Weaver v. Indymac Federal Bank, FSB

Filing 164

ORDER: For the foregoing reasons, Defendants motions to dismiss (Weaver v. Schiavo, No. 17 Civ. 1406, dkt. nos. 10,17, 20, 26; Weaver v. Hanley, No. 18 Civ. 9955, dkt. no. 35) are GRATED. Sciavo's motion for sanctions (Weaver v. Schiavo, No. 17 Civ. 1406, dkt. no. 24) is DENIED. Weaver may not file any further actions arising out of the state foreclosure judgment that is the subject of the above-noted actions without Court permission. The Clerk of the Court shall mark these actions closed and all pending motions denied as moot. SO ORDERED. (Signed by Judge Loretta A. Preska on 1/30/2020) (va)

United States District Court
Southern District of New York
EVERETTE WEAVER,
Plaintiff,
17 Civ. 1406 (LAP)
-

V.

-

NICOLE E. SCHIAVO, ESQ., et al.,
Defendants.

EVERETTE WEAVER,
Plaintiff,
18 Civ. 9955
-

(LAP)

v. -

DIANNE BRAUN HANLEY, ESQ., et al.
Defendants.

EVERETTE WEAVER,
09 Civ. 5091 (LAP)

Plaintiff,
-

V.

-

INDYMAC FEDERAL BANK, FSB, et al.
Defendants.

MEMORANDUM AND ORDER
LORETTA A. PRESKA, Senior United States District Judge:
This order marks the latest installment in prose plaintiff
Everette Weaver's scorched-earth campaign to undo a foreclosure
judgment entered against him in New York State court.
1

This

Court has already dismissed two actions Weaver brought arising
out of the foreclosure judgment and, in its most recent
dismissal decision, the Court directed Weaver to show cause why
he should not be barred from filing further foreclosure-related
lawsuits without prior permission from the Court.

Weaver v.

IndyMac Fed. Bank, FSB, No. 09 Civ. 5091 (LAP (LMS), 2019 WL
4563893, at *13 (S.D.N.Y. Sept. 9, 2019).
The instant order addresses two other complaints Weaver
filed in 2017 and 2018 before the Court issued the show cause
order (see Complaint, dated Feb. 24, 2017, Weaver v. Schiavo,
No. 17 Civ. 1406 (LAP)

(the "2017 Action")

[dkt. no. 1];

Complaint, dated Oct. 29, 2018, Weaver v. Hanley, No. 18 Civ.
9955 (LAP)

(the "2018 Action")

[dkt. no. 1]), along with the

open question of whether Weaver should be permitted to continue
filing duplicative lawsuits regarding the foreclosure.
The defendants in the 2017 and 2018 Actions encompass
virtually everyone who touched the state court foreclosure
litigation, including the presiding judge, the county clerk, the
referee who oversaw the foreclosure sale, and the attorneys, law
firms, banks, and other entities involved in the foreclosure
proceedings.

They have moved to dismiss the 2017 and 2018

Actions under Federal Rule of Civil Procedure 12(b) (1) and
12 (b) (6).

(See 2017 Action dkt. nos. 10, 17, 20, 26; 2018

Action dkt. no. 35.)

Defendant Nicole E. Schiavo, who was also
2

sued in one of Weaver's previously-dismissed federal actions,
has moved for sanctions against Weaver under Federal Rule of
Civil Procedure 11.

For the

(See 2018 Action dkt. no. 24.)

following reasons, Defendants' motions to dismiss are GRANTED,
and Weaver is enjoined from initiating any further litigation
regarding the foreclosure judgment without first obtaining leave
of Court.
I .

Schiavo's motion for sanctions is DENIED.

Background

a. The Parties
Plaintiff Everette Weaver is a resident of Hopewell
Junction, New York, in Dutchess County.

'II 3. )

(2017 Action Compl.

Defendants McCabe, Weisberg & Conway, P.C., Hogan Lovells

US LLP, Nicole E. Schiavo, Stuart L. Druckman, Maria Sideris,
and Melissa Dicerbo are counsel who participated in the
foreclosure litigation.
'!I'll 8-11.)

(See id. '!I'll 4-6; 2018 Action Compl.

The Honorable Maria G. Rosa is a Justice of the

Supreme Court of the State of New York, Dutchess County, and
presided over the foreclosure action.

(2017 Compl. 'II 13.)

Bradford Kendall is the Clerk of Dutchess County.

(Id. 'II 12.)

OneWest Bank, FSB ("OneWestn)--now known as CIT Bank, N.A.
("CITn)--serviced and held the mortgage loan on the foreclosed
property.

(Id. 'II 7.)

Caryn Edwards, Patrick Overturf, and

Salvatore Farrauto are employees of CIT who either submitted
evidence in connection with the foreclosure action or executed
3

mortgage-related documents on behalf of the bank.
10.)

