Anthony v. Fein, Such and Crane, LLC

Filing 51

MEMORANDUM, DECISION and ORDER: that Defendant's 41 motion to dismiss is Granted and Plaintiff's Third Amended Complaint (ECF No. 25 ) is Dismissed with Prejudice and the Clerk of the Court is directed to enter judgment accordingly, serve a copy of this Memorandum, Decision and Order and the Judgment upon the plaintiff in accordance with the Local Rules and close the file. Signed by Judge David N. Hurd on 09/282016. (hmr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------CHARLES J. ANTHONY, SR.,
Plaintiff,
-v-

5:15-CV-0452
(DNH/TWD)

FEIN, SUCH AND CRANE, LLC,
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

CHARLES J. ANTHONY, SR.
Plaintiff pro se
8819 Gaskin Road
Clay, NY 13041
BARLCAY DAMON LLP
Attorneys for Defendant
3 Fountain Plaza
1100 M&T Center
Buffalo, NY 14203-1414

DENNIS R. MCCOY, ESQ.

DAVID N. HURD
United States District Judge
MEMORANDUM, DECISION and ORDER
I. INTRODUCTION
Plaintiff Charles J. Anthony (“Anthony”) commenced this action against the defendant
Fein, Such and Crane, LLC (“Fein Such”) alleging a violation of the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. § 1692, et seq. See ECF No. 25. Presently under consideration is
defendant’s motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). See ECF No. 41. The motion is fully briefed. See ECF Nos. 46, 47.

II. FACTUAL BACKGROUND
Anthony’s Third Amended Complaint, dated November 12, 2015 (ECF No. 25),
contains the following allegations. Sometime in 2007, plaintiff entered into a mortgage loan with
non-party Home Loan Center, Inc. for approximately $103,000 (the “Mortgage”).

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thereafter, the Mortgage was assigned to Countywide Home Loans Servicing LP (“Countywide”),
however plaintiff alleges that such assignment was fraudulent. Plaintiff states that he paid
Countywide the balance of the Mortgage on an unspecified date in 2008. However, plaintiff
continued to receive billing statements from Bank of America, N.A. (“Bank of America”)
concerning the Mortgage. Plaintiff states that he informed Bank of America on numerous
instances that he did not owe the Mortgage balance.
In a December 5, 2011 letter sent to Anthony, Fein Such notified Anthony and his wife
that defendant was a debt collector seeking to collect the Mortgage on behalf of its client, Bank
of America. Plaintiff asserts that in January 12, 2012, defendant was substituted as counsel for
BAC Home Loans Servicing, LP (“BAC”) in a foreclosure action filed in Onondaga County
Supreme Court, whereby the Steven J. Baum Law Firm was previously representing Bank of
America. Plaintiff states that he opposed BAC’s foreclosure motion and it was ultimately
dismissed.
Anthony alleges that Fein Such, as debt collectors, made false and deceptive
representations, including misstating the character, amount and legal status of the debt and
threatening to take legal action which was either not intended or could not legally have been
taken. Plaintiff contends that defendant’s action have resulted in damages to his credit, an
inability to sell the property securing the Mortgage, the loss of his time and productivity and pain
and suffering.

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The following facts, taken from Fein Such’s moving papers and exhibits, are also
relevant to the Court’s analysis. David Case, a partner at defendant’s firm, states that the firm
filed a summons and complaint in Onondaga County Supreme Court, Index No. 2013-3396, on
or about June 26, 2013 against plaintiff and Georgia A. Anthony on behalf of their client Bank of
America, based upon the default of the Mortgage (the “Foreclosure Action”). See Affidavit of
David Case, Ex A, ECF No. 41-2. Plaintiff failed to answer and an Order of Reference in
Mortgage Foreclosure was entered on August 5, 2014. See id., Ex C, ECF No. 41-4. On or
about September 12, 2014, plaintiff moved to vacate the prior default and the State Court held
a hearing on November 6, 2014 to address whether service upon Anthony was proper. The
State Court found service upon Anthony to be proper and heard arguments on the merits of the
foreclosure action on November 20, 2014. See id., Ex. F, ECF No. 41-7. After hearing
arguments which largely reflect those in Anthony’s complaint in the present case, the State Court
granted Bank of America’s Order of Reference and Bank of America filed a motion for judgment
of foreclosure and sale on November 26, 2014. On March 16, 2015, the State Court granted
Bank of America’s motion for judgment of foreclosure and sale. See id., Ex. G, ECF No. 41-8.
To date, Anthony has not perfected an appeal. On January 15, 2016, a sale of the property was
held and sold back to Bank of America’s successor-in-interest.
III. LEGAL STANDARDS
(1) Standard of Reviewing Pro Se Pleadings.
The Court notes at the outset the well-settled principle that “[a] document filed pro se
is ‘to be liberally construed,’ and ‘a pro se complaint, however, inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The Court must
interpret such complaints “to raise the strongest arguments they suggest,” the idea being that
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“implicit in the right of self-representation is an obligation on the part of the court to make
reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights
because of their lack of legal training.’” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474–75 (2d Cir. 2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983)).
(2) Motions to Dismiss for Lack of Subject Matter Jurisdiction.
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)
when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing FED. R. CIV. P. 12(b)(1)). “In resolving
a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court ...
may refer to evidence outside the pleadings.” Id. (citing Kamen v. Am. Tel. & Tel. Co., 791 F.2d
1006, 1011 (2d Cir. 1986) (noting that “when, as here, subject matter jurisdiction is challenged
under Rule 12(b)(1), evidentiary matter may be presented by affidavit or otherwise.”). “[I]t is well
established that a district court may rely on matters of public records in deciding a motion to
dismiss.” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998). “A plaintiff
asserting subject matter jurisdiction has the burden of proving by a preponderance of the
evidence that it exists.” Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562
(2d Cir. 1996)).
(3) Motion to Dismiss for Failure to State a Claim.
To survive a Rule 12(b)(6) motion to dismiss, the "[f]actual allegations must be enough
to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). Although a complaint need only contain "a short and plain statement of the claim
showing that the pleader is entitled to relief," FED. R. CIV. P. 8(a)(2), more than mere conclusions

