Solomon v. Davidson Fink, LLP et al
ORDER granting 2 Motion for Leave to Proceed in forma pauperis. SO ORDERED that plaintiffs application to proceed in forma pauperis is GRANTED. However, the complaint is dismissed with prejudice unless plaintiff files an amended complaint in accor dance with this order within thirty (30) days from the date that this order is served upon her. The amended complaint must be labeled "Amended Complaint" and shall bear the docket number 12-CV-2856(SJF)(GRB). The Court will screen any timel y filed amended complaint in accordance with 28 U.S.C. § 1915. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 7/16/2012. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MAUREEN ELENA SOLOMON,
12-CV -2856 (SJF)(GRB)
DAVIDSON FINK LLP, OCWEN LOAN SERVICING
LLC, LITTON LOAN SERVICING LP, WILMINGTON
TRUST AS SUCCESSOR TO THE BANK OF NEW YORK
AS SUCCESSOR TO JP MORGAN CHASE BANK,
NATIONAL ASSOCIATION AS TRUSTEE FOR C-BASS
MORTGAGE LOAN ASSET-BACKED CERTIFICATES,
SERIES 2005-CB4, ET. AL. TRUSTEES, CLERKS,
ADMINISTRATORS, AND ITS ASSOCIATES, OFFICE OF
CONSTABLES, PCT 1-8, NASSAU COUNTY,
ADMINISTRATORS, CLERKS ITS ASSIGNEES AND
ASSOCIATES ETC., OFFICE OF JUSTICE OF THE PEACE
COURTS, ADMINISTRATORS, CLERKS, ASSIGNEES
AND ASSOCIATES, ETC.,
IN CLERK'S OFFICE
US DISTRICT COURTED NY
LONG ISLAND OFFICE
FEUERSTEIN, District Judge:
Before the Court is the complaint of pro se plaintiff Maureen Elena Solomon ("plaintiff'),
which is brought pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.
("FDCPA"). The complaint is accompanied by an application to proceed in forma pauperis.
Upon review of the plaintiffs declaration in support of her application to proceed in
forma pauperis, the Court finds that she is qualified to commence this action without prepayment
of the filing fee. 28 U.S.C. § 1915 (a)( I). However, for the reasons that follow, the plaintiffs
complaint is sua sponte dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) for failure to state a
claim unless plaintiff files an amended complaint as set forth herein within thirty (30) days from
the date on which this order is served upon her.
Plaintiffs eleven (II) page complaint is difficult to comprehend. It appears that plaintiff
seeks to challenge the foreclosure of her home, but that is far from clear. The complaint is
largely comprised of a disjointed narrative, and does not direct any specific allegation against any
Plaintiff alleges that she seeks to "officially advert, point for point, the Original Petition
For Foreclosure, and to present a counter claim herein now on and for the record" and that she
will "show by supporting competent evidence that ... the bank never did lend the [plaintiff] any
funds from said banks personal funds or depositors accounts." Complaint [Docket Entry No. 1]
at 2. She further claims that she "agreed to receive a loan, not to be a depositor and have the
bank receive the deposit for free." Id.
According to the complaint:
[T]he bank had no right to sell the mortgage note and or deed of
trust for two reasons. The mortgage note and or deed of trust was
deposited, and or sold as a security or other negotiable instrument
and the money was received, withdrawn and or accrued without
authorization by using a forged signature, and or pay to the order
stamps etc., and two, the contract was never truly fulfilled. The
bank acted without authorization and is involved in a fraud thereby
damaging the alleged borrower ....
. . . [A ]ny action that derives or is created from any original
contract, i.e., the foreclosure actions thereof from any Loans
#7092628770, 0015318942, A05030983, Deed of Trust, and or
Mortgage Note, Case, Cause, petition et al. applicable actions
created against Affiant is null and void until said dispute is settled
with the original contract. Until then, there is no genuine issue of
material fact in dispute and that according to law, the Respondents'
is [sic] not entitled to the relief prayed for in its Complaint ....
