In Re Dwight A. Williams Estate
Filing
18
ORDER granting 17 Motion to Dismiss for Failure to State a Claim. For the reasons contained in the accompanying Memorandum and Order, the court grants Defendant's motion to dismiss, and Plaintiff's case is dismissed in its entirety. The Clerk of Court is directed to enter judgment in favor of Bayview Loan Servicing LLC, serve Plaintiff with a copy of this Memorandum and Order and the judgment, note service on the docket, and close this case. Ordered by Judge Kiyo A. Matsumoto on 9/24/2020. (Mayer, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DWIGHT A. WILLIAMS,
Plaintiff,
MEMORANDUM AND ORDER
-against-
19-CV-6023 (KAM)
BAYVIEW LOAN SERVICING, LLC, et al.,
Defendants.
--------------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
On May 13, 2019, pro se plaintiff Dwight A. Williams
(“Plaintiff”) commenced an action, naming as defendants Bayview
Loan Servicing, LLC (“Bayview” or “Defendant”), the District of
Columbia, Equifax, CitiMortgage, Ridge Abstract Corporation, the
City of New York, and public officials of Queens County, New
York, by filing an “Extraordinary Writ of Execution” alleging
violations of Title 15 of the United States Code, Title 11 of
the United States Code, the Fair Credit Reporting Act (“FCRA”),
the Fair Debt Collection Practices Act (“FDCPA”), the Dodd-Frank
Wall Street Reform Act, the Telephone Consumer Protection Act,
the Constitution of the United States, the Declaration of
Independence, and the Ten Commandments.
Initiating Document (“Compl.”).)
(ECF No. 1, Case
Currently before the court is
Bayview’s unopposed motion to dismiss.
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(ECF No. 17, Motion to
Dismiss.)
For the reasons stated below, Bayview’s motion is
granted.
BACKGROUND
Plaintiff’s allegations concern a property over which
Bayview initiated foreclosure proceedings in 2014.
The property
is located on Aquatic Drive in the Arverne neighborhood of
Queens, New York.
Plaintiff and Bayview were parties to a prior
action filed in this court in 2014, which related to the same
property.
(Case No. 14-cv-7427, Williams v. Bayview (the “prior
federal action”).)
On May 31, 2019, in the prior federal
action, this court entered a lengthy Memorandum and Order
granting Bayview’s motion to dismiss, or in the alternative, for
summary judgment.
(Case No. 14-cv-7427, ECF No. 69, Memorandum
and Order; 2019 WL 2330852.)
Judgment in that case was entered
in favor of Defendant and the case was closed.
7427, ECF No. 70, Judgment.)
(Case No. 14-cv-
The court hereby incorporates its
May 31, 2019 Memorandum and Order in the prior federal action by
reference, and summarizes the relevant background between the
parties only briefly here.
By letter dated January 13, 2014, Bayview notified
Plaintiff and his co-borrower, Patricia Clarke, that they were
in default on a mortgage loan, and that failure to remedy the
default would result in acceleration.
Williams v. Bayview Loan
Servicing, LLC, No. 14-cv-7427, 2019 WL 2330852, at *2 (E.D.N.Y.
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May 31, 2019).
On June 5, 2014, Bayview provided Plaintiff and
Ms. Clarke a 90-day notice pursuant to New York Real Property
and Procedures Law Section 1304, advising Plaintiff and Ms.
Clarke, inter alia, that they were “1251 days in default.”
Id.
On October 23, 2014, Bayview commenced a foreclosure action
against Plaintiff and Ms. Clarke in Queens County Supreme Court,
Index No. 707826/2014, entitled Bayview Loan Servicing, LLC v.
TChet Ab Utcha Ra El a/k/a Dwight A. Williams et al. (the
“foreclosure action”).
Id.
Plaintiff made various filings with the Queens County
Supreme Court throughout the life of the foreclosure action.
See id. at *2-3.
On March 31, 2016, Bayview moved for a default
judgment in the foreclosure action.
Id. at *3.
Plaintiff
cross-moved on April 13, 2016, alleging that the foreclosure
action should be dismissed because he and Ms. Clarke had
rescinded the relevant note and mortgage, and Bayview thus
lacked standing.
Id.
In a decision dated July 19, 2016, the
Queens County Supreme Court granted Bayview’s motion in part and
denied Plaintiff’s cross-motion in its entirety.
