Tope v. Equity Now, Inc. et al

Filing 69

ORDER denying 62 Motion for Reconsideration. The Clerk shall effect prompt remand and close the file. Signed by Judge Stefan R. Underhill on 7/13/2017. (Landman, M)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ACHYUT TOPE,
Plaintiff,

No. 3:16-cv-2067 (SRU)

v.
EQUITY NOW, INC., U.S. BANK, AS
TRUSTEE FOR SECURITIZED TRUST
CITIGROUP MORTGAGE LOAN TRUST
2006-4; CITIGROUP GLOBAL
MARKETS REALTY CORPORATION;
CITIGROUP MORTGAGE LOAN
TRUST, INC.; CITIMORTGAGE, INC.,
WELLS FARGO BANK, N.A.,
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
Defendants.
Ruling on Motion for Reconsideration
On November 17, 2016, Achyut Tope file this action, pro se, in Connecticut Superior
Court. On December 15, 2016, the case was removed, and on May 16, 2017, I held a hearing in
which I dismissed a portion of Tope’s complaint and remanded the remaining portion to state
court. I instructed the Clerk to wait to effect remand because Tope indicated he wished to file a
motion for reconsideration of my ruling. On May 22, 2017, the defendants filed a motion for
reconsideration, seeking that I reconsider my ruling that Counts 6 and 7, and the portion of Count
1 pertaining to wrongful foreclosure must be remanded to state court for want of subject matter
jurisdiction. Tope did not file a motion a motion for reconsideration but did oppose the
defendants’ motion. I assume the parties’ familiarity with the facts.

I.

Standard of Review
The standard for granting motions for reconsideration is strict; motions for

reconsideration “will generally be denied unless the moving party can point to controlling
decisions or data that the court overlooked—matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995). Motions for reconsideration will not be granted where the party merely
seeks to relitigate an issue that has already been decided. Id. The three major grounds for
granting a motion for reconsideration in the Second Circuit are: (1) an intervening change of
controlling law, (2) the availability of new evidence, or (3) the need to correct a clear error or
prevent manifest injustice. Virgin Atlantic Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245,
1255 (2d Cir. 1992) (citing 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice & Procedure § 4478).
The primary function of a motion for reconsideration “is to present the court with an
opportunity to correct manifest errors of law or fact or to consider newly discovered evidence.”
LoSacco v. City of Middletown, 822 F. Supp. 870, 876 (D. Conn. 1993), aff’d, 33 F.3d 50 (2d
Cir. 1994). A court is permitted to reconsider its ruling if such ruling overlooked controlling
data or law that, had it been considered, would have altered the court’s conclusion. Shrader, 70
F.3d at 257.
II.

Discussion
The defendants request that I reconsider my ruling remanding certain claims to state court

on account of my conclusion that I lack subject matter jurisdiction under the Rooker-Feldman
doctrine. See Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005). In
support of their request for reconsideration, they cite what they believe to be controlling case law
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that I overlooked. Specifically, they argue that my ruling is foreclosed by the Supreme Court’s
ruling in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 292 (2005). In Exxon
Mobil, the Court considered a situation in which there was parallel state and federal litigation at
the time the state court entered judgment. Id. The Court held that the entry of judgment by the
state court, while the two actions were both pending, did not trigger the Rooker-Feldman
doctrine barring the federal suit. Id. What Exxon Mobil did not consider is whether the doctrine
of Rooker-Feldman applies to bar a federal suit seeking review of a state court judgment
notwithstanding the fact that the plaintiff in the state court action had moved to reopen that
judgment. That is the situation that I considered at the May 16, 2017 hearing, and which I
discuss now.
Following the Supreme Court’s decision in Exxon Mobil, the Second Circuit identified
four requirements for the application of Rooker-Feldman. Hoblock, 422 F.3d at 85 (“First, the
federal-court plaintiff must have lost in state court. Second, the plaintiff must complain of
injuries caused by a state-court judgment. Third, the plaintiff must invite district court review
and rejection of that judgment. Fourth, the state-court judgment must have been rendered before
the district court proceedings commenced[.]”) (internal quotation marks, footnotes, and
alterations omitted). The fourth requirement, known as the “timing requirement,” is typically
straightforward. Id. at 89. It may, however, be complicated to the extent that the federal suit
seeks to challenge an interlocutory state judgment. Id.
The Second Circuit has not yet addressed whether the Rooker-Feldman doctrine permits a
federal suit to be filed after the state court enters a judgment but before the state proceedings
have been terminated. See Gallaher v. US Bank Nat’l Ass’n, 2016 WL 1118239, at *6 (D. Conn.
Mar. 22, 2016). Based on the fact that both Rooker and Feldman related to federal suits filed

