Obanya v. Select Portfolio Servicing, Inc. et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS: For the reasons stated above, the court OVERRULES Plaintif'fs objections (Dkt. 36) and ADOPTS IN FULL Judge Bloom's R&R. Accordingly, Defendants' motion to dismiss (Dkt. 24) i s GRANTED and the case is DISMISSED WITH PREJUDICE. Defendants are DIRECTED to send Plaintiff copies of the note underlying Plaintiff's mortgage, along with any other material. So Ordered by Judge Nicholas G. Garaufis on 1/19/2017. (c/m to pro se; fwd'd for jgm) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
-againstSELECT PORTFOLIO SERVICING,INC., and
MERSCORP HOLDINGS INC., f/k/a MERS/
MORTGAGE ELECTRONIC REGISTRATION
NICHOLAS G. GARAUFIS,United States District Judge.
Plaintiff Bola Obanya brings this action pro se against Defendants Select Portfolio
Servicing, Inc.("SPS"), and MERSCORP Holdings Inc., alleging violations ofthe Fair Debt
Collection Practices Act("FDCPA"), 15 U.S.C. §§ 1692-1692p, New York Executive Law
§ 63(12), and New York Real Property Law("NYRPL")Article 9, in connection with Plaintiffs
mortgage. (See 2d Am. Compl.(Dkt. 23).) Plaintiff also seeks to quiet title on the property.
(See id. at 9-10.) Before the court is an August 23,2016, Report & Recommendation("R&R")
from Magistrate Judge Lois Bloom recommending that this action be dismissed with prejudice.
(R&R(Dkt. 35).) Plaintiff filed timely objections. (See PL's Obj.(Dkt. 36).) For the reasons
stated below. Plaintiffs objections are OVERRULED,Judge Bloom's R&R is ADOPTED IN
FULL,and Plaintiffs claims are DISMISSED WITH PREJUDICE.
A. Procedural History
Plaintiff initiated this action on September 8,2014. (Compl.(Dkt. 1).) Defendants
moved to dismiss. (Mot. to Dismiss(Dkt. 11).) The court referred Defendants' motion to Judge
Bloom for an R&R (the "Initial R&R")pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of
Civil Procedure 72(b)(1). (Order Referring Mot.(Dkt. 18).) Judge Bloom's Initial R&R
identified various defects in the Complaint. (Aug. 28,2015,R&R(Dkt. 19).) Plaintifffiled
objections, which the court construed as "an attempt to amend the Complaint." (Sept. 30, 2015,
Order(Dkt. 22)at 3.) The court adopted Judge Bloom's recommendation to dismiss the
Complaint without prejudice, and to allow Plaintiff an opportunity to formally amend her
Plaintifffiled the Second Amended Complaint on October 26,2015. (2d Am. Compl.)
Defendants once again moved to dismiss all claims. (See Nov. 9, 2015, Ltr.(Dkt. 24); Nov. 24,
2015, Order ("[Djefendants'... letter is deemed to constitute their motion to dismiss plaintiffs
amended complaint.").) The court once again referred Defendants' motion to Judge Bloom for
an R&R. (Nov. 12, 2015, Order (Dkt. 25).) Plaintiffsubmitted a letter opposing dismissal(PL's
Resp.(Dkt. 28)), and further elaborated upon her opposition at a January 21, 2016, conference
(the "Status Conference") before Judge Bloom (see Status Conf. Tr.(Dkt. 33)).
B. Judge Bloom's R&R
On August 23,2016, Judge Bloom issued an R&R recommending dismissal of all claims.
(R&R.) Specifically, Judge Bloom recommended that:
(1) Plaintiffs FDCPA claims should be dismissed because Plaintifffails to establish that
any Defendant is a "debt collector" within the meaning ofthe FDCPA,and,in any
event, fails to properly allege any actionable FDCPA violation (id. at 5-8);
(2) Plaintiffs New York Executive Law claim should be dismissed for lack of standing
(id. at 8);
(3)Plaintiffs NYRPL claim should be dismissed because it is foreclosed by clear New
York precedent(id. at 8-9 (citing Matter of MERSCORP.Inc. v. Romaine.
861 N.E.2d 81 (N.Y. 2006)));
(4) Plaintifflacks standing to seek quiet title or other declaratory relief(id at 9-10); and
(5) The court should dismiss the Second Amended Complaint with prejudice because
Plaintiff has already been given an opportunity to amend her pleadings and
nonetheless failed to remedy errors previously identified by the court(id at 10).
A. Review of an R&R
A district court may "accept, reject, or modify,in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). "[T]he district court
'may adopt those portions ofthe Report to which no objections have been made and which are
not facially erroneous.'" Locurto v. United States. No. lO-CV-4589(NGG)
2016 WL 4257550, at *2(E.D.N.Y. Aug. 12, 2016)(quoting La Torres v. Walker. 216
F. Supp. 2d 157,159(S.D.N.Y. 2000)).
The court shall review de novo any portions ofthe R&R to which a party timely objected.
