Harte v. Ocwen Financial Corp. et al
Filing
155
ORDER ADOPTING REPORT AND RECOMMENDATION: For the reasons discussed in the attached Memorandum and Order, the Court grants Defendants' motion for summary judgment as to Plaintiff's promissory estoppel claim, as well as Plaintiff's sec tion 349 claim based on a failure to provide pre-foreclosure notice. The Court reserves decision as to Defendants' motion for summary judgment as to Plaintiffs section 349 dual tracking claim, and Plaintiff's motion for class certification of this claim. Ordered by Judge Margo K. Brodie on 3/30/2018. (McKenzie, Lindsay)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------DEBORAH HARTE, on behalf of herself and all
others similarly situated,
Plaintiff,
MEMORANDUM & ORDER
13-CV-5410 (MKB) (RER)
v.
OCWEN FINANCIAL CORP. and OCWEN LOAN
SERVICING, LLC,
Defendants.
-------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Deborah Harte commenced this action in New York state court on behalf of
herself and a nationwide class of similarly situated homeowners, alleging that Defendants Ocwen
Financial Corporation (“OFC”) and Ocwen Loan Servicing, LLC (“OLS”) made
misrepresentations to borrowers in violation of New York statutory and common law. (Compl.
1, annexed to Notice of Removal as Ex. A, Docket Entry No. 1.) 1 Currently before the Court is
Plaintiff’s motion for class certification and Defendants’ motion for summary judgment, both of
which were referred to Magistrate Judge Ramon E. Reyes, Jr. for a report and recommendation.
(Order dated June 22, 2017.)
By report and recommendation dated February 8, 2018, Judge Reyes recommended that
the Court deny Defendants’ motion for summary judgment as to Plaintiff’s claim pursuant to
1
Plaintiff subsequently twice amended the Complaint. (See Am. Compl., Docket Entry
No. 54; Sec. Am. Compl. (“SAC”), Docket Entry No. 60.)
section 349 of New York’s General Business Law (“GBL”) for “dual tracking,” 2 and grant
Plaintiff’s motion to certify a dual tracking class (the “R&R”). (R&R 20–23, Docket Entry No.
143.) Judge Reyes also recommended that the Court grant Defendants’ motion as to Plaintiff’s
GBL section 349 claim for failure to provide pre-foreclosure notice, 3 and as to Plaintiff’s
promissory estoppel claim under New York state common law. (Id. at 14–20.) For the reasons
set forth below, the Court adopts the R&R as to Plaintiff’s promissory estoppel claim, and as to
Plaintiff’s section 349 claim for failure to provide pre-foreclosure notice. The Court reserves
decision on Defendants’ motion for summary judgment as to Plaintiff’s section 349 dual tracking
2
Dual tracking refers to OLS’ alleged practice of “pretending to process a solicited loan
modification on one track but preparing foreclosure proceedings while the borrowers’
applications for modification are pending – in order to accumulate penalty fees, back interest,
and other foreclosure-related fees.” (SAC ¶ 33.)
3
The theory that Defendants are liable under section 349 for failure to provide preforeclosure notice has been described inconsistently as a separate section 349 “claim,” (see Pl.
Mem. in Supp. of Pl. Mot. for Class Certification (“Pl. Mem.”) 10, Docket Entry No. 126; see
also Pl. Mem. in Opp’n to Defs. Mot. for Summ. J. (“Pl. Opp’n”) 2, annexed to Decl. of Daniella
Quitt in Supp. of Mot. to Seal as Ex. 1, Docket Entry No. 137-2; Pl. Obj. to R&R (“Pl. Obj.”),
Docket Entry No. 146), and as a “portion” of the currently pled section 349 claim based on OLS’
“dual tracking” scheme, (Pl. Reply to Defs. Obj. (“Pl. Reply”) 1, Docket Entry No. 153-2).
For purposes of simplicity and consistency with most of the parties’ briefing and the
R&R, and because the Court understands Plaintiff to be proceeding on the theory that
Defendants’ deceptiveness with regard to pre-foreclosure notice separately and independently
constitutes a basis for section 349 liability, the Court will refer to this theory as a separate section
349 “claim” and address Judge Reyes’ recommendation to “dismiss” this claim. (See Pl. Mem.
10 (“On this motion, two types of deception by Ocwen are at issue. The first is Ocwen’s failure
to serve the statutorily required 90-day notice prior to filing a foreclosure action. The second is
Ocwen’s practice of dual-tracking: purporting to aid borrowers to modify their mortgage loans,
including, among other things, the repeated representation that it would not commence
foreclosure proceedings during the pendency of a loan application, while simultaneously filing a
foreclosure action against them.” (alterations, internal citations and quotation marks omitted));
see also Broder v. Cablevision Sys. Corp., 418 F.3d 187, 194–95 (2d Cir. 2005) (“[W]hat is
styled as one claim for violation of GBL § 349 is actually two: (1) a claim that Cablevision
violated 47 U.S.C. § 543(d) and thereby violated GBL § 349, and (2) a claim that Cablevision
violated PSL § 224–a(4) and thereby violated GBL § 349.”).
2
claim, and Plaintiff’s motion for class certification of this claim.
I.
Background
The Court assumes familiarity with the facts and procedural posture as discussed in its
prior decisions in the case 4 and the R&R, and provides only a summary of the pertinent facts and
procedural background.
a. Factual background
The following facts are undisputed unless otherwise noted. On September 15, 2005,
Plaintiff obtained a mortgage loan from the federal Mortgage & Investment Corporation in the
amount of $420,000, and executed a mortgage on her Brooklyn, New York home as security for
the loan. (Defs. Statement of Material Facts Pursuant to Local R. 56.1 (“Defs. 56.1”) ¶¶ 32–33,
Docket Entry No. 136-4; Pl. Resp. to Defs. 56.1 and Counterstatement of Material Facts (“Pl.
56.1”) ¶¶ 32–33, Docket Entry No. 137-3.)
In late 2006 to early 2007, Plaintiff began experiencing difficulties making her mortgage
payments. (Defs. 56.1 ¶ 35; Pl. 56.1 ¶ 35.) After taking initial steps to manage the debt, 5
4
See Harte v. Ocwen Fin. Corp., No. 13-CV-5410, 2014 WL 4677120 (E.D.N.Y. Sept.
19, 2014) (“Harte I”); Harte v. Ocwen Fin. Corp., No. 13-CV-5410, 2016 WL 1275045
(E.D.N.Y. Mar. 31, 2016) (“Harte II”); Harte v. Ocwen Fin. Corp., No. 13-CV-5410, 2016 WL
3647687 (E.D.N.Y. July 1, 2016) (“Harte III”).
5
Plaintiff entered into two separate forbearance agreements in 2006 and 2007, and
executed four loan modification agreements between February 18, 2009 and January 14, 2011.
(Defs. Statement of Material Facts Pursuant to Local R. 56.1 (“Defs. 56.1”) ¶¶ 36, 38, Docket
Entry No. 136-4.) Plaintiff asserts that OLS “did not enter [into the] forbearance agreements to
‘assist’ or ‘help’ [P]laintiff catch up on her payments,” (Pl. Resp. to Defs. 56.1 and
Counterstatement of Material Facts (“Pl. 56.1”) ¶ 36, Docket Entry No. 137-3), because OLS
“offers loan modifications for a variety of reasons, including ‘the importance of loan resolution
to its financial performance,’” (id. ¶ 71 (alterations and citation omitted)). However, Plaintiff
does not dispute that she entered into these agreements with OLS.
3
Plaintiff received a letter from OLS 6 in October of 2011, offering to “work with [her] to identify
a solution that will resolve [her] delinquent mortgage loan” and “presenting [her] with some of
the ways [OLS] may be able to help.” 7 (Pl. 56.1 ¶ 72; Defs. Resp. to Pl. 56.1 (“Defs. 56.1
Resp.”) ¶ 72, annexed to Defs. Mot. to Seal as Ex. F, Docket Entry No. 136-6; Letter dated Oct.
21, 2011, annexed to Decl. of Robert I. Harwood in Opp’n to Defs. Mot. (“Harwood Opp’n
Decl.”) as Ex. 6, Docket Entry No. 137-4.)
By letter dated December 5, 2011, Plaintiff was notified by a law firm engaged by OLS
that her mortgage loan had been referred for foreclosure. (Defs. 56.1 ¶ 44; Pl. 56.1 ¶ 44.) The
letter states, among other things, that “[w]hile the foreclosure process has begun, you may still
have foreclosure prevention alternatives available to you,” and lists “forbearance, repayment,
[and] modification” as options that may enable distressed borrowers to stay in their homes.
(Letter dated Dec. 5, 2011, annexed to First Decl. of Brian M. Forbes (“First Forbes Decl.”) as
Ex. 11, Docket Entry No. 136-2.)
On December 28, 2011, Plaintiff submitted an initial application for a loan modification,
6
Several statements made in Plaintiff’s Counterstatement of Material Facts do not
distinguish between actions taken by OFC and OLS. (See, e.g., Pl. 56.1 ¶ 72.) Accordingly,
consistent with the Court’s prior approach, the Court “reads all specific allegations concerning
actual contact between Plaintiff and ‘Ocwen,’ ‘Defendants’ or the ‘Company’ to refer to OLS.”
See Harte I, 2014 WL 4677120, at *1 n.1.