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are required. Indeed, "[w]hile legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Dismissal is appropriate only where the plaintiff has failed to provide some basis for
the allegations that support the elements of her claims. See Twombly, 550 U.S. at 570 (requiring
"only enough facts to state a claim to relief that is plausible on its face"). When considering a
motion to dismiss, the pleading is to be construed liberally, all factual allegations are deemed to
be true, and all reasonable inferences must be drawn in the plaintiff's favor. See Chambers v.
Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
IV. DISCUSSION.
(1) Fair Debt Collection Practices Act.
The FDCPA “imposes civil liability on ‘debt collector[s]’ for certain prohibited debt
collection practices.” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 576
(2010). Attorneys who are regularly engaged in debt-collection litigation may be “debt collectors”
for purposes of the FDCPA. See Heintz v. Jenkins, 514 U.S. 291, 294-95 (1995). The FDCPA
provides that “any debt collector who fails to comply with any provision of th[e] [Act] with respect
to any person is liable to such person.” 15 U.S.C. § 1692k(a). Successful plaintiffs may recover
“actual damage[s]”, plus costs and “a reasonable attorney’s fee as determined by the court.” Id.
Emotional distress damages are among those recoverable as actual damages in cases alleging
violation of the FDCPA. See Woods v. Siger, Ross & Aguire, LLC, 2012 WL 1811628, at *4
(S.D.N.Y. May 18, 2012). Additional damages, subject to a statutory cap of $1,000 for individual
actions, may be awarded by the court. See 15 U.S.C. § 1692k(2)(A). Section 1692k does not
provide for declaratory and injunctive relief to private litigants. See Hecht v. United States
Collection Bureau, Inc., 691 F.3d 218, 224 n.1 (2d Cir. 2012).

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The elements of a claim under the FDCPA are that “(1) a plaintiff must be a ‘consumer’
who allegedly owes the debt or a person who has been the object of efforts to collect a consumer
debt, and (2) the defendant collecting the debt is considered a ‘debt collector’, and (3) the
defendant has engaged in any act or omission in violation of FDCPA requirements.” Schuh v.
Druckman & Sinel, L.L.P., 751 F. Supp. 2d 542, 548 (S.D.N.Y. 2010). Section 1692e of the
FDCPA proscribes debt collectors from using “any false, deceptive, or misleading representation
or means in connection with the collection of any debt[,]” and provides a non-exhaustive list of
example violations. See 15 U.S.C. § 1692e. For example, section 1692e(2)(A) prohibits “[t]he
false representation of the character, amount, or legal status of any debt” and Section 1692e(9)
bars “[t]he use or distribution of any written communication which simulates or is falsely
represented to be a document authorized, issued, or approved by any court ... or which creates
a false impression as to its source, authorization, or approval.” See 15 U.S.C. § 1692e.
(2) Rooker-Feldman Doctrine.
The Rooker–Feldman doctrine recognizes that “federal district courts lack jurisdiction
over suits that are, in substance, appeals from state-court judgments.” Hoblock v. Albany Cnty.
Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005)). “ ‘Underlying the Rooker–Feldman doctrine is
the principle, expressed by Congress in 28 U.S.C. § 1257, that within the federal judicial system,
only the Supreme Court may review state-court decisions.’” Green v. Mattingly, 585 F.3d 97, 101
(2d Cir. 2009) (quoting Hoblock, 422 F.3d at 85). The Second Circuit has identified four
requirements that must be met before the Rooker–Feldman doctrine applies:
First, the federal-court plaintiff must have lost in state court. Second, the plaintiff
must ‘complain [ ] of injuries caused by [a] state-court judgment [.]’ Third, the plaintiff
must ‘invite district court review and rejection of [that] judgment [ ].’ Fourth, the
state-court judgment must have been ‘rendered before the district court proceedings
commenced'-i.e., Rooker–Feldman has no application to federal-court suits
proceeding in parallel with ongoing state-court litigation.
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Hoblock, 422 F.3d at 85 (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
282 (2005)).
(3) Analysis.
Fein Such argues that the complaint should be dismissed as it is barred by the RookerFeldman Doctrine and is otherwise barred by the statute of limitations for a FDCPA claim.
(i) Plaintiff’s Complaint Is Barred By the Rooker-Feldman Doctrine.
All four factors compelling the application of the Rooker–Feldman doctrine, and
therefore dismissal of Anthony's complaint, are present. First, plaintiff's allegations, construed
liberally in his favor, challenge the validity of his underlying debt at issue in the Foreclosure
Action, not the methods by which defendant attempted to collect it. Plaintiff's claim, couched as
violations of the FDCPA, presuppose and hinge entirely upon the allegation that both Bank of
America and defendant were not legally entitled to collect the debt in the first place. Such
arguments, including that he did not have any financial obligation to Bank of America or that the
bank lacked standing to foreclose of his property, were raised by plaintiff repeatedly in the
Foreclosure Action and rejected by the State Court, resulting in a Judgment of Foreclosure and
Sale being entered against plaintiff on March 16, 2015.
Second, Anthony is complaining of injuries caused by the judgment of the State Court,
namely, damages arising from the foreclosure upon, and court-ordered sale of, his mortgaged
property.
Third, Anthony is inviting this Court to review the merits of that judgment insofar as it
determined that Bank of America possessed a legally enforceable right to foreclose against the
mortgaged property.

