Tasaka v. Bayview Loan Servicing, LLC et al

Filing 47

MEMORANDUM AND ORDER: For the reasons set forth in the attached Memorandum and Order, Defendants' motions to dismiss 40 41 are GRANTED and Plaintiff's motion to amend 45 is DENIED. Plaintiffs amended complaint 35 is dismissed. Plai ntiff's motions for judgment on the pleadings 39 46 are DENIED as improperly filed. The Clerk of Court is respectfully directed to mail a copy of this memorandum and order to the pro se litigant and to close the case. Ordered by Judge LaShann DeArcy Hall on 3/31/2022. (Williams, Erica)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
TOMOE TASAKA,
v.

Plaintiff,

BAYVIEW LOAN SERVICING, LLC; JP
MORGAN CHASE BANK, NATIONAL
ASSOCIATION; RICHARD O’BRIEN;
MICHAEL S. WALDRON; and JAMES DIMON,

MEMORANDUM AND ORDER
17-CV-07235 (LDH)(ST)

Defendants.
LASHANN DEARCY HALL, United States District Judge:
Tomoe Tasaka (“Plaintiff”), proceeding pro se, brings the instant action against Bayview
Loan Servicing, LLC (“Bayview”), Richard O’Brien, Michael S. Waldron (together with
Bayview and O’Brien, the “Bayview Defendants”), JP Morgan Chase Bank, National
Association (“JPMC”), and James Dimon (together with JPMC, the “JPMC Defendants”)
(collectively, “Defendants”), asserting various claims under state and federal law, including
claims for (i) fraud, (ii) violation of the Uniform Commercial Code (“UCC”), (iii) violation of
the Truth in Lending Act (“TILA”), and violation of various federal criminal statutes.
Defendants move, pursuant to Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil
Procedure, to dismiss the amended complaint in its entirety.
BACKGROUND 1

On May 7, 2007, Plaintiff entered into a promissory note with Alliance Mortgage
Banking Corporation (“Alliance”) and its successors and assigns for $114,187 (the “Note”). (See

The following facts are taken from the amended complaint, documents attached to and incorporated by reference
into the complaint, and public documents of which the Court takes judicial notice. See Leonard F. v. Israel Disc.
Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (When ruling on a Rule 12(b)(6) motion to dismiss, the Court
1

Am. Compl., Ex. A (Note), ECF No. 35-2.) The Note was secured by a mortgage on real
property located at 7176 State Highway 29, Dolgeville, New York 13329 (the “Real Property”)
in Fulton County, New York (the “Mortgage”), which was “given to Mortgage Electronic
Registration Systems, Inc. (‘MERS’) (solely as nominee for [Alliance]).” (See Am. Compl., Ex.
B (Mortgage) at 3, ECF No. 35-3.) The Mortgage was recorded by the Fulton County clerk on
June 11, 2007. (Id. at 2.) Thereafter, on October 9, 2007, the Mortgage was assigned from
MERS, as nominee for Alliance, to MERS, its successors and assigns, as nominee for
Washington Mutual Bank (“WaMu”), its successors and assigns. (Am. Compl., Ex. C
(assignment to WaMu), ECF No. 35-4.) This assignment was recorded by the Fulton County
clerk on January 2, 2008. (Id.) On September 13, 2013, the Mortgage was assigned from
MERS, as nominee for WaMu, to JPMC. (Am. Compl., Ex. D (assignment to JPMC), ECF No.
35-5.) The assignment was recorded by the Fulton County Clerk on September 27, 2013. (Id.)
On October 3, 2013, JPMC initiated foreclosure proceedings in New York State Court (the
“Foreclosure Action”). (See Am. Compl., Ex. E-4 (Foreclosure Action complaint), ECF No. 3510.) In November 2014, the state court granted JPMC’s motion for default judgment in the
Foreclosure Action and appointed a referee to compute the amount due to JPMC. (Am. Compl.
Ex. F-1, ECF No. 35-14.) On March 10, 2016, a Judgment of Foreclosure and Sale was entered
in the Foreclosure Action. (Declaration of Brian P. Scibetta (“Scibetta Decl.”), Ex. 2 (Judgment
of Foreclosure and Sale), ECF No. 40-3.) On March 15, 2016, the Mortgage was assigned by
JPMC to the Secretary of Housing and Urban Development and on April 6, 2016, the Secretary

“confine[s] its consideration to facts stated on the face of the complaint, in documents appended to the complaint or
incorporated in the complaint by reference, and to matters of which judicial notice may be taken.”); Chambers v.
Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (“Even where a document is not incorporated by reference, the
court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the
document integral to the complaint.”).

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of Housing and Urban Development assigned the Mortgage to Bayview Loan Servicing, LLC.
(Am. Compl., Ex. E (assignment to Bayview and chain of title), ECF No. 35-6.) The latter
assignment was recorded by the Fulton County Clerk on May 26, 2016. (Id.) On October 2,
2017, JPMC assigned the bid of foreclosure sale to Bayview. (Scibetta Decl., Ex. 7 (assignment
of bid of foreclosure sale), ECF No. 40-8.)
Plaintiff alleges that Defendants claimed an interest in the Note underlying the Mortgage,
despite that fact that Plaintiff did not enter into an agreement with JPMC or Bayview. (Am.
Compl. at 5–6, ECF No. 35.) Plaintiff further alleges that a transfer of the Mortgage to any
Defendant was not recorded in the official records of the Queens County Recorder’s Office
within 30 days of the transfer or assignment. (Id. at 7–8.) Moreover, Plaintiff alleges that, at
some point, the loan was “transferred to multiple classes of the Guaranteed REMIC PassThrough Certificates Fannie Mae REMIC Trust 1990-6.” (Id. at 5–6.) Plaintiff concludes that
the rights to the “Mortgage must have also been transferred to multiple classes of [all
Defendants].” (Id. at 6.) According to Plaintiff, “Defendant(s) certifies that an assignment of the
[Mortgage] has been accomplished by selling certificates as shares of the Guaranteed REMIC
Pass-through Certificates Fannie Mae REMIC Trust 1990-6, to investors” though no such
assignments have been recorded in the Queens County Recorder’s Office. (Am. Compl. at 7–8.)
Plaintiff also alleges that JPMC and Bayview never owned the Note underlying the Mortgage.
(Id. at 8.) Next, Plaintiff alleges that she hired an investigator to conduct a “securitization audit”
to prove that Defendants are not the “holders in due course” of the Note and Mortgage and that
they therefore committed fraud. (Id. at 14.) Plaintiff attached to her second amended complaint
533 pages of exhibits, including an Affidavit by Joseph R. Esquivel, Jr., a licensed investigator in
the state of Texas, who conducted a chain of title analysis and mortgage fraud investigation for