7
In its summary of the letters received by Plaintiff, the Court occasionally quotes
language not included in the parties’ respective 56.1 statements. However, as there is no dispute
that Plaintiff received each of the letters summarized and quoted, the Court includes this
information in its summary of the relevant facts. See Risco v. McHugh, 868 F. Supp. 2d 75, 88
(S.D.N.Y. 2012) (“Where possible, the Court has relied on the undisputed facts in Defendant’s
56.1 Statement; however, direct citations to the record have also been used where relevant facts
were not included in either of the parties’ Rule 56.1 submissions.”); see also Prescient
Acquisition Grp., Inc. v. MJ Pub. Tr., 487 F. Supp. 2d 374, 375–76 (S.D.N.Y. 2007) (finding that
record evidence not cited in the defendants’ 56.1 statement is “fairly considered part of the
record on the motion and, once submitted, could be relied upon by either party or the court”).
4
including certain supporting documentation. (Defs. 56.1 ¶ 45; Pl. 56.1 ¶ 45.) The first page of
the application states that Plaintiff “must submit all the [requested] documentation,” that failure
to do so would result in her application not being reviewed, and that:
[t]he review process may take up to [thirty] days after the receipt of
the completed package. During this time, Ocwen will not delay or
stop any collections or legal activity on your loan. Therefore, it is
important to complete the package and fax/email it back to Ocwen
as quickly as possible.
(Defs. 56.1 ¶ 46; Pl. 56.1 ¶ 46; see also Loan Modification App. at 3, 8 annexed to Forbes Decl.
in Supp. of Defs. Opp’n to Pl. Mot. (“Forbes Opp’n Decl.”), Docket Entry No. 121-10.) The
parties dispute whether Plaintiff’s application as initially submitted was complete. (Compare
Defs. 56.1 ¶ 47 with Pl. 56.1 ¶ 47, 73–81.) Beginning with a letter dated January 2, 2012 and
continuing through April 24, 2012, OLS sent Plaintiff multiple letters claiming that her
application was incomplete and requesting additional supporting documents. (Defs. 56.1 ¶ 48.)
Plaintiff does not dispute receiving such letters, but maintains that (1) she submitted all required
documentation with her initial application, (Pl. 56.1 ¶ 48), (2) she nevertheless submitted the
additional documents requested in OLS’ subsequent letters, and (3) OLS’ own records reflect
that, in one instance, it “found” the documents it claims that Plaintiff failed to submit, (id. ¶¶ 76–
81).
During this period, Plaintiff also received “at least [ten]” letters providing information
about the loan modification process. (Defs. 56.1 ¶¶ 49–50, 54; Pl. 56.1 ¶¶ 49–50, 54.) In a
section entitled “Frequently Asked Questions,” the letters state: “[w]hile we consider your
request [for a loan modification], we will not initiate a new foreclosure action and we will not
move ahead with the foreclosure sale on an active foreclosure so long as we have received all
8
Because the Loan Modification Application is not consecutively paginated, the Court
refers to the page number assigned by the Electronic Case Filing (“ECF”) System.
5
required documents and you have met the eligibility requirements.” (Defs. 56.1 ¶ 50; Pl. 56.1 ¶
50.) The letters further explain that “[i]f your loan has been previously referred to foreclosure,
we will continue the foreclosure process while we evaluate your loan for HAMP.[ 9] However,
no foreclosure sale will be conducted and you will not lose your home during the HAMP
evaluation.” (Defs. 56.1 ¶ 51; Pl. 56.1 ¶ 51.) The letters also state the following:
Important — Do not ignore foreclosure notices. The HAMP
evaluation and the process of foreclosure may proceed at the same
time. You may receive foreclosure/eviction notices . . . or you may
see steps being taken to proceed with a foreclosure sale on your
home. While you will not lose your home during the HAMP
evaluation, to protect you [sic] rights . . . you may need to respond
to these foreclosure notices or take other actions.
(Defs. 56.1 ¶ 52; Pl. 56.1 ¶ 52.) Finally, the letters state:
If you do not qualify for HAMP, or if you fail to comply with the
terms of the Trial Period Plan, you will be sent a Non-Approval
Notice. In most cases, you will have [thirty] days to review the
reason for non-approval and contact us to discuss any concerns you
may have. During this [thirty]-day review period, we may continue
with the pending foreclosure action, but no foreclosure sale will be
conducted and you will not lose your home.
(Defs. 56.1 ¶ 53; Pl. 56.1 ¶ 53; see also Loan Modification Letters, annexed to Forbes Opp’n
Decl. as Exs. 12–21, Docket Entry Nos. 121-12–21.) The parties dispute the extent to which
Plaintiff reviewed these letters. (Defs. 56.1 ¶¶ 55–58; Pl. 56.1 ¶¶ 55–58, 82; Defs. 56.1 Resp. ¶
82.)
Plaintiff received two additional letters from OLS, both dated April 24, 2012. (Pl. 56.1 ¶
9
“The Home Affordable Application Program, known as HAMP, ‘is a U.S. Department
of the Treasury program codified within the Emergency Economic Stabilization Act of 2008, 12
U.S.C. §§ 5201–5261.’” Harte I, 2014 WL 4677120, at *3 (quoting Jordan v. Chase Manhattan
Bank, No. 13-CV-9015, 2014 WL 3767010, at *7 (S.D.N.Y. July 31, 2014)). “In very general
terms, HAMP is designed to lower the monthly mortgage payments of participating borrowers to
an affordable level.” Id. (quoting Dumont v. Litton Loan Servicing, LP, No. 12-CV-2677,
2014 WL 815244, at *1 (S.D.N.Y. Mar. 3, 2014)).
6
84; Defs. 56.1 Resp. ¶ 84.) The first letter states that Plaintiff was “not eligible for a
modification under [HAMP]” and states:
You have [thirty] calendar days from the date of this notice to
contact Ocwen to discuss the reason for non-approval for a HAMP
modification or to discuss alternative loss mitigation options that
may be available to you. Your loan may be referred to foreclosure
during this time, or any pending foreclosure action may continue.
However, no foreclosure sale will be conducted and you will not
lose your home during this [thirty]-day period . . . .
(Defs. 56.1 ¶¶ 61–62; Pl. 56.1 ¶¶ 61–62; Letter dated Apr. 24, 2012 annexed to Forbes Opp’n
Decl. as Ex. 22, Docket Entry No. 121-22.) The second letter contained similar language.
(Letter dated Apr. 24, 2012, annexed to Forbes Opp’n Decl. as Ex. 23, Docket Entry No. 12123.) The second letter also repeated that Plaintiff was “not eligible” for a HAMP loan and noted
that “[t]here were missing or incomplete documents in your application. Notification was sent
over [thirty] days ago regarding this issue but there was no response or we did not receive all of
the missing or incomplete documents.” (Id.) Defendants contend that these letters reflect a
denial of Plaintiff’s loan modification application due to missing documents. (Defs. 56.1 ¶¶ 61–
63.) Plaintiff disputes both the characterization of these letters as a “denial” of her pending
application and the assertion the she failed to submit required documents. (Pl. 56.1 ¶¶ 61–63.)
Plaintiff asserts that OLS sent her a letter dated April 30, 2012 requesting the documents it had
purportedly not received, and that an OLS representative followed up with a telephone call on
May 1, 2012. (Pl. 56.1 ¶¶ 85–86.) Defendant acknowledges that OLS’ records reflect
correspondence on those dates, but disputes “Plaintiff’s characterization of the substance” of
these communications. (Defs. 56.1 Resp. ¶¶ 85–86.)
On May 16, 2012, OLS filed a foreclosure action against Plaintiff. (Pl. 56.1 ¶ 87; Defs.
56.1 Resp. ¶ 87.) Plaintiff asserts that OLS did not notify her of the foreclosure action. (Pl. 56.1
¶ 87.) Defendants acknowledge that a foreclosure action was filed against Plaintiff on this date,
7
but disputes “that Plaintiff’s awareness of the foreclosure is material to the issues raised in
Defendants’ [m]otion for [s]ummary [j]udgment.” (Defs. 56.1 Resp. ¶ 87.)
Plaintiff asserts that she spoke with an OLS representative on May 20, 2012, and that on
May 22, 2012, she submitted documents that the representative requested in support of her loan
modification application. (Pl. 56.1 ¶ 88.) Defendants again acknowledges that OLS’ “log entries
cited by Plaintiff” reflect that a call with an OLS representative took place on May 20, 2012, and
agrees that Plaintiff submitted documents on or about May 22, 2012, but disputes “Plaintiff’s
characterization of the substance of the conversation” with the OLS representative, and disputes
her characterization of the documents submitted. (Defs. 56.1 Resp. ¶ 88.) The parties agree that
OLS sent Plaintiff additional letters dated May 24, 2012 and June 1, 2012, but dispute whether
those letters reflect additional requests for purportedly missing documents to support Plaintiff’s
loan modification application. (See Pl. 56.1 ¶¶ 89, 91; Defs. 56.1 Resp. ¶¶ 89, 91.) There is no
dispute that on May 24, 2012, OLS assessed Plaintiff three foreclosure fees of $600, $175 and
$550, respectively. (Pl. 56.1 ¶ 90; Defs. 56.1 Resp. ¶ 90.)