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after the state proceedings ended, it is some courts’ view that the Rooker-Feldman doctrine does
not preclude federal suits filed after a state court judgment but before those proceedings have
been terminated. See In re Haven Eldercare, LLC, 2012 WL 90179, at *2 (D. Conn. Jan. 10,
2012), aff’d, 503 F. App’x 13 (2d Cir. 2012) (collecting cases). Other courts permit such suits,
pointing to language in Exxon Mobil indicating that the Rooker-Feldman doctrine prohibits
federal district court review of state-court judgments. See id. Courts within this District that
have raised the issue have been generally inclined to rule on other grounds to avoid reaching the
issue. See id., at *3; see also Gallaher, 2016 WL 1118239, at *6.
At the May 16, 2017 hearing, I held that the Rooker-Feldman doctrine applied
notwithstanding the fact that, though a judgment of foreclosure had been rendered, the state court
proceedings had not yet been terminated at the time the federal case was initiated. That holding
is not contrary to controlling case law. In fact, the very case on which I relied at oral argument
ordered a remand under circumstances similar to this case. See Vossbrinck v. Accredited Home
Lenders, Inc., 773 F.3d 423, 428 (2d Cir. 2014); see also Omotosho v. Freeman Inv. & Loan, 136
F. Supp. 3d 235, 242 (D. Conn. 2016) (applying Rooker-Feldman doctrine notwithstanding the
fact that plaintiff filed subsequent motions to reopen in state action during pendency of the
federal action). In Vossbrinck, the Court held that the Rooker-Feldman doctrine required
remand of a federal action that was filed after a state court judgment but before the conclusion of
those state proceedings. Vossbrinck, 773 F.3d at 426 n.1 (“Although the state proceedings
continued after entry of the foreclosure judgment, with Vossbrinck filing an appeal and a motion
to reopen the judgment, Vossbrinck does not argue that the relevant state judgment was not
‘rendered before the district court proceedings commenced’ for Rooker–Feldman purposes.”).

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In the instant suit, a judgment of strict foreclosure of the property at issue was entered in
Connecticut Superior Court, Judicial District of New Haven, on September 26, 2016. Following
that judgment, Tope filed the instant suit, which sought, in part, review of that judgment.
Because subject matter jurisdiction must be determined at the outset of the case, I must consider
whether there was subject matter jurisdiction at the time the federal case was filed. See Herrick
Co. v. SCS Commc’ns, Inc., 251 F.3d 315, 329 (2d Cir. 2001). At that time, the state court had
issued its final judgment. By filing the instant action, at least with respect to the allegations at
issue in this motion for reconsideration, Tope sought review of that state court judgment.
Accordingly, that aspect of his complaint is barred by the Rooker-Feldman doctrine. The fact
that there were subsequent motions to reopen and new judgments entered does not alter my
conclusion that, at the time the action was filed, Tope was a state court loser seeking review of a
state court judgment.1
III.

Conclusion
In sum, defendants have not presented any evidence or controlling case law that would

cause me to reconsider my prior decision, nor have they identified manifest injustice in need of
correcting. For the foregoing reasons, defendants’ motion for reconsideration (doc. # 62) is
denied. The Clerk shall effect prompt remand of this case and close the file.
So ordered.
Dated at Bridgeport, Connecticut, this 13th day of July 2017.

/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge
1

I note that, although new judgments of strict foreclosures continued to be issued throughout the pendency of this
action, at no point was there a substantive modification to the initial foreclosure judgment. The new judgments
operated, as far as I can tell, solely to extend the period in which Tope has a right to redeem his property.

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