Moses v. J.P. Morgan Chase Bank National Association

Filing 5

ORDER: For the reasons stated in the attached opinion, Moses's complaint is dismissed but Moses is granted leave to submit an amended complaint within thirty (30) days of the date of this Order. Moses's request to proceed in forma pauperis is granted for purposes of this Order. Ordered by Judge John Gleeson on 4/29/2015. (Levin, Sarah)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

FOR ONLINE PUBLICATION

CYNTHIA E. MOSES,
MEMORANDUM
AND ORDER
15-CV-528 (JG)(RLM)

Plaintiff,
- against J.P. MORGAN CHASE BANK NATIONAL
ASSOCIATION,
Defendant.

JOHN GLEESON, United States District Judge:
Plaintiff Cynthia E. Moses, proceeding pro se, filed the above-captioned action on
February 2, 2015, against defendant J.P. Morgan Chase Bank National Association (“JPMC”).
Moses’s request to proceed in forma pauperis is granted for purposes of this Order. The
complaint is dismissed but Moses is granted leave to submit an amended complaint within thirty
(30) days of the date of this Order.
BACKGROUND
The following facts are taken from the complaint. On November 1, 1991, Moses
met with Alliance Mortgage Banking Corporation. Compl. at 3. She alleges that “[i]t was
mutually decided that plaintiff would purchase above-mentioned property, a shell, for the sum of
... $1690.59. This agreement is evidenced by (1) check #391 (2) certified copy of note, & (3)
assignment of mortgage without covenant certified.” Id. 1 Sometime thereafter, JPMC purchased
bundles of mortgages from Alliance Mortgage Corporation. Id. “Then [the defendant]
repeatedly bullied, badgered, billed and collected money from me on a monthly basis. Yet I did

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No documentary evidence is attached to the complaint.

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not borrow any money from this defendant. . . . No one connected with this property has signed
any contract with the defendant!” Id. at 3-4. Moses asserts: “Still, this big bank was again paid
in full, the money which it had been collecting from me, when this household qualified for the
Obama Making Home Affordable Program as well! . . . The bank is not only double-dipping but
is also attempting to collect more money by foreclosing on a non-existent mortgage.” Id. at 4.
Moses further alleges that “[t]o date, defendant has forcibly seized title to this
property located at 114-69 208 Street, Cambria Heights, New York 11411. The defendant has
refused to deliver title, & failed to deliver title.” Id. at 4-5. JPMC “has instead[] repeatedly
harassed me the plaintiff with: 1) more than one thousand unnecessary & unwarranted telephone
calls . . . disregarding the laws of Fair Debt Collection Practices and Laws of Commerce.” Id. at
5. Defendant has also sent “unnecessary letters to harass me” and “has dispatched interlopers,
investors, developers & even sinister land-grabbers, to do daily shakedowns at my location!” Id.
at 5-6. She further alleges that these individuals have trespassed, banged on Moses’s door,
“circle[d] [her] block in cars & on foot,” and taken pictures of her. Id. “Despite the fact that the
‘original obligation was discharged,’ as is stated on several of their harassment letters, sent by
the defendant to plaintiff, the bank has refused to quietly surrender title & is still trying to collect
on a debt not owed.” Id. at 9.
Moses purports to assert federal jurisdiction pursuant to 28 U.S.C. § 1391(e) and
28 U.S.C. §§ 2671-80, provisions relating to the proper venue and procedures for tort claims
involving United States government defendants. She also cites the “laws of Fair Collection
Practices and Laws of Commerce.” The complaint further asserts charges of “(1) harassment,
criminal mischief & vandalism; (2) discrimination & intimidation; (3) racial profiling & inciting

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a riot; (4) attempting to collect a debt not owed; (5) unfair trading & abusive practices; (6) false
advertising & deceptive trade practices; (7) violation of contract (i.e. Obama Making Home
Affordable Program); (8) violation of civil rights; (9) violation of constitutional rights; and (10)
violation of human rights.” Compl. at 7-8. Moses seeks $10 million in damages, plus interest
from March 23, 1996 to the present, and other relief. Id. at 8, 10.
DISCUSSION
In reviewing the complaint, I am mindful that Moses is proceeding pro se and that
her pleadings should be held “to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Where “a liberal reading of the
complaint gives any indication that a valid claim might be stated,” I must grant leave to amend at
least once. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation marks
omitted).
However, a complaint filed in forma pauperis may be dismissed “at any time”
upon determination that the action “(I) is frivolous or malicious; (ii) fails to state a claim upon
which relief may be granted; or (iii) seeks monetary relief from a defendant who is immune from
such relief.” 28 U.S.C. § 1915(e)(2)(B). An action is deemed frivolous as a matter of law when,
inter alia, it “lacks an arguable basis in law, or a dispositive defense clearly exists on the face of
the complaint.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)
(citations omitted).
A plaintiff seeking to bring a lawsuit in federal court also must establish that the
court has subject matter jurisdiction over the action. “[F]ailure of subject matter jurisdiction is
not waivable and may be raised at any time by a party or by the court sua sponte. If subject