(Id. 'll'll 8-

Defendant U.S. Bank Trust National Association, CVI LCF

Mortgage Loan Trust I, and Sheafe Woods Realty, LLC allegedly
acquired Weaver's mortgage loan or property in connection with
the foreclosure proceedings.

(Id. 'II 11; 2018 Compl. 'll'll 12-13.)

b. The Foreclosure Action
In October 2007, Weaver borrowed $200,000 as a mortgage
loan from IndyMac Bank, FSB ("IndyMac") to buy property located
at 19 Eagle Ridge in Hopewell Junction, New York.

(Declaration

of Jonathan B. Nelson, dated Apr. 26, 2019 ("Nelson Deel."),
2018 Action [dkt. no. 36], Ex. 9 at 63-94, 96.)

In 2008, Weaver

defaulted on his loan payments, and in 2014, CIT, which held the
loan on behalf of IndyMac, initiated a foreclosure action
against Weaver in the Supreme Court of the State of New York.
(Nelson Deel. Ex. 9 at 56, 95.)

Weaver filed an answer in the

foreclosure action containing fifteen affirmative defenses,
alleging, among other things, that CIT lacked standing to
enforce the note and mortgage and that its claim to standing was
based on fraudulent documents.

(Nelson Deel. Ex. 5.)

In 2016, Justice Rosa presided over a trial in the state
foreclosure action and issued a decision holding that CIT had
standing to foreclose, Weaver's defenses lacked merit, and
permitting CIT to proceed with appointing a referee to calculate
the amount due to CIT on the mortgage loan.
4

(Nelson Deel. Exs.

6, 7. )

In January 2017, CIT was granted a judgment of

foreclosure and sale.

(Nelson Deel. Ex. 8.)

Following entry of

the judgment, Weaver filed multiple appeals from orders entered
in the foreclosure action.

(See Nelson Deel. Ex. 12.)

CIT

moved to dismiss Weaver's appeals, and the Appellate Division
granted that motion in August 2018.

(Nelson Deel. Exs. 12, 13.)

Weaver did not file any further appeals before his time to do so
had expired.

(Nelson Deel.

~

17.)

c. The 2016 Action
In February 2016, Weaver filed a lawsuit in this Court
against OneWest and others, alleging, among other things, that
they had improperly pursued foreclosure against him based on
fraudulent documents, including a falsified mortgage assignment.
(See Complaint, dated Feb. 29, 2016, Weaver v. Golab, No. 16
Civ. 1535 (LAP)

(the "2016 Action")

[dkt. no. 1].)

Weaver

alleged violations of the Fair Debt Collection Practices Act
("FDCPA"), the Racketeer Influenced and Corrupt Organizations
Act ("RICO"), and New York General Business Law ("GBL")

§ 349(a), as well as a civil conspiracy claim.

(Id.,

~~

44-113)

The defendants moved to dismiss the 2016 Action, and the
Court granted their motions, finding that Weaver's claims were
all barred by collateral estoppel:
The premise underlying [Weaver's] claims in this
case all rely, as a logical matter, upon OneWest's
the
original
not
having
standing
to
bring
5

foreclosure action.
If OneWest had standing, as
the Supreme Court in Dutchess County decided, all
of Weaver's claims before this Court evaporate.
Because the issue of standing and the validity of
the mortgage assignment was fully-litigated in
state court, issue preclusion/collateral estoppel
attaches here.
(Order, dated Mar. 28, 2017, 2016 Action [dkt. no. 38) at 10.)
d. The 2009 SDNY Action
In June 2009, Weaver initiated an action against IndyMac
and others in this Court.

(See Complaint, dated June 1, 2009,

Weaver v. IndyMac Fed. Bank, FSB, No. 09 Civ. 5091 (LAP)
Action")

[dkt. no. 1).)

("2009

Weaver filed the operative complaint in

the 2009 Action in 2016, alleging that OneWest's foreclosure
action was unlawful and based on fraudulent documents and
asserting claims for violations of the FDCPA, the Real Estate
Settlement Procedures Act, New York GBL § 349(a), and for common
law fraud.

(See Third Amended Complaint, dated Mar. 17, 2016,

2009 Action [dkt. no. 124) 11 94-129.)
Defendants moved to dismiss the 2009 Action, and on
September 9, 2019, the Court issued an order granting their
motions.

Weaver, 2019 WL 4563893, at *1.

The Court concluded

that the 2009 Action, like the 2016 Action, was barred by the
doctrine of collateral estoppel because Weaver's claims all
hinged on factual issues--including standing and the invalidity
of the mortgage assignment--that were already litigated and
ruled on in the state foreclosure action.
6

Id. at *8-10.

The

Court denied Weaver leave to amend and ordered him to show cause
why he should not be barred from filing more actions arising
from the state foreclosure action without leave of Court.