OLS sent Plaintiff a letter dated July 8, 2012. (Letter dated July 8, 2012, annexed to
Harwood Opp’n Decl. as Ex. 15, Docket Entry No. 137-10.) The header of the letter reads
“Final Notice,” and states that:
It has been thirty (30) days since we sent you notification specifying
outstanding conditions that have not allowed us to complete the
review of your modification application. If the documents identified
in REQUIRED DOCUMENTS are not received by DUE DATE,
we will have no other option but to deny your application under the
Making Home[] Affordable Modification Program. Please act
quickly to take advantage of this opportunity to modify your
mortgage loan.
8
(Id. at 2; 10 Pl. 56.1 ¶ 93; Defs. 56.1 Resp. ¶ 93.) In the July 8, 2012 letter, OLS also requested
that Plaintiff submit certain additional documents by July 23, 2012, and that “[f]ailure to provide
these documents within the timeline will result in the denial of your modification application and
you will not be able to re-apply for the Making Home Affordable Modification.” (Letter dated
July 8, 2012 at 2.)
OLS then sent Plaintiff another letter, dated July 11, 2012. (Letter dated July 11, 2012,
annexed to Harwood Opp’n Decl. as Ex. 16, Docket Entry No. 137-11.) The header on the July
11, 2012 letter reads: “YOU COULD LOSE YOUR HOME. PLEASE READ THE
FOLLOWING NOTICE CAREFULLY.” (Id.) The July 11, 2012 letter further states:
As of July 11, 2012, your home loan is 345 days in default. Under
New York state law, we are required to send you this notice to
inform you that you are at risk of losing your home. You can cure
this default by making the payment of 32,116.04 dollars by
10/02/2012.
(Id. at 2; see also Defs. 56.1 Resp. ¶ 94; Pl. 56.1 ¶ 94.)
Plaintiff testified that around this time, she “realized that it appeared to [her] that there
was not going to be a resolution to the loan modification to help me save my home.” (Pl. 56.1 ¶
96.) Plaintiff filed for Chapter 13 Bankruptcy in December of 2012. (Pl. 56.1 ¶ 98.) To date,
Defendants have not obtained a foreclosure judgment against Plaintiff, and Plaintiff still resides
at the property. (Defs. 56.1 ¶ 67; Pl. 56.1 ¶ 67.)
b. Procedural background
Defendants removed this action from New York state court on September 30, 2013.
(Notice of Removal.) Defendants thereafter moved to dismiss the Complaint on February 7,
2014, which the Court granted in part and denied in part. See Harte I, 2014 WL 4677120 at *1.
10
Because the letter dated July 8, 2012 is not consecutively paginated, the Court refers to
the page number assigned by ECF.
9
Plaintiff subsequently twice amended the Complaint. (See Am. Compl., Docket Entry No. 54;
Sec. Am. Compl. (“SAC”), Docket Entry No. 60.) In the SAC, Plaintiff asserts claims for breach
of contract, promissory estoppel and violation of section 349. (SAC ¶¶ 123–50.)
By Memorandum and Order dated July 1, 2016, the Court dismissed Plaintiff’s breach of
contract claim. Harte III, 2016 WL 3647687.
Relevant to the present dispute, Plaintiff filed a letter on January 6, 2017, 11 indicating her
intent to move for class certification. (Pl. Letter dated Jan. 6, 2017, Docket Entry No. 97.) The
letter states, among other things, that Plaintiff planned to seek certification of the following class
and subclasses:
All New York homeowners with a residential mortgage serviced by
Ocwen who, between August 14, 2007 and the present: (a) applied
for a loan modification, were directed by an Ocwen representative
to withhold payments while the application was pending, and then
were penalized for doing so (the “Payments Subclass”); (b) against
whom Ocwen commenced the foreclosure proceedings prior to
service of a 90-day demand letter (the “90-day Demand Subclass”);
or (c) against whom Ocwen pursued foreclosure while loan a [sic]
modification application was pending (the “Dual-Tracking
Subclass”).
(Id. at 1.)
Defendants responded on January 13, 2017. (Defs. Letter dated Jan. 13, 2017, Docket
Entry No. 98.) In their letter, Defendants asserted that class certification is improper as to all
claims, and argued that:
Plaintiff defines the 90-day Demand Subclass as consisting of
borrowers as to whom OLS allegedly “commenced foreclosure
proceedings prior to service of a 90-day demand letter.” While
Plaintiff had pled a breach of contract claim based on similar
allegations, which claim was dismissed, a demand letter issue is not
otherwise pled in her only remaining claims, [section] 349 and
promissory estoppel. Absent a viable claim based on the alleged
11
Plaintiff’s letter is incorrectly dated January 6, 2016. (Pl. Letter dated Jan. 6, 2017,
Docket Entry No. 97.)
10
lack of a demand letter, Plaintiff cannot represent this class.
(Id. at 2 (internal citations omitted).)
Defendants reiterated their argument that Plaintiff did not plead a “[ninety]-day notice
claim” in a pre-motion conference letter to the Court dated March 29, 2017, in anticipation of
their motion for summary judgment. (Defs. Letter dated Mar. 29, 2017 at 1–2, Docket Entry No.
107.) Plaintiff responded by letter dated April 13, 2017, arguing principally that “[c]laims for
violations of GBL [section] 349 based on Ocwen’s practice of foreclosing without notice are
alleged in the SAC.” (Pl. Letter dated Apr. 13, 2017 at 2, Docket Entry No. 109.)
On May 23, 2017, after the close of discovery targeted toward Plaintiff’s remaining
individual claims and “class certification issues,” 12 Plaintiff moved for class certification. (Pl.
Mot. for Class Cert. (“Pl. Mot.”), Docket Entry No. 125; Pl. Mem. in Supp. of Pl. Mot. (“Pl.
Mem.”), Docket Entry No. 126; Decl. of Robert I. Harwood in Supp. of Pl. Mot. (“Harwood
Decl.”), Docket Entry No. 127.) Defendants moved for summary judgment on July 24, 2017.
(Defs. Mot. for Summary J. (“Defs. Mot.”), Docket Entry No. 133; First Forbes Decl., Docket
Entry No. 134; Second Decl. of Brian M. Forbes (“Second Forbes Decl.”), Docket Entry No.
135; Defs. 56.1; Defs. Mem. in Supp. of Defs. Mot. (“Defs. Mem.”), Docket Entry No. 136-1.)
While Plaintiff’s pre-motion letter proposed three sub-classes of plaintiffs, her motion for class
certification proposed the following two sub-classes:
All New York homeowners with a residential mortgage serviced by
Ocwen, against whom Ocwen filed a foreclosure between August
14, 2007 and the present: (a) without first serving the legally
required 90-day notice or prior to expiration of the 90-day notice
period; and/or (b) while purporting to consider the borrower for a
loan modification.
12
At a January 29, 2015 hearing before Judge Reyes, defense counsel described
discovery as to “class certification issues” as “discovery related to whether a class should be
certified . . . .” (Jan. 29, 2015 Hr’g Tr. 7:20–21, Docket Entry No. 80.)
11
(Pl. Mem. 11.)
After the Court’s referral of these motions to Judge Reyes, and the issuance of the R&R,
the parties filed objections and responses. (Pl. Obj. to R&R (“Pl. Obj.”), Docket Entry No. 146;
Defs. Obj. to R&R (“Defs. Obj.”), Docket Entry No. 148; Defs. Reply to Pl. Obj. (“Defs.
Reply”), Docket Entry No. 151; Pl. Reply to Defs. Obj. (“Pl. Reply”), Docket Entry No. 153-2.)
i. The R&R
Judge Reyes recommended that the Court grant Defendants’ motion for summary
judgment as to Plaintiff’s purported section 349 claim for failure to provide pre-foreclosure
notice, and as to Plaintiff’s promissory estoppel claim. (R&R 14–20.) Judge Reyes further
recommended that the Court deny Defendants’ motion as to Plaintiff’s GBL section 349 dual
tracking claim, and grant Plaintiff’s motion to certify a dual tracking class. (Id. at 20–23.)
1. Section 349 notice claim
With respect to Plaintiff’s section 349 notice claim, Judge Reyes concluded that Plaintiff
failed to adequately plead this claim in the SAC to provide Defendants with fair notice that she
was asserting it. (R&R 14.) In their motion for summary judgment, Defendants argued that
Plaintiff’s January 6, 2017 letter to Judge Reyes, which indicated Plaintiff’s intent to seek
certification of a subclass of homeowners “against whom Ocwen commenced foreclosure
proceedings prior to service of a [ninety] day demand letter,” (Pl. Letter dated Jan. 6, 2017), was
Plaintiff’s first filing that alerted Defendants that she was pursuing such a claim, (Defs. Mem.
10). Judge Reyes agreed, finding that, notwithstanding the SAC’s “passing references to
Ocwen’s failure to provide [Plaintiff] with pre-foreclosure notice,” it does not contain a “short
and plain statement” notifying Defendants of Plaintiff’s allegation that this failure “was a
deceptive act of which [Plaintiff] complained.” (R&R 14.) Judge Reyes further recommended
that Plaintiff “should not be permitted to file yet another amended complaint to replead such a
12
claim,” because “[s]he has had ample opportunity to plead her claims properly, and should not be
given another bite at the apple.” (Id. at 15 n.6.)
