Avail Holding LLC v. Ramos et al
MEMORANDUM & ORDER, Defendant's 18 Motion to Dismiss is DENIED. So Ordered by Judge Nicholas G. Garaufis on 3/9/2017. (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
AVAIL HOLDING LLC,
MEMORANDUM & ORDER
-againstFRANCES RAMOS,COMMISSIONER OF
SOCIAL SERVICES OF THE CITY OF NEW
YORK SOCIAL SERVICES DISTRICT,
CREDIT ACCEPTANCE CORPORATION,
NEW YORK CITY ENVIRONMENTAL
CONTROL BOARD,NEW YORK CITY
TRANSIT ADJUDICATION BUREAU,and
JOHN DOE "1"through "12",
NICHOLAS G. GARAUFIS,United States District Judge.
Plaintiff Avail Holding, LLC brings this residential mortgage foreclosure action against
Defendant Frances Ramos("Ramos" or "Defendant"), seeking to foreclose on a mortgage held
by Ramos encumbering the property located at 101-22 132nd Street, South Richmond Hill, New
York 11419(the "Subject Property"). (See Compl.(Dkt. 1).) The Complaint also names the
following additional defendants, alleging that they "have or may claim to have some interest in"
the Subject Property: Commissioner of Social Services ofthe City ofNew York Social Services
District; Credit Acceptance Corporation; New York City Environmental Control Board; New
York City Transit Adjudication Bureau; and John Doe "1"through "12." (Id
Before the court is Ramos's Motion to Dismiss the Complaint on abstention grounds
pursuant to Federal Rule of Civil Procedure 12(b)(the "Motion"). (See Not. of Mot. to Dismiss
(Dkt. 18).) For the following reasons. Defendant's Motion is DENIED.
A. The Instant Action
Except where otherwise indicated, the following facts are drawn from the Complaint and
are presumed to be true for the purpose ofthis Memorandum and Order. Ramos resides in and
owns the Subject Property. (Compl.^ 3; Aff. ofFrances Ramos in Support of Mot. to Dismiss
("Ramos Aff.")(Dkt. 18-2)^ 2.) On Jrme 15, 2007,Ramos executed a promissory note(the
"Note")to First Franklin Financial Corp.("First Franklin"), whereby First Franklin loaned her
$392,800. (Compl. K 12.) The Note was secured by a mortgage (the "Mortgage")on the Subject
Property, which Ramos executed, acknowledged, and delivered to Mortgage Electronic
Registration Systems,Inc., as nominee for First Franklin. (Id K 13.) The Note and Mortgage
were reassigned several times before being assigned to Plaintiff on November 6, 2015.
(Id 1119.) Beginning in August 2010, Ramos stopped making the required monthly payments
and thereby defaulted on the Mortgage. (Id 121.) Default continues to date and, as ofthe filing
ofthe Complaint, Ramos owes approximately $548,653.76. (Id HH 22, 26.)
On December 11, 2015,Plaintiff commenced this foreclosure action pursuant to New
York Real Property Actions and Proceedings Law("RPAPL")§§ 1301 et seq. (Id H 1.)
According to Ramos,this is the third foreclosure action that Plaintiff and its predecessors-ininterest have commenced against her, with the first two actions being dismissed "because the
plaintiffin each failed to comply with New York foreclosure law's predicate notice
requirements." (Ramos Aff. K 7.)
Ramos has moved to dismiss the Complaint pursuant to Rule 12(b)ofthe Federal Rules
of Civil Procedure and the abstention doctrine.^ (Not. of Mot. to Dismiss at 2.) She argues that
the court should abstain from adjudicating this action "in order to effectuate New York's
comprehensive regulatory scheme and consumer protections governing residential foreclosure
actions, which address a foreclosure crisis of compelling interest to the State ofNew York."
(See Def.'s Mem. ofLaw in Supp. of Mot.to Dismiss("Def.'s Br.")(Dkt. 18-3) at 1.) Plaintiff
opposes Defendant's Motion, arguing that the abstention doctrine is inapplicable to this case
because (i)"New York state laws governing prosecution of a residential foreclosure action are
clear, unambiguous and not subject to any significant differing interpretations of local policy";
and (ii) there is no administrative agency charged with adjudicating foreclosures in New York.
