PHH Mortg. Corp. v. Mongiello

• Court: U.S. District Court — Southern District of New York
• Docket Number: 25-cv-9852 (KMK)
• Decision Date: 22 January 2026
• Citation: PHH Mortg. Corp. v. Mongiello, 25-cv-9852 (KMK) (S.D. N.Y. Jan 22, 2026)
• Parties: PHH MORTGAGE CORPORATION, Plaintiff, v. CHRISTOPHER MONGIELLO, et al., Defendants.

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PHH MORTGAGE CORPORATION, Plaintiff, v. CHRISTOPHER MONGIELLO, et al., Defendants.

No. 25-cv-9852 (KMK)

United States District Court, S.D. New York

January 22, 2026

Kelly Ann Poole, Esq. Aldridge Pite, LLP

Christopher Mongiello Defendant, Pro Se

DEFENDANTS CHRISTOPHER MONGIELLO AND AMERICO MONGIELLO'S JOINT MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(1), 12(b)(5), AND 12(b)(6)

PRELIMINARY STATEMENT

DEFENDANTS AMERICO MONGIELLO AND CHRISTOPHER MONGIELLO were served with the original complaint even though they are informed believe and thereon allege that this court ordered the Plaintiff to file an amended complaint in this case. The motion to dismiss is based on the same grounds for both Defendants, and therefore in order to avoid the court having to read multiple pleadings on the same grounds, they jointly file this motion to dismiss on the basis that this Foreclosure action fails at every jurisdictional and substantive level. Plaintiff PHH Mortgage Corporation (“PHH”) commenced this case in federal court without properly invoking diversity jurisdiction, served a jurisdictionally defective pleading in violation of Rule 4, and seeks to foreclose on a mortgage that-by PHH's own admissions-is time-barred and unenforceable as a matter of New York law.

Most strikingly, this Court has already identified the jurisdictional defects in PHH's pleading sua sponte. Rather than cure those defects before service, PHH proceeded to serve Defendants with a complaint that never invoked this Court's jurisdiction in the first place. That error alone requires dismissal.

Even setting jurisdiction aside, PHH's own Complaint pleads facts establishing that the statute of limitations expired years ago. Under settled New York law, once a mortgage is time-barred, there is no “enforceable portion” of the debt left to collect. PHH's attempt to foreclose anyway is legally frivolous. Because (1) subject-matter jurisdiction was never established, (2) service was ineffective, (3) the foreclosure claim is time-barred on the face of the pleading, and (4) PHH affirmatively pleads that it seeks to collect only “enforceable” debt when none exists, the Complaint must be dismissed-with prejudice.

DEFENDANT CHRISTOPHER MONGIELLO AND AMERICO MONGIELLO'S JOINT MOTION TO DISMISS THE COMPLAINT

Christopher Mongiello (“Defendant”) AND Americo Mongiello jointly respectfully move to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6). As set forth below, dismissal is required because Plaintiff failed to establish subject-matter jurisdiction, effected service of a jurisdictionally defective pleading, and pleaded facts that affirmatively establish that the mortgage it seeks to foreclose is time-barred and unenforceable as a matter of New York law. In addition, Plaintiff's standing rests on facially void mortgage assignments executed through MERS by Wendy Traxler on behalf of IndyMac Bank, F.S.B. after IndyMac's failure, which New York courts have repeatedly held cannot convey enforceable foreclosure rights.

I. THE COURT LACKS SUBJECT-MATTER JURISDICTION BECAUSE PLAINTIFF FAILED TO ADEQUATELY ALLEGE COMPLETE DIVERSITY

Federal courts are courts of limited jurisdiction, and “it is to be presumed that a cause lies outside this limited jurisdiction unless and until jurisdiction has been affirmatively demonstrated.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The burden of establishing jurisdiction rests squarely on the party invoking it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

Plaintiff purports to invoke diversity jurisdiction under 28 U.S.C. § 1332. The Complaint, however, fails to allege facts sufficient to establish complete diversity. Although Plaintiff asserts that it is a “citizen of New Jersey,” it does not allege its state of incorporation, which is a mandatory component of corporate citizenship under § 1332(c)(1). See Hertz Corp. v. Friend, 559 U.S. 77, 80-81 (2010). That omission alone renders the jurisdictional allegations inadequate.

More fundamentally, the Complaint fails to allege the citizenship of multiple named defendants, including HSBC Bank USA, N.A.; Capital One Bank USA, N.A.; Ressler & Associates; and the Board of Managers of Davenport Lofts on Main Condominium. Where a defendant is a national banking association, citizenship must be pleaded in accordance with Wachovia Bank v. Schmidt, 546 U.S. 303, 318 (2006). Where a defendant is an unincorporated association or condominium board, the citizenship of each member must be alleged. Carden v. Arkoma Assocs., 494 U.S. 185, 195-96 (1990); Prime Prop. & Cas. Ins., Inc. v. Cardenas, No. 23-CV-935, 2023 WL 1797268, at *1 (S.D.N.Y. Feb. 7, 2023).