Id.

at *13.
On October 7, 2019, Weaver submitted a response to the
Court's order to show cause.
&

(Request for Pre-Motion Conference

Response to Order to Show Cause, dated Oct. 7, 2019, 2009

Action [dkt. no. 159] .)

In his response, Weaver again avers

that the parties to the state foreclosure action had submitted
fake and deceptive documents and that the foreclosure action did
not give rise to collateral estoppel because it was a "sham
trial in a Kangaroo Court."

(See, e.g., id. at 7, 25.)

Weaver

also requested a pre-motion conference for a motion seeking my
recusal because, among other reasons, the order to show cause
purportedly constituted obstruction of justice.
27-29.)

(See id. at 1,

Weaver submitted a motion to that effect on November 8,

2019, and the Court denied it by order dated November 20, 2019.
(See 2009 Action, dkt. nos. 162, 163.)
e. 2017 and 2018 Actions
This order concerns two more suits Weaver filed concerning
the state foreclosure proceedings.

These complaints essentially

retread the same ground as those the Court previously dismissed,
alleging that Defendants engaged in a wide range of misconduct
in prosecuting the foreclosure action and carrying out the
7

foreclosure sale.
FDCPA, RICO, GBL

Weaver asserts claims for violations of the
§

349(a), and 42 U.S.C.

§

1983, a claim for

negligence per se, an assortment of conspiracy-based claims, a
claim for unjust enrichment, and a claim for a declaration that
(See 2017 Compl.

the mortgage was discharged and satisfied.
~~

195-277; 2018 Compl.

~~

237-361.)

Defendants moved to dismiss the 2017 and 2018 Actions under
Rule 12 (b) (1) and 12 (b) (6).

In general, they contend that these

actions are impermissible appeals from the state court
foreclosure judgment over which this Court has no subject matter
jurisdiction, are barred by the doctrines of res judicata and
collateral estoppel, and fail to state a claim.

(See Hogan

Lovells US LLP and Nicole E. Schiavo's Memorandum of Law in
Support of Defendants' Motion to Dismiss, dated Mar. 24, 2017,
2017 Action [dkt. no. 11]; CIT Bank, N.A., Caryn Edwards,
Patrick Overturf, and Salvatore Farrauto's Memorandum of Law in
Support of Defendants' Motion to Dismiss, dated May 16, 2017,
2017 Action [dkt. no. 27]; McCabe Weisberg

&

Conway, P.C.'s

Memorandum of Law in Support of Defendants' Motion to Dismiss,
dated Apr. 6, 2017, 2017 Action [dkt. no. 18]; Joint Memorandum
of Law in Support of Joint Motion to Dismiss ("Joint Memo"),
dated Apr. 26, 2019, 2018 Action [dkt. no. 37] .)

Justice Rosa

further argues that the Eleventh Amendment and the doctrine of
absolute immunity bar Weaver's claims against her.
8

(Memorandum

of Law in Support of the Hon. Maria G. Rosa's Motion to Dismiss,
dated Apr. 21, 2017, 2017 Action [dkt. no. 22].)

Dianne Braun

Hanley, who acted as a referee in the state court foreclosure
action, also contends that she is protected by absolute
immunity.

(Joint Memo at 18.) 1

In the 2018 Action, Nicole Schiavo also moved for Rule 11
sanctions against Weaver.

Schiavo contends that Weaver's

lawsuit has no merit and that sanctions are needed to prevent
him from filing additional frivolous and harassing actions
(See Memorandum of Law in Support of Nicole E.

against her.

Schiavo's Motion for Fed. R. Civ. P. 11 Sanctions, dated Apr. 5,
2019, 2018 Action [dkt. no. 25] .)

Schiavo requests monetary

sanctions in an amount equaling her costs and fees incurred in
connection with the 2018 Action and an order enjoining Weaver
from initiating any new litigation in this Court against Schiavo
arising from the foreclosure action.
II.

(Id.at13.)

Discussion
a. Legal Standard
i.

Federal Rule of Civil Procedure 12 (b) (1)

A claim is ftproperly dismissed for lack of subject matter
jurisdiction under Rule 12(b) (1) when the district court lacks

On Weaver's consent, the Court previously dismissed
Defendant Bradford Kendall from the 2017 Action.
(Order dated
Mar. 9, 2017, 2017 Action [dkt. no. 8].)
1

9

the statutory or constitutional power to adjudicate it."
v. Hachette Filipacchi Presse, No. 15 Civ. 00194
WL 1599492, at *2 (S.D.N.Y. Apr. 20, 2016)

(VM)

Sasson

(SN), 2016

(quoting Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000)).

