Moise v. Ocwen Loan Servicing LLC (In re Moise)

575 B.R. 191

IN RE: Marc A. MOISE, Debtor.

Marc A. Moise, Plaintiff,

v.Ocwen Loan Servicing LLC, Defendant.

Case No.: 15–73102–ast

Adv. Pro. No.: 16–08114–ast

United States Bankruptcy Court, E.D. New York.

Signed July 20, 2017

Entered July 21, 2017

Freddie J. Berg, Berg Law Firm LLC, Jamaica, NY, for Plaintiff.

Nicholas Corsano, Hinshaw & Culbertson LLP, New York, NY, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

Alan S. Trust, United States Bankruptcy Judge

Pending before the Court is the Rule 12(b)(6) motion (the "Motion to Dismiss") of defendant, Ocwen Loan Servicing LLC ("Ocwen" or "Defendant") [dkt items 6, 7, 8] to dismiss this adversary proceeding (the "Complaint") commenced by plaintiff-debtor, Marc A. Moise ("Plaintiff" or "Debtor" or "Moise"). [dkt item 1] Mr. Moise has filed multiple actions in state court interspersed with multiple bankruptcy filings and multiple adversary proceedings, and fits the definition of a vexatious litigant. For the reasons set forth herein, the Court grants Defendant's Motion to Dismiss. Additionally, while Moise may appeal from this Order, he may not commence any other litigation in this or any other federal court seeking to challenge the Foreclosure Judgment, or standing of the parties to that Foreclosure Judgment to enforce the Note or Mortgage.

JURISDICTION

This Court has jurisdiction over this core proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(A), (K) and (O ), and 1334(b), and the Standing Orders of Reference in effect in the Eastern District of New York dated August 28, 1986, and as amended on December 5, 2012, but made effective nunc pro tunc as of June 23, 2011.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Findings of fact and conclusions of law are not required on a Rule 12(b)(6) motion, and this Court accepts as true all properly plead factual allegations in the complaint and draws all inferences in favor of the plaintiff for the purposes of deciding this motion.

BACKGROUND AND PROCEDURAL HISTORY ¹

At its core, Debtor's adversary proceeding is an effort to collaterally attack a final judgment of a New York state court and re-litigate an adversary proceeding this Court dismissed on July 26, 2016, [15–08265; dkt item 43] in connection with Debtor's loss of his property located at 644 Edgemere Avenue, Uniondale, New York 11550 (the "Property").

State Court Litigation

IndyMac, F.S.B., ("IndyMac") brought a foreclosure action in the Supreme Court of New York, Nassau County (the "State Court") on July 3, 2008, to foreclose on the Property. IndyMac served the Summons and Complaint on Moise and he failed to Answer. Based thereon, thereon, IndyMac moved on December 1, 2008 for a Judgment of Foreclosure and Sale.² In an Order dated June 2, 2009, the Honorable Edward G. McCabe ("Justice McCabe") of the State Court determined "that all the Defendants, herein have been duly served with the Summons and Verified Complaint, and/or have duly appeared herein, that the time to answer or move with respect to the Verified Complaint has expired as to each and all of said Defendants." Justice McCabe entered a judgment for foreclosure and sale (the "Foreclosure Judgment") on June 22, 2009,³ which was docketed with the clerk of court on June 29, 2009. IndyMac served Moise with the Notice of Entry of the Foreclosure Judgment, which was filed on July 20, 2009.⁴

Under N.Y. CPLR § 5513(a), Moise's 30–day time limit to appeal the June 22, 2009 Foreclosure Judgment began to run from the date of service, July 20, 2009. As of August 19, 2009, Moise failed to file an appeal of the Foreclosure Judgment and as a result, forfeited his appealable rights. As such, IndyMac was allowed to proceed with the foreclosure.⁵

After his time to appeal had run, Moise moved to vacate the Foreclosure Judgment by filing an Order to Show Cause ("OSC 1") on March 1, 2010. However, by Order dated March 17, 2010, the Honorable Thomas A. Adams ("Justice Adams") of the State Court denied Moise's OSC 1.

In his ruling, Justice Adams stated that the "movant's (Defendant–Appellant) Appellant) conclusory claims with respect to a failure to serve are insufficient to overcome the evidentiary value which must be afforded the affidavit of service, citing Wells Fargo Bank , N.A. v. McGloster , 48 A.D.3d 457, 849 N.Y.S.2d 784 (N.Y. App. Div. 2008)."⁶

On October 4, 2010, Moise filed another Order to Show Cause seeking to vacate the Foreclosure Judgment ("OSC 2"). While OSC 2 was pending, on October 11, 2010, Moise filed an Order to Show Cause for a preliminary injunction and temporary restraining order to stay the sale of the Property ("OSC 3"). On November 8, 2010, Justice Adams of the State Court issued an Order denying OSC 2 and OSC 3, noting that Moise failed to make any showing that would justify the State Court altering its previous determinations not to vacate the Foreclosure Judgment, and that Moise failed to establish a right to a preliminary injunction staying the sale of the Property.⁷

