Church-El v. Bank of New York
Filing
61
MEMORANDUM OPINION AND ORDER: IT IS ORDERED that the motion [Doc. No. 50] to dismiss, insofar as such motion was filed by Defendant Bank of New York, is hereby DENIED; and it is further ORDERED that the motion [Doc. No. 50] to dismiss, insofar as such motion was filed by non-parties Bank of America, EquiCorp and Select, is hereby DISMISSED; and it is further ORDERED that Plaintiffs motion [Doc. No. 54] for summary judgment, which is contained within his opposition papers, is hereby DENIED WITHOUT PREJUDICE.. Signed by Judge Noel L. Hillman on 2/18/15. [Copy of Opinion and Order mailed this date to plaintiff at the address noted on the Opinion and Order] (bkb)
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
_________________________________
KHYON ERNEST CHURCH-EL,
Plaintiff,
Civil No. 11-877 (NLH/KW)
v.
MEMORANDUM OPINION
AND ORDER
BANK OF NEW YORK, as Trustee
for the holders of
asset-backed certificate
series 2001-1F,
Defendant.
__________________________________
APPEARANCES:
Khyon Ernest Church-El
1725 West 2nd Street
Wilmington, Delaware 19805
Plaintiff Pro Se
David A. Dorey, Esquire
Blank Rome LLP
1201 North Market Street
Suite 800
Wilmington, Delaware 19801-4226
Counsel for Defendant
HILLMAN, District Judge:
This matter having come before the Court by way of motion
[Doc. No. 50] of Defendant, Bank of New York, as Trustee for the
Holders of Asset-Backed Certificate Series 2001-1F (hereafter,
“BONY”), which motion is also filed by Bank of America
1
Corporation (hereafter, “Bank of America”), EquiCredit
Corporation of America (hereafter, “EquiCredit”), and Select
Portfolio Servicing, Inc. (hereafter, “Select”), seeking to
dismiss Plaintiff’s complaint or, alternatively, for a more
definite statement; and the Court having considered the
submissions of the parties; and having decided this matter
pursuant to Fed. R. Civ. P. 78; and
IT APPEARING AS FOLLOWS:
1.
On September 28, 2011, Plaintiff filed a complaint in
this matter against Defendant BONY pursuant to the “Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, Title 12
of the Delaware Code, and the 1968 Charter Act (Fannie Mae and
Ginnie Mae).”
2.
(Compl. [Doc. No. 1] 1.)
Plaintiff did not timely serve the complaint, and the
Court granted Plaintiff multiple extensions of time to effect
service of process pursuant to Federal Rule of Civil Procedure
4(m). 1
3.
On May 8, 2013, before serving the complaint on
Defendant BONY, Plaintiff filed an untitled document [Doc. No.
1
The parties are aware of the extensive history concerning
Plaintiff’s efforts to serve Defendant in this matter, and the
Court will not recount the details concerning service here. The
service of process issue was discussed at length in the Court’s
March 21, 2013 Opinion [Doc. No. 22] and in the December 31,
2013 Memorandum Opinion [Doc. No. 45], and such discussions are
incorporated herein by reference.
2
24] which the Clerk of the Court construed as a “Proposed
Amended Complaint.”
The document purported to add three new
defendants: Bank of America, EquiCredit and Select.
4.
Shortly thereafter, on May 21, 2013, Plaintiff filed
an “Amended Complaint” in which he also named Bank of America,
EquiCredit and Select as defendants.
5.
In a Memorandum Opinion dated December 31, 2013, the
Court found that the “Proposed Amended Complaint” and the
“Amended Complaint” were not properly filed and had no legal
effect.
(Mem. Op. [Doc. No. 45] 14, Dec. 31, 2013.)
Accordingly, these documents were stricken.
(Id.)
As the Court
noted in the Opinion, “[g]iven that Plaintiff’s ‘Proposed
Amended Complaint’ and his ‘Amended Complaint’ were improper and
have no legal effect here, [Bank of America], Equicredit, and
Select were never actually named as Defendants in this matter
and are not parties to this action.”
