Dekom v. Fannie Mae et al

Filing 234

ORDER: Having conducted a review of the full record and the applicable law, and having conducted a de novo review of the entire R&R, the Court adopts the analysis and recommendations contained in the well-reasoned and thorough R&R in their entirety. Accordingly, IT IS HEREBY ORDERED that defendants' motions to dismiss (ECF Nos. 175 , 180 , 181 , 182 , 184 , and 198 ) are granted. The Court denies plaintiffs motions seeking a change of venue (ECF No. 72 ); to expedite discovery and fo r equal protection (ECF No. 139 ); for judgment on the pleadings or partial summary judgment as against Nassau County Clerk Maureen O'Connell (ECF No. 208 ); and objecting to evidence submitted by defendants. (ECF No. 209 ). IT IS FURTHER ORDERED that plaintiff shall file any objections to the recommendation regarding the litigation injunction by April 26, 2019.SEE ATTACHED ORDER for details. So Ordered by Judge Joseph F. Bianco on 3/28/2019. (Coleman, Laurie) (Coleman, Laurie)

FILED

IN CLERK'S OFFICE
U.S. DISTRICT COURT ED.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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MAR 2s 2019

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LONG ISL.ANO OFFICE

MARTIN DEKOM,
Plaintiff,
ORDER
l 7-CV-2712 (JFB) (ARL)

-againstFANNIE MAE, et al.,
Defendants.

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JOSEPH F. BIANCO, District Judge:
On February 26, 2019, Magistrate Judge Lindsay issued a Report and Recommendation
(the "R&R," ECF No. 230) recommending that the Court grant defendants' motions to dismiss
(ECF Nos. 175, 180, 181, 182, 184, 198) and deny plaintiffs motions seeking a change of venue
(ECF No. 72), to expedite discovery (ECF No. 139), judgment on the pleadings (ECF No. 208),
and objecting to evidence submitted by defendants. (ECF No. 209.) The R&R instructed that
any objections to the R&R be submitted within fourteen (14) days of service of the R&R. (R&R
22.) On March 1, 2019, plaintiff requested an extension of time to respond from March 13, 2019
to April 29, 2019. (ECF No. 231.) The Court granted this request in part, granting an extension
to respond to the motions addressed by the R&R to March 26, 2019 and to April 29, 2019 for
objections to the recommendation regarding the litigation injunction. (ECF No. 232.) On March
26, 2019, plaintiff filed his objections to the R&R. For the reasons set forth below, having
conducted a de novo review, the Court adopts the thorough and well-reasoned R&R in its
entirety, granting defendant's motion to dismiss and denying plaintiffs motions. Plaintiff has

until April 29, 2019 in order to file any objections to the recommendation that the Court issue an
order to show cause with respect to a litigation injunction.
Standard of Review

As a threshold matter, the Court notes that it is axiomatic that district courts are required
to read prose complaints liberally, see Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Chavis v. Chappius, 618 F.3d 162, 170 (2d
Cir. 2010), and to construe them "'to raise the strongest arguments that [they]
suggest[],"' Chavis, 618 F.3d at 170 (quoting Harris v. City of New York, 607 F.3d 18, 24 (2d
Cir. 2010)). Moreover, 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 111, 124 (2d Cir. 2010), aff'd, 569 U.S. 108 (2013) (citing Ashcroft v.
Iqbal, 556 U.S. 662 (2009)).
A district judge may accept, reject, or modify, in whole or in part, the findings and
recommendations of the Magistrate Judge. See Deluca v. Lord, 858 F. Supp. 1330, 1345
(S.D.N.Y. 1994); Walker v. Hood, 679 F. Supp. 372, 374 (S.D.N.Y. 1988). As to those portions
of a report to which no "specific written objections" are made, the Court may accept the findings
contained therein, as long as the factual and legal bases supporting the findings are not clearly
erroneous. See Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 149 (1985); Greene v. WCI
Holdings Corp., 956 F. Supp. 509,513 (S.D.N.Y. 1997). When "a party submits a timely
objection to a report and recommendation, the district judge will review the parts of the report
and recommendation to which the party objected under a de novo standard of review." Jeffries v.
Verizon, 10-CV-2686 (JFB)(AKT), 2012 WL 4344188, at *l (E.D.N.Y. Sept. 21, 2012); see also
28 U.S.C. § 636(b)(l)(C) ("A judge of the court shall make a de novo determination of those

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portions of the report or specified proposed findings or recommendations to which objection is
made."); Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the
magistrate judge's disposition that has been properly objected to. The district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.").