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Plaintiff “regarding the [s]ecurity [i]nstrument and the real property located at 7176 State
Highway 29, Dolgeville, NY 13329, as referenced in the Fulton County Record.” (See Am.
Compl., Aff. of Joseph R. Esquivel, Jr. (“Esquivel Aff.”), ECF No. 35-1.) 2
Against that backdrop, the crux of Plaintiff’s complaint appears to be that Defendants
improperly and fraudulently claimed an interest in the rights to the Mortgage and underlying
Note and sought to exercise those rights. Specifically, Plaintiff claims that the Note and
Mortgage were improperly assigned, because: (i) Plaintiff did not enter into any contract with
any Defendant and (ii) Defendants did not timely record or notify Plaintiffs of the assignments.
STANDARD OF REVIEW
To withstand a Rule 12(b)(6) motion to dismiss, a complaint “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible when the alleged facts allow the court to draw a
“reasonable inference” of a defendant’s liability for the alleged misconduct. Id. While this
standard requires more than a “sheer possibility” of a defendant’s liability, id., “[i]t is not the
Court’s function to weigh the evidence that might be presented at trial” on a motion to dismiss,
Morris v. Northrop Grumman Corp., 37 F. Supp. 2d 556, 565 (E.D.N.Y. 1999). Instead, “the
Court must merely determine whether the complaint itself is legally sufficient, and, in doing so,

The facts set forth herein are gleaned, in part, from documents attached as exhibits to the amended complaint.
Aside from the Esquivel Affidavit, Plaintiff attaches to her amended complaint 17 separate documents, totaling 533
pages. Plaintiff references these exhibits only once in her amended complaint, saying, “[Defendants] must be held
accountable for their fraudulent actions. See attached exhibits.” (Am. Compl. at 15.) She does not explain how the
exhibits are relevant to her allegations of fraud. Exhibits A and B are the note and mortgage for the Real Property.
Exhibits C through E, and F appear to be records of assignments of the Mortgage. (ECF Nos. 35-2–35-6, 35-13.)
The exhibit filed as E-4 is the summons and complaint in the Foreclosure Action. (ECF No. 35-10.) The exhibit
filed as F-1 includes a notice of sale of the Real Property pursuant to a judgment of foreclosure and sale, as well as a
decision and order on a motion for default judgment in the Foreclosure Action involving the Real Property. (ECF
No. 35-14.) The remaining exhibits include MERS manuals, filings from seemingly unrelated litigations, and a
Ginnie Mae offering circular. (ECF Nos. 35-15–35-18.)

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it is well settled that the Court must accept the factual allegations of the complaint as true.” Id.
(citations omitted).
Moreover, where, as here, a plaintiff is proceeding pro se, her pleadings “must be
construed liberally and interpreted to raise the strongest arguments that they suggest.” Sykes v.
Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474 (2d Cir. 2006)). A pro se complaint, “however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers.” Boykin v. KeyCorp,
521 F.3d 202, 213–14 (2d Cir. 2008) (quoting Erickson v. Pardus, 55 U.S. 89, 94 (2007) (per
curiam)).
DISCUSSION
I.

Rooker-Feldman
Defendants argue that pursuant to the Rooker-Feldman doctrine the Court lacks subject

matter jurisdiction to hear Plaintiff’s claims. 3 (See JMPC Defs.’ Mem. L. Supp. Mot. Dismiss
(“JPMC Mem.”) at 11–15, ECF No. 40-9; Bayview Defs.’ Mem. L. Supp. Mot. Dismiss
(“Bayview Mem.”) at 9–12, ECF No. 41-1.) In aid of their Rooker-Feldman argument,
Defendants submitted to the Court the Judgment of Foreclosure and Sale of the Real Property
entered in the Foreclosure Action. (See Scibetta Decl., Ex. 2, ECF No. 40-3; Declaration of
Robert H. King (“King Decl.”), Ex. A, ECF No. 41-3.) As Defendants’ request, the Court takes

“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.” Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2000).
The plaintiff bears the burden of establishing beyond a preponderance of the evidence that subject-matter
jurisdiction exists. Id. “In reviewing a Rule 12(b)(1) motion to dismiss, the court ‘must accept as true all material
factual allegations in the complaint, but [the court is] not to draw inferences from the complaint favorable to
plaintiff[ ].’” Tiraco v. New York State Bd. of Elections, 963 F. Supp. 2d 184, 190 (E.D.N.Y. 2013) (quoting J.S. ex
rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004)). Further, “[i]n resolving a motion to dismiss for lack
of subject matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside the pleadings.”
Makarova, 201 F.3d at 113.
3