6.
(Id. at 14 n.7.)
Also in the December 31, 2013 Opinion, the Court found
good cause “for granting Plaintiff another extension of time
within which to properly effect service of the summons and the
original complaint in this action upon Defendant Bank of New
York.”
7.
(Id. at 16 (emphasis added).)
The Court thus issued an Order dated December 31,
2013, in which it granted Plaintiff an additional sixty (60)
days to effect proper service upon Defendant BONY in accordance
3
with the Federal Rules of Civil Procedure and the Delaware Code.
(Order [Doc. No. 46] 2, Dec. 31, 2013.)
8.
On March 12, 2014, Plaintiff filed proof of service
indicating that service had finally been effected on Defendant
BONY.
Specifically, Plaintiff filed a proof of service form
executed by Alex E. Nepon, Special Process Server with O’Rourke
Investigative Associates, Inc., which indicates that Amy
McLaren, operations manager at Corporation Trust Company, was
served on February 27, 2014.
According to the proof of service
form, Ms. McLaren is authorized to accept service of process on
behalf of BONY.
(Proof of Service [Doc. No. 47].)
Additionally, Plaintiff filed an affidavit of service completed
by Connie Asaro, an agent of O’Rourke Investigative Associates,
Inc., in which she states that she personally served Tom
McCauley with the initial complaint on February 28, 2014.
(Affidavit of Service [Doc. No. 48].)
The Affidavit further
provides that Mr. McCauley “stated that he is authorized to
accept service on behalf of the defendant.”
(Id.)
Finally,
Plaintiff submitted a proof of service form executed by Carmen
J. Verderamo, Special Process Server with O’Rourke Investigative
Associates, Inc., which states that Lisa Hatfield, Esquire,
4
then-counsel for BONY, 2 was served with process on February 27,
2014.
(Proof of Service [Doc. No. 49].)
9.
BONY, Bank of America, EquiCredit and Select now seek
dismissal of the complaint for failure to effect service of
process.
However, as noted above, Bank of America, EquiCredit
and Select are not parties to this action, as the “Proposed
Amended Complaint” and the “Amended Complaint” which purported
to add these entities as defendants were stricken.
[Doc. No. 45] 14.)
(See Mem Op.
Accordingly, to the extent the motion is
filed by non-parties, the motion will be dismissed.
The Court
at this time considers the motion only insofar as it is filed by
2
The Court notes that a substitution of counsel was entered on
behalf of Defendant on September 17, 2014. Pursuant to this
substitution, Ms. Hatfield withdrew her appearance as counsel
for Defendant, and David A. Dorey, Esquire, entered his
appearance as counsel for Defendant. On October 2, 2014
Plaintiff filed an objection to this substitution, asserting
therein that Ms. Hatfield should continue as counsel for
Defendant in this matter. However, “[t]he United States Supreme
Court has recognized that there is a presumption in favor of a
party’s right to choose counsel.” Miller v. Dep’t of Veterans
Affairs, Civ. A. No. 09-159-GMS, 2012 WL 560067, at *3 (D. Del.
Feb. 16, 2012) (citing Wheat v. United States, 486 U.S. 153,
158, 160, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988)). “In civil
matters as well as criminal matters, the right to counsel
includes the right to legal representation of one’s choice.”
Id. (citing McCuin v. Texas Power, 714 F.2d 1255, 1257 (5th Cir.
1983)). The right to counsel of choice “can be overridden” but
only if “there is a compelling reason to do so.” Id. (citing
McCuin, 714 F.2d at 1262-63). Plaintiff fails to provide a
compelling reason why Mr. Dorey should not be permitted to serve
as counsel for Defendant in this matter.
5
Defendant BONY, which is currently the sole defendant in this
action.
10.
In the motion, Defendant BONY contests service upon
Ms. Hatfield or the Corporation Trust Company because this
individual and entity are not authorized to accept service on
behalf of BONY.
(Def.’s Joint Mot. to Dismiss or, in the
Alternative, for More Definite Statement (hereafter, “Def.’s
Mot.”) ¶ 12.)
