the Complaint, (ECF No. 1-1 at 2), she provides no additional details about this subsequent loan modification offer and does not assert any new causes of action based on it.

         Plaintiff's Complaint also references several mailings from Defendant, including an “Escrow Account Disclosure Statement, ” dated June 9, 2017, that details possible repayment options for a shortfall in the available escrow, (ECF No. 1-3 at 2), and two statements entitled “Your Home Loan Account, ” dated August 17, 2015 and June 16, 2017, that provide estimates of outstanding amounts due on the foreclosed loan, (ECF No. 1-2 at 2; ECF No. 1-3 at 6). Plaintiff appears to take issue with the amount Defendant claimed was past due in these letters and accuses Defendant of “double charging on the escrow” in its calculations. (Compl., ECF No. 1 at 3-4.)

         Plaintiff alleges:

B of A claims $44, 947.43 is past due, but there is no description on the amount due. There is no way the account could be negative $22, 064.01 on escrow and $44, 223.84 past due on payments. The escrow charges are included in the regular $1766.51 payments due. Therefore B of A is double charging on the escrow, since they stated that $44, 223.84 $22, 064.01 = $66, 287.85 is past due. (Exhibit “C”) Aware of the reprehensible practices taking place by mortgage lenders and loan servicers, 49 state attorney generals and the federal government took action against the nation's largest service providers, including Wells Fargo. In February of 2012, a settlement was reached. The settlement, known as The National Mortgage Settlement, was the largest consumer financial protection settlement in the history of the United States (hereinafter, “NMS”). The NMS addressed many violations of law committed by BOA and the nation's largest lenders, as well as provided widespread relief to borrowers of these institutions, including restitution payments to those that wrongfully lost their homes to foreclosure at the hands of these lending institutions.

(Id. at 3-4.) With the exception of the exhibits and allegations described above, Plaintiff's Complaint is otherwise identical to ...

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