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judicial notice of the Judgment of Foreclosure and Sale. 4 (See JMPC Mem. at 3, n.2; Bayview
Mem. at 8, n.1.)
“The Rooker-Feldman doctrine bars federal district courts from hearing cases that in
effect are appeals from state court judgments, because the Supreme Court is the only federal
court with jurisdiction over such cases.” Dorce v. City of New York, 2 F.4th 82, 101 (2d Cir.
2021). Rooker-Feldman bars federal review of claims when four requirements are met: “(1) ‘the
federal-court plaintiff must have lost in state court[;]’ (2) ‘the plaintiff must complain of injuries
caused by a state-court judgment[;]’ (3) ‘the plaintiff must invite district court review and
rejection of that judgment[;]’ and (4) ‘the state-court judgment must have been rendered before
the district court proceedings commenced.’” Id. (quoting Hoblock v. Albany Cty. Bd. of
Elections, 422 F.3d 77, 85 (2d Cir. 2005)). “[I]n determining whether the doctrine applies, the
key inquiry is whether the complaint alleges an injury caused by a state court judgment.”
Brodsky v. Carter, 673 F. App’x 42, 43 (2d Cir. 2016).
Here, there is no question that Plaintiff meets the first and fourth requirements—also
known as the procedural requirements for invoking the Rooker-Feldman doctrine. Plaintiff lost
in the Foreclosure Action and therefore meets the first requirement. See Dorce, 2 F.4th at 102
(“Someone who loses an ownership interest in property through a state in rem foreclosure
proceeding against the property has lost in state court.”). The fourth requirement is also met
because judgment in the Foreclosure Action was rendered on or about March 10, 2016 (see
Scibetta Decl. ¶ 5, Ex. 2), well before the commencement of the instant action. Whether Plaintiff
meets the second and third requirements is another matter.

The Court notes that the Judgment of Foreclosure and Sale appears to include an errant page listing paragraphs
four through seven.

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“[A] party is not complaining of an injury ‘caused by’ a state-court judgment when the
exact injury of which the party complains in federal court existed prior in time to the state-court
proceedings, and so could not have been ‘caused by’ those proceedings.” McKithen v. Brown,
481 F.3d 89, 98 (2d Cir. 2007). Thus, “plaintiffs are permitted to seek damages for injuries
caused by a defendant’s misconduct in procuring a state court judgment, but not for injuries
directly caused by that judgment.” Dorce, 2 F.4th at 104. This is so even if, by alleging such
misconduct, the plaintiff asks a district court to make findings that are inconsistent with the state
court judgment, as long as the plaintiff does not seek to overturn the state court judgment or have
it declared void. See, e.g., id. at 107 (Rooker-Feldman permits a district court to deny a legal
conclusion that the state court reached as long as the district court does not engage in review and
rejection of the state court judgment); Sung Cho v. City of New York, 910 F.3d 639, 648–49 (2d
Cir. 2018) (claims not barred by Rooker-Feldman where plaintiff’s suit attacked unconstitutional
settlement agreements themselves and the course of conduct that led to them, rather than the state
courts’ rulings); Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 94–95 (2d Cir. 2015)
(Rooker-Feldman did not bar district court’s jurisdiction where plaintiffs alleged that defendants
were engaged in a “default judgment mill” to obtain state-court judgments by unlawful means,
because plaintiffs’ claims sounding under the FDCPA, RICO, and state law spoke not to the
propriety of the state court judgments, but to the fraudulent course of conduct that defendants
pursued in obtaining such judgments). In short, “the second and third Rooker-Feldman
requirements are not met when a plaintiff alleges that fraud occurred during a foreclosure
proceeding and seeks damages for [her] injuries.” Limtung v. Thomas, No. 19-CV-3646, 2021
WL 4443710, at *5 (E.D.N.Y. Sept. 28, 2021) (citing Vossbrinck v. Accredited Home Lenders,
Inc., 773 F.3d 423, 427 (2d Cir. 2014)).

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Here, Plaintiff explicitly disclaims that she seeks to overturn or declare void the judgment
of foreclosure and sale or to reclaim the Real Property. (Am. Compl. at 15.) Instead, Plaintiff
purportedly seeks damages, in the amount of $11 million or $13 million, for mental anguish
caused by Defendants “fraudulent and negligen[t] action(s).” (Id.) To the extent Defendants’
alleged “fraudulent and negligen[t] action(s)” relate to conduct that pre-dates the judgment of
foreclosure, Plaintiff’s claims are not barred under Rooker-Feldman. 5 Accordingly, Defendants’
motions are denied to the extent they seek dismissal for lack of subject matter jurisdiction. 6
II.

Rule 12(b)(6)
Res Judicata
Defendants alternatively argue that Plaintiff’s claims are barred under the doctrine of res

judicata, because her claims arise from the same transaction or series of transaction as the
Foreclosure Action, which involved the same parties and was decided on the merits. (JPMC
Mem. at 17–18; Bayview Mem. at 12–13.)
When a defendant raises a res judicata defense on a motion to dismiss, a court may
consider dismissal “where all relevant facts are set forth in the complaint and in matters of which
the [c]ourt may take judicial notice.” Nash v. Bd. of Educ. of the City of New York, No. 99-CV9611, 2016 WL 5867449, at *4 (S.D.N.Y. Sept. 22, 2016); see also Austin v. Downs, Rachlin &
Martin Burlington St. Johnsbury, 270 F. App’x 52, 53 (2d Cir. 2008) (“When a defendant raises
the affirmative defense of res judicata . . . and it is clear from the face of the complaint . . . that
It appears from Plaintiff’s amended complaint that the complained-of conduct is that which led to the foreclosure
on the Real Property. To the extent Plaintiff complains of injuries that post-date and resulted from the foreclosure,
Rooker-Feldman would likely bar this Court’s review of such claims.
5

The Court has considered the JPMC Defendants’ Article III standing arguments and finds them unavailing. The
JPMC Defendants do not cite to a single case in which a property was foreclosed upon or in which the plaintiff
alleged emotional damages. (JPMC Mem. at 8–11.) Here, the Court cannot say that Plaintiff has failed to allege an
injury traceable to Defendants’ conduct where the allegedly fraudulent assignments resulted in a judgment of
foreclosure and sale against Plaintiff.