Defendant contests service upon Mr. McCauley
because “Plaintiff did not serve Mr. McCauley with a copy of the
Amended Complaint . . . [.]”
(Id. ¶ 13.)
Defendant argues that
because Plaintiff amended the complaint two times, the original
complaint “is not the docket upon which the Plaintiff is
proceeding[,]” and Plaintiff’s failure to serve Mr. McCauley
with the amended complaint purportedly renders service of
process ineffective.
11.
(Id.)
Defendant’s argument is premised on the flawed
assumption that Plaintiff was required to serve the amended
complaint.
As noted above, the amended complaint was stricken
by the Court, and Plaintiff was specifically granted an
extension of time to serve the original complaint upon
Defendant.
(Mem Op. [Doc. No. 45] 14, 16.)
Plaintiff served
Mr. McCauley with the original complaint on February 27, 2014.
Defendant does not challenge Mr. McCauley’s ability to accept
service of process on behalf of BONY.
6
Therefore, Mr. McCauley
appears to be an authorized agent for service of process for
BONY, and he was served with the original complaint within sixty
days of the December 31, 2013 Order.
12.
As Defendant raises no other challenge to service of
process, the Court finds that Plaintiff at this time has
properly served process upon Defendant.
Defendant’s motion to
dismiss for insufficient service of process will therefore be
denied. 3
13.
Defendant’s remaining arguments seek dismissal of the
amended complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). 4
Defendant contends that Counts I-IV and Counts VIII-X
concern alleged violations of 15 U.S.C. § 45(a), which is
purportedly not actionable or applicable to the instant matter.
(Def.’s Mot. ¶ 17.)
Defendant also argues that Counts V through
VII, which allege violations of the Fair Debt Collection
Practices Act, are subject to a one-year statute of limitations
and are time-barred because Plaintiff did not file until 2011 a
3
Because Plaintiff effected service of process upon Defendant
through Mr. McCauley, the Court need not address whether
Plaintiff’s efforts to serve Ms. Hatfield and the Corporation
Trust Company were sufficient to constitute service of process
under Federal Rule of Civil Procedure 4.
4
Although titled a “Motion to Dismiss or, in the Alternative,
for More Definite Statement,” the motion solely addresses the
insufficiency of the allegations under Federal Rule of Civil
Procedure 12(b)(6) and fails to set forth any arguments
concerning the need for a more definite statement under Federal
Rule of Civil Procedure 12(e).
7
complaint concerning foreclosure proceedings that occurred in
2006 and 2007.
(Id. ¶ 18.)
As to Counts VIII through X,
Defendant asserts that these claims for alleged violations of
the Fair Credit Reporting Act are also time-barred, because
Plaintiff knew of any alleged violation at least as of October
2008 and was required to file his claim within two years of
discovery of the violation.
(Id. ¶ 19.)
Finally, Defendant
contends that Count XI under the Real Estate Settlement
Procedures Act is time-barred because it was not brought within
three years of the alleged violation.
14.
(Id. ¶ 20.)
Because Defendant seeks to dismiss the allegations in
the amended complaint, which has been stricken and is not the
operative pleading in this matter, the motion to dismiss will be
denied.
15.
The Court notes that the original complaint also
purports to assert claims under the Fair Credit Reporting Act
and the Fair Debt Collection Practices Act, and Defendant’s
arguments concerning the statute of limitations may apply
equally to some of the claims in the original complaint.
However, in the Third Circuit, the Court may only dismiss a
complaint on statute of limitations grounds under Rule 12(b)(6)
where “the bar is . . . apparent on the face of the complaint.”
Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002) (court may
dismiss “only if ‘the time alleged in the statement of a claim
8
shows that the cause of action has not been brought within the
statute of limitations.’”)(quoting Hanna v. U.S. Veterans'
Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975)).
16.
Defendant has not addressed whether the facts, as
alleged in the original complaint, demonstrate that Plaintiff’s
claims are time-barred.
