Modica v. Eastern Savings Bank, FSB et al

Filing 65

ORDER DISMISSING CASE. For the reasons set forth in the enclosed Memorandum & Order, defendants' motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction is granted. The clerk of court is respectfully requested to enter judgment for defendants, mail a copy of the judgment and this Memorandum & Order to the pro se plaintiff, and to close this case. Ordered by Judge Kiyo A. Matsumoto on 5/2/2014. (Raghunathan, Abhishek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
ANTHONY MODICA,
NOT FOR PUBLICATION
Plaintiff,
MEMORANDUM & ORDER
-against14-CV-1384 (KAM)
EASTERN SAVINGS BANK, FSB, OZONE
PARK FUNDING ASSOCIATES, H-P
CAPITAL, LLC, WACHOVIA BANK N.A.,
FIRST UNION NATIONAL BANK, SHELDON
FARBER, ESQ., EDWARD FELDMAN,
ESQ., KARAMVIR DAHIYA, ESQ., PAUL
KERSON, ESQ., KARINA ALOMAR, ESQ.,
TOPAZ ENTERPRISES, INC., JOHN DOE
# 1-4,
Defendants.
---------------------------------X
MATSUMOTO, United States District Judge:
Plaintiff pro se Anthony Modica initiated this action
by filing a complaint on March 3, 2014.
3/3/14.)

(ECF No. 1, Complaint,

Plaintiff alleged jurisdiction under 28 U.S.C. § 1331

and 28 U.S.C. § 1332 against defendants Eastern Savings Bank,
FSB, Ozone Park Funding Associates, H-P Capital LLC, 1 Wachovia
Bank, N.A., First Union National Bank, Sheldon Farber, Esq.,
Edward Feldman, Esq., Karamvir Dahiya, Esq., Paul Kerson, Esq.,
Charles Mester, Esq., Karina Alomar, Esq., Topaz Enterprises,
Inc., and John Does #1-4 arising from a foreclosure action in
New York state supreme court.

(ECF No. 1, Complaint, 3/3/14.)

1

Although plaintiff has sued both Ozone Park Funding Associates and H-P
Capital LLC, he has also alleged that Ozone Park Funding Associates was
formerly known as H-P Capital, LLC. (Complaint ¶ 3.)

1

After numerous defendants argued in letters that this court
lacked subject matter jurisdiction over plaintiff’s complaint,
the court held a pre-motion conference on April 8, 2014, during
which it stated that it would construe the letters filed by
defendants as motions to dismiss for lack of subject matter
jurisdiction, explained the arguments made by defendants to
plaintiff, ordered plaintiff to respond to those arguments on or
before April 22, 2014, and ordered defendants to file any
replies on or before April 29, 2014.
4/8/14.) 2

(Minute Entry dated

After considering the additional submissions made by

the parties, the court grants defendants’ motion to dismiss the
complaint pursuant to Federal Rule of Civil Procedure 12(b)(1)
for lack of subject matter jurisdiction. 3
DISCUSSION
I.

Standard of Review

Although plaintiff is proceeding pro se, and his
complaint is held to less stringent standards than pleadings
drafted by lawyers, see Erickson v. Pardus, 551 U.S. 89, 94
(2007), he must still establish that the court has subject
matter jurisdiction over this action. See, e.g., Rene v.
2

Upon motion of plaintiff, all claims against defendant Charles Mester, Esq.,
were dismissed on April 8, 2014. (Stipulation and Order dated 4/8/14.)
3

Although Mr. Feldman has alleged that plaintiff may have been assisted by
someone who was practicing law without a license, (ECF No. 49, Letter by
Edward Feldman, Esq., 4/17/14, at 1 n.1), the court declines to make a
referral to authorities and takes no position as to whether any of the
parties wish to make such a referral.

2

Citibank NA, 32 F. Supp. 2d 539, 541-42 (E.D.N.Y. 1999)
(dismissing pro se complaint for lack of subject matter
jurisdiction).
II.

Jurisdiction
A. Diversity Jurisdiction

District courts can exercise diversity jurisdiction
when the amount in controversy exceeds $75,000 in a case between
citizens of different states, see 28 U.S.C. § 1332(a)(1), but
only where “there is no plaintiff and no defendant who are
citizens of the same State,” Wisconsin Dep’t of Corr. v.
Schacht, 524 U.S. 381, 388 (1998).

Here, plaintiff has alleged

in his complaint that he is a resident of New York state, that
defendant Eastern Savings Bank is a resident of New York state,
that defendant Ozone Park Funding, formerly known as H-P Capital
LLC, is a business with its only office in New York state, and
that six of the attorney defendants are attorneys with offices
in New York state.

(Complaint ¶¶ 1-3, 7, & at p. 2.)

Plaintiff

also conceded in his additional submission that he “admits to
the fact that diversity doesn’t exist.” (ECF No. 48, Letter
dated 4/16/14 from Anthony Modica (“Modica Let.”), 4/16/14, ¶
3.) 4

Accordingly, the court lacks diversity jurisdiction over

4

To the extent plaintiff argues that diversity exists because the amount in
controversy exceeds $75,000, he is mistaken because diversity jurisdiction
requires both complete diversity of the parties and an amount in controversy
exceeding $75,000. See 28 U.S.C. § 1332(a)(1).

3

this case pursuant to 28 U.S.C. § 1332(a)(1) because there is
not complete diversity between the parties.
B. Rooker-Feldman Doctrine
This action is also barred from federal review under
the Rooker-Feldman doctrine.