28 U.S.C. § 636(b)(1). If, however,"a party 'makes only conclusory or general objections, or
simply reiterates his original arguments,the Court reviews the Report and Recommendation only
for clear error.'" Locurto. 2016 WL 4257550, at *2(quoting Pall Corp. v. Entegris. Inc.. 249
F.R.D. 48,51 (E.D.N.Y. 2008)). In addition,"courts 'ordinarily refuse to consider arguments,
case law and/or evidentiary material which could have been, but was not, presented to the
magistrate judge in the first instance.'" Id (quoting Kennedv v. Adamo.No.02-CV-1776
(RML),2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1,2006), affd 323 F. App'x 34
(2d Cir. 2009)(summary order)).
At the same time,"the court must 'liberally construe [filings] submitted by pro se
litigants, reading such submissions to raise the strongest arguments they suggest.'" Moore v.
Newton. No. 14-CV-6473(MKB)
(CLP),2016 WL 7011476, at *5(E.D.N.Y. Dec. 1,2016)
(quoting Bertin v. United States. 478 F.3d 489,491 (2d Cir. 2007)).
B. Plaintiffs Objections
Plaintiff asserts three objections, all ofthem directed at Judge Bloom's recommendations
with regard to the FDCPA claims. The court finds all three objections to be without merit, and
adopts Judge Bloom's reasoning in full.
Plaintiff first accuses Judge Bloom ofimproperly "mak[ing] a ruling in favor of
Defendants at the Status Conference by "stat[ing] without any iota of doubt that [Defendants']
failure to validate a debt does not constitute illegality" and that any such failure "only attracts a
$1,000 fine" without invalidating the underlying debt. (PL's Obj. at 2.) Plaintiff has
misinterpreted Judge Bloom's remarks. At the Status Conference, Judge Bloom merely
explained the consequences that would apply under the FDCPA to various examples of
hypothetical misconduct. (See Status Conf. Tr. 40:12-17, 42:11-43:5.) This objection is
Plaintiff next objects to Judge Bloom's recommended finding that Plaintiff has failed to
establish that either Defendant constitutes a "debt collector" under the FDCPA. (PL's Obj. at 2.)
Plaintiff alleges, apparently for the first time,that Defendant SPS has used a recorded phone
message that states:"[W]e are debt collectors and this is an attempt to collect a debt
As a preliminary matter, the court is disinclined to consider factual allegations that appear for the
first time in a party's objections to an R&R, Locurto. 2016 WL 4257550, at *2, particularly
when the party has already been granted an opportunity to amend its prior filings. Even if
Plaintiff's allegation is true, however, a recorded message representing that SPS is collecting on
a debt does not, standing alone, qualify SPS as a"debt collector" within the meaning of
15 U.S.C. § 1692a(6). This objection is overruled.
Finally, Plaintiff states that Defendants failed to respond to a debt validation request in
"gross violation of plaintiff's FDCPA rights," and that "the only reasonable conclusion within
the law is that the so called debt did not exist." (PL's Obj. at 2-3.) Plaintiff has previously
referenced this alleged validation request, initially without offering any details as to when, or to
whom,it was sent(s^ 2d Am. Compl.^ 9); then stating that it was sent in August 2015, after
this action was initiated(PL's Resp. at 1); and ultimately alleging that Plaintiff sent the request to
SPS in July 2014(Status Conf. Tr. 37:17-18). As Judge Bloom points out in the R&R,however.
Plaintiff does not allege sufficient facts to support a violation of 15 U.S.C. § 1692g. (R&R at 67.) In any event. Section 1692g is only actionable against a "debt collector" under the FDCPA
and, as discussed above. Plaintiff has failed to establish that either Defendant falls within that
category. This objection is overruled.
C. Portions of the R&R that Received No Objections
Neither party has objected to the R&R's discussion ofPlaintiffs state-law claims. The
court therefore reviews those portions ofthe R&R for clear error. See Porter v. Potter.
219 F. App'x 112(2d Cir. 2007)(summary order); see also Colon v. Sheahan,No. 13-CV-6744,
2016 WL 3926443, at *3(S.D.N.Y. July 14, 2016); Gesualdi v. Mack Excavation & Trailer
Serv.. Inc.. No.09-CV-2502(KAM)
(JO),2010 WL 985294, at *1 (E.D.N.Y. Mar. 15,2010);
cf. 28 U.S.C. § 636(b)(1). The court finds no clear error.
For the reasons stated above,the court OVERRULES Plaintiffs objections(Dkt. 36)and
ADOPTS IN FULL Judge Bloom's R&R. Accordingly, Defendants' motion to dismiss(Dkt. 24)
is GRANTED and the case is DISMISSED WITH PREJUDICE. Defendants are DIRECTED to
send Plaintiff copies ofthe note underlying Plaintiffs mortgage, along with any other material
documents, to ensure that Plaintiff has a full and accurate record of her mortgage obligations.^
The Clerk of Court is respectfully DIRECTED to close the case, and to mail a copy of
this order to pro se Plaintiff.
s/Nicholas G. Garaufis
Dated: Brooklyru New York
IICHOLAS G. GARAUF)
Inited States District Judge
^ At the Status Conference,Plaintiff's husband explained that their family seeks to replace copies of
mortgage documents that were lost due to Hurricane Sandy. (Status Conf. Tr. 18:18-24,22:13-23:1.)
Defendants represented that they could produce a copy ofthe note underlying PlaintifTs mortgage.
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