"A plaintiff

asserting subject matter jurisdiction has the burden of proving
by a preponderance of the evidence that jurisdiction exists."
Giammatteo v. Newton, 452 F. App' x 24, 27

(2d Cir. 2011)

(citing

Makarova, 201 F.3d at 113).
In resolving a motion to dismiss for lack of subject matter
jurisdiction, "the court must take all facts alleged in the
complaint as true and draw all reasonable inferences in favor of
plaintiff," Nat. Res. Def. Council v. Johnson, 461 F.3d 164, 171
(2d Cir. 2006)

(citation and quotation marks omitted), but

"jurisdiction must be shown affirmatively, and that showing is
not made by drawing from the pleadings inferences favorable to
the party asserting it," Sasson, 2016 WL 1599492, at *2
(quoting Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131
(2d Cir. 1998)).
ii.

Federal Rule of Civil Procedure 12 (b) (6)

"When considering a motion to dismiss pursuant to Rule
12 (b) (6), the district court . . . is required to accept as true
the facts alleged in the complaint, consider those facts in the
light most favorable to the plaintiff, and determine whether the
complaint sets forth a plausible basis for relief."
10

Galper v.

JP Morgan Chase Bank, N.A., 802 F.3d 437, 443 (2d Cir. 2015).

A

complaint that "tenders 'naked assertion[s]' devoid of 'further
factual enhancement'" will not withstand a Rule 12(b) motion.
Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)

(quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 557 (2007)); see also Twombly,
550 U.S. at 570 (if a plaintiff has not "nudged [his] claim
across the line from conceivable to plausible,
must be dismissed") .

[the] Complaint

In prose actions like this one, the

claims must be construed liberally and interpreted to raise the
strongest arguments that they suggest.
of Prisons, 470 F.3d 471, 474

Triestman v. Fed. Bureau

(2d Cir. 2006).

But even in a pro

se case, "threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice"
and the Court may not "invent factual allegations that [a
plaintiff] has not pled."
(2d Cir. 2010)

Chavis v. Chappius, 618 F.3d 162, 170

(citation and internal quotation marks omitted).

b. Rule 12 (b) (1) Motions
i.

Sovereign Immunity

Justice Rosa moves to dismiss the claims against her for
lack of subject matter jurisdiction based on Eleventh Amendment
sovereign immunity.

"The Eleventh Amendment bars damages

actions in federal court against a state and against state
officials acting in their official capacities, unless the state
waives sovereign immunity or Congress abrogates it."
11

Chris H.

v. New York, 740 Fed. App'x 740, 741 (2d Cir. 2018).

A claim

that is barred by a state's sovereign immunity must be dismissed
for lack of subject matter jurisdiction.
22 F. Supp. 3d 256, 268

Morales v. New York,

(S.D.N.Y. 2014).

Here, Weaver seeks money damages against Justice Rosa in
her official capacity through his§ 1983 claim and purported
federal conspiracy claim.

(See 2017 Action Compl. at 1 (naming

Justice Rosa "in her official capacity as a Justice of the
Supreme Courtll); id. ]] 242-43, 260-62.)

Because New York has

not waived, and Congress has not abrogated, sovereign immunity
as to these claims, the Court lacks subject matter jurisdiction
to adjudicate them.

See Deraffele v. City of New Rochelle, No.

15 Civ. 282 (KMK), 2016 WL 1274590, at *13 (S.D.N.Y. Mar. 30,
2016)

(finding that Eleventh Amendment barred section 1983 claim

against New York State judge); Sierotowicz v. State of N.Y.
Hous. & Cmty. Renewal, No. 04 Civ. 3886 (NGG), 2005 WL 1397950,
at *2 (E.D.N.Y. June 14, 2005)

(noting that federal conspiracy

statutes did not abrogate state sovereign immunity).

The claims

against Justice Rosa are therefore dismissed.
c. Rooker-Feldman
Defendants argue that the Court lacks subject matter
jurisdiction over Weaver's cases under the Rooker-Feldman
doctrine, which stands for the principle that "federal district
courts lack jurisdiction over cases that essentially amount to
12

appeals of state court judgments."

Vossbrinck v. Accredited

Home Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014).

The

Rooker-Feldman doctrine applies when four conditions are met:
(1) the plaintiff lost in state court;

(2) the plaintiff

complains of injuries caused by the state-court judgment;

(3)

the plaintiff invites the federal court to review and reject
that judgment; and (4) the state judgment was rendered before
the plaintiff filed the federal complaint.
Cnty. Bd. Of Elecs., 422 F.3d 77, 87

Hoblock v. Albany

(2d Cir. 2005).

The Court

of Appeals has described the first and fourth requirements as
"procedural" and the middle two as "substantive."

Id.

Although the muddled nature of Weaver's complaints in the
2017 and 2018 Actions complicates the analysis somewhat, the
Court concludes that for the vast majority of his claims, all
four Rooker-Feldman requirements are met.