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the plaintiff’s claims are barred as a matter of law, dismissal under Rule 12(b)(6) is appropriate.”
(quotation marks omitted)). “[T]he party asserting preclusion bears the burden of showing with
clarity and certainty what was determined by the prior judgment[.]” Austin, 270 F. App’x at 53
(quotation marks and citation omitted).
To prove the defense of res judicata, a party must show that “(1) the previous action
involved an adjudication on the merits; (2) the previous action involved the parties or those in
privity with them; and (3) the claims asserted in the subsequent action were, or could have been,
raised in the prior action.” Pike v. Freeman, 266 F.3d 78, 91 (2d Cir. 2001) (quotation marks
and citation omitted).
“[A] state court judgment has the same preclusive effect in federal court as the judgment
would have had in state court.” Burka v. New York City Transit Auth., 32 F.3d 654, 657 (2d Cir.
1994). Accordingly, because the prior decision was rendered by a New York state court, New
York’s res judicata doctrine governs. Fequiere v. Tribeca Lending, No. 14-CV-812, 2016 WL
1057000, at *5 (E.D.N.Y. Mar. 11, 2016) (“Federal courts must use the res judicata doctrine of
the state in which the state court judgment was granted.”). “New York adheres to a transactional
analysis of res judicata, barring a later claim arising out of the same factual grouping as an earlier
litigated claim even if the later claim is based on different legal theories or seeks dissimilar or
additional relief.” Burka, 32 F.3d at 657 (internal quotation marks omitted); “While New York
does not have a compulsory counterclaim rule (see CPLR 3011), a party is not free to remain
silent in an action in which [s]he is the defendant and then bring a second action seeking relief
inconsistent with the judgment in the first action by asserting what is simply a new legal theory.”
Henry Modell & Co. v. Minister, Elders & Deacons of Reformed Protestant Dutch Church of
City of New York, 502 N.E.2d 978, 980 (N.Y. 1986). Accordingly, “[i]n New York, ‘res judicata

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... bars successive litigation [of all claims] based upon the same transaction or series of
connected transactions ... if: (i) there is a judgment on the merits rendered by a court of
competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the
previous action, or in privity with a party who was.’” Sheffield v. Sheriff of Rockland Cty. Sheriff
Dep’t, 393 F. App’x 808, 811 (2d Cir. 2010) (quoting People ex rel. Spitzer v. Applied Card Sys.,
Inc., 894 N.E.2d 1, 12 (N.Y. 2008)); see also Almazon v. JPMorgan Chase Bank, Nat’l Ass’n,
No. 19-CV-4871, 2020 WL 1151313, at *11 (S.D.N.Y. Mar. 9, 2020), appeal dismissed (Aug. 4,
2020) (“Plaintiff’s claims are barred by res judicata if they arose out of the same ‘transaction or
series of transactions’ as the Foreclosure Action, and were (or could have been) litigated in that
proceeding.”).
Here, Plaintiff’s claims challenging the validity of the assignments, whether under a
theory of fraud, negligence, or in contravention of some statute, are barred under the doctrine of
res judicata. First, there was a judgment on the merits in the Foreclosure Action. Specifically,
the court entered a Judgment of Foreclosure and Sale, which provided that Plaintiff was “hereby
forever barred and foreclosed of all right, claim, lien, title and interest and equity of redemption
of the mortgaged premises and each and every part thereto.” (Scibetta Decl., Ex. 2 at 6.)
Moreover, Plaintiff attached to her amended complaint an order granting JPMC’s motion for
default judgment against Plaintiff in the Foreclosure Action. (Am. Compl., Ex. F-1.) “[A]
foreclosure default judgment is a final judgment on the merits.” Dekom v. Fannie Mae, 846 F.
App’x 14, 19 (2d Cir. 2021) (citing EDP Med. Computer Sys., Inc. v. United States, 480 F.3d

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621, 626 (2d Cir. 2007). Second, Plaintiff, the party against whom the doctrine is being invoked
was a party to the Foreclosure Action. 7
Third, Plaintiff’s claims challenging the validity of the assignments could and should
have been raised in the Foreclosure Action because they “arise out of the same transaction that
was the subject of the Foreclosure [Action]: specifically, the foreclosure and enforcement of the
note and mortgage.” In re Moise, 575 B.R. 191, 203 (Bankr. E.D.N.Y. 2017). Indeed, the
essence of Plaintiff’s amended complaint is that Defendants committed fraud to obtain the
property through the foreclosure proceeding. (Am. Compl. at 15.) That Plaintiff seeks only
damages for emotional harm and asserts her allegations under various legal theories is of no
moment. 8 O’Brien v. City of Syracuse, 429 N.E.2d 1158, 1159 (N.Y. 1981) (“[O]nce a claim is
brought to a final conclusion, all other claims arising out of the same transaction or series of
transactions are barred, even if based upon different theories or if seeking a different remedy.”).
To the extent Plaintiff now alleges that she was injured by the fraudulent or improper assignment
of the mortgage, such claims could and should have been raised as a defense in the Foreclosure
Action. See Yeiser v. GMAC Mortg. Corp. 535 F. Supp. 2d 413, 421 (S.D.N.Y. 2008) (“This
doctrine [of res judicata] also applies to defenses that could have been litigated, including a
defense to a foreclosure.”). Accordingly, Plaintiff’s claims arising from the assignments of the
mortgage are plainly barred by the doctrine of res judicata. See Harris v. BNC Mortg., Inc., 737
F. App’x 573, 576 (2d Cir. 2018) (finding claims in federal action to be barred by res judicata

The Foreclosure Action was between JPMC as plaintiff and Plaintiff as defendant. Bayview, as the successor to
JMPC’s interest in the property (see Bayview Mem. at 13; Am. Compl., Ex. E; Scibetta Decl., Ex. 7), is in privity
with JPMC and is therefore subject to the preclusive effect of res judicata.

