Calizaire v. Mortgage Electronic Registration System, Inc. et al
MEMORANDUM AND ORDER, For the foregoing reasons, each of Calizaire's claims requires the court to abstain from exercising jurisdiction or fails to state a claim. Defendant's motion to dismiss is therefore granted. However, in light of Cali zaire's pro se status, the court grants him leave to amend. See Branum v. Clark 927 F.2d698,705(2d Cir 1991). Calizaire has thirty 30 days from the date of this Memorandum and Order to file to an amended complaint rehabilitating his eight clai ms are not just subject to Younger abstention; fraud, breach of contract, negligence, unjust enrichment, breach of the covenant of good faith and fail dealing, breach of fiduciary duty, HED, and wrongful foreclosure. The amended complaint must recite sufficient facts to make Calizaire's allegations plausible, and it will replace the original and first amended complaints.. Ordered by Judge Carol Bagley Amon on 3/6/2017. (Piper, Francine)
cIN CLERK'S OFFICE
U...., DISTRICT COURT E.D.N.Y.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-.tr M)R D3 .2J9
-againstMORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC., DEUTSCHE BANK
NATIONAL TRUST COMPANY, and OCWEN
LOAN SERVICING LLC,
NOT FOR PUBLICATION
MEMORANDUM & ORDER
14-CV-1542 (CBA) (SMG)
AMON, United States District Judge:
Plaintiff Allan Calizaire, proceeding pro se, brings this action against Mortgage Electronic
Registration Systems, Inc. ("MERS"); Deutsche Bank National Trust Company, as Trustee for the
Pooling and Servicing Agreement dated as of November 1, 2006 Securitization Asset Backed
Receivables LLC Trust 2006-FR4 ("Deutsche Bank"); and Ocwen Loan Servicing, LLC
("Ocwen") (collectively, "defendants"). 1 He alleges a range of wrongdoing by defendants in
connection with the transfer of his mortgage and subsequent foreclosure; some of his claims attack
the mortgage foreclosure proceedings directly, while others allege torts arising from those
proceedings. The Court now considers defendants' motion to dismiss Calizaire' s varied state law
claims. For the reasons set forth below, the motion to dismiss those claims is granted.
The Court assumes familiarity with the facts and background of this case, as set forth in
the earlier Memorandum and Order dismissing Calizaire's federal law claims, (see D.E. # 24), and
only recounts those facts relevant to the instant motion to dismiss. Calizaire defaulted on a
Calizaire named Fremont as a defendant in his original complaint, but as explained in the Court's earlier
Memorandum and Order dismissing Calizaire's federal law claims, Calizaire's actions subsequent to removal indicate
that he is not pursuing claims against Fremont. (See D.E. # 24 n.6.)
mortgage, and defendant Deutsche Bank subsequently initiated foreclosure proceedings against
Calizaire in New York Supreme Court; these proceedings are still pending. See Deutsche Bank v.
Calizaire, Index No. 6410/2013 (N.Y. Sup., Kings Cty). Calizaire thereafter filed this action, also
in state court, and defendants removed it to this Court.
Upon removal by defendants, Calizaire filed supplemental papers, which this Court has
construed as an amended complaint. 2 (See Am. Compl.) Calizaire's amended complaint raised
federal claims under the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq., and the Real
Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601. (See id. at 14-16.) Calizaire
also asserted numerous state law claims in his original and amended complaints. Although his
filings are often unclear, it appears that almost all of Calizaire's state law claims stem from his
assertions that the assignment of his mortgage to Deutsche Bank was invalid for a number of
reasons, all of which render the state foreclosure proceeding commenced by Deutsche Bank
invalid. (Compl. at 2, 16; D.E. # 20 ("Pl. Opp.") at 1 (arguing that Deutsche Bank had "no
authority to bring about the foreclosure action because [it] is not the original Lender on the
promissory note.").) On this basis, Calizaire asserts claims for damages for wrongdoing in
connection with the foreclosure proceeding, including: (1) breach of contract, (Compl. ~~ 34-38);
(2) negligence, (id.~~ 39-44); (3) breach of the covenant of good faith and fair dealing,®:.~~ 5458); (4) breach of fiduciary duty,
(6) fraud, (Am. Compl.
59-68); (5) "wrongful foreclosure,"
80-81 ); (7) intentional infliction of emotion distress,
and (8) unjust enrichment, (Compl.
®:. ~~ 18-19);
51-52). He further requests the following injunctive and
declaratory relief: (1) the Court "set aside" the foreclosure, (id. ~~ 69-75); (2) the Court "set aside"
Because Calizaire proceeds pro se, this Court considers both his original and his amended complaints together. See
Little v. Citv of New York, 13-CV-3813(JGK), 2014 WL 4783006, at *I (S.D.N.Y. Sept. 25, 2014) ("Because the
plaintiff is proceeding pro se, the Court will consider the Original Complaint and the Amended Complaint together as
the operative pleading.")
the sale of the subject property,
llih ~~ 76-81); (3) quiet title, (id.~~ 89-93; Am. Campi.~~ 92-
99); and (4) a "judicial declaration determining the respective rights and obligations of the parties"
with respect to the assignment of the mortgage, (Am. Compl.~~ 22-27).
In iyiay 2014, defendants filed a motion to dismiss all of Calizaire's claims. (D.E. # 14.)
On February 27, 2015, this Court dismissed Calizaire's federal law claims as time-barred, but
declined to exercise supplemental jurisdiction over his state law claims. (D.E. # 24 at 16.) Instead,
the Court asked defendants to provide additional information on the citizenship of defendant
Ocwen to establish whether there is diversity of the parties. (Id.) Defendants have demonstrated
diversity and renewed their motion to dismiss Calizaire's state law claims. (D.E. # 26.) Calizaire
has filed a response to defendants' motion to dismiss, (see D.E. # 28), but his entire submission
focuses on his objections to having this action removed from state court.
On May 18, 2016, the Court entered an Order to Show Cause. (D.E. # 29.) The Court
noted that all ofCalizaire's state law claims stem from the foreclosure proceedings initiated against
him in state court by Deutsch Bank-proceedings that still appear to be pending. (Id. at 3.) The
Court reasoned that although neither party moved the Court to abstain on any claims in this case,
the Court may do so sua sponte if circumstances require. (Id. at 4 (citing Bellotti v. Baird, 428
U.S. 132, 143 n.10 (1976)). Accordingly, the Court ordered the parties to show cause, in writing,
within thirty days why the abstention doctrine should not be applied to dismiss some or all of
Calizaire's remaining claims.
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