As to the procedural

requirements, Weaver lost in state court when Justice Rosa
entered the judgment of foreclosure and sale.
of Nicole E. Schiavo dated Mar. 24, 2017
Action [dkt. no. 12], Ex. 4.)

(See Declaration

("Schiavo Deel."), 2017

That judgment, entered on January

20, 2017, was rendered before Weaver filed his complaints in
these actions in February 2017 and October 2018.

(See id.)

Subject to the caveat noted below, the substantive
requirements of Rooker-Feldman are satisfied, as well.

Weaver

has not articulated the injuries underlying his claims with
13

crystalline clarity, but it is obvious that, like the complaints
the Court already dismissed, these actions are at their core
pleas for relief from a foreclosure judgment Weaver believes was
erroneously and fraudulently obtained.

See Weaver, 2019 WL

4563893, at *10 (observing that the 2009 Action was an attempt
"to use this Court as an appeals court" for the case "he lost
before Justice Rosa"); Order, 2016 Action [dkt. no. 38] at 9
(same with respect to the 2016 Action).

Indeed, Weaver's

complaints name as defendants nearly everyone who participated
in the foreclosure proceedings and are essentially nothing more
than laundry lists of Weaver's perceived problems with the
foreclosure action.

See Roberts v. Perez, No. 13 Civ. 5612

(JMF), 2014 WL 3883418, at *3 (S.D.N.Y. Aug. 7, 2014)

(finding

that "the detail with which Plaintiff complains of the statecourt proceedings" and "the fact that Plaintiff specifically
named

. state-court litigation counsel" as a defendant

demonstrated that plaintiff sought "to remedy harm caused by the
state-court judgment").

If the Court were to adjudicate

Weaver's claims, there would be no way around evaluating the
propriety of Justice Rosa's rulings that, among other things,
the note was legitimate and the lender had standing.

Rooker-

Feldman prohibits the Court from undertaking such a review.
Although the primary objective of Weaver's lawsuits is to
redress purported wrongs in the foreclosure action, the Court
14

notes that, when construed liberally, the complaints could be
read as seeking relief from some injuries that were not directly
inflicted by the foreclosure judgment.

To give one example,

Weaver alleges that he suffered emotional distress as a result
of false statements made during the foreclosure action.
2017 Action Compl. 11 219-27.)

(See

That kind of injury is arguably

not caused by the state court judgment itself and would
therefore not be barred by Rooker-Feldman.
F.3d at 87

See Hoblock, 422

("[F]ederal plaintiffs are not subject to the Rooker-

Feldman bar unless they complain of an injury caused by a state
court judgment." (emphasis in original)).

Thus, while the Court

lacks jurisdiction over all the claims requiring review and
rejection of the foreclosure judgment, it declines to dismiss
Weaver's complaints outright under the Rooker-Feldman doctrine.
III. Rule 12 (b) (6) Motions
To the extent the Court has subject matter jurisdiction
over Weaver's claims, they are subject to dismissal under Rule
12 (b) (6) based on the doctrines of judicial immunity and
collateral estoppel and for failing to state a claim.
a. Judicial Immunity
The claims against Justice Rosa and Hanley are foreclosed
by judicial immunity, which insulates judges from civil

15

liability for actions taken in their official capacities. 2
DiBlasio v. Novello, 344 F.3d 292, 297

(2d Cir. 2003)

See

("[O]nce a

court determines that an official was functioning in a core
judicial .

. capacity, absolute immunity applies however

erroneous the act may have been, and however injurious in its
consequences it may have proved to the plaintiff." (internal
quotation marks omitted)).

Weaver's claims against Justice Rosa

and Hanley all concern official actions they took during the
foreclosure proceedings, including, among other things, ruling
on motions, managing the trial, signing orders, and overseeing
the auction.

(2017 Action Compl. 11 37, 39-42, 44-45, 48-54,

128; Oct. 29, 2018 Action Compl. 11 222-32.)
bars those claims.

Judicial immunity

See Norley, 2003 WL 22890402, at *5

(absolute immunity precluded suit against New York State judge
and referee based on their handling of state court litigation).
IV.

Collateral Estoppel

Weaver's claims are also barred by collateral estoppel,
also known as issue preclusion, which prevents parties "from

Hanley, who was appointed as a referee by Justice Rosa and
ordered to sell the foreclosed property at auction, qualifies as
a judicial officer for purposes of the judicial immunity
analysis.
See Norley v. HSBC Bank USA, No. 03 Civ. 2318 (DLC),
2003 WL 22890402, at *5 n.4 (S.D.N.Y. Dec. 9, 2003) (holding
that a referee appointed to set attorneys' fees at the close of
litigation was a judicial officer because judicial immunity
extends "to individuals performing duties 'closely associated
with the judicial process'" (quoting Cleavinger v. Saxner, 474
U.S. 193, 200 (1985))).
2

16

relitigating in a subsequent action an issue of fact or law that
was fully and fairly litigated in a prior proceeding."