Assuming nevertheless that Plaintiff had adequately pled the section 349 notice claim,
Judge Reyes proceeded to address additional grounds upon which Plaintiff’s section 349 notice
claim should be dismissed. (Id. at 15–16.) Judge Reyes concluded that a section 349 claim
based on failure to provide pre-foreclosure notice would fail even if adequately pled, because
such a claim would contravene the Second Circuit’s decisions in Broder v. Cablevision Sys.
Corp., 418 F.3d 187 (2d Cir. 2005), and Conboy v. AT&T Corp., 241 F.3d 242 (2d Cir. 2001).
(R&R 15.) Judge Reyes reasoned that these decisions “stand for the proposition that a plaintiff
cannot maintain a GBL [section] 349 claim where the alleged deceptive act is solely a violation
of a statute that does not provide for a private right of action.” (Id. at 16.) Judge Reyes found
that the statute relevant here, section 1304 of New York’s Real Property Actions and
Proceedings Law (“RPAPL”), requires a borrower to provide a homeowner with ninety-day
notice before foreclosing on a mortgage, and while non-compliance with this statute may be used
as an affirmative defense in a foreclosure proceeding, it does not give rise to a private right of
action. (Id. at 15–16.) Judge Reyes concluded that Plaintiff therefore cannot proceed on the
theory that “the failure to provide pre-foreclosure [notice is] in and of itself a deceptive act”
under section 349, as doing so would “run afoul” of Second Circuit precedent. 13 (Id. at 15.)
Briefly addressing the statute of limitations, Judge Reyes recommended that, should the
Court conclude that Plaintiff has in fact pled a viable section 349 notice claim, it should reject
Defendants’ argument that the statute of limitations has expired on such a claim. (Id. at 16 n.7.)
13
For these reasons, Judge Reyes also recommended denying Plaintiff’s motion to
certify a class of homeowners to whom OLS failed to provide ninety-day notice before filing a
foreclosure action. (R&R 44.)
13
Judge Reyes noted that Defendants state that the alleged injury occurred on May 16, 2012, and
the SAC was filed on December 5, 2014, within the three-year limitations period for section 349
claims. (Id.)
2. Promissory estoppel claim
Judge Reyes also recommended dismissal of Plaintiff’s promissory estoppel claim,
concluding that Plaintiff has not met any of the three elements necessary to sustain this cause of
action. (R&R 16–20.) First, Judge Reyes concluded that the letters Plaintiff received from OLS
between January and April of 2012 did not, as Plaintiff argues, contain a “clear and unambiguous
promise” that “while the loan modification applications were pending there would be no penalty
for withholding loan payments, homes would not be foreclosed on, and applications would be
considered once the necessary documentation was received by OLS.” (Id. at 17 (citing SAC ¶
136).) Judge Reyes found that the letters Plaintiff received were “contradictory at best and
provide a significant amount of ambiguity when read in their entirety.” (Id. at 18.) Second, with
regard to the reliance element of the promissory estoppel analysis, Judge Reyes found that, based
on her deposition testimony, Plaintiff “did not read all of the information provided in the loan
modification letters and therefore cannot prove she relied on [any alleged] promises made in
them.” (Id.) Third, Judge Reyes concluded that while Plaintiff’s bankruptcy may constitute
injury for purposes of a promissory estoppel claim, Plaintiff has not “sufficiently established that
the injury arose out of a reliance on Ocwen’s clear and unambiguous promises.” (Id. at 20.)
3. Section 349 dual tracking claim
Judge Reyes recommended that the Court deny Defendants’ motion for summary
judgment as to Plaintiff’s section 349 dual tracking claim. (R&R 20–23.) Judge Reyes rejected
Defendants’ argument that the disclosures in the letters Plaintiff received were sufficiently clear
such that “a reasonable consumer would not have understood the letters to provide a promise not
14
to advance the foreclosure process under her circumstances . . . or not to file a foreclosure action
after denial of the application.” (Id. at 21 (quoting Defs. Mem. 28).) Judge Reyes also found
that Plaintiff has established a material issue of fact regarding whether she did in fact submit a
complete loan modification application. (Id. at 21–23.)
Finally, considering reports generated in connection with a review of OLS’ loan servicing
practices, Judge Reyes found that Plaintiff has sufficiently established the requirements under
Rule 23 of the Federal Rules of Civil Procedure for certifying a class of “New York homeowners
with a residential mortgage serviced by Ocwen, against whom Ocwen filed a foreclosure
between August 14, 2007 and the present . . . while purporting to consider the borrower for a
loan modification.” 14 (Id. at 24–61.)
II. Discussion
a.
Standards of review
i. Report and Recommendation
A district court reviewing a magistrate judge’s recommended ruling “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). When a party submits a timely objection to a report and
recommendation, the district court reviews de novo the parts of the report and recommendation
to which the party objected. Id.; see also United States v. Romano, 794 F.3d 317, 340 (2d Cir.
2015). The district court may adopt those portions of the recommended ruling to which no
timely objections have been made, provided no clear error is apparent from the face of the
14
Judge Reyes noted that while a class based solely on OLS’ commencement of
foreclosure proceedings prior to service of a ninety-day demand letter would contravene Second
Circuit precedent, such homeowners could nevertheless be included in a dual tracking class
because Plaintiff’s dual tracking theory of liability implicates deceptive conduct beyond noncompliance with RPAPL section 1304. (R&R 44 n.22.)
15
record. John Hancock Life Ins. Co. v. Neuman, No. 15-CV-1358, 2015 WL 7459920, at *1
(E.D.N.Y. Nov. 24, 2015). The clear error standard also applies when a party makes only
conclusory or general objections. Benitez v. Parmer, 654 F. App’x 502, 503–04 (2d Cir. 2016)
(holding “general objection[s] [to be] insufficient to obtain de novo review by [a] district court”
(citations omitted)); see Fed. R. Civ. P. 72(b)(2) (“[A] party may serve and file specific written
objections to the [magistrate judge’s] proposed findings and recommendations.” (emphasis
added)); Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Merely referring
the court to previously filed papers or arguments does not constitute an adequate objection under
. . . Fed. R. Civ. P. 72(b) . . . .”).
ii. Summary judgment
Summary judgment is proper only when, construing the evidence in the light most
favorable to the non-movant, “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Wandering Dago, Inc. v.
Destito, 879 F.3d 20, 30 (2d Cir. 2018); see also Cortes v. MTA NYC Transit, 802 F.3d 226, 230
(2d Cir. 2015). The role of the court “is not to resolve disputed questions of fact but only to
determine whether, as to any material issue, a genuine factual dispute exists.” Rogoz v. City of
Hartford, 796 F.3d 236, 245 (2d Cir. 2015) (first quoting Kaytor v. Elec. Boat Corp., 609 F.3d
537, 545 (2d Cir. 2010); and then citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50
(1986)). A genuine issue of fact exists when there is sufficient “evidence on which the jury
could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. The “mere existence of a
scintilla of evidence” is not sufficient to defeat summary judgment. Id. The court’s function is
to decide “whether, after resolving all ambiguities and drawing all inferences in favor of the
nonmoving party, a rational juror could find in favor of that party.” Pinto v. Allstate Ins. Co.,
16
221 F.3d 394, 398 (2d Cir. 2000).
b. Unopposed objections
No party objected to Judge Reyes’ recommendation that the Court grant Defendants’
motion for summary judgment as to Plaintiff’s promissory estoppel claim under New York state
law. The Court has reviewed the unopposed portion of the R&R and, finding no clear error, the
Court adopts this recommendation pursuant to 28 U.S.C. § 636(b)(1). Accordingly, the Court
grants Defendants’ motion for summary judgment as to Plaintiff’s promissory estoppel claim
under New York state law.
c.
Defendants’ objections
Defendants object to Judge Reyes’ recommendations that the Court deny its motion for
summary judgment as to Plaintiff’s dual tracking claim and grant Plaintiff’s motion for class
certification as to that claim. (See generally Defs. Obj.) Defendants argue that Plaintiff has
failed to establish all three elements of her dual tracking claim, and that Judge Reyes erred in his
class certification analysis. (Id.)
d. Plaintiff’s objections
Plaintiff objects to Judge Reyes’ recommendation that the Court dismiss her section 349
notice claim. (Pl. Obj.) Plaintiff argues that the she has adequately “allege[d] that Ocwen did
not serve plaintiff a pre-foreclosure notice until after it filed a foreclosure action.” (Id. at 5.)
Plaintiff points to, among other things, paragraph ninety-four in the SAC, alleging that the notice
Plaintiff received on July 11, 2012 informed her that “she was 345 days in default,” which was
“the first notice that [P]laintiff received from OLS alerting her that she was in default.” (Id. at
6.) Plaintiff also cites to paragraph seven, describing how “Ocwen routinely foreclosed on
borrowers without issuing notice.” (Id.) Plaintiff further argues that any pleading deficiency
17
“can easily be cured” given the posture of the litigation and the lack of prejudice to Defendants,
(id. at 8), who, given the references to the lack of pre-foreclosure notice reflected in the SAC,
have “been on notice of this claim for quite some time,” and therefore cannot “claim unfair
surprise,” (id. at 13).