(See PL's Mem.ofLaw in Opp'n to Mot. to Dismiss("PL's Opp'n")(Dkt. 18-7) at 2,10-11.)
B. New York State's Residential Mortgage Foreclosure Process^
In response to the mortgage foreclosure crisis. New York enacted the Foreclosure
Prevention and Responsible Lending Act("FPRLA"), which provides a series oflegal
protections and foreclosure prevention opportunities to homeowners at risk oflosing their
2008 N.Y. Sess. Law Ch. 472(S. 8143-A). (See also Def.'s Br. at 6.) Pursuant to
protections enacted by the FPRLA,for example, a lender, an assignee or a mortgage loan
servicers is required to send borrowers a notice of default at least 90 days before commencing a
legal action against the borrower(see N.Y. Real Prop. Acts. § 1304)and must file certain
Defendant's Motion should be treated as a motion to dismiss for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1) ofthe Federal Rules("Rule 12(b)(1)"). See City of N.Y. v. Milhelm Attea & Bros.. 550 F. Supp.2d
332,341 (E.D.N.Y. 2008)(holding that a motion to dismiss based on the abstention doctrine is considered as a
motion made pursuant to Rule 12(b)(1)).
^ In adjudicating a motion to dismiss for lack ofsubject matter jurisdiction under Rule 12(b)(1), courts may consider
matters outside the pleadings. S^ Makarova v. United States. 201 F.3d 110, 113(2d Cir. 2000); First Keystone
Consultants. Inc. v. Schlesineer Elec. Contractors. Inc.. 862 F. Supp. 2d 170, 181 n.11 (E.D.N.Y. 2012).
information about the loan and the borrower with New York's Superintendent ofFinancial
Services before initiating the lawsuit fsee id. § 1306). In addition, in any foreclosure action
involving an owner-occupied home,the parties must participate in a mandatory court-supervised
settlement conference. (See N.Y. C.P.L.R. 3408.) At the settlement conference, parties are
required to "negotiate in good faith to reach a mutually agreeable resolution, including but not
limited to a loan modification, short sale, deed in lieu offoreclosure, or any other loss mitigation,
if possible."^ (Id.) The Uniform Rules for New York State Trial Courts provide that motions are
"held in abeyance" while these settlement conferences are held. (See N.Y. Comp. Codes R.&
Regs. tit. 22,§ 202.12-a(c)(7).)
In Queens County, New York, where the property at issue in this foreclosure matter is
located, the New York Supreme Court created a specialized Residential Foreclosure Part to
conduct the mandatory settlement copferences pursuant to Rule 3408 ofthe New York Civil
Practice Law and Rules("CPLR 3408")."^ (See Decl. of Christopher Newton(Newton Decl.)
(Dkt. 18-1) T[ 14.) The Residential Foreclosure Part is staffed by ajudge and court referees who
serve as mediators in the settlement conferences. (See also id.f 16.)
^ Other laws and regulations affording protection to homeowners in New York include:(i)Rule 3012(b)ofthe New
York Civil Practice Law and Rules, which requires plaintiffs' attorneys to file a certificate of merit with the
summons and complaint in foreclosure actions on home loans, in which the attorney must certify that "there is a
reasonable basis for the commencement ofsuch action and that the plaintiff is currently the creditor entitled to
enforce rights under such documents"; and (ii)Part 419.11 ofthe New York State Department of Financial Services
Business Conduct Rules,3 N.Y.C.R.R. 419.11, which mandates,inter alia, that loan servicers "shall make
reasonable and good faith efforts...to engage in appropriate loss mitigation options, including loan modifications,
to avoid foreclosure."
"See Residential Foreclosure Part, https://www.nycourts.gOv/courts/l Ijd/supreme/civilterm/foreclosure.shtml (last
visited March 8, 2017).
Defendant does not dispute that the court has diversity jurisdiction to adjudicate this
action.^ Instead, Ramos argues that the court should decline to exercise its jurisdiction and
should dismiss the case pursuant to the abstention doctrine, (See Def.'s Br. at 4-5.) "As a
general rule, federal coiirts are under a virtually unflagging obligation to exercise the jurisdiction
given them." Cannadv v. Valentin, 768 F.2d 501, 503(2d Cir. 1985)(per curiam)(internal
citations omitted). Under the abstention doctrine, however, a district court may decline to
exercise or postpone the exercise of its jurisdiction in certain "exceptional circumstances." Colo.