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matter jurisdiction is lacking, the action must be dismissed.” Lyndonville Sav. Bank & Trust Co.
v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000) (citations omitted). Federal subject matter
jurisdiction is available only when a “federal question” is presented, see 28 U.S.C. § 1331, or
when plaintiff and defendants have complete diversity of citizenship and the amount in
controversy exceeds $75,000. See 28 U.S.C. § 1332. In order to invoke federal question
jurisdiction, the plaintiff’s claim(s) must arise “under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331.
Moses’s complaint does not arise under the venue or procedural provisions she
cites. The first, 28 U.S.C. § 1391(e), governs venue for civil actions against an officer or
employee of the United States. The second, 28 U.S.C. §§ 2671-80, codifies the Federal Tort
Claims Act, which waives sovereign immunity and permits litigants to bring certain claims
against the United States. As Moses has not named any United States government defendant,
these provisions are inapposite.
The Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (“FDCPA”) prohibits
certain activities by debt collectors, including improper communications with the consumer,
harassing or oppressive behavior, false or misleading representations, and the use of unfair or
unconscionable means of debt collection. 15 U.S.C. §§ 1692c-f. However, the FDCPA defines
“debt collector” as any person who uses interstate commerce “in any business the principal
purpose of which is the collection of any debts, or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. §
1692a(6). It does not include “any officer or employee of a creditor while, in the name of the
creditor, collecting debts for such creditor,” 15 U.S.C. § 1692a(6)(A), unless the creditor “uses

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any name other than his own which would indicate that a third person is collecting or attempting
to collect such debts.” 15 U.S.C. § 1692a(6). Moses asserts that the harassing behavior was
directed by J.P. Morgan Chase Bank, N.A., the alleged creditor, not by a third-party debt
collector. Accordingly, the FDCPA does not apply.
Moses also invokes the Civil Rights Acts and claims violations of her
constitutional rights, including “discrimination” and “racial profiling.” Title 42 of the United
States Code, Section 1983 (“§ 1983”), provides a mechanism for bringing civil rights claims
against state actors. In order to maintain a § 1983 action, a plaintiff must allege two essential
elements. First, “the conduct complained of must have been committed by a person acting under
color of state law.” Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994) (emphasis added).
Second, “the conduct complained of must have deprived a person of rights, privileges or
immunities secured by the Constitution or laws of the United States.” Id. Section 1983 imposes
liability for constitutional deprivations caused by state actors, and cannot be applied to the
actions of private individuals. As the Supreme Court has held, “the under-color-of-state-law
element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory
or wrongful.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal
quotations omitted). In this case, the only named defendant in this action is a private banking
company. Moses has not alleged that the bank is acting “under color of state law.” Moreover,
the corporate entity is not a “person” amenable to suit under Section 1983. Thus, Moses’s claims
against J.P. Morgan Chase Bank, N.A., may not proceed under Section 1983.
Liberally construing the complaint, I find that Moses may be able to assert
diversity jurisdiction. She states that she resides in Cambria Heights, New York, and that

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JPMC’s main office is located in the State of Ohio. See Excelsior Funds, Inc. v. JP Morgan
Chase Bank, N.A., 470 F. Supp. 2d 312, 313 (S.D.N.Y. 2006) (“[A] national bank is a citizen
only of the state in which its main office is located, and not the state in which its principal place
of business is located, if that state differs from the location of its main office). To the extent that
Moses alleges that JPMC has harassed or threatened her or committed fraudulent acts, she may
be able to allege state law causes of action that could be heard under diversity jurisdiction. She
claims damages in the amount of $10 million, although she has not stated the basis for her
damages claims. “A party invoking the jurisdiction of the federal court has the burden of
proving that it appears to a ‘reasonable probability’ that the claim is in excess of the statutory
jurisdictional amount.” Chase Manhattan Bank, N.A. v. Am. Nat’l Bank and Trust Co. of
Chicago, 93 F.3d 1064, 1070 (2d Cir. 1996) (citation omitted); see also Tongkook Am., Inc. v.
Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994) (“with mounting federal case loads, . . .
it has become doubly important that the district courts take measures to discover those suits
which [do not belong in a federal court] and to dismiss them when the court is convinced to a
legal certainty that the plaintiff cannot recover an amount in excess of the [the minimum
statutory jurisdictional amount.]”) (alterations in original) (quoting Deutsch v. Hewes St. Realty
Corp., 359 F.2d 96, 98 (2d Cir. 1966)).
Moses has not stated the basis for her damages claim of $10 million, and I am not
satisfied that it is reasonably probable that she can recover more than $75,000 in this action. The
Court of Appeals for the Second Circuit has cautioned that courts should afford plaintiffs an
opportunity to show good faith in believing that a recovery in excess of the jurisdictional amount
is possible, Chase Manhattan Bank, 93 F.3d at 1070. Accordingly, I grant leave to amend the

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complaint to assert grounds for diversity jurisdiction. See Branum v. Clark, 927 F.2d 698, 705
(2d Cir. 1991).
CONCLUSION
The Complaint fails to clearly establish any federal question or an adequate basis
for an amount in controversy that would bring this case under diversity jurisdiction. Moses is
afforded 30 days within which she may file an amended complaint that asserts a valid basis for
federal jurisdiction over her claims. She must specify the harm for which she seeks financial
recovery and the basis for the amount in controversy. If she believes that she can advance a
claim under the FDCPA or any other provision of federal law, she may include any factual
details in support of these claims. If available, Moses should attach copies of documents from
Alliance Mortgage Corporation and J.P. Morgan Chase Bank, N.A. to support her claims. The
amended complaint must be captioned, “Amended Complaint,” and shall bear the same docket
number as this Order. All further proceedings shall be stayed for 30 days. I certify pursuant to
28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma
pauperis status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438,
444-45 (1962).

So ordered.

John Gleeson, U.S.D.J.

Dated: April 29, 2015
Brooklyn, New York
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