Addressing the merits of her section 349 notice claim, Plaintiff asserts that the failure to
provide notice was deceptive because “Ocwen repeatedly told borrowers that there would be preforeclosure notice, that pre-foreclosure notice was important, and that failure to act after receipt
of pre-foreclosure notice could affect a borrower’s rights.” (Id. at 8.) Plaintiff argues that a
“reasonable consumer would have reasonably believed that having failed to receive the notice
that . . . no foreclosure was imminent and their home was safe for the moment.” (Id.)
Addressing Judge Reyes’ conclusion that a section 349 notice claim would be precluded
by RPAPL section 1304, Plaintiff argues that her claim rests not solely on Defendants’ failure to
provide pre-foreclosure notice as required by New York state law, but also on OLS’ “actions and
communications with its borrowers,” (id. at 10), namely, repeated representations that “it would
provide notice,” instructions for homeowners to “look for the notice because the notice was
important,” and advising them that they “may need to respond to these foreclosure notices or
take other actions,” (id. at 12).
i. Plaintiff has not adequately pled a section 349 notice claim
Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a plaintiff’s complaint must
include a “short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). The “statement should be plain because the principal function of
pleadings under the Federal Rules of Civil Procedure is to give the adverse party fair notice of
the claim asserted so as to enable him to answer and prepare for trial.” Salahuddin v. Cuomo,
18
861 F.2d 40, 42 (2d Cir. 1988) (citations omitted).
The Court finds the allegations in the SAC inadequate to have alerted Defendants that
Plaintiff sought to assert section 349 liability based on a failure to provide pre-foreclosure notice.
While the SAC contains a section 349 claim based on Plaintiff’s dual tracking theory, to which
the general issue of notice is incidental, 15 the SAC contains no allegation indicating that OLS’
failure to provide pre-foreclosure notice constitutes a deceptive practice under section 349. See
Mohammad v. N.Y. State Higher Educ. Servs. Corp., 422 F. App’x 61, 62–63 (2d Cir. 2011)
(“Rule 8(a)(2) provides that a complaint must include ‘a short and plain statement of the claim
showing that the pleader is entitled to relief.’ The statement must be sufficient to give the
defendants ‘fair notice of what the plaintiff’s claim is and the grounds upon which it
rests.’” (emphasis added) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002))). As
Judge Reyes observed, in the recital paragraph discussing the conduct forming the basis of
Plaintiff’s section 349 claim, OLS’ failure to provide pre-foreclosure notice is conspicuously
absent:
OLS’[] conduct complained of herein consisted of deceptive acts
and practices in the form of misrepresentations and omissions
during conduct of [sic] business in New York in violation of N.Y.
Gen. Bus. Law [section] 349(a), including: (a) soliciting borrowers
to apply for loan modifications in order to avoid foreclosure; (b)
representing that plaintiff and the members of the Class should
15
The Court does not dispute that the lack of notice is relevant to Plaintiff’s overall
section 349 dual tracking theory, insofar as OLS’ alleged scheme to string modification
applicants along while collecting fees was aided by its failure to inform them that it was moving
the foreclosure process forward. Similarly, a lack of notice is also relevant to Plaintiff’s nowdismissed contract claim for breach of homeowners’ mortgage notes “by foreclosing on plaintiff
and the Class Members when they were not in default and/or had not received a notice of
default.” (SAC ¶ 127.) However, as noted supra n.3, the Court understands Plaintiff to now be
arguing that the SAC adequately alleges that this lack of pre-foreclosure notice, coupled with
affirmative representations to homeowners, constitutes a deceptive practice sufficient to establish
a section 349 violation on its own, regardless of whether a homeowner was subject to OLS’
alleged dual tracking scheme.
19
withhold loan payments until their modification applications were
decided; (c) stating that OLS would not foreclose on plaintiff and
the members of the Class while their modification applications were
being considered; and (d) stating that documents in support of
modification applications had not been received when it reality OLS
had received the documents.
(SAC ¶ 145.) The allegations reflected in this recital paragraph all implicate OLS’ alleged dual
tracking scheme; there is no mention of any failure to provide pre-foreclosure notice. Plaintiff
objects that this recital was intended as a “non-exhaustive list of wrongdoing” as suggested by
her use of the word “including,” which, she asserts “does not by definition exclude other types of
deceptive conduct” in the SAC. (Id. at 7 & n.3.) Plaintiff also contends that these “other types
of deceptive conduct” — and specifically, OLS’ failure to provide pre-foreclosure notice — are
encompassed within the section 349 count by virtue of paragraph 142, which states that Plaintiff
“incorporates by reference and realleges each and every allegation” in the SAC. (Id.) But the
term “including” cannot stand as a placeholder for any conduct Plaintiff later wishes to rest her
claim on. Moreover, while a statement that a particular count incorporates prior allegations may
assist a defendant in ascertaining the nature of the claim asserted, it does not in every case
provide a defendant with fair notice. See Bradley v. Wells Fargo Bank, N.A., 663 F. App’x 4, 6
(1st Cir. 2016) (rejecting the argument that the defendant had fair notice that conduct in the
complaint supported an intentional infliction of emotional distress claim because it was
“reiterate[d] and incorporate[d] by reference” within that count, because “one cannot read the
count . . . and say that the defendants (or the judge) should have been on notice that [the plaintiff]
meant that — in addition to the specific allegations in the count — everything he talked about in
the complaint intentionally inflicted emotional distress on him” (citing United States v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1991))); Judd Burstein, P.C. v. Long, No. 15-CV-5295, 2017 WL
3535004, at *8 (S.D.N.Y. Aug. 16, 2017) (finding that the defendant did not have “fair notice of
20
what the claim is” notwithstanding the plaintiff’s inclusion of this phrase in the relevant count);
Corrado v. New York State Unified Court Sys., No. CV 2012-1748, 2014 WL 4626234, at *5
(E.D.N.Y. Sept. 15, 2014) (discussing a complaint that fails to “correlate specific factual
allegations to each of the various ‘causes of action’ or violations of a particular statute” such that
“the reader cannot distinguish which factual allegations correspond to the violation of which
statute . . .”).
Plaintiff’s objections also cite to several disparate references in the SAC to OLS’ alleged
failure to provide pre-foreclosure notice. (Pl. Obj. 5–7.) These allegations were considered and
properly rejected by Judge Reyes, (R&R 14), as they, too, suffer from the same fatal defect: they
contain no indication that they form the basis of section 349 liability, see Mohammad, 422 F.
App’x at 62–63; Lyman v. CSX Transp., Inc., 364 F. App’x 699, 701 (2d Cir. 2010) (affirming
district court’s refusal to consider at summary judgment phase an additional, inadequately pled
negligence claim based on different conduct, because, notwithstanding the reference to such
conduct in the plaintiff’s interrogatory responses, he did not clearly indicate that it constituted
negligence).
While the SAC cannot fairly be read to include a lack of pre-foreclosure notice as a
“deceptive act” forming the basis of a section 349 violation, Plaintiff nevertheless advances this
theory in her motion for class certification. Plaintiff asserts that:
two types of deception by Ocwen are at issue. The first is Ocwen’s
failure to serve the statutorily required [ninety]-day notice prior to
filing a foreclosure action. The second is Ocwen’s practice of dualtracking: purporting to aid borrowers to modify their mortgage
loans, including, among other things, the repeated representation
that it would not commence foreclosure proceedings during the
pendency of a loan application, while simultaneously filing a
foreclosure action against them.
(Pl. Mem. 10) (emphasis added) (alteration, internal citation, and internal quotation marks
21
omitted).) Having framed the lack of notice as a deceptive practice on its own, Plaintiff proceeds
to propose not only a sub-class of homeowners against whom Defendants filed a foreclosure
action “while purporting to consider the borrower for a loan modification,” a class definition
falling squarely within her dual tracking theory, but a separate sub-class of homeowners defined
by the commencement of a foreclosure action against them “without first serving the legally
required [ninety]-day notice or prior to expiration of the [ninety]-day notice period.” (Id. at 11.)
However, as noted above, the SAC does not reflect a standalone theory of liability for the failure
to provide pre-foreclosure notice, and Plaintiff may not, in effect, amend her pleadings without
requesting leave from the Court. See Feng v. Soy Sauce LLC, No. 15-CV-3058, 2016 WL
1070813, at *3 (E.D.N.Y. Mar. 14, 2016) (“Plaintiff cannot raise a new claim through a motion
[for conditional certification]”); see also Bernadotte v. New York Hosp. Med. Ctr. of Queens, No.
13-CV-965, 2016 WL 792399, at *6 (E.D.N.Y. Feb. 26, 2016) (“[B]ecause Plaintiff did not
assert a failure to accommodate claim in the SAC, she may not raise this new claim in opposing
summary judgment.” (citing McCoy v. Morningside at Home, 601 F. App’x 57, 58 (2d Cir.
2015))).
In her opposition to Defendants’ motion for summary judgment and her objections to the
R&R, Plaintiff attempts to further recast the allegations in the SAC as asserting a section 349
claim based on pre-foreclosure notice. Responding to Defendants’ argument in their motion for
summary judgment that Plaintiff’s section 349 notice claim — as framed in her pre-motion class
certification letter — is precluded under Second Circuit law, Plaintiff argues that:
[i]t is not simply that Ocwen did not follow the applicable
regulations, but that Ocwen itself referred to notice. Each of these
letters told [P]laintiff that if a foreclosure action was filed against
her she would receive notices, warned her, “Do not ignore any
foreclosure notices,” and told her that “to protect your rights under
applicable foreclosure law, you may need to respond to these
22
foreclosure notices or take other actions.
