Farina et al v. The Bank of New York et al
MEMORANDUM & OPINION Filed. Signed by Judge Michael A. Shipp on 7/29/2022. (jal, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
EDITH FARINA et al.,
Civil Action No. 15-3395 (MAS) (DEA)
THE BANK OF NEW YORK et al.,
SHIPP, District Judge
This matter comes before the Court on several motions submitted by the parties. First,
Defendants The Bank of New York (the “Bank”), Residential Credit Solutions, Inc.
(“Residential”), and Mortgage Electronic Registration Systems, Inc. (“MERS,” and collectively,
“Defendants”) move to dismiss pro se Plaintiffs Edith and Emilio Farina’s (the “Farinas”)
Complaint. (ECF Nos. 43, 44.) The Farinas countered with motions seeking an additional
declaratory judgment, discovery, and leave to amend their Complaint. (ECF No. 72.) The Court
has carefully considered the parties’ submissions and decides the matter without oral argument
under Local Civil Rule 78.1. For the reasons below, the Court grants Defendants’ motions and
denies the Farinas’ motions.
This matter originates with the Farinas’ purchase of a home in Toms River, New Jersey, in
2007. (Compl. ¶¶ 1, 21-23, ECF No. 1.) To buy this home, the Farinas requested a
one-million-dollar mortgage and note (collectively, the “Loan”) from Countrywide Home Loans,
Inc. (“Countrywide”). (Id. ¶¶ 22, 24.) Countrywide approved the Loan, which entitled the
noteholder to foreclose and sell the property if the Farinas failed to make their obligatory payments.
(Cert. of Stephen Catanzaro, Esq. (“Catanzaro Cert.”), Ex. A (“Mortgage”), ECF No. 43-3.)1 In
the years that followed, the Loan was assigned to the Bank as a trustee for other entities and
Residential began servicing the Loan. (Compl. ¶ 7; Catanzaro Cert., Ex. B, ECF No. 43-4.)
In February 2011, the Farinas defaulted and stopped paying their mortgage. (Catanzaro
Cert., Ex. C, ECF No. 43-5.)2 Around three years later, the Bank filed in state court to foreclose
on the Farinas’ home. (Id.) The Farinas had legal counsel and raised several defenses to refute the
foreclosure action, including that the Bank lacked standing to foreclose on their home. (Catanzaro
Cert., Ex. E, ECF No. 43-7.) But the Farinas lost, and the state court rejected all their defenses in
granting summary judgment for the Bank. (Catanzaro Cert., Ex. I, ECF No. 43-11; Ex. K, ECF
No. 43-13.) The state court entered judgment in January 2016 but, in July 2017, the Bank
voluntarily dismissed the order to allow the Farinas to enter into a loan modification agreement.
(Catanzaro Cert. Ex. K, Ex. L, ECF No. 43-14, Ex. O, ECF No. 43-17.) Less than a year later, in
March 2018, the Farinas again defaulted and stopped paying their mortgage. (Catanzaro Cert., Ex.
The Court may rely on extrinsic documents submitted by Defendants that are not part of the
Complaint, so long as they are central to the Complaint. Borough of Moosic v. Darwin Nat’l Assur.
Co., 556 F. App’x 92, 95 (3d Cir. 2014). Because the Farinas reference and rely on the various
loan instruments throughout the Complaint (e.g., Compl. ¶ 10 (referring to the “imperfect
securitization of the Note and the Deed of Trust”), ¶ 19 (“Plaintiffs bring this action . . . concerning
a residential mortgage loan transaction and foreclosure action”), ¶ 23), the loan documents,
mortgage papers, and related contracts are therefore central to the Complaint.
The Farinas’ Complaint is factually bare and provides little information. (See generally Compl.)
But “[a] court may take judicial notice of a document filed in another court not for the truth of the
matters asserted in the other litigation, but rather to establish the fact of such litigation and related
filings.” Glob. Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006).
Here, the Court relies on the exhibits attached to the Farinas’ and Defendants’ filings for the
existence of such litigation and judicial orders, not for the truth of underlying facts. (E.g., Pls.’
July 14, 2022 Correspondence, Ex. B (March 2013 state court complaint), ECF No. 86-1.)
O.) So, the Bank again filed to foreclose on the property. (Id.; Catanzaro Cert., Ex. P, ECF No.
43-18.) The Farinas raised the same defenses and, again, the state court entered summary judgment
against the Farinas in November 2019. (Catanzaro Cert., Ex. Q (Farinas’ motion to dismiss
challenging the Bank’s standing to foreclose), ECF No. 43-19; Ex. V (November 2019 order
granting summary judgment), ECF No. 43-24.)