These are not technical pleading defects. Where “there is a possibility that a party's citizenship might destroy diversity, then the pleading is insufficient to establish diversity jurisdiction.” Kruglov v. Copart of Conn., Inc., 771 Fed.Appx. 117, 118 (2d Cir. 2019) (summary order). That is precisely the case here.

The complaint alleges that “BOARD OF MANAGERS OF DAVENPORT LOFTS ON MAIN CONDOMINIUM is made a party defendant due to any possible liens against the property for unpaid common or maintenance charges.” But fails to allege the citizenship of each member of the board.

This Court has already recognized these deficiencies. In its December 8, 2025 Order, Judge Karas expressly held that Plaintiff failed to allege the citizenship of all parties and ordered Plaintiff to show cause or amend. That Order confirms that jurisdiction was never properly invoked at commencement.

Because subject-matter jurisdiction was never established, the Court “cannot proceed at all in any cause.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998). Dismissal under Rule 12(b)(1) is therefore required.

II. SERVICE OF PROCESS WAS INSUFFICIENT BECAUSE PLAINTIFF SERVED A JURISDICTIONALLY DEFECTIVE COMPLAINT

Even if Plaintiff could now cure its jurisdictional allegations, dismissal is independently required under Rule 12(b)(5) because Plaintiff served Defendants with the original complaint - the same complaint this Court determined failed to invoke federal jurisdiction.

Service of process must be effected with a valid operative pleading. Where a complaint is jurisdictionally defective, service of that pleading is ineffective and does not confer personal jurisdiction. Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 569-70 (3d Cir. 1996); Hernandez v. Page, No. 11-CV-3151, 2011 WL 4538080, at *3 (S.D.N.Y. Sept. 28, 2011).

Plaintiff served Defendants with a complaint that failed to establish subject-matter jurisdiction. The Court subsequently identified those defects and ordered corrective action. Plaintiff cannot retroactively validate defective service by later amendment. Because Defendants were never properly served with a complaint invoking this Court's jurisdiction, dismissal under Rule 12(b)(5) is not merely warranted - it is required. Ibid.

III. THE FORECLOSURE CLAIM IS TIME-BARRED ON THE FACE OF THE COMPLAINT

Dismissal under Rule 12(b)(6) is appropriate where a statute-of-limitations defense appears on the face of the complaint. Jones v. Bock, 549 U.S. 199, 215 (2007); Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425-26 (2d Cir. 2008).

Under New York law, a mortgage foreclosure action is subject to a six-year statute of limitations. CPLR § 213(4). Once the limitations period expires, the mortgage is unenforceable. Bank of N.Y. Mellon v. Dieudonne, 171 A.D.3d 34, 38 (2d Dep't 2019).

Plaintiff's own pleading establishes expiration. The Complaint alleges that the last payment was due January 1, 2019, and that interest accrued from December 1, 2018. (Compl. ¶ 22.) This action was commenced on November 26, 2025 - nearly seven years later.

Plaintiff pleads no facts suggesting tolling, revival, or reset of the statute of limitations. Accordingly, the foreclosure claim is time-barred as a matter of law. Wells Fargo Bank, N.A. v. Ferrato, 194 A.D.3d 800, 801 (2d Dep't 2021).

IV. PLAINTIFF'S OWN ALLEGATIONS CONCEDE THAT NO ENFORCEABLE DEBT EXISTS

Plaintiff alleges that it “seeks to collect only that portion of the debt that is enforceable.” (Compl. ¶ 22.) That statement is fatal.

Once the statute of limitations expires, no portion of the mortgage debt remains enforceable, and the lien itself is extinguished as a remedy. HSBC Bank USA, N.A. v. Kirschenbaum, 159 A.D.3d 506, 507 (1st Dep't 2018). A plaintiff may not proceed by carving out an imaginary enforceable remainder where the statute has fully run.

Courts routinely dismiss foreclosure actions where the complaint itself establishes that the debt is time-barred. Fed. Nat'l Mtge. Ass'n v. Mebane, 208 A.D.3d 892, 893 (2d Dep't 2022). Because Plaintiff pleads facts establishing expiration, its own allegation that it seeks only “enforceable” debt necessarily means the recoverable amount is zero.

V. PLAINTIFF LACKS STANDING BECAUSE THE CHAIN OF ASSIGNMENTS IS FACIALLY VOID UNDER NEW YORK LAW (WENDY TRAXLER / MERS / INDYMAC)

Independent of the statute of limitations, dismissal is required because Plaintiff's standing depends on a chain of mortgage assignments that New York courts have repeatedly held to be void and ineffective as a matter of law.

The Complaint relies on assignments executed by MERS through Wendy Traxler on behalf of IndyMac Bank, F.S.B. after IndyMac failed and was placed into FDIC receivership. New York courts have consistently held that MERS cannot assign a mortgage on behalf of IndyMac after IndyMac ceased to exist, and that Wendy Traxler lacked authority to execute such assignments.

See HSBC Bank USA, N.A. v. Roumiantseva, 130...