(Pl. Mem. in Opp’n to Defs. Mot. (“Pl. Opp’n”) 12, annexed to Decl. of Daniella Quitt in Supp.
of Mot. to Seal as Ex. 1, Docket Entry No. 137-2). 16 Plaintiff also argues that “[a] reasonable
borrower in New York would expect Ocwen to follow the applicable law and provide notice, and
would reasonably believe that no foreclosure was imminent in the absence of that notice.” 17 (Id.)
16
Notwithstanding Plaintiff’s new theory, her briefing is inconsistent in describing
whether her claim is based solely on OLS’ failure to provide pre-foreclosure notice, or also on
other conduct she claims made such failure deceptive. (Compare Pl. Mem. 2 (“Filing an action
before issuing a foreclosure notice precludes borrowers from pursuing possible loss mitigation
options, and is itself deceptive conduct.” (emphasis added)) with id. at 2–3 (arguing that OLS’
conduct was deceptive because its “own letters repeatedly warned plaintiff (in bold font) to be on
the lookout for foreclosure notices, and that to protect her legal rights she would need to respond
to any such notices” and that “[t]he failure to provide notice in this situation would deceive a
reasonable consumer, just as it deceived plaintiff.” (emphasis added)).)
17
The Court does not understand Defendants to argue that Plaintiff’s section 349 theory
of liability based on pre-foreclosure notice, as articulated in her opposition brief and objections
to the R&R, would be precluded under Second Circuit law. (Compare Defs. Reply in Supp. of
Defs. Mot. (“Defs. Reply Mem.”) 7–11, Docket Entry No. 136-5 (arguing that “Plaintiff’s claim .
. . based on OLS’[] purported failure to send her a [ninety]-day pre-foreclosure notice as required
by RPAPL § 1304,” is precluded)); with id. at 11–18 (arguing against the merits of Plaintiff’s
current theory and arguing that amendment of the SAC to plead this theory should not be
permitted).) However, given the vigor with which the parties disputed in their briefing before
Judge Reyes both the scope of the Second Circuit’s section 349 preclusion cases and their
applicability to Plaintiff’s section 349 notice claim, the Court will briefly address it here.
Summarizing its jurisprudence on this issue, the Second Circuit has recently explained:
a GBL claim is viable where the plaintiff makes a free-standing
claim of deceptiveness under GBL [section] 349 that happens to
overlap with a possible claim under another statute that is not
independently actionable, but fails where the violation of the other
statute by conduct that is not inherently deceptive is claimed to
constitute a deceptive practice that serves as the basis for the GBL
[section] 349 claim.
Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 127 (2d Cir. 2017) (first citing
Broder, 418 F.3d at 200; and then citing Schlessinger v. Valspar Corp., 21 N.Y.3d 166, 173
(2012)). Plaintiff argues that she asserts a freestanding claim of deceptiveness that is not barred,
because “[i]t is not merely the failure to provide the statutory notice that gives rise to the GBL
violation but Ocwen’s actions and communications with its borrowers.” (Pl. Obj. 10.) This
argument stands in contrast to Plaintiff’s request to certify a subclass defined solely by OLS’
non-compliance with the ninety-day demand requirement. (Pl. Mem. 11.) Moreover, while the
23
Plaintiff repeats this argument in her objections to the R&R, arguing that it is OLS’ “actions and
communications with its borrowers,” (Pl. Obj. 10), that give rise to section 349 liability for
failure to provide pre-foreclosure notice:
[t]he failure to provide notice was a deceptive act under GBL
[section] 349, regardless of the [RPAPL] statutory requirement.
Ocwen repeatedly told borrowers that there would be preforeclosure notice, that pre-foreclosure notice was important, and
that failure to act after receipt of pre-foreclosure notice could affect
a borrower’s rights. As evidenced by the notices themselves, there
were actions that the borrowers had to take in response to the notice
or risk losing their home. A reasonable consumer would have
reasonably believed that having failed to receive the notice that that
[sic] no foreclosure was imminent and their home was safe for the
moment.
(Id. at 8.)
However, the notice-related “actions and communications” that Plaintiff now argues form
the basis of Defendants’ section 349 liability are not included in the SAC. First, the telephone
conversations referenced in the SAC focus on statements OLS representatives made to Plaintiff
that she should not make loan payments during the application period; these allegations do not
refer to any representations about pre-foreclosure notice that allegedly gave Plaintiff a false
impression. (See, e.g., SAC ¶¶ 61, 68, 70.) Only one allegation describing a telephone
conversation with an OLS representative makes reference to pre-foreclosure notice, but this
allegation — that the representative “did not mention to [P]laintiff that a foreclosure proceeding
had been commenced or that [P]laintiff was in default,” (id. ¶ 87) — does not support Plaintiff’s
theory that it was OLS’ repeated references to and affirmative representations regarding preforeclosure notice that deceived her into a false sense of assurance. Second, Plaintiff discusses
Court agrees that the theory Plaintiff asserts in her opposition to Defendants’ motion and in her
objections articulates a freestanding section 349 claim, as explained infra, Plaintiff did not plead
this claim in the SAC.
24
in the SAC each of the letters she received from OLS throughout the loan modification
application process, but tellingly, none of these allegations make any mention of the purportedly
deceptive language now quoted in Plaintiff’s objections and opposition to Defendants’ motion.
Nor does Plaintiff generally allege in the SAC that these communications contained references to
notices of foreclosure that — coupled with the lack of notice she received — gave her a false
sense of security that “no foreclosure was imminent and their home was safe for the moment.”
(Pl. Obj. 8.)
Because Plaintiff has not adequately pled that Defendants’ lack of pre-foreclosure notice
is a deceptive act upon which her section 349 claim rests, the Court adopts Judge Reyes’
recommendation and grants Defendants’ motion for summary judgment as to this claim.
ii. Leave to amend
The Court considers whether granting Plaintiff leave to amend the SAC to assert the
section 349 notice claim is warranted. Judge Reyes recommended that Plaintiff “should not be
permitted to file yet another amended complaint” to replead her section 349 notice claim,
because “[s]he has had ample opportunity to plead her claims properly, and should not be given
another bite at the apple.” (R&R at 15 n.6.) Defendants urge the Court to adopt this view.
(Defs. Reply in Supp. of Defs. Mot. (“Defs. Reply Mem.”) 18, Docket Entry No. 136-5.) For the
reasons set forth below, the Court concludes that Plaintiff’s section 349 notice claim would be
time-barred, and therefore denies leave to amend on this basis.
The Federal Rules of Civil Procedure provide that courts “should freely give leave” to
amend a complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Second Circuit has
stated that “[t]his permissive standard is consistent with our strong preference for resolving
disputes on the merits.” Williams v. Citigroup Inc., 659 F.3d 208, 212–13 (2d Cir. 2011)
25
(citation omitted). Leave to amend should be given “absent evidence of undue delay, bad faith
or dilatory motive on the part of the movant, undue prejudice to the opposing party, or futility.”
Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 283 (2d Cir. 2000) (citing Foman v. Davis, 371
U.S. 178, 182 (1962)); see also Couloute v. Ryncarz, No. 11-CV-5986, 2012 WL 541089, at *3
(S.D.N.Y. Feb. 17, 2012) (quoting Monahan, 214 F.3d at 283). However, motions to amend
“should generally be denied in instances of futility, undue delay, bad faith or dilatory motive,
repeated failure to cure deficiencies by amendments previously allowed, or undue prejudice to
the non-moving party.” Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir.
2008) (citing Foman, 371 U.S. 178, 182 (1962)).
If a proposed claim would be time-barred under the applicable limitations period,
amendment of the complaint is futile. See Bryant v. Am. Fed’n of Musicians of the U.S. &
Canada, 666 F. App’x 14, 17 (2d Cir. 2016); see also Escoffier v. City of New York, No. 13-CV3918, 2017 WL 65322, at *3 (S.D.N.Y. Jan. 4, 2017) (“An amendment may also be futile if ‘the
claims the plaintiff [seeks] to add would be barred by the applicable statute of limitations.’”
(quoting Emilio v. Sprint Spectrum L.P., No. 11-CV-3041, 2015 WL 5052551, at *3 (S.D.N.Y.
Aug. 27, 2015))).
Section 349 claims are governed by a three-year statute of limitations. Corsello v.
Verizon New York, Inc., 18 N.Y.3d 777, 789 (2012); see also Statler v. Dell, Inc., 841 F. Supp.
2d 642, 648 (E.D.N.Y. 2012). This claim accrues when a plaintiff “has been injured by a
deceptive act or practice violating section 349.” Gaidon v. Guardian Life Ins. Co. of Am., 96
N.Y.2d 201, 210 (2001) (citing cases); see also Escano v. Freemont Inv. & Loan, No. 13-CV1575, 2013 WL 6388448, at *4 (S.D.N.Y. Dec. 6, 2013) (quoting Morson v. Kreindler &
Kreindler, LLP, 814 F. Supp. 2d 220, 228 (E.D.N.Y. 2011)).
