Kelly et al v. Deutsche Bank Trust Corporation C/O Registered Agent Ct Corporation System a/k/a Deutsche Banknational Trust, In Trust for the Registered Holders of Ameriquest Mortgage Securities Inc. Asset

Filing 13

MEMORANDUM AND ORDER, In line with the foregoing, deft's 11 Motion to Dismiss is granted. The complaint is dismissed, w/ prejudice to any refiling in this Court. Although pltffs paid the filing fee to commence this action, the Court certifies pursuant to 28 USC sec. 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. The Clerk of Court is directed to enter judgment in accordance with this order and to close the case for administrative purposes. (Ordered by Judge Eric N. Vitaliano on 3/04/2016) c/m Fwd. for Judgment. (Galeano, Sonia)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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BROOKLYt\J OFFICE

REGINALD CLIFFORD KELLY and
RA MAA NU AMEN BEY,

Plaintiffs,

MEMORANDUM AND ORDER
14-cv-6732 (ENV) (MDG)

-againstDEUTSCHE BANK TRUST CORPORATION,
CIO REGISTERED AGENT, CT CORPORATION
SYSTEM; A/KIA DEUTSCHE BANK NATIONAL
TRUST COMPANY, IN TRUST FOR THE
REGISTERED HOLDERS OF AMERIQUEST
MORTGAGE SECURITIES INC., ASSETBACKED PASS-THROUGH CERTIFICATES,
SERIES 2004-Rl2, INDIVIDUALLY AND AS A
TRUSTEE,
Defendant.

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VITALIANO, DJ.
On November 17, 2014, plaintiffs Reginald Clifford Kelly and Ra Maa Nu Amen Bey,
appearing prose, filed a complaint against defendant Deutsche Bank National Trust Company,
In Trust for the Registered Holders of Ameriquest Mortgage Securities Inc., Asset-Backed PassThrough Certificates, Series 2004-Rl2, Individually and as Trustee ("Deutsche Bank"), alleging
that Deutsche Bank, Kelly's mortgagee, had violated the Fair Debt Collection Practices Act
("FCDPA") through its foreclosure proceedings. Compl., Dkt. No. 1, at 2.
This action is only the most recent salvo in a series of failed challenges by Kelly to the
judgment of foreclosure that Deutsche Bank won against him in a New York state court in
August 2009. In that now-ancient case, Kelly not only failed to respond to Deutsche Bank's
complaint, resulting in default judgment against him, but also failed to appeal the resulting
judgment of foreclosure. After the state court judgment was entered, Kelly filed a challenge to

that order before this Court, which was summarily dismissed for lack of subject matter
jurisdiction, pursuant to Rule l 2(h)(3) and the Rooker-Feldman doctrine. See Bey v. Supreme
Court ofNew York, No. 13-CV-1270 ENV, 2013 WL 2304101, at *I (E.D.N.Y. May 24, 2013)
("Kelly I"). 1 Apparently aroused from his slumber, between 20 I 0 and 2015, Kelly filed no fewer
than three motions in state court, seeking vacatur of the foreclosure judgment on grounds ranging
from fraud to violations of the FDCPA itself. Def. Br., Dkt. No. 11-3, at 2-6. In response to this
barrage of litigation, the state court entered summary dismissals of Kelly's lawsuits, topped off
with an injunction barring him from filing further motions without first receiving court
permission. See Concepcion Deel., Dkt. No. 11, Exs. D, E and M. Having struck out in state
court, Kelly now appears poised to become a frequent filer here, now seeking for a second time
the very relief denied him the first time.
Discussion
Nothing has changed, nor will it. As plaintiffs were previously advised, this federal court
lacks jurisdiction to hear claims, like those raised in the complaint, that already have been
decided and lost in a state court. See Kelly I at *2-3. So, as plainly as it can be expressed, once
again, all of plaintiffs' claims and their complaint are dismissed for lack of subject matter
jurisdiction, pursuant to Rule 12(h)(3) and the Rooker-Feldman doctrine. 2

As the case caption suggests, along the way, Kelly picked up a co-litigant in the person of
Ra Ma Nu Amen Bey, who, undeterred by the state court's order denying his request to intervene
based on his failure to "demonstrate[] his authority to challenge the judgment of foreclosure and
sale on defendant's behalf," simply appears as a prose co-plaintiff here. Def. Br. at 4.
2

Additionally, given that the state court foreclosure proceedings undergirding plaintiffs'

2

Conclusion
In line with the foregoing, defendant's motion is granted. The complaint is dismissed,
with prejudice to any refiling in this Court.
Although plaintiffs paid the filing fee to commence this action, the Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good
faith and therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444-45 ( 1962).
The Clerk of Court is directed to enter judgment in accordance with this order and to
close the case for administrative purposes.
So Ordered.
Dated: Brooklyn, New York
March 4, 2016

ERICN. VITALIANO
United States District Judge

complaint commenced on August 13, 2008, their claim is also plainly barred by the FDCPA's
one-year statute of limitations. See 15 U.S.C. § 1692k(d). Moreover, it is equally plain that,
given the facts pleaded in the complaint, Deutsche Bank is not a "business the principal purpose
of which is the collection of any debts ... owed or due to another," 15 U.S.C. § 1692(a)(6)
(emphasis added), but is a creditor seeking to collect debts owed to it. As such, the FDCPA is
completely inapplicable. See Maguire v. Citicom Retail Services. Inc., 147 F.3d 232, 235 (2d
Cir. 1998) ("As a general matter, creditors are not subject to the FDCPA.").

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