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Fourth, it is undisputed that the Foreclosure Action concluded and the Judgment of
Foreclosure and Sale were entered on March 16, 2015, one month prior to plaintiff filing this
complaint on April 15, 2015.

Accordingly, plaintiff's FDCPA claim is precluded by the

Rooker–Feldman doctrine and, consequently, this federal court lacks subject matter jurisdiction.
(ii) The Statute of Limitations Bars Plaintiff’s FDCPA Claim.
Even if Anthony’s claim was not barred by the Rooker–Feldman doctrine, the
allegations in the complaint are time-barred under the FDCPA.
An action on an alleged FDCPA violation must be brought within one year of the
alleged violation. See 15 U.S.C. 1692k(d); Benzemann v. Citibank N.A., 806 F.3d 98 (2d Cir.
2015). Read liberally, the complaint alleges that defendant violated the FDCPA by sending the
collection letter dated December 5, 2011 and by their representation of Bank of America during
the pendency of the Foreclosure Action. Plaintiff therefore contends his complaint is timely as
it was brought within one year of the conclusion of the Foreclosure Action.
“The one-year period begins to run on ‘the date when [the consumer] receives an
allegedly unlawful communication.’” Donchatz v. HSBC Bank USA, N.A., 2015 WL 860760, at
*10 (W.D.N.Y. Feb. 27, 2015) (quoting Somin v. Total Community Mgmt. Corp., 494 F. Supp. 2d
153, 158 (E.D.N.Y. 2007)). “‘[W]hen the alleged violation of the [FDCPA] is the filing of a lawsuit
. . . the statute of limitations began to run on the filing of the complaint.’” Bonner v. The Bank of
New York Mellon, 2016 WL 1426515, at *2 (E.D.N.Y. Feb. 22, 2016) (quoting Naas v. Stolman,
130 F.3d 892, 893 (9th Cir.1997)). As with any statute of limitations, the FDCPA is subject to
equitable tolling, however, such tolling only applies in “rare and exceptional” circumstances.
Somin, 494 F. Supp. 2d at 158. Generally, equitable tolling applies only where defendant has
engaged in conduct to conceal wrongdoing and, as a result, plaintiff fails to discover facts giving

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rise to the claim, despite exercise of reasonable diligence. See Chapman v. ChoiceCare Long
Island Term Dis. Plan, 288 F.3d 506, 512 (2d Cir. 2002).
As both the December 5, 2011 letter from Fein Such and the June 26, 2013 filing of the
Foreclosure Action took place over one year prior to Anthony’s commencement of this action on
April 15, 2015, his claim is time barred pursuant to the terms of the FDCPA. Plaintiff was well
aware of the existence of the Foreclosure Action as he participated in its litigation. As a result,
there are no grounds upon which to equitably toll his FDCPA claim until the conclusion of the
Foreclosure Action. Accordingly, the motion to dismiss plaintiff's FDCPA claim will also be
granted on statute of limitations grounds.
IV. CONCLUSION
For the reasons set forth, the Rooker-Feldman doctrine precludes review of plaintiff’s
FDCPA claim. Further, such claim is barred by the one year statute of limitations under the
FDCPA. As a result, defendant’s motion to dismiss will be granted and the complaint will be
dismissed with prejudice.
Therefore, it is ORDERED that:
1. Defendant’s motion to dismiss is GRANTED; and
2. Plaintiff’s Third Amended Complaint (ECF No. 25) is DISMISSED WITH
PREJUDICE and the Clerk of the Court is directed to enter judgment accordingly, serve a
copy of this Memorandum, Decision & Order and the Judgment upon the plaintiff in
accordance with the Local Rules and close the file.

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IT IS SO ORDERED.

Dated: September 28, 2016
Utica, New York

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