Marvel

Characters, Inc. v. Simon, 310 F.3d 280, 288-89 (2d Cir. 2002).
Issue preclusion applies when: ~(l) the identical issue was
raised in a previous proceeding;

(2) the issue was actually

litigated and decided in the previous proceeding;

(3) the party

had a full and fair opportunity to litigate the issue; and (4)
the resolution of the issue was necessary to support a valid and
final judgment on the merits."

Id.

( quoting Boguslavsky v.

Kaplan, 159 F.3d 715, 719-20 (2d Cir. 1998)).
The Court previously dismissed two other similar lawsuits
Weaver filed because the claims there all hinged on questions
that had been raised, litigated, and necessarily resolved in the
foreclosure action:
The premise underlying [Weaver's] claims in this
case all rely, as a logical matter, upon OneWest's
not
having
standing
to
bring
the
original
foreclosure action.
If OneWest had standing, as
the Supreme Court in Dutchess County decided, all
of Weaver's claims before this Court evaporate.
Because the issue of standing and the validity of
the mortgage assignment was fully-litigated in
state court, issue preclusion/collateral estoppel
attaches here.
(Order, dated Mar. 28, 2017, 2016 Action [dkt. no. 38] at 7-10;
see also Weaver v. IndyMac Fed. Bank, FSB, No. 09 Civ. 5091
(LAP), 2019 WL 4563893, at *8-10 (S.D.N.Y. Sept. 9, 2019) .)

17

That same reasoning applies to Weaver's claims in the 2017
and 2018 Actions.

Although Weaver has roped in some additional

defendants and makes some new allegations--including that the
note is supposedly not in default (see, e.g., 2018 Action Compl.
~~

24-26)--his claims still rise and fall on issues previously

resolved in the foreclosure action.

Most notably, Weaver's

complaints are again predicated on his contention that documents
submitted in the state court proceedings were false and that
OneWest had no standing to foreclose.
Compl.

~~

(See, e.g., 2017 Action

32, 37, 66-126, 131-34, 161, 193, 198, 214-15, 220-22,

260; 2018 Action Compl.

~~

29-57,

60, 70-72, 132-95, 202-07,

221-22, 238-58, 273-76, 287, 308, 332, 355.)

The Court already

held, twice, that collateral estoppel prevents re-litigation of
those issues.

The same is true with respect to Weaver's claim

that there was no outstanding debt on the note and mortgage,
given Justice Rosa's ruling that Weaver was in default and
foreclosure was proper.

(See 2017 Action Compl., Ex.

Q

(Apr. 8,

2016 Decision and Order) at 2-3 ("The plaintiff having produced
the note, mortgage, evidence of default and its standing, it is
ORDERED that plaintiff is entitled to proceed with this
foreclosure action." (emphasis added)).)
therefore bars Weaver's claims.

18

Collateral estoppel

V.

Failure to State a Claim
Weaver's complaints are also dismissed under Rule 12 (b) ( 6)

for failing plausibly to allege entitlement to relief.

The

Court will address Weaver's various claims in turn.

Negligence Per Se.

"As a general matter, New York follows

the common law rule that a violation of a state statute that
imposes a specific duty constitutes negligence per se."
Christian Sanchez v. United States, No. 13 Civ. 2536 (JPO), 2015
WL 667521, at *2 (S.D.N.Y. Feb. 17, 2015).

Weaver's negligence

per se claim is grounded on wholly conclusory allegations that
certain documents and statements were false or misleading.
Because Weaver does not plead any factual support for the
negligence per se claim, it is dismissed.
Tilles, 376 Fed. Appx. 91 (2d Cir. 2010)

See Fuentes v.
(dismissing pro se

complaint that "plainly fails to plead factual content that
allows the court to draw the reasonable inference that the
defendants are liable for the alleged misconduct" (citation,
brackets, and internal quotation marks omitted)).

Fair Debt Collection Practices Act.
violation under the FDCPA,

"To establish a

(1) the 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,

(2) the defendant

collecting the debt must be considered a debt collector, and (3)
the defendant must have engaged in an act or omission in
19

violation of FDCPA requirements."

Maleh v. United Collection

Bureau, Inc., 287 F. Supp. 3d 265, 270 (E.D.N.Y. Jan. 26, 2018)
(citation, brackets, and internal quotation marks omitted).
Weaver pleads that Defendants violated the FDCPA through using
deceptive and misleading tactics in the process of collecting a
debt, but, as with his negligence claims, he does not allege any
factual content supporting the inference that he is entitled to
relief.

The FDCPA claims are therefore dismissed.

Racketeer Influenced and Corrupt Organizations Act.