. . . Petitioner will show the law and the bank's own literature to
prove petitioners [sic] case. All the bank did was trick the Affiant
into a one sided contract which did not disclose all terms and
procedures of the note. They got the mortgage note and or deed of
trust without investing one cent, by making Affiant a depositor and
not a borrower. The key to the puzzle is, the bank did not sign the
contract. If they did then they must loan the money (Fiat). The
bank did not sign the note, they deposited the mortgage note and or
deed of trust in a checking account and used it to issue a check
without ever loaning Affiant money or the bank investing one cent
Id. at 2-3. Apart from a "Summary of Damages" wherein plaintiff calculates damages totaling
nearly eleven million dollars, ($11,000,000.00), the remainder of the complaint is largely
comprised of citations to and quotations from various legal authorities and presents a series of
questions (e.g., "Did the bank loan gold or silver to the alleged borrower?," "Did the bank loan
credit to the alleged borrower?"), rather than factual allegations. See id. at 4-11.
Application to Proceed In Forma Pauperis
Having reviewed plaintiffs declaration in support of her application to proceed in forma
pauperis, the Court finds that plaintiff's financial status qualifies her to commence this action
without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(l). Accordingly, plaintiff's
request for permission to proceed in forma pauperis is granted.
Screening of an In Forma Pauperis Complaint
Pursuant to 28 U.S. C.§ 1915(e)(2)(B), the district court shall dismiss an in forma
pauperis complaint, or portion thereof, if it fails to state a claim upon which relief may be
granted. 28 U.S.C. § 1915(e)(2)(B)(ii). Nevertheless, the Court "remain[s] obligated to construe
[a] prose complaint liberally." DiPetto v. U.S. Postal Serv., 383 Fed. Appx. 102, 103 (2d Cir.
2010). A prose complaint should be read with "special solicitude" and should be interpreted to
raise the "strongest claims that it suggests." DiPetto, 383 Fed. Appx. at I 03. At the pleadings
stage of the proceeding, the Court must assume the truth of "all well-pleaded, nonconclusory
factual allegations" in the complaint. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d Ill, 123
(2d Cir. 20 I 0) (citation omitted).
However, a pro se complaint must still provide a defendant with fair notice of what the
plaintiffs claims are and each of the grounds upon which they rest. See Valenzuela v. Riverbay
Corp., No. 06 Civ. 903(DLC), 2007 WL 414487, at *2 (S.D.N.Y. Jan. 31, 2007); see generally
Dura Pharms .. Inc. v. Broudo. 544 U.S. 336, 346, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005).
Thus, a complaint must plead sufficient facts to "state a claim to relief that is plausible on its
face." Bell Atl. Corp. v. Twombly. 550 U.S. 544, 570 127 S.Ct. 1955, 1974, 167 L. Ed.2d 929
(2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 667-68, 129 S.Ct. at 1949 (citations omitted).
As best as the Court can discern, plaintiff intends to allege that she was defrauded in
connection with a residential mortgage loan. However, the complaint, in its present form, does
not state a claim upon which relief may be granted. Even liberally construed, plaintiff wholly
fails to state a plausible claim against any defendant.
Since a court generally should not dismiss a pro se complaint "without granting leave to
amend at least once when a liberal reading of the complaint gives any indication that a valid
complaint might be stated," Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000), plaintiff is
granted leave to file an amended complaint.
Accordingly, plaintiffs claims are dismissed with prejudice unless plaintiff files an
amended complaint stating a plausible claim against any defendant within thirty (30) days
from the date that this Order is served upon her. See. e.g., Foman v. Davis, 371 U.S. 178,
182,83 S.Ct. 227,9 L.Ed.2d 222 (1962) ("If the underlying facts or circumstances relied upon by
a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his
claim on the merits."); Chavis, 618 F.3d at 170 (when addressing a prose complaint, a district
court should not dismiss without granting leave to amend at least once "when a liberal reading of
the complaint gives any indication that a valid claim might be stated.").
For the foregoing reasons, plaintiffs application to proceed in forma pauperis is
GRANTED. However, the complaint is dismissed with prejudice unless plaintiff files an
amended complaint in accordance with this order within thirty (30) days from the date that
this order is served upon her. The amended complaint must be labeled "Amended Complaint"
and shall bear the docket number 12-CV-2856(SJF)(GRB). The Court will screen any timely
filed amended complaint in accordance with 28 U.S.C. § 1915.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21
s/ Sandra J. Feuerstein
g-andra J. Feuer~in
United States District Judge
Central Islip, New York
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