Id.
On August
16, 2017, Bayview moved again for a default judgment and an
order of reference.
Id.
Plaintiff opposed the motion, making
the same argument he made previously.
Id.
In an order dated November 20, 2017 and entered
December 29, 2017, the Queens County Supreme Court granted
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Bayview’s motion for a default judgment and an order of
reference.
Id.
The Queens County Supreme Court held that
Bayview had “made a prima facie showing of entitlements to
judgment as a matter of law by submitting a copy of the subject
mortgage, underlying note, and proof of default.”
Id.
The
court also found that Plaintiff’s opposition contained
“allegations that [were] either directly refuted by [Bayview’s]
documentary evidence or [were] insufficient to raise a triable
issue of fact and defeat [Bayview’s] motion.”
Id.
Therefore,
the Queens County Supreme Court appointed a referee to compute
the amount due to Bayview.
Id.
After additional filings from
both parties, the court granted Bayview’s motion for a judgment
of foreclose and sale in its entirety on April 10, 2019.
Id.
Plaintiff and Ms. Clarke commenced the prior federal
action in this court on December 22, 2014 against Bayview and
the law firm hired to commence the foreclosure proceedings,
Knuckles, Komosinski & Elliott LLP.
Id. at *4.
In the prior
federal action, the plaintiffs alleged, inter alia, that Bayview
violated the FCRA, and that Bayview and the law firm violated
the FDCPA, New York General Business Law Section 349, New York’s
privacy law, and New York law governing negligent hiring and
supervision of employees.
Id.
This court issued an opinion on
January 22, 2016, concluding that the plaintiffs failed to state
a claim for the state law claims, and dismissing those claims
4
with prejudice.
(See generally Case No. 14-cv-7427, ECF No. 23,
Memorandum and Order; 2016 WL 8711209.)
The court also
concluded that the plaintiffs failed to state an FDCPA claim
against the law firm and dismissed that claim.
See generally
id.
With leave of the court, the plaintiffs filed a second
amended complaint on February 22, 2016, which renewed their FCRA
claims against Bayview and their FDCPA allegations against both
Bayview and the law firm.
Amended Complaint.)
(Case No. 14-cv-7427, ECF No. 26,
The court subsequently granted the law
firm’s motion to dismiss the claims against it.
cv-7427, ECF No. 53, Memorandum and Order.)
(Case No. 14-
Bayview filed a
motion to dismiss or for summary judgment on February 22, 2019,
which this court granted on May 31, 2019.
On May 13, 2019, while Bayview’s motion in the prior
federal action was still pending before this court, Plaintiff
initiated the instant action in the Southern District of New
York by filing what he referred to as an “Extraordinary Writ of
Execution.”
(See generally Compl.)
Plaintiff, who purports to
be acting as a “Judicial Officer” of the United States
Government, alleges various violations of the law by Bayview and
other defendants, to whom he refers as “debtors.”
4.)
(Id. at 1,
It appears that Plaintiff alleges, inter alia, that the
defendants received a “personal loan” from Plaintiff, which they
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failed to repay.
(Id. at 1-2.)
On October 4, 2019, Judge John
Koeltl issued a Memorandum and Order transferring the instant
action to this court.
(ECF No. 12, Memorandum and Order.)
None of the named defendants other than Bayview have
appeared in this action.
dismiss the case.
On January 17, 2020, Bayview moved to
(ECF NO. 17, Motion to Dismiss; see ECF No.
17-22, Memorandum in Support.)
Plaintiff did not oppose the
motion, despite Bayview serving notice of its motion and its
other papers upon him.
(See ECF Nos. 17-25, 17-26, 17-27, 17-
28, and 17-29.)
LEGAL STANDARD
I.
Motion to Dismiss
A complaint must plead “enough facts to state a claim
to relief that is plausible on its face,” or it will be
dismissed pursuant to a motion brought by the defendant pursuant
to Federal Rule of Civil Procedure 12(b)(6).
Twombly, 550 U.S. 544, 570 (2007).
Bell Atl. Corp. v.
A claim is plausible “when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.”
(2009).
Ashcroft v. Iqbal, 556 U.S. 662, 678
It is not enough that a plaintiff “tender[] ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’”
(quoting Twombly, 550 U.S. at 557).