To

state a civil RICO claim, the plaintiff must allege "(1)
conduct,

(2) of an enterprise,

racketeering activity."
193 F.3d 85, 88

(3) through a pattern (4) of

Anatian v. Coutts Bank (Switz.) Ltd.,

(2d Cir. 1999).

Among other shortcomings,

Weaver fails plausibly to allege that any Defendant engaged in
prohibited conduct that would support a RICO claim.

See D.

Penguin Bros. Ltd. v. City Nat'l Bank, No. 13 Civ. 41 (TPG),
2014 WL 982859, at *3 (S.D.N.Y. Mar. 11, 2014)

(plaintiff must

show that "each defendant" participated in conducting the
affairs of the RICO enterprise through the commission of at
least two predicate acts), aff'd, 587 F. Appx. 663 (2d Cir.
2014)

(summary order).

Thus, the RICO claim fails.

New York General Business Law§ 349.

To state a claim

under GBL § 349, the plaintiff must allege that the challenged
act or practice was "consumer-oriented," "misleading in a
20

material respect," and that "plaintiff suffered injury as a
result."

Pelman ex rel. Pelman v. McDonald's Corp., 396 F.

Supp. 2d 439, 444

(S.D.N.Y. 2005).

At the very least, Weaver

fails to satisfy the first prong of the GBL § 349 standard
because he merely pleads conduct that affected him individually,
not conduct that had "a broad impact on consumer at large."
Bennett v. State Farm Fire

&

Cas. Co., 78 N.Y.S.3d 169, 172

(N.Y. App. Div. 2d Dep't 2018).

Unjust Enrichment. To prevail on an unjust enrichment
claim, the plaintiff must demonstrate that (1)
enriched (2) at plaintiff's expense and (3)

the defendant was

it is against equity

and good conscience for the defendant to retain what plaintiff
seeks to recover.
319, 320

Main Omni Realty Corp. v. Matus, 1 N.Y.S.3d

(N.Y. App.

Div. 2d Dep't 2015).

Weaver has not alleged

that CVI LCF Mortgage Loan Trust I or Sheafe Woods Realty LLC-the two defendants named in the unjust enrichment claim-received any property from Weaver that would be inequitable for
them to retain.

Conspiracy.

The unjust enrichment therefore fails.
Weaver alleges multiple civil conspiracy

claims, all of which are based on unsupported, conclusory
allegations that cannot withstand a motion to dismiss.

See

Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 26 n.4
Cir. 1990)

(2d

("[T]he complaint must allege some factual basis for

a finding of a conscious agreement among the defendants.");
21

Fierro v. Gallucci, No. 06 Civ. 5189 (JFB)
2039545, at *16 (E.D.N.Y. May 12, 2008)

(WDW), 2008 WL

("[T]o survive a motion

to dismiss, a complaint must contain more than general
allegations in support of the conspiracy.").

The conspiracy

claims also fail insofar as they rely on purported criminal
offenses that have no private right of action.

See Greenblatt

v. Richard Potasky Jewelers, No. 93 Civ. 3652 (LMM), 1994 WL
9754, at *4 n.4

(S.D.N.Y. Jan. 13, 1994)

(no private right of

action under 18 U.S.C. § 371); Reeves v. Wilkins, No. 10 Civ.
2766 (ARR)
2012)

(MDG), 2012 WL 3835902, at *6 (E.D.N.Y. Aug. 31,

("New York does not provide a private cause of action for

mail fraud, forgery, or perjury.").
42 U.S.C. § 1983.

essential elements:

"[A] section 1983 claim has two

(1) the defendant acted under color of state

law, and (2) as a result of the defendant's actions, the
plaintiff suffered a denial of his federal statutory rights, or
his constitutional rights or privileges."
F. Supp. 2d 216, 234

(E.D.N.Y. 2013).

Kanciper v. Lato,

989

Weaver predicates his

§ 1983 claim on Justice Rosa's purported violations of New York
law and Weaver's constitutional due process rights.

But state

law violations do not support claims under§ 1983, see, e.g.,
Berlickij v. Town of Castleton, 146 Fed. App'x 533, 535 (2d Cir.
1990), and an appeal from the state court foreclosure judgment,
not a§ 1983 claim filed in federal court, was the appropriate
22

recourse for any due process violations caused by Justice Rosa's
See McArthur v. Bell, 788 F.

purportedly erroneous decisions.

Supp. 706, 709-10 (E.D.N.Y. Apr. 6, 1992)

(noting that "there is

no violation of the Fourteenth Amendment where the state
provides plaintiff with an adequate post-deprivation remedy" and
that the "appellate procedure" of the New York State court
system "is, beyond question, an adequate post-deprivation
remedy").
VI.

Weaver's§ 1983 claim is therefore dismissed.

