Fraser et al v. Aames Funding Corporation et al
CORRECTED DECISION AND ORDER ADOPTING REPORT AND RECOMMENDATION. The complaint is dismissed with prejudice. Because amendment to the plaintiff's complaint would be futile, the plaintiffs are not granted leave to amend. Ordered by Judge Ann M. Donnelly on 2/10/2017. (Greene, Donna)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MICHAEL WALTER FRASER and
- against -
DECISION and ORDER ADOPTING
REPORT & RECOMMENDATION
DEUTSCHE BANK NATIONAL TRUST
COMPANY as Trustee for Morgan Stanley
ABS Capital I Inc., Trust 2003-HE1, dated as of
June 1, 2003 et al and all other parties of
interest, and JOHN AND JANE DOES 1-50,
16 Civ. 448 (AMD) (LB)
ANN DONNELLY, District Judge.
The plaintiffs, Michael Walter Fraser and Jacqueline Fraser, filed their complaint, entitled
“Petition to Cancel Note and Mortgage for Fraud, Usury, Material Misrepresentation, Fraud in
the Inducement, Fraud in Fact, Lack of Consideration, Claim in Recoupment, and Quiet Title
Against All Known Respondents and John and Jane Does and for Declaratory Relief” on January
28, 2016.1 (ECF No. 1.) The complaint, while largely difficult to understand, appears to seek,
among other things, the intervention of this court in a pending state court foreclosure action.2
On October 21, 2016, Deutsche Bank National Trust Company moved to dismiss the
plaintiffs’ complaint in its entirety. (ECF No. 17.) The plaintiffs filed a response to the
defendant’s motion to dismiss on October 21, 2016 entitled “A Motion in Limine to Deny Reject
The plaintiffs named Aames Funding Corporation and Deutsche Bank National Trust Company as defendants.
(Id.) The claims against Aames Funding Corporation were dismissed on October 6, 2016, because the plaintiffs did
not serve the summons and complaint.
The plaintiffs paid the filing fee.
and Stricken Defendants Notice of Motion All Contents & Declaration In Support of Motion to
Dismiss.” (ECF No. 25.) I referred the fully briefed motion to dismiss to Magistrate Judge Lois
Bloom for a report and recommendation as to whether the motion should be granted.
On January 24, 2017, Judge Bloom issued a thoughtful and thorough report
recommending dismissal of the plaintiffs’ complaint. The plaintiffs did not object.
Judge Bloom recommended dismissal of the claims for injunctive and declaratory relief
under the Younger doctrine, which provides that federal courts must decline, under particular
circumstances, to exercise jurisdiction where it would disrupt state proceedings. (R&R at 6.)
Further, the request for injunctive relief is barred by the Antic-Injunction Act. (Id. at 7.)
With respect to the plaintiffs’ claims for damages, Judge Bloom liberally construed the
complaint, and read it to raise claims under: the Consumer Financial Protection Act of 2010
(“CFPA”), the Federal Trade Commission Act (“FTCA”), the Fair Debt Collection Practices Act
(“FDCPA”), and Equal Protection Opportunity Act (“EPOA”), the Truth in Lending Act
(“TILA”), Regulation Z,3 and the Real Estate Settlement Procedures Act (“RESPA”). Judge
Bloom recommended dismissal of the CFPA and FTCA claims because there is no private right
of action under those statutes; the ECOA, TILA, Regulation Z, and RESPA claims are timebarred; and the FDCPA claims fail because the defendant is not a debt collector trying to collect
the debt of another, as required by the FDCPA. Finally, Judge Bloom recommended that I
decline to exercise supplemental jurisdiction over the plaintiffs’ state law claims.
In considering a report and recommendation, the 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)(C). If there were no objections, the district court need only find that there was no clear
Regulation Z is a “regulatory vehicle through which TILA is implemented.” McLean-Laprade v. HSBC, No. 7:12CV-1774 LEK/ATB, 2013 WL 3930565, at *8 (N.D.N.Y. July 30, 2013).
error. White v. W. Beef Properties, Inc., No. 07-cv-2345-RJD-JMA, 2011 WL 6140512, at *2
(E.D.N.Y. Dec. 9, 2011).
In addition to Judge Bloom’s report and recommendation, I have reviewed the complaint,
the defendant’s motion to dismiss and associated exhibits, and the plaintiffs’ submissions. I find
that the report and recommendation is well-reasoned and thorough, without any factual or legal
errors; thus, I adopt it in its entirety.
Accordingly, Judge Bloom’s report and recommendation is adopted in its entirety. The
complaint is dismissed with prejudice. Because amendment to the plaintiffs’ complaint would be
futile, the plaintiffs are not granted leave to amend.
s/Ann M. Donnelly
Ann M. Donnelly
United States District Judge
Dated: Brooklyn, New York
February 10, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?