During this multiyear process, the Farinas filed a federal suit in 2015 before the Hon. Peter
G. Sheridan, U.S.D.J., shortly after the state court issued summary judgment in the Bank’s favor.3
That is, at the close of the first state court suit, the Farinas moved this Court for declaratory relief.
(ECF No. 1.) In their Complaint, the Farinas requested that the Court use its authority under the
Declaratory Judgment Act (the “Act”), 28 U.S.C. § 2201, to adjudicate the rights of Defendants as
those rights relate to the Farinas’ home. (See generally Compl.) After holding oral argument, the
Court dismissed the Farinas’ Complaint with prejudice under the Colorado River doctrine, finding
dismissal necessary to “avoid piecemeal litigation,” considering the state foreclosure suit. (ECF
The Farinas appealed. The U.S. Court of Appeals for the Third Circuit reversed, finding
that although “this case does not satisfy the exceptional circumstances standard . . . under Colorado
River,” the district court’s concerns over piecemeal litigation “could be a basis to decline
jurisdiction under the [Act].” See Farina v. Bank of New York ex rel. CHL Mortg. Pass-Through
Tr. 2007-8, No. 15-3679, 2021 WL 4439250, at *3 (3d Cir. Sept. 28, 2021). At bottom, the Third
Circuit held that the Court’s decision to abstain from the matter under Colorado River was in error
but elucidated that “[t]he [d]istrict [c]ourt retains its ‘unique and substantial discretion’ under the
This matter was reassigned to the undersigned in May 2022. (ECF No. 73.)
[Act] to decline jurisdiction.” Id. (citing Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995)). The
Third Circuit issued its mandate in October 2021. (ECF No. 39.)
Back again a second time, the parties raised several motions since this case was remanded.
First, Defendants moved for dismissal with prejudice. (ECF Nos. 43, 44.) The Farinas opposed
(ECF No. 57), then moved for “declaratory judgment” with new claims and sought leave to amend
their Complaint, along with a discovery request (ECF No. 72). In turn, Defendants opposed the
Farinas expanding their claims through briefing or any further amendment to their Complaint,
arguing that either action was improper. (ECF Nos. 76, 77.) The Farinas submitted a series of
correspondence and exhibits in further support of their motions. (ECF Nos. 84, 85, 86.) What
became of the state court action? From what the Court can glean, the New Jersey court granted the
Bank’s renewed motion for summary judgment in November 2019, but the final judgment has not
issued. (Bank and MERS Mot. to Dismiss 2, ECF No. 44-1.)
Now before the Court are the parties’ motions.
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Defendants move to dismiss the Farinas’ Complaint for lack of subject-matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6).
“When a motion under Rule 12 is based on more than one ground, the court should consider the
12(b)(1) challenge first, because if it must dismiss the complaint for lack of subject matter
jurisdiction, all other defenses and objections become moot.” Dickerson v. Bank of Am., N.A., No.
12-3922, 2013 WL 1163483, at *1 (D.N.J. Mar. 19, 2013) (citing In re Corestates Trust Fee Litig.,
837 F. Supp. 104, 105 (E.D. Pa. 1993)).
At any time, a defendant may move to dismiss for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1). See Fed. R. Civ. P. 12(b)(1), (h)(3). The Court may treat a party’s motion
as either a facial or factual challenge to the court’s jurisdiction. Dickerson, 2013 WL 1163483, at
*1. Typically, “[a] motion to dismiss . . . for lack of subject matter jurisdiction made prior to the
filing of the defendant’s answer is a facial challenge to the complaint.” Bennett v. Atl. City, 288 F.
Supp. 2d 675, 678 (D.N.J. 2003) (citations omitted). “A facial 12(b)(1) challenge, which attacks
the complaint on its face without contesting its alleged facts, is like a 12(b)(6) motion in requiring
the court to ‘consider the allegations of the complaint as true.’” Hartig Drug Co. v. Senju Pharm.
Co., 836 F.3d 261, 268 (3d Cir. 2016) (quoting Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3
(3d Cir. 2006)). As such, district courts “must only consider the allegations of the complaint and
documents referenced therein and attached thereto, in the light most favorable to the plaintiff.”
Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen v. First
Fed. Sav. and Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must “accept all factual allegations
as true, construe the complaint in the light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v.
County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd.,
292 F.3d 361, 374 n.7 (3d Cir. 2002)). A complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The plaintiff’s
claim must be facially plausible to survive dismissal, such that the pleaded facts “allow the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
Leave to Amend
Leave to amend a complaint “shall be freely given when justice so requires.” Arthur v.