Order to Show Cause

The Court now turns to its September 9, 2019 order
directing Weaver to show cause why he should not be barred from
filing further actions arising out of the foreclosure judgment.
See Weaver v. IndyMac Fed. Bank, FSB, No. 09 Civ. 5091 (LAP),
2019 WL 4563893, at *13 (S.D.N.Y. Sept. 9, 2019).

Having

considered Weaver's response to the show cause order (see
Request for Pre-Motion Conference

&

Response to Order to Show

Cause, dated Oct. 7, 2019, 2009 Action [dkt. no. 159]), the
Court concludes that a filing injunction is warranted.
"The district courts have the power and the obligation to
protect the public and the efficient administration of justice
from individuals who have a history of litigation entailing
vexation, harassment and needless expense to other parties' and
an unnecessary burden on the courts and their supporting
personnel."

Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000)
23

(per curiam)
omitted).

(citation, internal quotation marks and brackets

Issuing a filing injunction "is appropriate when a

plaintiff 'abuse[s] the process of the Courts to harass and
annoy others with meritless, frivolous, vexatious or repetitive
proceedings."

Id.

(quoting In re Hartford Textile Corp.,

659 F.2d 299, 305 (2d Cir. 1981)

(per curiam).

The Court of Appeals has instructed district courts to
evaluate the following factors when deciding whether to impose a
filing injunction:
(1)
The litigant's history of litigation and
whether it entailed vexatious,
harassing,
or
duplicative lawsuits; (2) the litigant's motive in
pursuing the litigation, e.g., does the litigant
have an objective good faith expectation of
prevailing?;
(3)
whether
the
litigant
is
represented by counsel; (4) whether the litigant
has caused needless expense to other parties or has
posed unnecessary burden on the courts and their
personnel; and (5) whether other sanctions would be
adequate to protect the courts and their parties.
Safir v. U.S. Lines Inc., 792 F.2d 19, 24 (2d Cir. 1986).

The

key, overarching question in the analysis "is whether a litigant
who has a history of vexatious litigation is likely to continue
to abuse the judicial process and harass other parties."

Id.

Considering the above factors, there is no question that
the circumstances call for a filing injunction against Weaver.
He has now filed four cases in this Court seeking to relitigate
the foreclosure action, and all four have been dismissed on
collateral estoppel and other grounds.
24

Weaver's response to the

Court's order to show cause underscores why a filing injunction
is needed here.

In his submission, Weaver makes absolutely no

showing in fact or law as to why he should be allowed to
continue filing lawsuits related to the foreclosure judgment.
Instead, he rehashes the same litany of purported injustices
from the foreclosure proceedings that formed the core of his
last four complaints and slings baseless attacks of fraud and
corruption at the parties and the Court.

It is now crystal

clear that Weaver has no motive in prosecuting these actions
beyond harassing the parties.

Based on his pattern of conduct,

there is an acute risk that absent an injunction, Weaver will
continue piling on frivolous lawsuits, wasting the time and
resources of the parties and the Court.

It is time for the

repetitive and harassing litigation to end and for everyone,
including Weaver, to move on with their lives.
Weaver is therefore enjoined from filing any new civil
action or proceeding in this Court concerning the foreclosure
judgment without first obtaining leave of Court.

In the event

that Weaver seeks to commence further foreclosure-related
litigation, he must (1) append a copy of this order to any new
complaint and (2) file contemporaneously with the complaint a
motion for leave to commence a new action that sets forth the
good faith basis for the new complaint.

No party needs to

respond to any future foreclosure-related complaint unless and
25

until the Court grants Weaver's motion for leave to commence the
new action.

A violation of this injunction will result in

further sanctions against Weaver.

Nothing in this order shall

be construed as limiting Weaver's access to the United States
Court of Appeals for the Second Circuit. 3
VII. Conclusion
For the foregoing reasons, Defendants motions to dismiss
(Weaver v. Schiavo, No. 17 Civ. 1406, dkt. nos. 10, 17, 20, 26;
Weaver v. Hanley, No. 18 Civ. 9955, dkt. no. 35) are GRANTED.
Schiavo's motion for sanctions (Weaver v. Schiavo, No. 17 Civ.
1406, dkt. no. 24) is DENIED.

Weaver may not file any further

actions arising out of the state foreclosure judgment that is
the subject of the above-noted actions without Court permission.
The Clerk of the Court shall mark these actions closed and
all pending motions denied as moot.
SO ORDERED.

Dated:

New York, New York
January
2020

J/2,

Loretta A. Preska
Senior U.S. District Judge

Defendant Schiavo has moved under Rule 11 for an order
enjoining Weaver from initiating any new litigation against her
regarding the foreclosure action and imposing monetary
sanctions.
(See 2018 Action dkt. no. 24.)
In light of the
Court's decision to impose a filing injunction against Weaver,
Schiavo's request for a separate injunction is denied as moot.
Her request for monetary sanctions is denied.
3

26