Tornheim v. Federal Home Loan Mortg. Corp.

• Decision Date: 26 September 1997
• Docket Number: No. 96 Civ. 5258 PKL AJP.,96 Civ. 5258 PKL AJP.
• Citation: 988 F.Supp. 279
• Parties: Chaya TORNHEIM & Chaim Tornheim, Plaintiffs, v. FEDERAL HOME LOAN MORTGAGE CORP., Source one Mortgage Services Corp. and Five Brothers Mortgage Company Services and Securing, Inc., Defendants. FIVE BROTHERS MORTGAGE COMPANY SERVICES and Securing, Inc., Defendant and Third-Party Plaintiff, v. Chris KERVANDJIAN, Mike Piork, and Northeast Property Inspector, Third-Party Defendants.
• Court: U.S. District Court — Southern District of New York

988 F.Supp. 279

Chaya TORNHEIM & Chaim Tornheim, Plaintiffs, v. FEDERAL HOME LOAN MORTGAGE CORP., Source one Mortgage Services Corp. and Five Brothers Mortgage Company Services and Securing, Inc., Defendants.

FIVE BROTHERS MORTGAGE COMPANY SERVICES and Securing, Inc., Defendant and Third-Party Plaintiff, v. Chris KERVANDJIAN, Mike Piork, and Northeast Property Inspector, Third-Party Defendants.

No. 96 Civ. 5258 PKL AJP.

United States District Court, S.D. New York.

September 26, 1997.

COPYRIGHT MATERIAL OMITTED

Chaya and Chaim Tornheim, New York City, pro se.

John R. Goldman, Herrick, Feinstein, LLP, New York City, for Defendants Fed. Home Loan and Source One.

Nick Filacouris, Asmenakis & Asmenakis, New York City, for Defendant Five Bros.

Catherine Kervandjian, Forest Hills, NY, pro se.

MEMORANDUM ORDER

LEISURE, District Judge.

Plaintiffs, pro se, brought this action alleging seven separate claims: (1) trespass, (2) infliction of emotional distress, (3) deprivation of the reasonable value of the use of their home during the period of their alleged ouster, plus treble damages, (4) conversion of plaintiffs' personal property, (5) invasion of privacy, and (6) and (7) violations of the Fair Debt Collection Practices Act. The court referred this matter to the Honorable Andrew J. Peck, United States Magistrate Judge, for general pretrial supervision and the handling of defendant Federal Home Loan Mortgage Corp.'s ("FHLMC") and defendant Source One Mortgage Services Corp.'s ("Source One") motion for summary judgment.

On June 16, 1997, Judge Peck issued a Report and Recommendation (the "Report") advising this Court to grant the defendants' motion for summary judgment but to deny their request for sanctions and attorneys' fees. Judge Peck sua sponte recommended granting summary judgment in favor of defendant Five Brothers Mortgage Company Services and Securing, Inc. ("Five Brothers"), which also would moot Five Brothers' claim against third-party defendants.

Plaintiffs have submitted objections to the Report. The Court has reviewed Judge Peck's Report and made a de novo determination, as required by 28 U.S.C. § 636(b)(1), that the Report's conclusions are legally correct and proper. See United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412, 65 L.Ed.2d 424 (1980) ("[Section 636(b)(1) ] permit[s] whatever reliance a district judge, in the exercise of sound judicial discretion, [chooses] to place on a magistrate's proposed findings and recommendations.") In addition, the Court has considered plaintiffs' objections and finds them to be without merit. The Court therefore adopts the Report, subject to the clarifications offered infra.

As the relevant facts of the instant case and the appropriate standard for summary judgment are set forth at length in the Report, the Court need not present them here. The Court notes that it grants summary judgment on plaintiffs' trespass claim not because plaintiffs are estopped from bringing the trespass claim, as the Report advised, but because they are unable to demonstrate a genuine issue of material fact as to a necessary element of the cause of action.

Under New York law, which indisputably applies to the instant case:

Trespass is the interference with a person's right to possession of real property either by an unlawful act or by a lawful act performed in an unlawful manner. The act must be intentional and the damages a direct consequence of the defendant's act.

Annutto v. Town of Herkimer, 56 Misc.2d 186, 189, 288 N.Y.S.2d 79, 84 (N.Y.Sup.1968)(citing 87 C.J.S. Trespass § 4). Plaintiffs have failed to satisfy their burden of showing that there exists a genuine issue of material fact as to the element of damages caused as a result of the alleged trespass. Plaintiffs not only have offered no evidence showing damages caused by the alleged trespass to their real property, but affirmatively admit, "We are not seeking to recover damages done to the house." Plaintiffs' Declaration in Opposition to Defendants' Motion for Summary Judgment, at ¶ 6. As plaintiffs offer no evidence to satisfy a necessary element of their trespass claim, it is appropriate to grant summary judgment on this claim in favor of defendants.

The Court also notes that it considers plaintiffs' claim for invasion of privacy be considered time-barred, as recommended by Magistrate Judge Peck. In a footnote, the Report states, "The Tornheims' bankruptcy filing did not toll the statute of limitations for purposes of actions brought by the Tornheims, but rather only for actions brought against them." See Report at 286, fn. 5. However, pursuant to the § 108(a) of the Bankruptcy Code:

If applicable nonbankruptcy law ... fixes a period within which the debtor may commence an action, and such period has not expired before the date of the petition, the trustee may commence such action only before the later of —

(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or

(2) two years after the order for relief.