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Id.
Where the plaintiff is proceeding pro se, courts must
construe the plaintiff’s pleadings liberally.
See, e.g., Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008);
McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004).
However, a pro se complaint must still state a claim to relief
that is plausible on its face.
Mancuso v. Hynes, 379 F. App’x
60, 61 (2d Cir. 2010).
Where the plaintiff fails to oppose a motion to
dismiss, the defendant is not entitled to “automatic dismissal.”
Goldberg v. Danaher, 599 F.3d 181, 183 (2d Cir. 2010).
“Because
a motion under Rule 12(b)(6) presents a pure legal question,
based on allegations contained within the four corners of the
complaint, the district court is equipped to make a
determination on the merits” in the absence of an opposition.
Id.
II.
Res Judicata
“Under the doctrine of res judicata, or claim
preclusion, ‘a final judgment on the merits of an action
precludes the parties or their privies from relitigating issues
that were or could have been raised in that action.’”
Flaherty
v. Lang, 199 F.3d 607, 612 (2d Cir. 1999) (quoting Rivet v.
Regions Bank of La., 522 U.S. 470 (1998)).
“Claim preclusion
[also] prevents a party from litigating any issue or defense
that could have been raised or decided in a previous suit, even
7
if the issue or defense was not actually raised or decided.”
Clarke v. Frank, 960 F.2d 1146, 1150 (2d Cir. 1992).
“In applying the doctrine of res judicata, [a court]
must keep in mind that 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).
“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.”
Id.
(quotation and citation omitted).
DISCUSSION
I.
Failure to State a Claim
The court finds that Plaintiff’s case must be
dismissed as to all defendants for failure to state a claim.
See Placide-Eugene v. Visiting Nurse Serv. of New York, No. 12cv-2785, 2013 WL 2383310, at *13 (E.D.N.Y. May 30, 2013) (“the
Court has the power to dismiss claims sua sponte for a failure
to state a claim”); see also Aiola v. Malverne Union Free Sch.
Dist., 115 F. Supp. 3d 321, 339 (E.D.N.Y. 2015).
Though the
court must afford Plaintiff an opportunity to be heard before
dismissing his case, Thomas v. Scully, 943 F.2d 259, 260 (2d
8
Cir. 1991), Plaintiff was provided such an opportunity:
Plaintiff could have opposed Defendant’s motion, but he did not.
Plaintiff’s complaint alleges no facts that could
plausibly entitle him to relief under the Constitution or any of
the statues he cites.
The four-page “Extraordinary Writ” filed
by Plaintiff to initiate this action is largely
incomprehensible.
It appears to reference a debt owed by the
defendants, requests a permanent injunction against anybody “who
purports to enforce . . . any false debt collection,” references
an unspecified lien purportedly held by unidentified “Government
Creditors,” directs Equifax to “[c]ease all activities,” and
requests that the Secretary of the United States Department of
the Treasury seize all money in the defendants’ possession.
(See generally Compl.)
Plaintiff does not allege any specific
facts, nor does he attribute any particular wrongdoing directly
to any of the named defendants.
None of the defendants,
therefore, are on notice as to what they are accused of.
See
Banks-Gervais v. I.R.S., No. 12-cv-4300, 2012 WL 5504883, at *2
(E.D.N.Y. Nov. 13, 2012) (dismissing “allegations [that] are
incomprehensible and fail to provide notice of the claim [the
plaintiff] seeks to raise”).
Even construing the complaint liberally, Plaintiff has
not alleged any specific facts that could entitle him to relief
under either the FCRA or the FDCPA.
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The FCRA, 15 U.S.C. § 1681
et seq., “regulates credit reporting procedures to ensure the
confidentiality, accuracy, relevancy, and proper utilization of
consumers’ information.”
Longman v. Wachovia Bank, N.A., 702
F.3d 148, 150 (2d Cir. 2012).
Nowhere does Plaintiff allege any
specific actions by any of the defendants related to improper
credit reporting.
Moreover, pleading a violation of the FDCPA
would require Plaintiff to plausibly allege that (1) he is a
“‘consumer’ who allegedly owes the debt or a person who has been
the object of efforts to collect a consumer debt, (2) [that] the
defendant collecting the debt [was] considered a ‘debt
collector,’ and (3) [that] the defendant . . . engaged in an act
or omission in violation of the FDCPA’s requirements.”