26
Here, Plaintiff’s section 349 notice claim is time-barred. Plaintiff’s cause of action
accrued in May of 2012, at the point of commencement of the foreclosure action, when she was
injured by the alleged deceptive representations that led her to believe that, having received no
notice, no foreclosure was imminent. See Gaidon, 96 N.Y.2d at 210. The SAC was filed on
December 5, 2014, within the three-year limitations period. However, as discussed above,
Plaintiff did not plead in the SAC a section 349 claim based on this theory so as to give
Defendants notice she was asserting it. The filing of the SAC therefore cannot toll the
limitations period for Plaintiff’s section 349 claim based on a failure to provide pre-foreclosure
notice. 18 See Muwakkil v. Hoke, 107 F.3d 3, 1997 WL 76871, at *3 (2d Cir. Feb. 21, 1997)
(unpublished table decision) (holding that a pro se plaintiff’s letter that contained “no claim
sufficient to satisfy Rule 8(a)” did not “constitute[] a pleading sufficient to toll the statute of
limitations”); cf. Charlot v. Ecolab, Inc., 97 F. Supp. 3d 40, 69 (E.D.N.Y. 2015) (“In general,
‘the date of the filing of the motion to amend is the date the action was commenced for statute of
limitations purposes since the defendant is on notice of the new claims as of the filing of the
motion.’” (alteration omitted) (emphasis added) (quoting Lekic v. 222 E. 8th St. LLC, No. 11CV-1242, 2012 WL 4447625, at *4 (E.D.N.Y. Sept. 25, 2012))). Defendants were not on notice
of the new claim until Plaintiff filed the pre-motion letter dated January 6, 2017, more than three
years after Plaintiff’s claim accrued. Plaintiff’s new section 349 claim is therefore barred unless
18
The Court therefore respectfully disagrees with Judge Reyes’ conclusion that
Plaintiff’s notice claim was tolled by the filing of the SAC. See Reza v. Khatun, No. 09-CV-233,
2013 WL 596600, at *4 (E.D.N.Y. Feb. 15, 2013); see also United States v. Gengo, 808 F.2d 1, 3
(2d Cir. 1986) (“[N]otice to defendants is at the core of the limitations doctrine.”) Moreover,
Plaintiff appears to concede that her claim is barred on its face, arguing that “[i]f the Court were
to hold that the claim is not pled in the SAC, [P]laintiff would move to amend to provide more
specific allegations; as all relevant facts are alleged in the SAC, the amendment would relate
back to the filing of this action.” (emphasis added) (Pl. Opp’n 4.)
27
it relates back to a timely filing. Accordingly, the Court considers whether Plaintiff’s section
349 claim for failure to provide pre-foreclosure notice relates back to the filing of the SAC. 19
Because the statute of limitations for section 349 claims arises under state law, pursuant to the
Federal Rules and Second Circuit precedent, the Court will “examine the ‘controlling body of
limitations law,’ and apply state law if it provides ‘a more forgiving principle of relation back
than the one provided’ by Rule 15(c).” Strada v. City of New York, No. 11-CV-5735, 2014 WL
3490306, at *5 (E.D.N.Y. July 11, 2014) (quoting Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir.
2013)); see also Desir v. Austin, No. 13-CV-912, 2016 WL 1700386, at *3 (E.D.N.Y. Apr. 27,
2016) (“Under Fed. R. Civ. P. 15(c)(1)(A), if the applicable statute of limitations is determined
by state law . . . courts should assess both the state and federal relation-back doctrines and apply
whichever law is more generous.” (alteration and internal quotation marks omitted) (collecting
cases)).
19
Defendants argue in their reply brief in support of their motion for summary judgment
that Plaintiff “waived any challenge to the statute-of-limitations argument by failing to address it
in her opposition,” because “[f]ederal courts may deem a claim abandoned when a party moves
for summary judgment on one ground and the party opposing summary judgment fails to address
the argument in any way.” (Defs. Reply Mem. 16 (citing Dunkin’ Donuts Franchised Rests.
LLC v. Tim & Tab Donuts, Inc., No. 07-CV-3662, 2009 WL 2997382, at *2 (E.D.N.Y. Sept. 15,
2009).) However, this would not preclude the Court from addressing the issue, because
determinations of waiver and abandonment are within the Court’s discretion. See Dunkin’
Donuts Franchised Rests. LLC, 2009 WL 2997382, at *2 (“Federal courts may deem a claim
abandoned when a party moves for summary judgment on one ground and the party opposing
summary judgment fails to address the argument in any way.” (emphasis added)). Moreover,
Plaintiff has in fact preserved this issue — albeit barely — by arguing in a footnote in her
opposition to Defendants’ motion that her claim relates back to the filing of this action. (See
supra n.18); see also Marsh-Godreau v. Suny Coll. at Potsdam, No. 15-CV-0437, 2016 WL
1049004, at *4 (N.D.N.Y. Mar. 11, 2016) (“Defendant argues that the Court should not sua
sponte analyze whether the relation-back doctrine applies when Plaintiff has not briefed the
issue. However, because Plaintiff has otherwise argued that her claims are timely under the
doctrine, the Court will exercise its discretion and consider whether the doctrine applies . . . .”
(internal citations omitted)).
28
1. Relation back under federal law
“Rule 15(c) of the Federal Rules of Civil Procedure governs when an amended pleading
‘relates back’ to the date of a timely filed original pleading and is thus itself timely even though
it was filed outside an applicable statute of limitations.” Krupski v. Costa Crociere S. p. A., 560
U.S. 538, 541 (2010). Rule 15(c)(1)(B) states that “[a]n amendment to a pleading relates back to
the date of the original pleading when: the amendment asserts a claim or defense that arose out
of the conduct[,] transactions, or occurrence set out — or attempted to be set out — in the
original pleading . . . .” Fed. R. Civ. P. 15(c)(1)(B). “The purpose of Rule 15 is to provide
maximum opportunity for each claim to be decided on its merits rather than on procedural
technicalities.” Avila v. Riexinger & Assocs., LLC, 644 F. App’x 19, 23 (2d Cir. 2016) (quoting
Slayton v. Am. Exp. Co., 460 F.3d 215, 228 (2d Cir. 2006), as amended (Oct. 3, 2006)). “Under
Rule 15, the ‘central inquiry is whether adequate notice of the matters raised in the amended
pleading has been given to the opposing party within the statute of limitations by the general fact
situation alleged in the original pleading.’” Slayton, 460 F.3d at 228 (quoting Stevelman, 174
F.3d at 86 (internal quotations and citation omitted).
Here, Plaintiff’s section 349 notice claim does not relate back to a timely-filed pleading.
As discussed above, while the SAC contains references to OLS’ failure to provide preforeclosure notice, Plaintiff’s theory “is not simply that Ocwen did not follow the applicable
regulations” that require pre-foreclosure notice, “but that Ocwen itself referred to notice” in its
representations to homeowners, making this failure deceptive. (Pl. Opp’n 12; see also Pl. Obj.
1–2 (“Ocwen’s failure to provide pre-foreclosure notice after telling borrowers to expect it was
deceptive.” (emphasis added).) However, despite detailed allegations regarding contact with
OLS by letter and telephone, no indication of any such representation appears in the SAC.
29
Plaintiff’s section 349 claim, as now articulated, therefore relies on new operative facts that
cannot fairly be traced back to her pleadings. 20 See Moritz v. Town of Warwick, No. 15-CV5424, 2017 WL 4785462, at *4 (S.D.N.Y. Oct. 19, 2017) (“An amendment will not relate back if
it sets forth a new set of operational facts; it can only make more specific what has already been
alleged.” (quoting Jewell v. Capital Cities/ABC, Inc., No. 97-CV-5617, 1998 WL 702286, at *2
(S.D.N.Y. Oct. 7, 1998)); Naughright v. Robbins, No. 10-CV-8451, 2014 WL 5315007, at *6
(S.D.N.Y. Oct. 17, 2014) (finding that new claims did not relate back because “the conduct
giving rise” to such claims “was not mentioned in the FAC or the initial complaint” and the
claims “require[d] a distinct set of new factual allegations”).
In concluding that Plaintiff’s section 349 notice claim does not relate back and is thus
barred, the Court does not suggest that new facts or legal theories may never relate back to a
timely pleading. As the Second Circuit has made clear, “[p]rovided the amended pleading is
based on the same series of transactions and occurrences alleged in the original pleading, the
revised pleading will relate back to the original pleading, even where the revised pleading
contains legal theories not included in the original.” White v. White Rose Food, a Div. of
DiGiorgio Corp., 128 F.3d 110, 116 (2d Cir. 1997) (first citing Travelers Ins. Co. v. 633 Third
Assocs., 14 F.3d 114, 125 (2d Cir. 1994); and then citing Villante v. Dep’t of Corrections of the
City of New York, 786 F.2d 516, 520 (2d Cir. 1986)). Moreover, while — if framed at a higher
level of generality — Plaintiff’s section 349 notice claim appears to involve the same “conduct,
20
Relatedly, Plaintiff’s allegations are not subsumed in any of her claims pled in the
SAC, unlike in Slayton v. Am. Exp. Co., 460 F.3d 215, 228 (2d Cir. 2006), where the Second
Circuit noted that “an allegation of accounts receivable manipulation” will relate back to “an
initial complaint [that] alleges a ‘basic scheme’ of defrauding investors by misrepresenting
earnings and profitability,” because the new allegation is a “natural offshoot” of that scheme.
Slayton, 460 F.3d at 228 (citation omitted).