7

Plaintiff asserts her fraud and improper assignment allegations as claims for common law fraud (Am. Compl. at
8,14–15), negligence (id. at 15), and violations of UCC Articles 3 and 9 (id. at 5, 10–11).

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where “[b]oth the complaint and the [previous state court] foreclosure action involved allegations
relating to the origin of [plaintiff’s] mortgage and its subsequent assignment.”).
Even if Plaintiff’s remaining allegations give rise to claims not barred under RookerFeldman or the doctrine of res judicata, those claims must be dismissed on other grounds.
Federal Statutes
Defendants argue that Plaintiff’s claims under TILA and various federal statutes should
be dismissed pursuant to Rule 12(b)(6) for failure to state a claim. Specifically, Defendants
argue that Plaintiff fails to allege certain requirements under TILA and that the claim is time
barred in any event. (JPMC Mem at 18–19; Bayview Mem. at 14–15.) The JPMC Defendants
also contend that the because the various criminal statutes cited by Plaintiff do not provide for
any civil causes of action. (JPMC Mem at 18–19, 20.)
First, even where Plaintiff invokes a statute that could bear a plausible relationship to the
facts alleged and provides for a private right of action—TILA—Plaintiff fails to state a claim.
Indeed, Plaintiff’s TILA claim, to the extent she pleads one, is barred by the statute of
limitations. (See JPMC Mem. at 18–19; Bayview Mem. at 14–15.) As best can be gleaned from
the allegation, Plaintiff alleges that Defendants violated TILA by failing to record or otherwise
disclose to Plaintiff, within 30 days, the assignment of the Mortgage. (Am. Compl. at 7.)
Section 1641(g) provides that “not later than 30 days after the date on which a mortgage loan is
sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or
assignee of the debt shall notify the borrower in writing of such transfer.” 15 U.S.C. § 1641.
The TILA imposes a one-year statute of limitations on private actions for damages arising from
disclosure violations. 15 U.S.C. § 1640(e); see also Cardiello v. The Money Store, 29 F. App’x.
780, 781 (2d Cir. 2002); Ciccone v. Flagstart Bank, FSB, No. 15-CV-6809, 2017 WL 10456859,

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at *8 (E.D.N.Y. Jan. 9, 2017). In the case of a disclosure violation, the statute of limitations
begins to run 30 days after the assignment of the mortgage. 15 U.S.C. § 1641(g)(1); see also
Craig v. Saxon Mortg. Services, 2015 WL 171234, *9 (E.D.N.Y. Jan. 13, 2015).
Here, the JPMC Defendants urge the Court to take judicial notice that JMPC acquired
Plaintiff’s loan on September 25, 2008, thereby triggering the one-year statute of limitations on
October 25, 2008. The Court however declines to take judicial notice of this fact. 9 But even
measuring from the date the mortgage was assigned from WaMu to JPMC, September 13, 2013
(Am. Compl., Ex. D), the statute of limitations would have expired on October 13, 2014, more
than three years before Plaintiff initiated the instant action. Plaintiff’s TILA claim against the
Bayview Defendants is similarly time-barred. The Mortgage was assigned to Bayview on April
6, 2016. 10 (Am. Compl., Ex. E.) The statute of limitations, therefore, expired on May 6, 2017—
over six months before Plaintiff filed the instant action. Accordingly, Plaintiff’s TILA claim to
the extent she pleads one, is barred under the statute of limitations. Plaintiff has offered no
argument as to why she should be entitled to equitable tolling. Accordingly, Plaintiff’s TILA
claim is dismissed as time barred as against all Defendants.
Second, Plaintiff invokes a multitude of federal statutes in her amended complaint
without providing facts to support claims under such statues. Plaintiff asserts various claims

The JPMC Defendants ask the Court to take judicial notice that JPMC is the successor in interest to all of WaMu’s
loans and loan commitments. In support of this request, the JPMC Defendants attached to their motion a September
25, 2008 Purchase and Assumption (“P&A”) Agreement entered into with the FDIC, and cite to a New York
Appellate division decision stating that JPMC acquired all of WaMu’s loans and loan commitments. (JPMC Mem.
at 4 (citing JPMorgan Chase Bank, National Assn. v. Russo, 121 A.D.3d 1048, 1048 (2d Dept. 2014).) Defendants
do not argue that the P&A Agreement was publicly filed, and Court may not take judicial notice of publicly
available documents for the truth of the matter asserted therein. Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007).
In any event, the Court need not determine whether the fact of JPMC’s acquisition of WaMu’s loans and loan
commitments is subject to judicial notice, as the fact is not determinative.
9

It is not entirely clear that Plaintiff has any right to assert such claim against the Bayview Defendants, because
according to the documents submitted by Plaintiff as exhibits to the amended complaint, the Mortgage was not
assigned to Bayview until after the judgment of foreclosure and sale was entered against Plaintiff.
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under criminal statutes, such as 18 U.S.C. §§ 241, 242, 337, 471, 473, 474, 872, 873, 876, 880,
1001, 1021, 1341, 1348, 1957 and 12 U.S.C. § 1831(n). (Am. Compl. at 2–4, 6, 11, 13.)
However, as Defendants correctly argue, “[c]laims based on the violation of federal criminal
statutes . . . are not cognizable, as federal criminal statutes do not provide private causes of
action.” Sheehy v. Brown, 335 Fed. App’x 102, 104 (2d Cir. 2009); see also, e.g., Ates v. United
States, 2020 WL 6202672, *4–5 (E.D.N.Y. Oct. 22, 2020) (dismissing complaint alleging,
among other things, violations of criminal laws). 11 Thus, to the extent the amended complaint
may be read to set forth claims under such statutes, the claims must be dismissed pursuant to
Rule 12(b)(6). 12
III.

