Almazon v. JPMorgan Chase Bank, N.A.
| Decision Date | 16 December 2019 |
| Docket Number | 19-CV-4871 (VEC) |
| Parties | DOINA ROSU ALMAZON, Plaintiff, v. JPMORGAN CHASE BANK, National Association, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Doina Almazon seeks a temporary restraining order ("TRO") staying the foreclosure sale of her home. Ms. Almazon commenced this action by filing a pro se complaint on May 24, 2019, alleging numerous violations of federal and state laws stemming from Defendant JPMorgan Chase Bank's efforts to litigate a foreclosure action against Ms. Almazon's home in Supreme Court of the State of New York, County of Nassau. See generally Compl. (Dkt. 1). On June 17, 2019, Ms. Almazon removed the foreclosure action from state court into federal court by filing a notice of removal on the federal docket for this action and filing and serving the notice in state court and on JPMorgan Chase Bank. See 28 U.S.C. § 1446(d) (). Because the removal was defective for a number of reasons,1 Ms. Almazon, at that point acting through counsel, consented to the remand of the foreclosure action, which this Court granted. See Dkt. 25. During the period betweenremoval and remand, however, the parties continued to litigate the foreclosure proceeding in state court, and the state court denied Ms. Almazon's motion to reargue the judgment of foreclosure. See Dkt. 41 at 3. Apparently because the property is scheduled to be auctioned at a foreclosure sale on December 17, 2019, and perhaps also because the state court refused to reconsider its decision denying her motion to reargue the judgment of foreclosure, Ms. Almazon, again acting pro se,2 filed a letter with this Court on December 12, 2019, Dkt. 37, seeking an emergency order staying the foreclosure sale and voiding the state court's decision denying the motion to reargue as being issued without jurisdiction. See 28 U.S.C. § 1446(d); U.S. ex rel. Echevarria v. Silberglitt, 441 F.2d 225, 227 (2d Cir. 1971) . As explained at the emergency hearing held on December 16, 2019, this Court cannot grant the relief that Ms. Almazon seeks.
To obtain a TRO, the movant must establish that "(1) irreparable harm; (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party; and (3) that [granting preliminary relief] is in the public interest." See New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015) (quotation marks and citation omitted); Free Country Ltd v. Drennen, 235 F. Supp. 3d 559, 565 (S.D.N.Y. 2016) ().
Ms. Almazon has not succeeded in establishing a likelihood of success on the merits or even serious questions going to the merits of her claims. First, the foreclosure action has been remanded to state court, Dkt. 25, which means that this Court no longer has jurisdiction over the foreclosure proceeding—there is simply no relevant claim pending before this Court for which Ms. Almazon can even argue the merits and possibly obtain preliminary relief.3 Because the affirmative claims pending against JPMorgan Chase before this Court are separate from and tangential to the foreclosure action initiated by JPMorgan Chase, they cannot provide a basis for this Court to enjoin the foreclosure action, even if the Court were to agree with Ms. Almazon that the state court's denial of her motion to reargue was void because it was entered prior to the remand of the foreclosure action from this Court. Second, to the extent that Ms. Almazon's request can be construed to be a motion for this Court to reconsider the remand of the foreclosure proceeding, that request must be denied. As Plaintiff's counsel previously acknowledged, Dkt. 22 at 3 n.2, the removal was improper, and Plaintiff has provided no legalbasis for the Court to reconsider the remand decision.4 Third, to the extent that Plaintiff seeks a stay so that she can once again remove the foreclosure action to federal court, there is no serious dispute that this Court may not vacate the judgment of foreclosure issued by the state court, even if the foreclosure action were once again before this Court.5 See Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 426-27 (2d Cir. 2014) (); Ford v. U.S. Dep't of Treasury I.R.S., 50 F. App'x 490, 491 (2d Cir. 2002) (). And because Ms. Almazon has not demonstrated any possibility of obtaining the ultimate remedy she seeks from this Court, i.e., a vacatur of the judgment of foreclosure, it would also not be in the public interest to grant her preliminary relief.
For those reasons, Ms. Almazon's letter, which the Court construes as a motion for a TRO, is DENIED. Although Plaintiff requested that this Court permit an interlocutory appeal in the event of a denial of the motion for a TRO, such permission is not necessary because, given the timing of the foreclosure sale, this Court's decision can be effectively challenged only by animmediate appeal. See First Eagle SoGen Funds, Inc. v. Bank for Int'l Settlements, 252 F.3d 604, 607 (2d Cir. 2001).
Date: December 16, 2019
New York, New York
/s/_________
VALERIE CAPRONI
1. Among other problems, the notice of removal was not filed within 30 days of service of the initial pleading and should have been filed in the Eastern District of New York, where Nassau County is located. See 28 U.S.C. § 1446(a)-(b); 28 U.S. C. § 112.
2. Plaintiff's counsel has moved to be relieved from representation. Dkts. 35-36.
3. In a supplemental submission to the Court, Plaintiff cites to a case from the District of New Jersey, which held that a federal court may, at any time, pursuant to the Anti-Injunction Act and All Writs Act, assume jurisdiction and enjoin a state proceeding, if the litigation in state court has the effect of eviscerating the federal court's order. Atl. Coast Demolition & Recycling, Inc. v. Bd. of Chosen...
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