Gordon v. First Franklin Fin. Corp.

• Decision Date: 29 February 2016
• Docket Number: 15-CV-0775 (SJF)(AKT)
• Parties: PATRICIA GORDON, Plaintiff, v. FIRST FRANKLIN FINANCIAL CORP., US BANK NATIONAL, as Trustee for Merrill Lynch Investors Trust Series 2010-NP1, and BCAT REO LLC, Defendants.
• Court: U.S. District Court — Eastern District of New York

PATRICIA GORDON, Plaintiff, v. FIRST FRANKLIN FINANCIAL CORP.,US BANK NATIONAL, as Trustee for MerrillLynch Investors Trust Series 2010-NP1,and BCAT REO LLC, Defendants.

15-CV-0775 (SJF)(AKT)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

February 29, 2016

OPINION & ORDER

FEUERSTEIN, J.

I. Introduction

On February 13, 2015, pro se plaintiff Patricia Gordon ("plaintiff") commenced this action against defendants First Franklin Financial Corp. ("FFFC"); US Bank National ("US Bank"), as trustee for Merrill Lynch Investors Trust Series 2010-NP1; and BCAT Reo LLC ("BCAT"), pursuant to this Court's diversity of citizenship jurisdiction under 28 U.S.C. § 1332(a), seeking, inter alia, to quiet title to certain real property located at 561 Kirkby Road, Elmont, New York ("the subject premises") and to recover damages for the purported conversion, unjust enrichment, fraud and predatory lending practices of FFFC, US Bank and BCAT (collectively, "defendants"). Pending before the Court are defendants' unopposed motions to dismiss the complaint pursuant to, inter alia, Rule 12(b) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motions are granted to the extent set forth herein and the complaint is dismissed in its entirety with prejudice.

II. Background

A. Factual Background¹

In or about September 2006, plaintiff received a mortgage loan in the amount of approximately four hundred twenty-five thousand six hundred dollars ($425,600.00) from FFFC that was secured by a mortgage on the subject premises. (Complaint ["Compl."], ¶ 8). The mortgage was recorded in the Nassau County Clerk's Office on November 14, 2006.² (Declaration of Scott H. Kaiser in Support of First Franklin's Motion to Dismiss ["Kaiser Decl."], Ex. 3). Plaintiff alleges that "[a]lthough not qualified via income, FICO or other credit criteria, . . . First Franklin offered mortgage financing by [and] through its agent mortgage broker culminating in the instant mortgage loan." (Compl., ¶ 8).

According to plaintiff, pursuant to a "teaser [and] inflation" scheme," presumably perpetrated by FFFC as the originator of the mortgage loan, "[t]he initial mortgage or teaser rate of 7.5% was to be raised via a stated index of no mre [sic] than 5.4% on the delineated anniversary date. The accelerated rates of 10.3% to 13.3% were to be operative." (Compl., ¶ 9) (emphasis omitted). Plaintiff alleges that "this teaser [and] inflation scheme was disproportionately placed upon [her], an Afro-American woman [and] was not visited upon Caucasian or Asian borrowers in like geographic locale [and] in like socio-economic status." (Id.)

After plaintiff defaulted on her obligation to repay the mortgage loan, an action to foreclose on the mortgage was commenced on or about April 25, 2007, (see Notice of Removal filed by plaintiff in 15-cv-5093 ["NOR"], Ex. A(C)), by Deutsche Bank National Trust Company, as trustee for First Franklin Mortgage Loan Trust 2006-FF16, Asset Backed Certificates, Series 2006-FF16 ("Deutsche Bank"), in the Supreme Court of the State of New York, County of Nassau ("the state court"), under index number 7053/2007 ("the foreclosure action"). (Compl., ¶ 10; Kaiser Decl., Ex. 4). A judgment of foreclosure and sale was entered in favor of South Point Inc., which was substituted for Deutsche Bank as the foreclosing lender, and against plaintiff on or about September 25, 2008.³ (NOR, Ex. A(C); Kaiser Decl., Ex. 4). The judgment of foreclosure and sale was recorded in the Nassau County Clerk's Office on September 30, 2008. (Kaiser Decl., Ex. 4).

Plaintiff alleges that she was never "duly served with legal process" in the foreclosure action, (Compl., ¶ 10); and that "[t]he entire foreclosure process was designed to confuse, obfuscate [and] intimidate . . . [her]." (Id.) Nonetheless, on or about August 25, 2011, plaintiff moved in the state court for an order vacating the judgment of foreclosure and sale. (See NOR, Ex. A(C)). By order entered January 30, 2012, the state court, inter alia, denied plaintiff's motion to vacate the judgment of foreclosure and sale. (Kaiser Decl., Ex. 5).

