Redd v. Fed. Nat'l Mortg. Ass'n (Fannie Mae)

FEDIE R. REDD, Plaintiff, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION (FANNIE MAE), OFFICE OF THE COMPTROLLER OF THE CURRENCY,BANK OF AMERICA, N.A. (SUCCESSOR BY MERGER SERVICING, TO BAC HOME LOANS SERVICING, L.P.), BERKMAN,HENOCH, PETERSON, PEDDY & FENCHEL PC, SWEENEY, GALLO, REICH, & BOLZ LLP, DAVID GALLO AND ASSOCIATES, and BRYAN CAVE LLP, Defendants.¹

19-CV-1045 (PKC) (RML)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 31, 2020

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

Plaintiff Fedie R. Redd brings this pro se, fee-paid action against various Defendants, alleging violations of federal statutes, common law, state law, and Plaintiff's constitutional rights, in connection with the state court judgment of foreclosure on Plaintiff's property. Defendants have moved to dismiss² Plaintiff's Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(5), and 12(b)(6). For the reasons set forth below, the Court grants Defendants' motions to dismiss.

BACKGROUND

I. Relevant Facts³

On or about October 18, 2007, a home mortgage loan in the amount of $310,100 was executed on Plaintiff's property, located at 173 Cedar Street, Freeport, NY 11520 (the "Property"), through a Countrywide Home Loan program that was invested in by Defendant the Federal National Mortgage Association ("Fannie Mae"). (Amended Complaint ("Am. Compl."), Dkt. 11, ¶¶ 1, 12, 16.) Plaintiff alleges that Defendant Bank of America, N.A. ("BANA"), as the successor by merger to Countrywide Financial ("Countrywide"), sold this fraudulent, defective loan to her because she is an African-American female. (Id. ¶ 33.) Plaintiff alleges that the Office of the Comptroller of the Currency (the "OCC") violated federal law when, on April 23, 2009, it conditionally approved the merger of BANA and Countrywide. (Id. ¶ 18.) On or before October 7, 2010, Defendant Berkman, Henoch, Peterson, Peddy, & Fenchel PC ("Berkman") filed fraudulent paperwork in a foreclosure action against Plaintiff in Nassau County Supreme Court while representing BANA. (Id. ¶ 22.) On or before April 2013, BANA hired Sweeney, Gallo, Reich, & Bolz LLP ("Sweeney") or David A. Gallo and Associates ("DAGA")⁴ while Berkman was "already representing" BANA, constituting "fraudulent representation." (Id. ¶ 24.) On April 14, 2014, the aforementioned foreclosure action was discontinued in Nassau County, and Sweeneyrecovered $554,581.36 for BANA in a separate foreclosure proceeding⁵ (id. ¶¶ 38, 39). Plaintiff alleges that BANA failed to deduct accumulated interest and Plaintiff's homeowner's insurance from this fee amount, and that BANA held and "refused to issue" $158,000 of equity to Plaintiff for six months. (Id. ¶¶ 42, 44.) Plaintiff separately alleges that BANA violated its fiduciary duties to Plaintiff when it signed off on the "notice of proposed referee's oath and computation," charging Plaintiff fees from April 1, 2010 through October 19, 2017. (Id. ¶ 37.) Plaintiff alleges another instance of fraudulent representation whereby BANA hired Bryan Cave LLP⁶ ("Bryan Cave") from July 2013 to 2017, when Berkman was still BANA's attorney of record. (Id. ¶ 26.) On April 10 and 11, 2017, BANA directed Safeguard Properties to enter the Property and remove $30,000 worth of Plaintiff's belongings. (Id. ¶ 48.) Plaintiff further claims that, on November 12, 2018, DAGA submitted defective pleadings in the Nassau County Supreme Court under an incorrect index number. (Id. ¶ 48.) Plaintiff brings various federal⁷ and state law claims (id. at 5, 6), and requests both equitable relief (id. at 25) and $12,310,000 in damages (id. at 26).