River Water Conservation Dist. v. Akin. 424 U.S. 800, 813(1976)(citation omitted).
Abdication of the obligation to decide cases can be justified under
[abstention] doctrine only in the exceptional circumstances where
the order to the parties to repair to the state court would clearly serve
an important coimtervailing interest. It was never a doctrine of
equity that a federal court should exercise its judicial discretion to
dismiss a suit merely because a State court could entertain it.
Id. at 813-14 (citations and quotation marks omitted); see also Ouackenbush v. Allstate Ins.
Co.. 517 U.S. 706, 716(1996); Ctv. of Alleghenv v. Frank Mashuda Co.. 360 U.S. 185,189
(1959). "Because abstention is the exception, not the rule, a party seeking abstention carries a
heavy burden ...." State Farm Mut. Auto. Ins. Co. v. Mallela. 175 F. Supp. 2d 401,410
(E.D.N.Y.2001)(intemal quotation marks and citation omitted); see Arkwright-Boston Mfrs.
Milt. Ins. Co. V. City ofN.Y.. 762 F.2d 205, 210(2d Cir. 1985)(holding that party opposing the
exercise offederal jurisdiction has the "burden of persuasion").
^ Plaintiff adequately pleaded in the Complaint that the parties are citizens of different states and the amount in
controversy, exclusive ofinterests and costs, exceeds $75,000. (See CompL ^ 10.) See also 28 U.S.C. § 1332(a).
The court notes that the inclusion ofDoe defendants does not destroy diversity unless it is later found that one or
more ofthe unknown defendants is non-diverse. Merrill Lynch Bus. Fin. Servs. Inc. v. Heritage Packaging Corp..
No.06-CV-3951 (DOT),2007 WL 2815741, at *3(E.D.N.Y. Sept. 25,2007). Accordingly, the court is satisfied
that it has subject matter jurisdiction over this case.
Defendant argues that the instant action should be dismissed under the abstention
principles outlined in Louisiana Power & Light Co. v. City ofThibodaux. 360 U.S. 25(1959),
and Burford v. Sun Oil Co., 319 U.S. 315(1943). For the following reasons,the court finds that
neither doctrine applies to this case.^ Accordingly, Defendant's Motion to Dismiss is denied.
Abstention is appropriate where an action "presents difficult questions of state law
bearing on policy problems of substantial public import whose importance transcends the result
in the case then at bar." Colo. River. 424 U.S. at 814(citing Thibodaux. 360 U.S. 25).
Defendants refers the court to New York's various regulations and statutes governing the judicial
foreclosure process^ and asserts that the court should abstain from exercising its diversity
jurisdiction because "the case law interpreting New York's recently enacted laws and rules is
constantly developing ... and its [courts] have developed expertise adjudicating...novel
questions oflaw arising under New York's foreclosure laws." (Def.'s Br. at 4.)
Defendant's primary argument is that abstention is appropriate because "[t]he New York
state courts continue to grapple with the parameters ofthe good faith negotiation standard and
the appropriate remedies for failure to negotiate in good faith" with respect to the settlement
conferences that are mandated by CPLR 3408.^ (Id at 19.) As an initial matter, the parties
dispute whether, under Erie Railroad Co. v. Tompkins. 304 U.S.64(1938), and Hanna v.
® The court notes that some cases treat Thibodaux abstention as part ofBurford and others construe Thibodaux as a
separate doctrine. Because Defendant appears to treat the doctrines as distinct from one another(see generally
Def.'s Br.), the court will address each separately while recognizing that they overlap at least to some degree. See
Colo. River.424 U.S. at 815 (describing the holdings in Thibodaux and Burford as distinct but categorizing the
cases together as one "category of abstention").
' supra Section LB.
® Ramos also notes that "the legislature and the [Department ofFinancial Services("DFS")] continue to amend and
refine the relevant laws and regulations [concerning mortgage foreclosure]"(id at 19-20), but this fact has no
bearing on whether this case presents "difficult questions of state law." See Colo. River. 424 U.S. at 814.
