Zapotocky v. Cit Bank, N.A.

• Decision Date: 21 June 2018
• Docket Number: 17–cv–6377 (JGK)
• Citation: 587 B.R. 589
• Parties: Darren P. ZAPOTOCKY, Plaintiff, v. CIT BANK, N.A., Defendant.
• Court: U.S. District Court — Southern District of New York

587 B.R. 589

Darren P. ZAPOTOCKY, Plaintiff,

v.CIT BANK, N.A., Defendant.

17–cv–6377 (JGK)

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

Signed June 21, 2018

Filed June 22, 2018

Darren P. Zapotocky, Bridgeport, CT, for Plaintiff.

Catherine E. Welker, Nafiz Cekirge, New York, NY, for Defendant.

MEMORANDUM OPINION & ORDER

JOHN G. KOELTL, District Judge:

The pro se plaintiff, Darren P. Zapotocky, brings this action alleging that CIT Bank, N.A., breached his reverse mortgage contract by requiring him to obtain flood insurance. Zapotocky also challenges a foreclosure judgment entered against him in Connecticut state court.

CIT now moves pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss this action for lack of subject matter jurisdiction and for failure to state a claim. CIT argues that Zapotocky lacks standing to bring this claim because he forfeited it during a personal bankruptcy and that the Court lacks jurisdiction under the so-called Rooker– Feldman Doctrine. See generally Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284–88, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). CIT also argues that Zapotocky's claims are barred by the doctrine of res judicata and that he fails to state any claim for relief. For the reasons explained below, CIT's Rule 12(b)(1) motion is granted , and Zapotocky's claims are dismissed without prejudice.

I.

When presented with both a motion under 12(b)(1) to dismiss for lack of subject matter jurisdiction and a motion under Rule 12(b)(6) to dismiss for failure to state a claim upon which relief can be granted, the first issue is whether the Court has the subject matter jurisdiction necessary to consider the merits of the action. See Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) ; see also Graham v. Select Portfolio Servicing, Inc., 156 F.Supp.3d 491, 499 (S.D.N.Y. 2016).

To prevail against a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of proving the Court's jurisdiction by a preponderance of the evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In considering such a motion, the Court generally must accept the material factual allegations in the complaint as true. See J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). The Court does not, however, draw all reasonable inferences in the plaintiff's favor. Graubart v. Jazz Images, Inc., No. 02-cv-4645, 2006 WL 1140724, at *2 (S.D.N.Y. Apr. 27, 2006) ; see also Graham, 156 F.Supp.3d at 499.

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; see also Burke v. Metro. Transp. Auth., No. 09-cv-3291, 2009 WL 4279538, at *2 (S.D.N.Y. Dec. 1, 2009).

The pleadings and allegations of a pro se plaintiff must be construed liberally for the purposes of deciding motions pursuant to Rules 12(b)(1) and 12(b)(6). See McKithen v. Brown, 481 F.3d 89, 96 (2d. Cir. 2007) ; Weixel v. Bd. of Educ., 287 F.3d 138, 145–46 (2d Cir. 2002). The submissions of a pro se litigant should be interpreted to "raise the strongest arguments that they suggest." Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) ); see also Burke, 2009 WL 4279538, at *2.

The complaint is deemed to include any documents incorporated in it by reference. Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). "[W]hen a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint, the court may nevertheless take the document into consideration in deciding the defendant's motion to dismiss, without converting the proceeding to one for summary judgment." Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam) (internal quotation marks omitted). "A court may [also] take judicial notice of the records of state administrative procedures, as these are public records, without converting a motion to dismiss to one for summary judgment." Evans v. N.Y. Botanical Garden, No. 02-cv-3591, 2002 WL 31002814, at *4 (S.D.N.Y. Sept. 4, 2002). Furthermore, a court must deem a pro se plaintiff's complaint to include the facts contained in any submissions filed by the plaintiff in response to a motion to dismiss. Le Grand v. Evan, 702 F.2d 415, 416 n.3 (2d Cir. 1983).

II.

The Court accepts the following allegations as true for the purposes of this motion to dismiss.

Zapotocky is a citizen of Connecticut. CIT is a New York corporation with is principal place of business in New York. Am. Compl. 2–3.