11 U.S.C. § 108(a).

The Report notes that plaintiffs' claim for invasion of privacy must be construed as a claim under New York Civil Rights Law § 51, and that the applicable limitations period is one year. See Report at 285-86 (citing NYCPLR § 215(3).) The latest alleged break-in having occurred in August of 1993, see Report at 10, plaintiffs normally would have had until August of 1994 to file a complaint alleging invasion of privacy. See CPLR § 215(3). However, the Tornheims' filing for voluntary bankruptcy protection pursuant to Chapter 11 of the Bankruptcy Code tolled the statute of limitations. See 11 U.S.C. § 108(a). Since their petition was filed on January 4, 1994, see Report at 283, plaintiffs had until January 4, 1996, to file their complaint alleging invasion of privacy. See 11 U.S.C. § 108(a).¹ As their initial Complaint in the instant case was not filed until July 15, 1996, plaintiffs' claim for invasion of privacy is time-barred.

CONCLUSION

For the reasons stated in the Report, plaintiffs' claims against the defendants and third-party plaintiffs' claims against third-party defendants are HEREBY DISMISSED.

SO ORDERED.

REPORT AND RECOMMENDATION

PECK, United States Magistrate Judge.

To the Honorable Peter K. Leisure, United States District Judge:

Defendants entered plaintiffs' home, on which defendant Federal Home Loan Mortgage Corp. ("FHLMC") held the mortgage, to protect FHLMC's interest in the property. Some three years later, plaintiffs sued for, inter alia, trespass, conversion, invasion of privacy and infliction of emotional distress. Defendants FHLMC and Source One Mortgage Services Corp. ("Source One") (FHLMC and Source One are collectively referred to as FHLMC) have moved for summary judgment. For the reasons set forth below, because all of the Tornheims' claims fail to state a claim or are barred by the doctrine of collateral estoppel or the applicable statute of limitations, the Court recommends that all defendants be granted summary judgment.

FACTS

Plaintiffs Chaim and Chaya Tornheim, husband and wife, defaulted on a mortgage held by defendant FHLMC on plaintiffs' home at 2027 New York Avenue, Brooklyn, New York (the "premises"). (FHLMC 3(g) ¶¶ 1-3; see Pls.' 3(g).) In February 1993, FHLMC commenced an action to foreclose the mortgage. (FHLMC 3(g) ¶ 3; see Pls.' 3(g).) Source One, on behalf of FHLMC, requested Five Brothers Mortgage Company Services & Securing Inc. ("Five Brothers") to inspect and monitor the premises as necessary to protect it from harm during the foreclosure action. (FHLMC 3(g) ¶ 4; see Pls.' 3(g).)

The Tornheims allege that Five Brothers conducted an inspection of the premises on July 19, 1993 in order to determine its occupancy status, and that although the Tornheims still occupied the premises, Five Brothers replaced the locks and shut the utilities. (Am.Cplt. ¶ 15.) The Tornheims also allege that Five Brothers destroyed all of plaintiffs' personal possessions. (Am.Cplt. ¶ 39.) The Tornheims allege that similar break-ins and lock replacements took place on July 26, 1993 and in mid-August 1993, resulting in their illegal ejection from the premises. (Am. Cplt. ¶¶ 17, 19.)

The Tornheims filed the instant action on July 15, 1996, and filed an amended complaint on September 7, 1996. Their Amended Complaint alleges seven separate claims: (1) trespass; (2) infliction of emotional distress; (3) an action for the reasonable value of the use of the premises during the period of the Tornheims' ouster, plus treble damages; (4) conversion of plaintiffs' personal property; (5) invasion of privacy; and both (6) and (7) for violations of the Fair Debt Collection Practices Act ("FDCPA"). Plaintiffs have voluntarily withdrawn the sixth and seventh claims under the FDCPA. (See Pls.' Br. at 2 ("As is set forth in our declaration we are willing to drop the claims asserted under the Fair Debt Collection Act, thus, there is no need to discuss the applicability of the act."); Tornheim Aff. ¶ 32.) The Tornheims also have dropped their claims for damages done to the house. (See Tornheim Aff. ¶ 6 ("We are not seeking to recover damages done to the house."); Pls.' 3(g) ¶ 1 ("Claims to physical damage to the real property are not at issue herein"), ¶ 9.)

PRIOR BANKRUPTCY COURT PROCEEDINGS

On January 4, 1994, the Tornheims filed a voluntary bankruptcy petition pursuant to Chapter 11. (FHLMC 3(g) ¶ 6; see Pls.' 3(g); Goldman Aff. Ex. B: Tornheim Bankruptcy Petition.) On March 14, 1994, FHLMC filed a motion to vacate the automatic stay in order to continue the foreclosure action. (FHLMC 3(g) ¶ 8.) On March 25, 1994, the Tornheims objected to that motion on the basis that, inter alia: (1) the Tornheims' lack of equity in the premises resulted from its devaluation caused by defendants' break-ins and damage done by defendants to the premises, and (2) the alleged wrongdoing, including the break-ins and...