Maersk, Inc., 434 F.3d 196, 202 (3d Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). Factors that may
justify denial of leave to amend are undue delay, bad faith, and futility, with prejudice to the
nonmoving party as the touchstone for denial. Id. at 204 (citations omitted). “Futility” means that
the amended complaint “would fail to state a claim upon which relief could be granted.” In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997); see Klotz v. Celentano
Stadtmauer & Walentowicz LLP, 991 F.3d 458, 462 (3d Cir. 2021) (amendment would be futile
“if the amended complaint would fail to state a claim for relief under Rule 12(b)(6)”).
In addition, “[t]he Third Circuit has held that a motion to amend should be denied when
the movant has not attached a proposed amended complaint.” In re Universal Health Servs., Inc.,
Derivative Litig., No. 17-2187, 2020 WL 3620232, at *1 (E.D. Pa. Apr. 29, 2020) (citing U.S. ex
rel. Zizic v. Q2Administrators, LLC, 728 F.3d 228, 243 (3d Cir. 2013) (plaintiff’s request for leave
to amend is improper when plaintiff neglected to attach a draft amended complaint, “a failure that
is fatal to a request for leave to amend”)).
At the start of this suit in 2015, the case was straightforward—the Farinas sought a
judgment from the Court declaring the legal rights of Defendants vis-à-vis the Farinas’ home. (See
generally Compl.) Seven years and an appeal later, however, this case has transformed into
something much bigger, with the Farinas raising allegations that Defendants and the New Jersey
judiciary engaged in conspiracy and fraud. (See, e.g., Pls.’ June 6, 2022 Correspondence 2-3 (“New
Jersey’s state judicial system has been completely compromised and has caused its own
obstruction of justice.”), ECF No. 75.) For the outstanding motions, the Court proceeds as follows:
the Court first addresses Defendants’ motions to dismiss the Farinas’ Complaint. (ECF Nos. 43,
44.) Next, the Court turns to the Farinas’ motion to amend their Complaint and motion for
declaratory judgment on new issues that have arisen, which the Court construes as an attempt to
amend their initial complaint and compel discovery. (ECF No. 72.)
The Court Declines Jurisdiction Under the Declaratory Judgment Act.
The Act provides that a district court “may declare the rights and other legal relations of
any interested party seeking such declaration.” 28 U.S.C. § 2201(a). Courts have broad discretion
in deciding whether to grant relief. Scottsdale Indem. Co. v. Collazos, No. 16-8239, 2017 WL
4711451, at *1 (D.N.J. Oct. 20, 2017). It is settled law that the Act “confers discretionary, rather
than compulsory, jurisdiction upon federal courts.” Reifer v. Westport Ins. Corp., 751 F.3d 129,
134 (3d Cir. 2014) (citing Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 494 (1942)). In
determining whether to exercise jurisdiction, courts may consider several non-exhaustive factors.
State Auto Ins. Cos. v. Summy, 234 F.3d 131, 133 (3d Cir. 2000), as amended (Jan. 30, 2001).
These factors include (1) the likelihood that a judicial declaration will resolve legal uncertainties,
(2) convenience of the parties, (3) public interest, (4) availability of other remedies, (5) “a general
policy of restraint when the same issues are pending in a state court,” (6) “avoidance of duplicative
litigation,” (7) “prevention of the use of the declaratory action as a method of procedural fencing
(8) whether the controversy can better be decided in state court. Reifer, 751 F.3d at 146 (citing
Brillhart, 316 U.S. at 495).
For several reasons, the Court declines to exercise jurisdiction under the Act. For starters,
it is dubious that there is a “case of actual controversy” before the Court as to MERS and
Residential. See 28 U.S.C. § 2201(a); Coleman v. Deutsche Bank Nat’l Tr. Co., No. 15-1080, 2015
WL 2226022, at *2 (D.N.J. May 12, 2015) (“Before a federal court may grant a declaratory
judgment, there must be a substantial controversy between the parties having adverse legal
interests of sufficient immediacy and reality to warrant issuance of a declaratory judgment.”
(citation omitted)). These entities distanced themselves from the Loan several years back, with no
further involvement in the Farinas’ home and, accordingly, no involvement in the foreclosure
efforts. (Catanzaro Cert., Ex. C.) So, as for Residential and MERS, any decision from the Court as
to their legal rights regarding the Farinas’ home would be advisory. See Christian Coal. of Ala. v.