On August 25th, 2006, Zapotocky obtained a reverse mortgage loan from Cambridge Home Capital, LLC, secured by a mortgage on his home in Connecticut. Am. Compl. 5; see Welker Decl. Exs. 1, 2. In July, 2015, Zapotocky's mortgage was assigned to OneWest Bank, N.A., now known as CIT Bank, N.A.. Welker Decl. Ex. 3.

In or around 2008, Zapotocky was notified that he was required under the reverse mortgage agreement to obtain flood insurance. Am. Compl. 5. Zapotocky claims that the flood insurance was prohibitively expensive and made "it impossible for [him] to pay the required taxes on [his] mortgaged house and property." Id.

In May, 2016, CIT commenced a foreclosure action against Zapotocky in the Superior Court of the State of Connecticut (the "Superior Court"). Welker Decl. Ex. 4. On October 13, 2016, the Superior Court granted CIT's "Motion For Default—Failure to Plead" after Zapotocky failed to respond in the foreclosure action. Welker Decl. Ex. 6. On November 28, 2016, Zapotocky requested argument to discuss "irregularities" in his reverse mortgage contract. Welker Decl. Ex. 8. On December 5, 2016, the Superior Court entered an Order of Judgment of Foreclosure by Sale (the "Foreclosure Judgment"), and set a sale date of March 4, 2017. Welker Decl. Ex. 9.

Zapotocky submitted various documents and requests for relief in response to the entry of the Foreclosure Judgment. See Welker Decl. Exs. 10–11. On January 10, 2017, the Superior Court granted a motion by Zapotocky to open the Foreclosure Judgment and set a new sale date of April 8, 2017. Welker Decl. Ex. 12.

In November, 2015, Zapotocky filed a petition for bankruptcy pursuant to Chapter 7 of the Bankruptcy Code. On February 24, 2016, Zapotocky received a discharge under 11 U.S.C. § 727. On April 6, 2017, without disclosing his prior bankruptcy petition, Zapotocky filed a bankruptcy petition under 11 U.S.C. Chapter 13, in the District of Connecticut. The Bankruptcy Court dismissed Zapotocky's petition on April 26, 2017, because of his February 24, 2016, discharge. Welker Decl. 14. Zapotocky did not disclose any of the current claims during his 2015 bankruptcy filing, and that bankruptcy case is now closed. Welker Decl. Ex. 13.

On August 10, 2017, Zapotocky filed in the Superior Court another motion to open the Foreclosure Judgment and to extend the foreclosure sale date. See Welker Decl. Ex. 15.

On August 22, 2017, Zapotocky filed an action in this Court seeking relief from the requirement to purchase flood insurance and from the foreclosure proceedings in Connecticut. Zapotocky simultaneously filed a motion to proceed in forma pauperis. Dkt. Nos. 1, 2.

On September 11, 2017, the Superior Court granted Zapotocky's August 10. 2017, motion to open the Foreclosure Judgment. The Superior Court stayed the foreclosure sale of the property until December 9, 2017. Welker Decl. Exs. 15.

On September 27, 2017, this Court granted Zapotocky's motion to proceed in forma pauperis. Dkt. No. 3. On October 3, 2017, the Court dismissed Zapotocky's federal action on the ground that the claims were time-barred by the relevant statutes of limitations but granted Zapotocky leave to amend. Dkt. No. 4. Zapotocky filed an amended complaint in this Court on November 16, 2017. Dkt. No. 6. In his amended complaint, Zapotocky alleges that, after he signed the reverse mortgage agreement, CIT forced him to obtain flood insurance in violation of the agreement, and that purchasing flood insurance caused Zapotocky to be unable to make the required payments on his mortgage. Am. Compl. 5.

On December 9, 2017, Zapotocky's property was sold to CIT in a foreclosure sale. Welker Decl. Ex. 16.

On December 26, 2017, Zapotocky filed in the Superior Court a "Motion to Stop Foreclosure Action," citing the action filed in this Court as a reason to stop the foreclosure sale. Welker Decl. Ex. 17. On March 7, 2018, the Superior Court ordered Zapotocky to submit by March 12, 2018, a copy of the federal complaint that had been filed in this Court. Welker Decl. Ex. 18. Zapotocky did not file a copy of his federal complaint with the Superior Court, and the Superior Court consequently denied his December 26, 2017, motion to stop the foreclosure sale. Welker Decl. Ex. 19. On April 9, 2018, Zapotocky filed an appeal in Connecticut State court from the Superior Court's March 12, 2018, order denying his motion to stop the foreclosure sale. Welker Decl....