Plumer. 380 U.S. 460(1965), Defendant would even be entitled to a settlement conference
pursuant to CPLR 3408 in federal court. rComnare Def.'s Reply Mem.in Supp. of Mot. to
Dismiss("Reply Br.")(Dkt. 18-8) at 3-4,6(arguing that CPLR 3408 establishes a "substantive
right" to a settlement conference and Federal Rule of Civil Procedure 16 "is not a substitute for
the substantive requirements of CPLR 3408") with PL's Opp'n at 8 (asserting that Defendant
would not be entitled to a settlement conference pursuant to CPLR 3408 because CPLR 3408 is a
"procedural provision, not a substantive one"). The court need not decide this question on
Defendant's Motion to Dismiss because Defendant has not demonstrated that CPLR 3408 is
difficult to apply, warranting Thibodaux abstention. Put differently, even if Ramos were entitled
to a settlement conference pursuant to CPLR 3408 in federal court, which the court is skeptical
that she is,^ Ramos has failed to persuade the court that the law concerning these settlement
conferences is particularly challenging to apply.
The decisions cited by Ramos make clear that the standard for deterniining whether a
party has failed to negotiate in good faith is well settled:"To conclude that a party failed to
negotiate in good faith pursuant to CPLR 3408(f), a court must determine that 'the totality ofthe
circumstances demonstrates that the party's conduct did not constitute a meaningful effort at
reaching a resolution.'" U.S. Bank Nat. Ass'n v. Smith. 999 N.Y.S.2d 468,470
(N.Y. App. Div. 2014)(internal citation omitted); see also, e.g., LaSalle Bank. N.A. v. Dono.
24 N.Y.S.3d 144,146(N.Y. App. Div. 2016). Furthermore,the rule itself clearly delineates the
appropriate remedies for a party's failure to negotiate in good faith. See N.Y. C.P.L.R.
3408(j),(k). As such,there is no occasion for the court to abstain on this basis.
» See, e.g.. Gustavia Home. LLC v. Rice. No. 16-CV-2353(BMC),2016 WL 6683473, at *5(E.D.N.Y. Nov. 14,
2016)(holding CPLR 3408 is a "procedural mechanism of state law and therefore is inapplicable in federal court'
Cciting Kondaur Capital Corp. v. Caiuste. 849 F. Supp. 2d 363, 370-71 (E.D.N.Y. 2012)(same)).
Defendant cites a number of state statutes that arguably would apply in federal court, see,
e.g., N.Y. R.P.A.P.L. §§ 1304,1306, but, similarly, she has not demonstrated that these statutes
present "difficult questions of state law."'° See Colo River, 424 U.S. at 814. To the contrary,
the statutory provisions at issue appear to be unambiguous. For example. Sections 1304 and
1306 ofthe New York Real Property Actions and Proceedings Law consist of straightforward
notice and pre-suit filing requirements.
In cases like the one at hand where the state law issues "are not unclear,the federal court
should not abstain." Canadav v. Koch,608 F. Supp. 1460,1468(S.D.N.Y. 1985): see Naylor v.
Case and McFrath, Inc., 585 F.2d 557, 565(2d Cir. 1978)("A plain limit on abstention is the
case in which...the issue involved is one on which the state law is clear, and the risk of
rendering a decision that would be disruptive ofthe even development of state law can be
excluded.")^^ Accordingly,the court finds that abstention under Thibodaux is inappropriate
Defendant further argues that the court should abstain from exercising its jurisdiction
over this case pursuant to the principles outlined in Burford. (See Def.'s Br. at 4-5.) The
Supreme Court has summarized Burford abstention as follows:
Where timely and adequate state-court review is available, a federal
court sitting in equity must decline to interfere with the proceedings
or orders of state administrative agencies: (1) when there are
'difficult questions of state law bearing on policy problems of
substantial public import whose importance transcends the result in
the case then at bar'; or(2) where the 'exercise offederal review of
Because the court finds that the legal issues at stake in this case are not difficult, it need not decide whether the
Colo. River,424 U.S. at 814.
issues are of"substantial public import."