30
transaction or occurrence” as her section 349 dual tracking claim (i.e., Defendants’ alleged
misrepresentations to homeowners), the “central inquiry” of the Rule 15 analysis is whether
Defendants had adequate notice of the “general fact situation” forming the basis of Plaintiff’s
newly asserted claim. Slayton v. Am. Exp. Co., 460 F.3d at 228. On the facts of this case, where
the SAC does not generally allege deception of the kind Plaintiff now complains of, such that the
new allegations could be said to “amplif[y]” the facts alleged in the original pleading, or make
them “more definite and precise,” Slayton, 460 F.3d at 228, and where the SAC otherwise
contains no hint of a key factual ingredient at the heart of Plaintiff’s new theory, the Court
cannot conclude that Defendants were on notice of the facts giving rise to a separate cause of
action under section 349, see Hirsch v. Suffolk Cty., No. 08-CV-2660, 2015 WL 1275461, at *8
(E.D.N.Y. Mar. 18, 2015) (“[W]here the new claims arise from conduct that is separate from yet
related to the conduct alleged in the earlier pleading, the new claims will not relate back.” (citing
cases)), aff’d sub nom. 684 F. App’x 53 (2d Cir. 2017); In re Noah Educ. Holdings, Ltd. Sec.
Litig., No. 08-CV-9203, 2010 WL 1372709, at *9 (S.D.N.Y. Mar. 31, 2010) (rejecting in the
securities law context the argument that “allegations are sufficiently related for purposes of Rule
15(c) because both complain of statements made or omitted in the same Registration Statement
and Prospectus,” because the new allegations concerned different materially misleading
statements that did not “relate to the same or similar conduct”); cf. Emilio v. Sprint Spectrum
L.P., No. 11-CV-3041, 2015 WL 5052551, at *3 (S.D.N.Y. Aug. 27, 2015) (finding that new
allegations that “fleshed out” prior allegations related back); S.A.R.L. Galerie Enrico Navarra v.
Marlborough Gallery, Inc., No. 10-CV-7547, 2013 WL 1234937, at *4 (S.D.N.Y. Mar. 26,
2013) (finding that tortious interference of contract claim related back where prior pleading
“discussed the alleged acts of interference that form the basis for the amended claims” and
31
therefore “only amplifie[d] the general fact situation asserted in the original complaint” (citations
and internal quotation marks omitted)).
2. Relation back under state law
Under New York law, a claim asserted in an amended pleading relates back “unless the
original pleading does not give notice of the transactions, occurrences, or series of transactions or
occurrences, to be proved pursuant to the amended pleading.” N.Y.C.P.L.R. § 203. “The
‘linchpin’ of the relation back doctrine is notice to the defendant within the applicable limitations
period.” Strada, 2014 WL 3490306, at *6 (first quoting Kirk ex rel. Kirk v. Univ. OB–GYN
Assocs., Inc., 960 N.Y.S.2d 793, 795 (2013); and then citing Stevens v. Winthrop S. Nassau Univ.
Health Sys., Inc., 932 N.Y.S.2d 514, 516 (App. Div. 2011)); see also Pendleton v. City of New
York, 843 N.Y.S.2d 648, 652 (App. Div. 2007) (“The sine qua non of the relation-back doctrine
is notice. Where the allegations of the original complaint gave the defendants notice of the facts
and occurrences giving rise to the new cause of action, the new cause of action may be asserted.
However, where the original allegations did not provide the defendants notice of the need to
defend against the allegations of the amended complaint, the doctrine is unavailable.” (citations
omitted)).
The Court finds that, given New York state courts’ emphasis on notice and whether the
new allegations are a “mere expansion” of the original allegations, see, e.g., Alharezi v. Sharma,
758 N.Y.S.2d 48, 49 (App. Div. 2003); Aug. Bohl Contracting Co. v. L.A. Swyer Co., 903
N.Y.S.2d 793, 795 (App. Div. 2010), state law does not provide a basis to find that Plaintiff’s
new claim relates back to the SAC. 21 See Lang-Salgado v. Mount Sinai Med. Ctr., Inc., 69
21
Federal courts of appeal and district courts have held that plaintiffs may relate new
claims back to previously-filed complaints that have since been superseded by amendment.
32
N.Y.S.3d 292, 293 (N.Y. App. Div. 2018) (“[T]he relation back doctrine is inapplicable because
the facts alleged in the original complaint failed to give notice of the facts necessary to support
F.D.I.C. v. Jackson, 133 F.3d 694, 702 (9th Cir. 1998) (“[T]his Circuit has held that the filing
date of an original complaint remains operative for relation-back purposes even where otherwise
superseded by amendments.” (citing cases)); Lee v. Mission Chevrolet, Ltd., No. 16-CV-00034,
2017 WL 4784368, at *5 (W.D. Tex. Oct. 23, 2017). The Second Circuit, while not expressly
addressing the question, has similarly permitted plaintiffs to do so, as have district courts within
this circuit. See W.B. David & Co. v. De Beers Centenary AG, 507 F. App’x 67, 70 (2d Cir.
2013) (holding that defendant has notice of claim asserted in second amended complaint and that
“the claim thus relates back to the filing of the original complaint” (emphasis added)); see also
Leber v. Citigroup 401(K) Plan Inv. Comm., 129 F. Supp. 3d 4, 19 (S.D.N.Y. 2015) (“Whether
this Court compares the current allegations to the operative pleading — which contains no
reference to the SVF — or the original complaint — which contains at most a peripheral
reference to the SVF — it is clear that proposed Count Five alleges a new claim “based on an
‘entirely distinct set’ of factual allegations.” (quoting Slayton, 460 F.3d at 228)); cf. J.S. v.
Killian, No. 11-CV-103, 2015 WL 4475358, at *12 (S.D.N.Y. July 22, 2015) (finding that
allegations in a “third amended complaint” relate back to those in a “first amended complaint”),
on reconsideration, sub nom. J.S. v. Swaha, No. 11-CV-103, 2015 WL 10786859 (S.D.N.Y.
Sept. 11, 2015).
Nevertheless, considering the allegations in the Complaint and Amended Complaint, the
Court finds that this would not alter its analysis, because Plaintiff’s new allegations do not relate
back to those pleadings. First, like the Second Amended Complaint, the Complaint and
Amended Complaint contain specific, and quoted, representations made to Plaintiff during the
course of the loan modification application period. However, like the Second Amended
Complaint, these allegations concern OLS’ dual tracking scheme, namely, its repeated requests
for documents from applicants, (Compl. ¶¶ 26, 27, 29, 34, 35, 37, 38, 45, 48, 51, 52; see also
Am. Compl. ¶¶ 55, 57. 59, 60, 65, 66, 68, 69, 81, 85, 89), as well as its representations that
homeowners should not make payments on their mortgage, would not be penalized for this, and
that OLS would not initiate a foreclosure action while a loan modification application is pending,
(Compl. ¶¶ 25, 30, 32, 33; Am. Compl. ¶¶ 54, 61, 63, 64). The pleadings makes no reference to
the representations that Plaintiff now claims made the failure to provide pre-foreclosure notice
deceptive. Nor does Plaintiff make any general allegations about OLS’ representations to her
regarding notice.
Second, the Complaint and Amended Complaint contain allegations similar to the Second
Amended Complaint regarding OLS’ failure to provide pre-foreclosure notice, including the
allegation that OLS “commenced foreclosure proceedings without sufficient notice against
borrowers with pending modification applications, even though it represented in writing that it
would not do so.” (See Compl. ¶ 4; Am. Compl. ¶ 14.) However, like the allegations noted
above, these allegations more fairly implicate Plaintiff’s dual tracking theory. Moreover,
Plaintiff’s section 349 notice theory, as the Court understands it, does not allege that OLS
categorically represented that it would not initiate foreclosure proceedings, but that OLS’
constant warnings about notice led her to believe that “if a foreclosure action was filed against
her[,] she would receive notice[].” (Pl. Opp’n 12.)
33
the amended pleading.” (citing cases)); cf. Best v. Bell, No. 13-CV-0163, 2014 WL 1316773, at
*10 (S.D.N.Y. Mar. 28, 2014) (finding that for both Rule 15 and section 203, “[t]he driving
principle behind both of these rules is that a defendant should not be able to invoke the statute of
limitations if he was already on notice of the events giving rise to the plaintiff’s claim during the
limitations period” (citing Siegel v. Converters Transp., Inc., 714 F.2d 213, 216 (2d Cir. 1983)));
Pendleton, 843 N.Y.S.2d at 652–53 (App. Div. 2007) (finding that allegations that “the
plaintiff’s rights were violated by numerous specific policies or customs of the municipal
defendants” were a “mere expansion of” and thus related back to allegations “that the municipal
defendants failed to properly train police on ‘appropriate rules applicable to the duties, activities
and behaviors’ of police employees” (citing Krioutchkova v. Gaad Realty Corp., 814 N.Y.S.2d
171 (App. Div. 2006))).
III. Conclusion
For the foregoing reasons, the Court grants Defendants’ motion for summary judgment as
to Plaintiff’s promissory estoppel claim, as well as Plaintiff’s section 349 claim based on a
failure to provide pre-foreclosure notice. The Court reserves decision as to Defendants’ motion
for summary judgment as to Plaintiff’s section 349 dual tracking claim, and Plaintiff’s motion
for class certification of this claim.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: March 30, 2018
Brooklyn, New York
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