II. Procedural History

Plaintiff filed the instant action on February 21, 2019 (Complaint, Dkt. 1) and amended her complaint the following day (Amended Complaint, Dkt. 11). On March 18, 2019, Defendants BANA, Bryan Cave, and Fannie Mae sought a pre-motion conference to dismiss Plaintiff'sAmended Complaint. (Dkt. 25.) Defendant DAGA requested a pre-motion conference to dismiss Plaintiff's Amended Complaint on March 20, 2019 (Dkt. 26), and Defendant Sweeney filed a similar request on March 26, 2019 (Dkt. 29). Plaintiff replied in opposition on March 27, 2019. (Dkt. 31.) On March 29, 2019, Plaintiff requested Certificates of Default as to Berkman and Sweeney (Dkts. 32, 34); the Court denied the request as to the latter because Sweeney had already appeared, and Berkman subsequently filed a notice of appearance on April 11, 2019 (Dkts. 41, 42). By Order dated April 1, 2019, the Court construed Defendants' requests for a pre-motion conference (Dkts. 25, 26, 29) as motions to dismiss, permitted any additional Defendants to file separate motions to dismiss, construed Plaintiff's opposition as her initial response to Defendants' motions, and set a briefing schedule for the parties. Defendants Berkman (Dkt. 43), DAGA (Dkt. 45), and Sweeney (Dkt. 47) filed motions to dismiss. Before the Court are Defendants' motions to dismiss (Dkts. 25, 26, 29, 43, 45, 47), Plaintiff's "omnibus opposition letter" to Defendants' motions (Dkt. 48), and Defendants' replies (Dkts. 46, 49, 50, 51).

STANDARDS OF REVIEW

I. Federal Rule of Civil Procedure 12(b)(1)

The district courts of the United States are "courts of limited jurisdiction" and may not preside over cases absent subject matter jurisdiction. ExxonMobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005) (internal quotation and citation omitted). "[B]ecause [subject matter jurisdiction] involves a court's power to hear a case, [it] can never be forfeited or waived." United States v. Cotton, 535 U.S. 625, 630 (2002). Federal district courts have "original jurisdiction over cases in which there is a federal question, see 28 U.S.C. § 1331, and certain cases between citizens of different states, so long as the requirements of complete diversity and the amount in controversy are met, see 28 U.S.C. § 1332." Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 213 (2d Cir.2013). "A case is properly dismissed for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Music Choice v. Claggett, 385 F. Supp. 3d 245, 248 (S.D.N.Y. 2019) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). A court deciding a motion to dismiss under Rule 12(b)(1) must accept as true the allegations in the complaint and, in the event of a fact-based jurisdictional challenge under Rule 12(b)(1), may consider extrinsic materials submitted by both parties beyond the allegations in the complaint. See Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 118, 119 (2d Cir. 2017).

II. Federal Rule of Civil Procedure 12(b)(2)

In order to survive a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2), a plaintiff bears the burden to establish that the court has personal jurisdiction over the parties. See Troma Entm't, Inc. v. Centennial Pictures Inc., 729 F.3d 215, 217 (2d Cir. 2013) (citing Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 34 (2d Cir. 2010)). "[W]hen the issue of personal jurisdiction is 'decided initially on the pleadings and without discovery, the plaintiff need show only a prima facie case.'" King County, Washington v. IKB Deutsche Industriebank, AG, 769 F. Supp. 2d 309, 313 (S.D.N.Y. 2011) (citing Volkswagenwerk Aktiengesellschaft v. Beech Aircraft Corp., 751 F.2d 117, 120 (2d Cir. 1984)). In deciding whether a plaintiff has met this burden, the court must view the pleadings and affidavits in the light most favorable to the plaintiff, with all doubts resolved in the plaintiff's favor. See DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001).

III. Federal Rule of Civil Procedure 12(b)(5)

"For a federal court to exercise personal jurisdiction over a defendant, 'the plaintiff's service of process upon the defendant must have been procedurally proper.'" WestchaseResidential Assets II, LLC v. Gupta, No. 14-CV-1435 (ADS) (GRB), 2016 WL 3688437, at *2 (E.D.N.Y. July 7, 2016) (quoting Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012)); see also Sartor v. Toussaint, 70 F. App'x 11, 13 (2d Cir. 2003) (summary order) ("A judgment is void for lack of personal jurisdiction over the defendant where service of process was not properly effected." (citation omitted)). To survive a motion to dismiss for insufficient service of process under Rule 12(b)(5), "the plaintiff bears the burden of establishing that service was sufficient." Allstate Ins. Co. v. Rosenberg, 771 F. Supp. 2d 254, 260 (E.D.N.Y. 2011) (quoting Khan v. Khan, 360 F. App'x 202, 203 (2d Cir. 2010) (summary order)).

IV. Federal Rule of Civil Procedure 12(b)(6)

To survive a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully.

Id. (quoting Twombly, 550 U.S. at 556). Determining whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679 (citation omitted). "In addressing the sufficiency of a complaint, [the Court] accept[s] as true all factual allegations and draw[s] from them all reasonable inferences; but [the Court is] not required to credit conclusory allegations or legal conclusions couched as factual allegations." Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013) (citation omitted). A...