Derosa
v. CAC Fin. Corp., 278 F. Supp. 3d 555, 559–60 (E.D.N.Y. 2017),
aff’d, 740 F. App’x 742 (2d Cir. 2018).
Again, the complaint
contains no specific allegations that any of the defendants
violated any provision of the FDCPA.
In addition to citing the FCRA and the FDCPA,
Plaintiff purported to initiate this action pursuant to Title 15
of the United States Code (which broadly regulates commerce, and
includes, inter alia, the Sherman Antitrust Act and the Federal
Trade Commission Act), Title 11 of the United States Code (which
regulates bankruptcy proceedings), the Dodd-Frank Wall Street
Reform Act, the Telephone Consumer Protection Act, the United
States Constitution, the Declaration of Independence, and the
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Ten Commandments.
This court would only have jurisdiction to
decide plausible claims arising under federal law, but Plaintiff
has not sufficiently alleged any facts giving rise to a
plausible claim under any of the cited statutes or the
Constitution.
See Iwachiw v. New York State Dep’t of Motor
Vehicles, 396 F.3d 525, 529 n.1 (2d Cir. 2005) (courts need not
“excuse frivolous or vexatious filings by pro se litigants”);
see also Petitio v. Hill, No. 04-cv-4493, 2007 WL 1016890, at
*11 (E.D.N.Y. Mar. 26, 2007) (“The law is clear that there is no
private right of action to enforce the Declaration of
Independence.”) (quotation and alteration omitted).
Accordingly, even though only Bayview has moved for
dismissal, the court finds that the entirety of Plaintiff’s
complaint must be dismissed, as to all defendants, for failure
to state a claim.
See Sonds v. St. Barnabas Hosp. Corr. Health
Servs., 151 F. Supp. 2d 303, 313 (S.D.N.Y. 2001) (court
“dismisse[d] the claims against the non-moving defendants sua
sponte” where only one defendant moved for dismissal).
II.
Res Judicata
Even if Plaintiff had alleged additional facts in an
attempt to state a plausible claim, Defendant’s motion would be
granted on claim preclusion grounds.
This court previously
found that any argument by Plaintiff that the foreclosure
proceedings were invalid because Bayview lacked standings was
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precluded, because the Queens County Supreme Court “repeatedly
determined that the plaintiffs had not provided evidence of a
timely rescission nor established any other defense.”
2019 WL 2330852, at *9.
Williams,
That preclusion still applies.
In addition, in the prior federal action, this court
independently found that even in the absence of the deference
owed to the state court, Plaintiff was subject to a valid
foreclosure action.
See id. at *9-10.
Regarding Plaintiff’s
claims under the FCRA, the court found that, based on the
evidence before it at that time, “Bayview accurately reported
plaintiffs’ debt, to the credit reporting agencies.”
Id. at *8.
Regarding the claims under the FDCPA, this court found that
Plaintiff had not alleged any facts to support a plausible
inference that Bayview violated any of the various provisions of
the FDCPA.
See id. at *10-15.
Accordingly, any FCRA or FDCPA claims Plaintiff is
attempting to bring against Bayview in this case are barred
because they were already decided against him by this court.
addition, Plaintiff is precluded “from litigating any issue or
In
defense that could have been raised or decided in” the prior
federal action against Bayview, “even if the issue or defense
was not actually raised or decided.”
(emphasis added).
Clarke, 960 F.2d at 1150
In other words, because the prior federal
action between Plaintiff and Bayview concerned the same
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property, Plaintiff should have brought any and all claims he
could have brought pursuant to that property.
All of Plaintiff’s instant claims are thus precluded
by the foreclosure action in Queens County Supreme Court, and by
the prior federal action in this court.
Accordingly, Bayview’s
motion to dismiss is granted.
CONCLUSION
For the foregoing reasons, the court grants
Defendant’s motion to dismiss, and Plaintiff’s case is dismissed
in its entirety.
The Clerk of Court is directed to enter
judgment in favor of Bayview, serve Plaintiff with a copy of
this Memorandum and Order and the judgment, note service on the
docket, and close this case.
SO ORDERED.
Dated:
September 24, 2020
Brooklyn, New York
________ /s/
______________
HON. KIYO A. MATSUMOTO
United States District Judge
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