Rule 9(b)
Defendants argue that Plaintiff’s fraud claims should be dismissed for failure to comply

with the requirements of Rule 9(b) of the Federal Rules of Civil Procedure. (See JPMC Mem. at

“A private individual may bring suit under a federal statute only when Congress specifically intended to create a
private right of action.” Hill v. Didio, 191 F. App’x 13, 14 (2d Cir. 2006) (no private right of action under 18 U.S.C.
§§ 241, 242, 645, or 1341); see also, e.g., Anthony v. Cattle Nat. Bank & Tr. Co., 684 F.3d 738, 739 (8th Cir. 2012)
(“[T]his court determines that section 1831n does not create a private right of action.”); Byrd v. Cook, No. 2:21-CV2288, 2021 WL 2688543, at *4 (S.D. Ohio June 30, 2021) (no private cause of action under 18 U.S.C. §§ 656, 1341,
1346 or 1348), aff’d, No. 21-3623, 2021 WL 6298658 (6th Cir. Nov. 8, 2021); Brick v. Estancia Mun. Sch. Dist.,
No. 20-CV-00881, 2021 WL 1267838, at *2 (D.N.M. Apr. 6, 2021) (no private right of action under 18 U.S.C. §
873); Weinstein v. City of N.Y., 2014 WL 1378129, at *4 (S.D.N.Y. Apr. 8, 2014) (no private rights of action under
18 U.S.C. § 1341 or § 1957); Kloth-Zanard v. Bank of Am., No. 3:15-CV-1208, 2017 WL 4429694, at *4 (D. Conn.
Oct. 5, 2017) (no private right of action under 18 U.S.C. §§ 242, 471, 472, 473, or 474); Gross v. Cormack, No. 13CV-4152, 2013 WL 6624051, at *2 (D.N.J. Dec. 16, 2013) (no private right of action under 18 U.S.C. §§ 876, 1021,
1341, or 1349), aff’d, 586 F. App’x 899 (3d Cir. 2014); Chadda v. Mullins, No. 10-CV-4029, 2010 WL 4484622, at
*2 (E.D. Pa. Nov. 9, 2010) (no private cause of action under 18 U.S.C. § 875), aff’d, 430 F. App’x 192 (3d Cir.
2011); Poydras v. One W. Bank, No. 09-11435, 2009 WL 1427396, at *1 (E.D. Mich. May 20, 2009) (no private
right of action under 18 U.S.C. §§ 241, 872, or 1001). Even if Plaintiff had invoked 18 U.S.C. § 1964(c), which
provides for a civil cause of action, her claims would fail because she seeks damages exclusively for emotional
distress and civil recovery under RICO is “inapplicable to claims for damages arising from physical injury or
emotional distress.” Davis Lee Pharmacy, Inc., v. Manhattan Cent. Cap. Corp., 327 F. Supp. 2d 159, 164 (E.D.N.Y.
2004); see also Shaw v. Rolex Watch U.S.A., Inc., 776 F. Supp. 128, 135 (S.D.N.Y. 1991) (dismissing plaintiff’s
claims for damages under RICO to the extent they were based on emotional distress or physical injury).
11

In any event, it appears from the amended complaint that any claim that Plaintiff would or could assert under
these statutes arises from conduct underlying the mortgage foreclosure proceeding and is barred under the doctrine
of res judicata, as discussed above.
12

14

19–20; Bayview Mem. at 15.) The Court agrees. To state a claim for fraud, a plaintiff must
allege facts showing: “(1) a misrepresentation or omission of material fact; (2) which the
defendant knew to be false; (3) which the defendant made with the intention of inducing
reliance; (4) upon which the plaintiff reasonably relied; and (5) which caused injury to the
plaintiff.” Wynn v. AC Rochester, 273 F.3d 153, 156 (2d Cir. 2001). Pursuant to Rule 9(b), a
plaintiff only satisfies the first element where she: (1) specifies the statements that she contends
were fraudulent; (2) identifies the speaker; (3) states where and when the statements were made;
and (4) explains why the statements were fraudulent. See Lerner v. Fleet Bank, N.A., 459 F.3d
273, 290 (2d Cir. 2006); see also Knox v. Countrywide Bank, 4 F. Supp.3d 499, 509 (E.D.N.Y.
2014) (finding pro se plaintiff’s fraud allegations failed to satisfy Rule 9(b)’s particularity
requirement). Moreover, to establish the scienter of the defendant, “a plaintiff must allege facts
that give rise to a strong inference of fraudulent intent,” which strong inference may be
established by either “(a) alleging facts to show that defendants had both motive and opportunity
to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of
conscious misbehavior or recklessness.” Shields v. Citytrust Bancorp, Inc., 25 F3d 1124, 1128
(2d Cir. 1994).
Here, Plaintiff’s fraud claim must be dismissed for failure to plead fraud with
particularity as required under Rule 9(b). Plaintiff has not pleaded any specific statements that
were allegedly fraudulent, much less the speaker of such statement or where and when such
statement was made. Nor has Plaintiff alleged that she relied on any specific false statements.
Furthermore, Plaintiff has not alleged facts that would give rise to an inference, much less a
“strong” inference, of fraudulent intent. Even construing Plaintiff’s complaint liberally, as the