On July 6, 2011, Moise filed a Motion to Reargue and to stay the action pending discovery, or, in the alternative, to dismiss the action pursuant to N.Y. CPLR §§ 2221, 2201 and 3211 and set aside service of the Summons and Compliant ("OSC 4"). In an Order dated October 27, 2011, Justice Adams denied Moise's OSC 4 in its entirety (the "October 27 Order"). Further, Justice Adams stated:

The Defendant [Moise] has filed multiple applications for essentially the same relief, all of which have been previously denied. Based upon this pattern of filing duplicative motions for the same or similar relief, the Plaintiff's [IndyMac] request is granted to the extent the Defendant [Moise] is hereby instructed to refrain from filing further motions in this action, absent the prior authorization from thisCourt.⁸

Moise appealed the October 27 Order to the Appellate Division, Second Department. On June 19, 2013, the Appellate Division issued a decision and Order dismissing Moise's appeal "as no appeal lies from an order denying leave to reargue," citing Neunteufel v. Nelnet Loan Servs., Inc., 104 A.D.3d 657, 959 N.Y.S.2d 923 (2nd Dep't 2013), Koufalis v. Logreira , 102 A.D.3d 750, 958 N.Y.S.2d 438 (2nd Dep't 2013), and Matter of Coregis Ins. Co. v. Miceli , 295 A.D.2d 511, 744 N.Y.S.2d 677, 694 (2nd Dep't 2002). Indymac Bank, F S.B. v. Moise , 107 A.D.3d 851, 968 N.Y.S.2d 804 (2nd Dep't 2013).⁹

In violation of the pre-filing restraint provisions contained in the October 27 Order, Moise filed yet another motion on November 21, 2014 pursuant to N.Y. CPLR § 3404, requesting IndyMac's action be denied as abandoned ("OSC 5"). Moise asserted that on October 24, 2012, the Calendar Clerk of the State Court disposed of the case and marked it off the Calendar as inactive and wanting of prosecution pursuant to CPLR § 3404. On February 20, 20, 2015, Justice Adams once again denied Moise's request for relief in its entirety, noting that there was no evidence that the matter was marked off for failure to prosecute under CPLR § 3404.¹⁰

On March 31, 2015, Moise filed an Order to Show Cause in the Appellate Division, Second Department ("OSC 6"), by which he sought to stay all foreclosure proceedings in the underlying matter, including the foreclosure sale scheduled for April 7, 2015, and dismissal of the action as abandoned, stricken from the calendar and for want of prosecution.¹¹ On April 10, 2015, IndyMac filed opposition.¹² On April 17, 2015, the Appellate Division, Second Department issued an Order denying Moise's OSC 6.¹³ On November 12, 2015, IndyMac filed and served its Notice of Entry of the Appellate Division's April 17, 2015 Order.¹⁴ IndyMac served its Notice of Entry on both Moise, as he had filed OSC 6 pro se, and on Moise's counsel of record.¹⁵

Ocwen Loan Servicing, LLC holds a limited power of attorney (the "Power of Attorney") to represent the interests of IndyMac Mortgage Services, a wholly-owned division of CIT Bank, N.A., a national bank f/k/a One West Bank, N.A. f/k/a OneWest Bank, FSB, ("IMS") dated October 16, 2015.¹⁶ The Power of Attorney provides that Ocwen is authorized on behalf of IMS to "pursue any deficiency, debt or other obligation, secured or unsecured, including but not limited to those arising from foreclosure or other sale..."

Ocwen asserts that it is in physical possession of the note and mortgage encumbering the Property and that they are available for inspection at its Counsel's offices.¹⁷

Prior Bankruptcy Cases and Adversary Proceeding

Debtor has commenced three (3) prior bankruptcy proceedings, as well as two (2) prior adversary proceedings effecting the Property. On November 16, 2009, Debtor commenced a voluntary petition for relief under Chapter 13 of the Bankruptcy Code, assigned case no. 09–78821 ("Bankruptcy 1"). On January 4, 2010, Bankruptcy 1 was dismissed for Debtor's failure to comply with his obligations under 11 U.S.C. § 521(i). [09–78821; dkt items 14, 15] Bankruptcy 1 was subsequently closed on January 28, 2010, without Debtor receiving a discharge. [09–78821; dkt item 18]

On April 20, 2010, Debtor commenced another voluntary petition for relief under Chapter 13, assigned case no. 10–72850 ("Bankruptcy 2"). On July 20, 2010, IndyMac filed a motion for relief from the automatic stay as to the Property. [10–72850; dkt item 29] On August 26, 2010, Bankruptcy 2 was dismissed due to Debtor's failure to comply with his obligations as a debtor; in light of that dismissal, IndyMac's motion for relief from stay was marked off the Court's calendar without hearing. [10–72850; dkt item 35] Bankruptcy 2 was subsequently closed on October 4, 2010, without Debtor receiving a discharge. [10–72850; dkt item 38]

On June 26, 2014, Debtor commenced a third Chapter 13 case, assigned case no. 14–72961 ("Bankruptcy 3"). In Bankruptcy 3, Debtor commenced an adversary proceeding, similar to the current adversary proceeding, assigned adversary no. 14–08220 (the "First Adversary"). On December 3, 2014, Bankruptcy 3 was dismissed, again due to...