"Defendant cites Canadv and Navlor for the principle that federal courts should abstain in order to allow state law
to develop around new legislation. (Def.'s Br. at 19-20.) These cases, however, explicitly state that abstention is
appropriate only where state law is unclear, which is not the case here. See Canadv.608 F. Supp. at 1468; Navlor.
585 F.2d at 565.
the question in a case and in similar cases would be disruptive of
state efforts to establish a coherent policy with respect to a matter of
substantial public concern.'
New Orleans Pub. Serv.. Inc. v. Council of City ofNew Orleans("NOP^"),491 U.S. 350, 361
(1989)(quoting Colo. River. 424 U.S. at 814).
1. jBurford's Application to Court-Administered Programs
The threshold question is whether Burford extends to cases like this one which involve a
court-administered state program but no particular state regulating agency is involved. Plaintiff
appears to argue that it does not tsee PL's Br. at 10-11), but Defendant asserts that"Burford and
its progeny did not expressly Ihnit abstention to cases in which state agency decision-making is
implicated." (Def.'s Reply at 2.) The weight of controlling authority suggests that the existence
of an administrative scheme is necessary to apply Burford.
The Burford test, as articulated in NOPSI. suggests that a state administrative agency is in
fact a necessary precondition to application of Burford:"Where timely and adequate state-court
review is available, a federal court sitting in equity must decline to interfere with the proceedings
or orders of state administrative agencies ...." NOPSI.491 U.S. at 361. In fact, the Supreme
Court has repeatedly stated that "Burford [abstention] is concemed with protecting complex state
Defendant cites Cox v. United States Department of Agriculture. 954 F. Supp. 2d 1061,1065(D. Nev. 2012),
rev'd and remanded on other grounds. Cox v. U.S. Dep't of Agric.. 800 F.3d 1031 (9th Cir. 2015), in support ofits
position that the court should abstain from adjudicating mortgage foreclosure proceedings, but fails to note an
important distinction between this case and Cox. (See Def.'s Br. at 14,20.) In Cox,the borrower soughtjudicial
review ofan administrative decision. See Cox. 954 F. Supp.2d at 1065. The borrower filed a Petition for Judicial
Review in state court, requesting review ofstate Foreclosure Mediation Program proceediogs. Id at 1062. The
mortgagee removed the petition to federal court. Id The federal court characterized the state Foreclosure Mediation
Program proceedings as administrative proceedings, and held that review ofsuch proceedings should be left to the
state courts. Id at 1064. The appropriate analog here would be ifthe parties were seeking judicial review in federal
court of a settlement conference they had participated in pursuant to CPLR 3408. To the contrary. Plaintiff
commenced this mortgage foreclosure action in federal court.
administrative processes from undue federal interference."^^ Id at 362(emphasis added); see,
e.g., Ouackenbush. 517 U.S. at 725; England v. La. State Bd. of Med.Exam'rs, 375 U.S. 411,
464 n.5 (1964); Allegheny Cty.. 360 U.S. at 189. The overwhelming balance of Second Circuit
case law also suggests that an administrative scheme is a prerequisite to Burford abstention. See,
e.g., Dittmer v. Ctv. of Suffolk. 146 F.3d 113,117(2d Cir. 1998); Ctv. of Suffolk v. Long Island
Lighting Co.. 907 F.2d 1295,1309(2d Cir. 1990).
Notwithstanding,the Second Circuit has on rare occasions applied Burford in the absence
of an administrative scheme. For example, in Friedman v. Revenue Management ofNew York.
Inc., 38 F.3d 668(2d Cir. 1994),the Second Circuit held that the district court properly abstained
from dissolving a New York corporation on Burford grounds.^"^38 F.3d at 671. While the court
did not directly address the fact that the action did not involve agency action, it nonetheless held
that the case "implicate[d] Burford. given the comprehensive regulation of corporate governance
and existence by New York." Ifr; see also id.("New York has a strong interest in the creation
and dissolution ofits corporations and in the uniform development and inteipretation ofthe
statutory scheme regarding its corporations."). It appears that this holding is limited to actions
seeking to dissolve corporations, however, as "[i]t has long been accepted practice for the federal
courts to relinquish their jurisdiction in favor ofthe state courts, where its exercise would involve
Defendant points to Justice Anthony Kennedy's concurrence in Ouackenbush. in which he suggests that a court-
administered program may be a complex state administrative process for abstention purposes:"The fact that a state
court rather than an agency was chosen to implement California's scheme provided more reason, not less,for the
Federal Court to stay its hand." 517 U.S. at 733. While the quoted language suggests that Justice Kennedy believes
Burford could extend to a court-administered program, his statement was made in a concurrence and has not
thereafter been adopted by a majority ofthe Justices. It is, therefore, not binding on this court.