Plaintiff alleges: (1) that FFFC "foreclosed [and] became grantee on [and] conveyed title to . . . US Bank et al [sic] on or about. [sic]," (Compl., ¶ 12); and (2) that US Bank conveyed title to BCAT on July 25, 2014 "solely for purposes of foreclosing upon plaintiff, in violation of the principles of champerty[,]" (Compl., ¶ 13). BCAT is the current owner of the subject premises. (Declaration of Jordan J. Manfro, Esq. ["Manfro Decl."], Ex. B).

B. Procedural History

On February 13, 2015, plaintiff commenced this action against defendants pursuant to this Court's diversity of citizenship jurisdiction under 28 U.S.C. § 1332(a), seeking, inter alia, (1) to quiet title to the subject premises by "expung[ing]" and "eras[ing] entirely forever" defendants' interest therein; (2) to recover compensatory and punitive damages in the amount of one million dollars ($1,000,000.00); and (3) to have judgment entered vacating "any underlying foreclosure judgment regarding the instant parties or predecessors in interest." (Compl. at 5). Plaintiff alleges, inter alia, (1) that "[t]he present deed ostensibly vested in Defendant [sic] is violative [sic] of multifarious sections of New York Law, including improper assignments, defective power of attorney, lack of notaries, ergo Defendant [sic] [and] its predecessors have falsified documentation alleging a non-existent proprietary interest in the mortgage, note [and] fee[,]" (id., ¶ 14) (emphasis omitted); and (2) that "Defendant's present deed is a non-cognizable nullity conferring no interest to defendant[,]" (id., ¶ 15).

Plaintiff further alleges that "[p]ursuant to the express terms of the original mortgage. . ., [she] had paid premiums for Mortgage Insurance and/or forced-place insurance such that the mortgagee bank be recompensed in the event of default[,]" (Compl., ¶ 16); and that "[d]uring the period as of solvency [she] effectuated such payments[,]" (id., ¶ 17). In addition, plaintiff alleges, upon information and belief, (1) that "at the time of [her] insolvency[,] the mortgage servicer or its related entity effectuated such premiums on [her] behalf . . .[,]" (id., ¶ 18); and (2) that "insurance payments have been or have been caused to be paid to the original mortgagee bank, the predecessor in interest to the present defendant, and or [sic] the servicer due to/or on account of [her] allege[d] default. . .[,]" (id., ¶ 19). Thus, according to plaintiff, "defendant" has "visited a fraud upon [her] [and] the judicial system," and seeks to "double-dip" and "unjustly enrich itself," by taking plaintiff's home after it was already compensated for any losses. (Id., ¶¶ 20-22) (emphasis omitted).

Defendants now separately move to dismiss the complaint pursuant to, inter alia, Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a claim for relief. Plaintiff has not opposed the motions, nor sought an extension of time to do so.

III. Discussion

A. Fed. R. Civ. P. 12(b)(1)⁴

1. Standard of Review

As plaintiff is proceeding pro se, her submissions, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007) (quotations and citation omitted); accord Ahlers v. Rabinowitz, 684 F.3d 53,60 (2d Cir. 2012). Nevertheless, pro se plaintiffs are not excused from the normal rules of pleading and dismissal. See Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir. 2008) ("[P]ro se litigants generally are required to inform themselves regarding procedural rules and to comply with them." (quotations and citation omitted)); Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (holding that a party's pro se status "does not exempt [him] from compliance with relevant rules of procedural and substantive law. . . ." (quotations and citation omitted)).

"Federal courts are courts of limited jurisdiction," Gunn v. Minton, — U.S. —, 133 S. Ct. 1059, 1064, 185 L. Ed. 2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994)); see also Mims v. Arrow Fin. Servs., LLC, — U.S. —, 132 S. Ct. 740, 747, 181 L. Ed. 2d 881 (2012), and may not preside over cases absent subject matter jurisdiction. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552, 125 S. Ct. 2611, 162 L. Ed. 2d 502 (2005) (holding that federal courts may not exercise jurisdiction absent a statutory basis); Kokkonen, 511 U.S. at 377, 114 S. Ct. 1673 (holding that federal courts "possess only that power authorized by Constitution and statute * * *.") Lack of subject matter jurisdiction cannot be waived or forfeited and may be raised at any time by a party or by the court sua sponte. See Gonzalez v. Thaler, — U.S. —, 132 S. Ct. 641, 648, 181 L. Ed. 2d 619 (2012); see also Sebelius v. Auburn Reg'l Med. Ctr., — U.S. —, 133 S. Ct. 817, 824, 184 L. Ed. 2d 627 (2013) ("Objections to a tribunal's jurisdiction can be raised at any time, even by a party that once conceded the tribunal's subject-matter jurisdiction over the controversy."); Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 131 S. Ct. 1197, 1202, 179 L. Ed. 2d 159 (2011) ("[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press. * * * Objections to subject-matter jurisdiction * * * may be raised at any time.") If a court lacks subject matter jurisdiction, it must dismiss the action. See Fed. R. Civ. P. 12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006).

"In resolving a motion to dismiss under Rule 12(b)(1), [] district court...