Plaintiff's Objections
Plaintiff objected to the R&R on the basis that it is "replete with fatalities" and "creates a
fiction in which the servicing of a mortgage loan is unrelated to the assignment." (Obj. at 2.)
Specifically, plaintiff argues that Bank of America "had no authority to pursue the foreclosure
action against [plaintiff] in 2014, nor did Nationstar have the right to continue it." (Id.)
Additionally, plaintiff argues that the R&R inappropriately held that the foreclosure process was
not unlawful. 1 because the record is lacking as to the actions of the referee appointed in
plaintiffs foreclosure. (Id.)

Finally, plaintiff argues that the R&R improperly found that the

Eleventh Amendment, the Rooker-Feldman doctrine, resjudicata, and collateral estoppel
mandate dismissal of all plaintiffs claims. (Id. at 5, 7.)

Analysis
Having conducted a review of the full record and applicable law, and having conducted a

de novo review of the entire R&R, the Court adopts the analysis and recommendations contained
in the R&R in their entirety. 2

1

Specifically, plaintiff argues that the record did not demonstrate that:(]) the actions of the referee, appointed in
plaintiffs foreclosure, were lawful (Obj. at 2); and (2) that defendant Bank of America delivered plaintiff a required
pre-foreclosure notice. (Id. at 3.)
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The Court notes that, although the R&R referred to the doctrines of res judicata and collateral estoppel as
jurisdictional, such issues are not jurisdictional, but rather are decided under a Rule I 2(b )( 6) standard. See
Thompson v. Cty. of Franklin, 15 F.3d 245, 253 (2d Cir. 1994). However, other than incorrectly labelling the
grounds as jurisdictional, the R&R correctly analyzed all the requirements of the doctrines of res judicata and
collateral estoppel as applied to this case.

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In particular, the Court finds that the R&R applied the proper legal standard in finding
that the claims against the State defendants-in their official capacities-are barred by the
Eleventh Amendment. Plaintiff makes two arguments: (1) plaintiff sued these State defendants
in both their official and personal capacities; and (2) the State defendants are "administrative
personnel" and thus not do not enjoy immunity. (Obj. at 5.) First, the Court finds that the
allegations concerning the State defendants are clearly regarding their activities in their official,
not personal, capacities. (See Amend. Compl. 130 where plaintiff refers to the state court being
"fraudulent" and alleges that defendant George Peck "knowingly acted outside of his
jurisdiction.") Second, the Court finds that plaintiff does not allege that these defendants were
merely administrative, but rather actively conspired to deprive plaintiff of his rights through a
"case fixing scheme in which legal filings were altered, diverted, destroyed, blocked, decided by
parties not empowered to do so, by and through applying extra-legal processes" to plaintiff. (Id.
at 17.) In short, after de novo review, the Court concludes that Magistrate Judge Lindsay
correctly found that plaintiffs current claims against the State defendants are barred by the
Eleventh Amendment, and must be dismissed.
The Court also finds that the R&R correctly concluded that the claims should be
dismissed under the Rooker-Feldman doctrine, collateral estoppel and res judicata. (R&R at 15.)
The Second Circuit has delineated four requirements for the application of the Rooker-

Feldman doctrine (which is jurisdictional in nature): (1) "the federal-court plaintiff must have
lost in state court"; (2) "the plaintiff must complain of injuries caused by a state-court
judgment"; (3) '"the plaintiff must invite district court review and rejection of that judgment";
and (4) "the state-court judgment must have been rendered before the district court proceedings
commenced." Caldwell v. Gutman, Mintz, Baker & Sonnenfeld!, P.C., 701 F. Supp. 2d 340,346

