Antoine v. CitiMortgage, Inc.

OTIS ANTOINE, BEVERLY EDNY, Plaintiffs, v. CITIMORTGAGE, INC., KNUCKLES KOMINSKI & ELLIOT, Defendants.

15-CV-5309 (JMA)(GRB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 24, 2017

For Online Publication Only

MEMORANDUM & ORDER

APPEARANCES:

Otis Antoine

103 Rutland Road

Freeport, NY 11520

Pro Se Plaintiff

Beverly Edny

103 Rutland Road

Freeport, NY 11520

Pro Se Plaintiff

Ashley Sparrow Miller

Akerman LLP

666 Fifth Avenue 20th Floor

New York, NY 10103

Attorney for Defendant CitiMortgage, Inc.

John E. Brigandi

Knuckles Komosinski & Elliot, LLP

50 Tice Boulevard Suite 183

Woodcliff Lake, NJ 07677

Attorney for Defendant Knuckles Komosinski & Elliot, LLP

Jordan Jayce Manfro

Knuckles Komosinski & Elliot, LLP

50 Tice Boulevard Suite 183

Woodcliff Lake, NJ 07677

Attorney for Defendant Knuckles Komosinski & Elliot, LLP AZRACK, United States District Judge:

This 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.

I. BACKGROUND

The 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).

A. The Freeport Mortgage

On May 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.)

B. The Foreclosure Proceeding

In 2008, Antoine defaulted on the mortgage.¹ (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.² (Miller Decl. Ex. F, ECF No. 20-7.) Plaintiff Beverly Edny,³ 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. 20-9.)

Defendant 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.)

By an 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.)

While 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. ¶ 16.)

C. The Instant Action

Plaintiffs 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 invalid.

II. DISCUSSION

A. Standard for a Motion to Dismiss

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), aplaintiff 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 217.

When 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).

B. Analysis

In the 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 inviolation 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.

Defendants 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 implausible or precluded by the state court judgment, the Court does not address the issues of subject matter jurisdiction or Edny's allegedly improper representation of Antoine.

The Court will now discuss each claim in turn, dismissing each as implausibly pled or precluded by the state court judgment of foreclosure where appropriate.

1. Section 1692i Violation

Plaintiffs allege that defendants violated § 1692i of the FDCPA by "attempting to enforce an alleged interest in real property in an improper venue." (Am. Compl. ¶ 39.)

The amended complaint, however, is devoid of any factual allegations indicating why the venue of the state foreclosure action was improper. And, even more importantly, the venue of the foreclosure action was clearly proper. The Court takes judicial notice of the location of the Freeport property. See Wallace v. New York, 40 F. Supp. 3d 278, 328 n.43 (E.D.N.Y. 2014)(collecting cases). Because...