Cole, 355 F.3d 1288, 1291 (11th Cir. 2004) (“[A] federal court determination of a moot case would
constitute an impermissible advisory opinion.”). That is, a judicial decree would likely resolve
nothing as far as Residential and MERS. But see Reifer, 751 F.3d at 140. In rebuttal, the Farinas
clarify that “[their] primary goals . . . [are] to find out who the responsible party or parties was/were
that caused [the Farinas] harm through their enterprise as well as to make sure [the Farinas] can
never be damaged in the same way again.” (Pls.’ June 6, 2022 Correspondence 7.) Moreover, the
Farinas ask the Court to hold Residential and MERS “responsible for the damages” stemming from
their past involvement with the Loan. (Id. at 9.) But the Court may not issue broad advisory
opinions, nor may it grant retroactive relief for damages under the Act. John Wiley & Sons, Inc. v.
Visuals Unlimited, Inc., No. 11-5453, 2011 WL 5245192, at *4 (S.D.N.Y. Nov. 2, 2011)
(“[D]eclaratory relief is intended to operate prospectively. There is no basis for declaratory relief
where only past acts are involved.”). So, the Court will do neither.
In any event, in addressing the request for declaratory judgment against Defendants (and
specifically, the Bank), the Court examines the factors it finds relevant in determining
discretionary jurisdiction. Reifer, 751 F.3d at 146. First, the Farinas’ Complaint and subsequent
correspondence leave little doubt that they are indirectly appealing the New Jersey state courts’
orders.4 But see Travelers Ins. Co. v. Davis, 490 F.2d 536, 544 n.34 (3d Cir. 1974) (“It is well
settled that a declaratory judgment action cannot be used as a substitute for the prosecution of an
The Farinas’ reassurance that they are not appealing state court decisions is undermined by their
recent clarification that they are aggrieved by “misrepresentations made in the [state] court[room]
and false certifications submitted in [their] [state] cases.” (Pls.’ July 14, 2022 Correspondence 2,
ECF No. 86.)
appeal or a motion for a new trial in the trial court.” (citation omitted)). In 2019, the state court
issued summary judgment in favor of the Bank and against the Farinas on the issue of the Bank’s
legal right to foreclose.5 (Catanzaro Cert. Ex. V.) Should the Farinas wish to challenge that state
court order, they must appeal directly, not through a federal suit under the guise of declaratory
judgment. Second, and relatedly, it is prudent for the Court to exercise “restraint when the same
issues are pending in a state court” to prevent “procedural fencing.” Reifer, 751 F.3d at 146. That
is, it will be “uneconomical as well as vexatious” for the Court to declare the rights of parties
“where another suit is pending in a state court presenting the same issues, not governed by federal
law, between the same parties.” Brillhart, 316 U.S. at 495. The Farinas’ state court defenses to the
Bank’s foreclosure action included lack of standing. (Catanzaro Cert., Exs. E, Q.) Here, the Farinas
ask the Court to declare the legal rights of the Bank, MERS, and Residential—i.e., which parties
have standing to foreclose on the Farinas’ home. (See generally Compl.) Thus, it is clear the
Farinas are challenging the same legal issue here as they are in the still-active state suit. As noted
by the Third Circuit in this case, “avoiding piecemeal litigation could be a basis to decline
jurisdiction under the [Act].” Farina, 2021 WL 4439250, at *3 (citing, among others, Kelly v.
Maxum Specialty Ins. Grp., 868 F.3d 274, 283 (3d Cir. 2017)). Third, neither the public nor the
parties benefit from the tentacles of the Farinas’ foreclosure suit reaching into federal court. That
is because state courts are more than equipped to handle foreclosure actions under state law and,
in this case, no one benefits from the intrusion of a federal court into the fray. Scottsdale Ins. Co.
v. Broaddus, No. 08-3241, 2009 WL 349697, at *9 (E.D. Pa. Feb. 11, 2009) (district court failed
to “see how the public interest is served by a federal court (rather than a state court) resolving”
Although the Rooker-Feldman doctrine does not control because the state court order is not final,
the ongoing state litigation remains of consequence as to whether this Court should intervene here.
(Catanzaro Cert. Ex. Z, ECF No. 43-28; Day v. Fla., 563 F. App’x 878, 880 (3d Cir. 2014).)
state law issues). Finally, the doctrine of collateral estoppel further weighs against allowing the
Farinas to relitigate the same issue in a different judicial forum. See In re Brown, 951 F.2d 564,
569 (3d Cir. 1991) (“Unlike claim preclusion, the effectiveness of issue preclusion, sometimes
called collateral estoppel, does not require the entry of a judgment, final in the sense of
appealable.”). The Court will not disturb the state court’s summary judgment order.