15

Court must, Plaintiff’s complaint does not contain specific facts necessary to plead a claim
sounding in fraud.
Plaintiff’s argument in her opposition to Defendants’ motions that she signed the
mortgage agreement “fraudulently” because “[an unspecified entity or person] failed to disclose
[something]”, does not cure the deficiencies in the amended complaint. (Pl.’s Mot. for J. (“Pl.’s
Opp’n”) at 6, ECF No. 39. 13) Indeed, such an argument does not even implicate Defendants and
does not appear to be based on any factual allegations in the amended complaint. 14 Similarly,
Plaintiff’s vague reference in her opposition to “Exhibit B Deposition of Erika Lance” does not
establish a claim for fraud. (Pl.’s Opp’n at 6.) Presumably, Plaintiff refers to Exhibit E-2 to her
amended complaint, which is a deposition transcript from a case in Florida state court that does
not appear to have any relationship whatsoever to Plaintiff’s allegations in the instant action.
(Am. Compl., Ex. at E-2.)
As the Bayview Defendants note, in the January 11, 2021 Memorandum and Order,
Judge Mauskopf instructed Plaintiff as to the requirement for pleading fraud under Rule 9(b).
(Bayview Mem. at 15; see Jan. 11, 2021 Memorandum & Order (“Mem. & Order”) at 8, ECF
No. 34.) Nevertheless, Plaintiff has again failed to meet this standard.

The Court construes Plaintiff’s July 14, 2021 motion for judgment on the pleadings as Plaintiff’s opposition to
Defendants’ motions. The July 14, 2021 motion for judgment on the pleadings is signed and dated several days
prior to Plaintiff’s deadline to serve Defendants with her opposition papers to the instant motions.
13

Plaintiff indicates in her opposition papers that she has asserted a claim for fraudulent misrepresentation and
appears to raise this claim as a ground for recission, which is not a remedy she seeks in her amended complaint.
Again, Plaintiff explicitly seeks only damages and disclaims that she seeks to overturn the foreclosure action. In any
event, to state a claim for fraudulent misrepresentation, Plaintiff’s pleadings must comply with Rule 9(b). Riker v.
Premier Cap., LLC, No. 15-CV-8293, 2016 WL 5334980, at *5 (S.D.N.Y. Sept. 22, 2016) (“It is beyond dispute
that fraudulent misrepresentation claims sound in fraud and are subject to Rule 9(b)’s heightened pleading
standard.” (citing Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 179 (2d Cir. 2015))).
They do not.
14

16

IV.

Rule 8 Pleading
Defendants maintain that Plaintiff has failed to meet the minimal pleading requirements

of Rule 8 of the Federal Rules of Civil Procedure. The Supreme Court has held, specifically in
relation to a complaint filed pro se, that “[s]pecific facts are not necessary” to satisfy Rule 8, and
that the complainant “need only ‘give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (quoting
Erickson v. Pardus, 551 U.S. 89, 93 (2007)). The reason for this is plain, given that pro se
complaints are “to be liberally construed,” and “held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson, 551 U.S. at 94 (internal citations omitted). Against this
backdrop, the Second Circuit has held that “dismissal of a pro se claim as insufficiently pleaded
is appropriate only in the most unsustainable of cases.” Boykin, 521 F.3d at 216. It is not
altogether clear that this is not one of those cases, at least in part.
Certainly, Plaintiff has failed to meet the Rule 8 pleading standard with respect to any
claims brought under the numerous statutes invoked in the amended complaint that have no
logical connection to Plaintiff’s factual allegations. These include statutes such as 26 U.S.C. §
6103(k) (Am. Compl. at 11), a provision of the Internal Revenue Code that creates a private right
of action for damages for the inspection or disclosure of any “[tax] return or [tax] return
information with respect to a taxpayer in violation of any provision of section 6103 or in
violation of section 1604(c)[.]” 26 U.S.C. § 7431(a)(2). Plaintiff’s tax return or tax return
information is not even mentioned in the amended complaint. (See generally Am. Compl.)
Similarly, Plaintiff’s reference to 42 U.S.C. § 1983 is unattached to any factual allegations
whatsoever. 15 (Id. at 1.) Likewise, despite reference to UCC § 2-609 (Id. at 5), which applies to
Moreover, Plaintiff does not indicate against whom such a § 1983 claim would be asserted, as she has not
identified any Defendant acting under color of state law. Ciambriello v. Cty. of Nassau, 292 F.3d 307, 323 (2d Cir.

15

17

contracts for the sale of goods, none of Plaintiff’s allegations relate whatsoever to a contract for
the sale of goods. BAII Banking Corp. v. UPG, Inc., 985 F.2d 685, 694 (2d Cir. 1993) (“Section
2–609 is part of Article 2 of N.Y.U.C.C.; as stated in § 2–102, Article 2 ‘applies to transactions
in goods[]’ . . . [and] § 2–609 applies to ‘contract[s] for sale.’”). Plaintiff further references the
UETA and E-Sign Act in relation to electronic transfers. Setting aside that New York has not
adopted the UETA and that the E-Sign Act does not support a private right of action, 16 the
amended complaint simply does not contain any allegations of electronic transfers. Other
statutes are referenced merely for their defined terms, but not as a basis for any cause of action.
(See, e.g., Am. Compl. at 8 (citing N.Y. Code § 290), 11 (invoking civil statutes 22 U.S.C. §§
611, 263, 284, and 286 17).) Indeed, the amended complaint is rife with passing references to
statutes that have no connection to the alleged facts. (See Am. Compl. at 12–13 (citing various
statutes).) Plaintiff simply has not pleaded any facts that would provide Defendants with notice
of the grounds for a claim under most of the statutes cited in the amended complaint.
However, as discussed above, even where Plaintiff plausibly pleads claims sufficient to
survive Rule 8, such claims fail under Rules 9(b) and 12(b)(6).
V.