Additionally, while Plaintiff in
opposition to the present motion raises a number of factual
issues extraneous to the pleadings as to why he did not discover
the nature of his claims until 2011, he does not address the
proper standard in determining when a statute of limitations
begins to run.
The statute of limitations does not begin to run
when a plaintiff actually knew of an injury; rather, it begins
to run when a reasonable person should have known that a
violation of law occurred.
Cir. 2009).
Kach v. Hose, 589 F.3d 626, 634 (3d
“‘The cause of action accrues even though the full
extent of the injury is not then known or predictable.
Were it
otherwise, the statute would begin to run only after a plaintiff
became satisfied that he had been harmed enough, placing the
supposed statute of repose in the sole hands of the party
seeking relief.’”
Id. at 634-35 (quoting Wallace v. Kato, 549
U.S. 384, 391, 127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007)).
17.
Because the statute of limitations issue has not been
properly framed by either party, the Court will not consider the
pending motion to dismiss as applied to the original complaint.
9
To the extent Defendant believes that it is clear from the
allegations in the original complaint that the claims asserted
therein are time-barred, Defendant may file another motion and
raise its arguments with specific reference to the allegations
in the original complaint.
18.
The Court also notes that Plaintiff’s opposition to
the pending motion to dismiss contains a request that the Court
enter summary judgment pursuant to Federal Rule of Civil
Procedure 56.
(Pl.’s Response to Def.’s Mot. to Dismiss [Doc.
No. 54] 8-10.)
19.
Summary judgment is appropriate where the Court is
satisfied that “‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,’ . . . demonstrate the absence of a genuine
issue of material fact” and that the moving party is entitled to
a judgment as a matter of law.
Celotex Corp. v. Catrett, 477
U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)
(citing Fed. R. Civ. P. 56).
Initially, the moving party bears
the burden of demonstrating the absence of a genuine issue of
material fact.
Celotex, 477 U.S. at 323, 106 S. Ct. 2548 (“[A]
party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for
its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file,
10
together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.”);
see also Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 192 n.2
(3d Cir. 2001) (“Although the initial burden is on the summary
judgment movant to show the absence of a genuine issue of
material fact, ‘the burden on the moving party may be discharged
by ‘showing’ -- that is, pointing out to the district court -that there is an absence of evidence to support the nonmoving
party’s case’ when the nonmoving party bears the ultimate burden
of proof.”)(citing Celotex, 477 U.S. at 325, 106 S. Ct. 2548).
20.
Here, although Plaintiff’s motion for summary judgment
refers to various documents -- including “repeated
communications from the Defendant . . . requiring [Plaintiff] to
purchase insurance,” “negative credit rating information
reported by the defendant,” the “chattels mortgage,” and “the
assignment of partial interest of the aforesaid to the
defendant” -- Plaintiff has submitted no documents, affidavits,
admissions, or other evidence in support of his motion.
Nor has
he described the content of these documents with any degree of
particularity.
Accordingly, the Court cannot determine based on
the current record whether there is a genuine issue of fact or
whether Plaintiff is entitled to judgment as a matter of law. 5
5
Moreover, Plaintiff did not file the motion in accordance with
Rules 7.1.2 and 7.1.3 of the Local Rules of Civil Practice and
11
Plaintiff’s motion for summary judgment will therefore be denied
without prejudice.
ACCORDINGLY, for the reasons set forth above and for good
cause shown:
IT IS on this
18th
day of
February
2015,
ORDERED that the motion [Doc. No. 50] to dismiss, insofar
as such motion was filed by Defendant Bank of New York, is
hereby DENIED; and it is further
ORDERED that the motion [Doc. No. 50] to dismiss, insofar
as such motion was filed by non-parties Bank of America,
EquiCorp and Select, is hereby DISMISSED; and it is further
ORDERED that Plaintiff’s motion [Doc. No. 54] for summary
judgment, which is contained within his opposition papers, is
hereby DENIED WITHOUT PREJUDICE.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
Procedure of the United States District Court for the District
of Delaware, so as to place the Court and Defendant on notice
that Plaintiff was seeking affirmative relief.
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