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(E.D.N.Y. 2010) (quoting Hob/ock v. Albany County Bd. of Elections, 422 F.3d 77, 85 (2d
Cir.2005) (internal citations and quotations omitted). The Second Circuit has classified the first
and fourth requirements as "procedural" and the second and third requirements as
"substantive." The Court finds that both procedural and substantive requirements of this doctrine
have been met. Foremost, the Court agrees with the R&R that plaintiff is seeking review of the
state court judgment of foreclosure and sale. Although plaintiff argues that preclusion under

Rooker-Feldman is inappropriate because the "matter is still on appeal", the Court finds that
abstention is appropriate because "[r]egardless of the status of any state court appeals, [plaintiff]
is still seeking federal review of a state-court judgment." Caldwell, 701 F. Supp. 2d at 348
(citing Field Auto City, Inc. v. Gen. Motors Corp., 476 F.Supp.2d 545, 553 (E.D. Va.), a/f'd, 254
F. App'x 167 (4th Cir. 2007) (explaining that "[a] contrary rule would allow a state court litigant
to avoid Rooker-Feldman simply by filing the federal action while the state appeal is
underway"). This is what Rooker-Feldman prohibits. Finally, although plaintiff argues that his
alternative claims (e.g., FDCPA, fraud, RICO, and Section 1983) are independent and should
survive, the Court agrees with the R&R that such claims are '•inextricably intertwined" and are
barred. See Andrews v. Citimortgage, Inc., No. 14-CV-1534 JS AKT, 2015 WL 1509511, at *5
(E.D.N.Y. Mar. 31, 2015) ( "'a federal plaintiff cannot escape the Rooker-Feldman bar simply
by relying on a legal theory not raised in state court."') (quoting Lajaunie v. Samuels & Son

Seafood Co., 2014 WL 7190922, at *4 (S.D.N.Y. Dec. 12, 2014)).
Additionally, in the alternative, the Court finds that the R&R utilized the proper legal
standard for res judicata and collateral estoppel, and correctly applied that standard, in finding
that the Court should dismiss the claims on those grounds. The underlying foreclosure and
extinguishment actions were previous adjudications on the merits and plaintiff had the

s

opportunity assert any additional claims in those state actions. Plaintiff argues that: ( 1) there
"was no actual foreclosure litigation", with the process actually being a "fraud scheme designed
to appear as bona fide" and he was "prohibited from raising any counterclaims, or defenses."
(Obj. at 15.) However, he provides only conclusory allegations in that regard.
As the Court finds it lacks subject-matter jurisdiction under the Eleventh Amendment
(against the State Court defendants) and Rooker-Feldman doctrine, and the claims also should be
dismissed under the doctrine of res judicata and collateral estoppel, the Court agrees with the
R&R that plaintiffs motions to change venue, to expedite discovery, and for equal protection are
denied as moot, and the Court does not address the remaining arguments in the pending l 2(b)( 6)
motions. 3 As previously ordered, plaintiff shall file any objections to the R&R's
recommendation that this Court issue an order to show cause regarding a litigation injunction by
April 26, 2019.
Conclusion

Having conducted a review of the full record and the applicable law, and having
conducted a de novo review of the entire R&R, the Court adopts the analysis and
recommendations contained in the well-reasoned and thorough R&R in their entirety.
Accordingly,
IT IS HEREBY ORDERED that defendants' motions to dismiss (ECF Nos. 175, 180,
181, 182, 184, and 198) are granted. The Court denies plaintiffs motions seeking a change of
venue (ECF No. 72); to expedite discovery and for equal protection (ECF No. 139); for judgment

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The Court also notes that plaintiffs motion for partial summary judgment (ECF No. 208) is denied as moot. In
addition, although plaintiff objected to evidence submitted by the defendants (ECF No. 209), the Court need not
consider (and has not considered) that evidence for purposes of this ruling and thus, that motion is also denied as
moot.

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on the pleadings or partial summary judgment as against Nassau County Clerk Maureen
O'Connell (ECF No. 208); and objecting to evidence submitted by defendants. (ECF No. 209).

IT IS FURTHER ORDERED that plaintiff shall file any objections to the
recommendation regarding the litigation injunction by April 26, 20 I 9.

/s/ Joseph F. Bianco
PHF. BIANCO
TED STATES DISTRICT JUDGE
Dated:

March 28, 2019
Central Islip, NY

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