See Dist. of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 482-84 n.16 (1983); Rooker v.
Fid. Trust Co., 263 U.S. 413, 415-16 (1923).

Under the Rooker-

Feldman doctrine, federal courts lack jurisdiction over “cases
brought by state-court losers complaining of injuries caused by
state-court judgments rendered before the district court
proceedings commenced and inviting district court review and
rejection of those judgments.”

Hoblock v. Albany Cnty. Bd. of

Elections, 422 F.3d 77, 85 (2d Cir. 2005) (quoting Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).
The Second Circuit has “set forth four requirements for the
application of Rooker-Feldman: (1) the federal-court plaintiff
must have lost in state court; (2) the plaintiff must complain[]
of injuries caused by [a] state-court judgment; (3) the
plaintiff must invit[e] district court review and rejection of
[that] judgment; and (4) the state-court judgment must have been
rendered before the district court proceedings commenced.”
Ashby v. Polinsky, 328 F. App’x 20, 21 (2d Cir. 2009) (summary

4

order) (alterations in original) (internal quotations and
citations omitted).
It is well-settled that judgments of foreclosure and
disputes concerning landlord-tenant relationships are
fundamentally matters of state law.

See, e.g., id. at 21

(holding that Rooker-Feldman doctrine precluded plaintiff’s
attempt to relitigate a state court foreclosure judgment in
federal court); Garvin v. Bank of N.Y., 227 F. App’x 7, 8 (2d
Cir. 2007) (summary order) (same); Rossman v. Stelzel, No. 11CV-4293, 2011 U.S. Dist. LEXIS 120174, at *11 (E.D.N.Y. Oct. 13,
2011) (“[C]ourts within this Circuit routinely hold that a
federal court action seeking to overturn a state court judgment
of foreclosure or eviction is barred by the Rooker-Feldman
doctrine.”); Dockery v. Cullen & Dykman, 90 F. Supp. 2d 233,
236-37 (E.D.N.Y. 2000) (federal court lacks jurisdiction over
claim that foreclosure was obtained by fraud).
The state foreclosure proceeding concerned a $990,000
commercial mortgage loan evidenced by a promissory note dated
June 24, 2004, and secured by a mortgage on property at 106-09
Rockaway Boulevard in South Ozone Park, New York.

(Complaint ¶

54; Complaint Addendum; ECF No. 11, Letter Motion by Eastern
Savings Bank (“Eastern Mot.”), 3/25/14, at 1.)

Defendant

Eastern Savings Bank, FSB (“Eastern”) made the loan to 106-09

5

Rockaway Owners Corporation, a corporation wholly owned by
plaintiff.

(Eastern Mot. at 1; Complaint Addendum.)

After

plaintiff’s corporation defaulted, Eastern commenced an action
to foreclose on the mortgage and filed a summons, verified
complaint, and notice of pendency in Queens County Supreme Court
under index number 24888/2005.
Addendum.)

(Eastern Mot. at 1-2; Complaint

A judgment of foreclosure and sale was granted in

favor of Eastern on May 7, 2008, a foreclosure sale of the
property took place on November 18, 2011, and Eastern was the
successful bidder at that sale.
Addendum.)

(Eastern Mot. at 2, Complaint

Eastern assigned its winning bid to Topaz

Enterprises, Inc., a co-defendant and wholly-owned subsidiary of
Eastern.

(Eastern Mot. at 2.)
Plaintiff alleges in his complaint that “this case

surrounds the illegal foreclosure [sic],” (Complaint ¶ 9), and
argues in his opposition that, notwithstanding the RookerFeldman doctrine, this court “does have subject matter
jurisdiction on the basis that (a) a constitutional issues or
cause of action exist, (b) that the jurisdictional amount was
achieved and (c) that the lending part [sic], Eastern Savings
Bank is a federally chartered banking institution,” (Modica Let.
¶ 32).

6

Plaintiff’s arguments are meritless.

Plaintiff has

conceded that this case arises from a foreclosure action in
state court that led to a foreclosure on property belonging to a
corporation that he wholly owned.
Complaint Addendum.)

(Complaint ¶¶ 51, 53-55,

Thus, the record clearly shows that (i)

plaintiff lost in state court, (ii) the underlying injury was
the allegedly illegal foreclosure on the property caused by the
state court proceeding, (iii) plaintiff challenges the validity
of that purportedly “illegal” proceeding, (Complaint ¶ 9), and
(iv) plaintiff has filed this complaint after the entry of the
state court order.

Consequently, because all four factors for

the application of the Rooker-Feldman doctrine are satisfied,
this court lacks subject matter jurisdiction over plaintiff’s
complaint on this additional ground.

See Ashby, 328 F. App’x at

21. 5
CONCLUSION
For the reasons set forth above, defendants’ motion to
dismiss the complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction is
granted.

5

The court notes that plaintiff filed another complaint in Supreme Court in
Queens County alleging similar claims under index number 6007/2014, on April
16, 2014. (ECF No. 63, Reply, 4/29/14, at Exhibit A.)

7

The clerk of court is respectfully requested to enter judgment
for defendants, mail a copy of the judgment and this Memorandum
& Order to the pro se plaintiff, and to close this case.
SO ORDERED
DATED: May 2, 2014
Brooklyn, New York
/s/
________
Kiyo A. Matsumoto
United States District Judge

8