In sum, the Court exercises its discretion to decline jurisdiction under the Act. For years
the Farinas raised the same arguments before the state court to no avail. Simple disagreement with
the outcome of that suit does not fling open the doors to the federal courthouse. So, the Court keeps
the doors shut. The Court dismisses the Farinas’ Complaint.
The Court Denies Leave to Amend.
In May 2022, the Farinas filed a motion seeking leave to amend their Complaint. (ECF No.
72.) Generally, plaintiffs seeking leave to amend are mandated to submit a proposed amended
complaint. See L. Civ. R. 15.1 (a motion to file an amended pleading shall include “a copy of the
proposed amended pleading” and “a form of the amended pleading that shall indicate in what
respect(s) it differs from the pleading which it proposes to amend”). Here, the Farinas did not
include a proposed amended complaint but rather represented that they “cannot currently submit a
complete proposed complaint” because the matter is “unique.” (Pls.’ May 2, 2022
Correspondence 10, ECF No. 72-3.) But from what the Farinas broadcast, they would seek to add
at least 14 claims ranging from negligence to conspiracy to abuse of process. (Id. at 11.) The
Farinas also imply that they seek to either directly charge Defendants and members of the New
Jersey judiciary with criminal conduct or have the Court do so. (July 14, 2022 Correspondence 4
(“[I]ndividuals in the state court must know that this [C]ourt has the ability to bring any
perpetrators to light and justice.”).) Defendants oppose, arguing that the Farinas’ attempt to expand
the scope of this lawsuit through briefing is unfounded and prejudicial, not to mention procedurally
deficient. (See Bank and MERS’s Opp’n Br. to Pls.’ Mots., ECF No. 76.)
The Court denies the Farinas’ motion to amend their Complaint. See L. Civ. R. 15.1. The
Farinas failed to attach an amended complaint and, therefore, the Court cannot ascertain whether
it would be futile to allow amendment.6 (Pls.’ June 28, 2022 Correspondence 1 n.3 (“[The Farinas]
intentionally did not attach a proposed amended complaint . . . because [the Farinas] want the
motion for declaratory relief ruled on first.”), ECF No. 84.) Moreover, the Court is concerned
about the Farinas’ attempt to introduce criminal charges, sue the New Jersey judiciary for claims
that would not survive judicial immunity, or otherwise deviate substantially in scope and conduct
from the original declaratory judgment action filed in 2015. (See generally Pls.’ May 2, 2022
Correspondence. But see Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006) (“A judicial officer
in the performance of his duties has absolute immunity from suit and will not be liable for his
judicial acts.” (citation omitted)). Should the Farinas seek to raise claims that have arisen during
their state court litigation since 2015, that is their prerogative. But that is neither here nor there
because the Farinas failed to attach a copy of the proposed amended complaint. See L. Civ. R.
15.1. What’s more, no amendment by the Farinas would impact the Court’s decision to decline
jurisdiction to declare Defendants’ legal rights in relation to the Farinas’ home. Thus, the Court
It bears noting that in November 2021, the Hon. Douglas E. Arpert, U.S.M.J., charted a cogent
and practical plan forward in this case that did not include the Farinas amending their Complaint
to add a slew of new claims and defendants. (See ECF Nos. 41, 42.)
denies the Farinas’ request for leave to amend.7 The Court also denies their alternative means of
amending the Complaint through briefing.8 (See ECF No. 72.)
For the above reasons, the Court grants Defendants’ motions to dismiss and denies the
Farinas’ motions. The Court dismisses the Complaint with prejudice and will issue an order
consistent with this Memorandum Opinion.
MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE
The Farinas also move for additional discovery in this action. (Pls.’ May 2, 2022 Correspondence
13 (“Additionally, we ask the [C]ourt to immediately restart the discovery process . . . .”).) Because
the Court dismisses the Farinas’ Complaint with prejudice and denies them leave to amend, the
Court also denies their request for discovery as moot.
Although labeled as a “Motion for Declaratory Relief,” the Farinas attempt to expand the scope
of their suit to include various parties and new claims, such as the Court declaring certain
individuals responsible for “illegal and fraudulent actions” against the Farinas. (Pls.’ Mot. for Decl.
Relief 1, ECF No. 72.) The Farinas represent that the “facts [of this suit] are substantially more
detailed” than when they filed the Complaint in 2015. (Pls.’ Opp’n Br. 1, ECF No. 55.)
Accordingly, they look to embark on an expedition to find out “who is responsible for the
incredibl[e] amount of fraud” against them. (Id. at 4.) But the Farinas may not amend their
Complaint through briefing. Mills v. Ethicon, Inc., 406 F. Supp. 3d 363, 387 (D.N.J. 2019).
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