Leave to Amend Would be Futile
The Second Circuit instructs that a district court should not dismiss a pro se complaint

“without granting leave to amend at least once when a liberal reading of the complaint gives any

2002) (“[T]o state a claim under § 1983, a plaintiff must allege that [s]he was injured by either a state actor or a
private party acting under color of state law.”).
See Herrera v. Navient Corps., No. 19CV06583, 2020 WL 3960507, at *5 (E.D.N.Y. July 13, 2020) (no private
right of action under the E-Sign Act).

16

In any event, there is no implied private right of action under any of these statutes. See, e.g., Hauser v. Smith,
No. CV2008138, 2021 WL 2262551, at *4 (D. Ariz. June 3, 2021) (dismissing claims asserted under 22 U.S.C. §§
611, 263, 284, and 286 because none of the statutes provide a basis for a civil suit), appeal dismissed, No. 21-16037,
2021 WL 4206415 (9th Cir. July 16, 2021)
17

18

indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000)) (quotation marks and citation omitted). Where the problems with the causes of action are
substantive and would not be cured with better pleading, repleading would be futile and any such
request should be denied. Id. The Court finds that amendment would be futile in the instant
case. Plaintiff has been provided with ample opportunity to re-plead.
Plaintiff commenced the instant action on December 12, 2017. (See Compl., ECF No. 1.)
After Defendants filed their respective requests for a pre-motion conference on their anticipated
motions to dismiss the initial complaint, Plaintiff was granted permission to, and did, file a
proposed amended complaint on June 23, 2018. (ECF No. 23.) On August 6, 2018, Defendants
requested that Plaintiff be denied permission to file the proposed amended complaint. (ECF Nos.
24, 25.) On January 29, 2019, Plaintiff filed a “Reply in Opposition to Defendants Motion[s] to
Dismiss.” (ECF No. 26.) On November 19, 2019, Plaintiff filed a document styled as a “motion
for judgment on the pleadings” to which Defendants responded, noting that a motion for
judgment on the pleadings was procedurally deficient as the pleadings were not yet closed. (ECF
Nos. 27, 28.) On February 14, 2020, Plaintiff filed another “Reply in Opposition to Defendant(s)
Motion[s] to Dismiss.” (ECF No. 29.) On June 26, 2020, Plaintiff filed a document styled as a
“Motion for Summary Judgment” to which Defendants responded, arguing that such motion was
procedurally improper and requesting that the Court issue a determination as to the proposed
amended complaint. (ECF Nos. 31, 32.)
On January 11, 2021, then-Chief Judge Mauskopf issued a memorandum and order
dismissing the original complaint, finding that the proposed amended complaint failed to meet
even the minimal pleading standards set forth in Rule 8(a). (See Mem. & Order at 7.) Judge
Mauskopf also denied Plaintiff’s motion for judgment on the pleadings and motion for summary

19

judgment as premature. (Id.) Judge Mauskopf then granted Plaintiff 30 days leave to file an
amended complaint. (Id.) On February 3, 2021, Plaintiff filed the instant amended complaint,
which appears to provide even fewer factual allegations than set forth in the proposed amended
complaint and, in any event, fails to state a claim against Defendants. On February 17, 2021,
Defendants requested a pre-motion conference on their respective anticipated motions to dismiss.
(ECF Nos. 36, 37.) By order dated May 18, 2021, Judge Mauskopf denied the requests and set a
briefing schedule for Defendants’ motions. The case was transferred to this Court on July 6,
2021, shortly before Plaintiff’s opposition to Defendants’ motions were due.
On July 14, 2021, Plaintiff filed a document styled as a “motion for judgment on the
pleadings”, presumably in opposition to Defendants’ motions to dismiss, which were served on
Plaintiff on June 11, 2021. (See Pl.’s Opp’n.) On July 24, 2021, Defendants filed their motions
to dismiss. (JMPC Mot. Dismiss, ECF No. 40; Bayview Mot. Dismiss, ECF No. 41.) On
August 24, 2021, Plaintiff filed a motion to amend the complaint. (Pl.’s Mot. Amend, ECF No.
45.) On December 28, 2021, Plaintiff filed yet another document styled as a “motion for
judgment on the pleadings.” (ECF No. 46.) Because Plaintiff’s motions for judgment on the
pleadings are procedurally improper at this stage, the motions are denied as improperly filed. 18
Plaintiff has had ample time and opportunity to formulate her allegations to state a claim.
Throughout the various filings in this case, Defendants and the Court have provided Plaintiff
with more than sufficient notice of the deficiencies in her pleadings. Yet, in her third bite at the
apple, Plaintiff has again failed to cure these deficiencies. Even reading the allegations in the
amended complaint to afford Plaintiff every favorable inference to which as a pro se litigant is

18
As noted above, the Court construes Plaintiff’s July 14, 2021 motion for judgment on the pleadings as Plaintiff’s
opposition to Defendants’ motions.

20

entitled, the amended complaint does not state a viable claim. A fourth bite at the apple would
be futile. See Jackson v. Wells Fargo Home Mortg., No. 15-CV-5062, 2018 WL 8369422, at
*13 (E.D.N.Y. Aug. 10, 2018) (denying pro se plaintiff a second opportunity to amend where it
did not appear that such opportunity would allow plaintiff to cure substantive defects in her
amended complaint, such as statute of limitations), report and recommendation adopted, No. 15CV-5062, 2019 WL 1376840 (E.D.N.Y. Mar. 27, 2019), aff’d, 811 F. App’x 27 (2d Cir. 2020).
For these reasons, the Court declines to grant Plaintiff leave to amend.
CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss Plaintiff’s amended complaint
are GRANTED and the amended complaint is dismissed in its entirety. Plaintiff’s motion to
amend is DENIED. Plaintiff’s motions for judgment on the pleadings are DENIED as
improperly filed.
SO ORDERED.
Dated: Brooklyn, New York
March 31, 2022

/s/ LDH
LASHANN DEARCY HALL
United States District Judge

21