1'* Lower courts have also held that Burford prevents federal courts fi-om deciding landlord-tenant disputes. See
Jaffe V. Clarke. 566 F. Supp. 1500,1502(S.D.N.Y. 1983)(holding that the state's agencies and courts are
accustomed to resolving landlord-tenant disputes), afFd without opinion. 742 F.2d 1436(2d Cir. 1984); Moos v.
Wells. 585 F. Supp. 1348, 1349-50(S.D.N.Y. 1984)(citing JaffeJ.
control ofor interference with the internal affairs ofa domestic corporation ofthe state."
Pennsylvania v. Williams. 294 U.S. 176, 185 (1935).
Defendant has not identified, and the court cannot find,case law that suggests that it is
also standard practice for federal courts to defer to state courts when it comes to residential
mortgage foreclosure actions.
To the contrary, these types of cases are routinely adjudicated in
federal court. See, e.g., Gustavia Home,LLC v. Rice. No. 16-CV-2353(BMC),2016 WL
6683473, at *5(E.D.N.Y. Nov. 14, 2016); E. Sav. Bank v. Aufiero, No. 14-CV-0256(JFB)
(AYS),2016 WL 1056998, at *9(E.D.N.Y. Mar. 14, 2016); E. Sav. Bank, FSB v. Bright, No.
(MDG),2012 WL 2674668, at *3(E.D.N.Y. July 5, 2012); Kondaur Capital
Corp. V. Caiuste. 849 F. Supp. 2d 363, 364(E.D.N.Y. 2012); Home Loan Inv. Bank, F.S.B. v.
Goodness & Mercv. Inc.. No. lO-CV-4677(ADS),2011 WL 1701795, at *11 (E.D.N.Y. Apr. 30,
20111: cf. F.D.I.C. v. Four Star Holding Co.. 178 F.3d 97,102(2d Cir. 1999)(reversing district
court decision granting defendants' motion to dismiss on Colorado River abstention grounds in
mortgage foreclosure action); Nat'l Citv Mortg. Co. v. Stephen,647 F.3d 78,82-83(3d Cir.
2011)(holding Burford did not apply in mortgage foreclosure action brought in federal court
based on diversity jurisdiction); F.D.I.C. v. Sweeney, 136 F.3d 216, 219(1st Cir. 1998)(holding
Burford abstention inapplicable to mortgage foreclosure dispute where "[t]he legal issues are
straightforward, and there is no unified state administrative apparatus to disrupt").
In the absence of clear precedent that would compel this court to apply Burford to a
court-administered program involving mortgage foreclosures, in view ofthe fact that the legal
Defendant cursorily asserts that New York's "comprehensive body oflaw governing the residential foreclosure
process ... is comparable to other state regulatory schemes in cases in which courts have found abstention
appropriate," but offers no support for this argument. (Def. Reply at 1.)
issues presented in this case are not complex,'^ and in light of established authority directing
courts to abstain only in "extraordinary circumstances," the court declines to extend Burford to
this case.^^ Accordingly,the court declines to dismiss the action based on the abstention
For the foregoing reasons. Defendant's Motion to Dismiss(Dkt. 18)is DENIED.
s/Nicholas G. Garaufis
NICHOLAS G. GARAUF ,
Dated: Brooklyn, New York
United States District Judge
See supra Section II.A.
See Doe v. Hirsch. 731 F. Supp. 627,631 n.3(S.D.N.Y. 1990)(declining to abstain under Burford because a
"critical element ofthe Burford doctrine [wa]s missing," namely a complex administrative scheme); see also
Cleveland Hous. Renewal Project v. Deutsche Bank Trust Co.. 621 F.3d 554,567(6th Cir. 2010)("While the
presence of state administrative agency involvement is not prerequisite to Burford abstention, it represents an
important indicator ofthe state's interest in implementing a coherent policy.")
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