Jin-Jo v. Washington Mutual Inc. et al

Filing 67

ORDER denying 26 Motion to Vacate ; denying 27 Motion for Reconsideration ; granting in part and denying in part 28 Motion to Dismiss; denying 35 Motion to Dismiss; denying 40 Motion for Recusal. ; denying 43 Motion to Compel; denying 45 Motion to Amend or Correct; denying 57 Motion to Stay; denying 58 Motion to Compel; denying 59 Motion to Strike ; denying 60 Motion to Amend or Correct.. Signed by Hon. Richard J. Arcara on 8/4/2009. (JMB)

UNITED STATES DISTRICT COURT W ESTERN DISTRICT OF NEW YORK

MEE JIN-JO, Plaintiff, D E C IS IO N AND ORDER 0 8 -C V - 2 3 0 A

v. JPMC SPECIALTY MORTGAGE LLC,1 Defendant.

IN T R O D U C T IO N P ro se plaintiff Mee Jin-Jo has filed numerous motions that are currently p e n d in g , including a motion for recusal. Defendant has made a motion to dismiss th is case for lack of subject-matter jurisdiction, arguing that plaintiff's claims suffer fro m multiple legal defects that leave her without available remedies. Each of the p e n d in g motions will be addressed separately below. B AC K G R O U N D T h is case concerns a foreclosure of a property located at 187 W e s t 5th S tre e t in Corning, New York (the "Property"). According to the complaint, plaintiff w a s a tenant of the Property at the time of foreclosure. Defendant is a c o rp o ra tio n that acquired the mortgagee's rights in the Property on or around

Defendant has advised the Court (see Dkt. No. 49 at 5 n.2) that its proper n a m e has changed due to a corporate acquisition. The Clerk of the Court will be d ire c te d to amend the caption to list defendant's name as shown here.

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A p r il 14, 2006 for $10.00. Defendant commenced foreclosure proceedings on A p r il 19, 2006 in New York State Supreme Court, Steuben County. The m o rtg a g o r and principal named defendant in the foreclosure proceeding was s o m e o n e named "Mihee Cho." Plaintiff's name does not appear in the caption of th e foreclosure case, and defendant has admitted that "[n]o party with the name M e e Jin-Jo (the Plaintiff in the instant case), was named or served with process in th e foreclosure action." (Dkt. No. 29 at 5.) Defendant has not submitted any in fo rm a tio n indicating that "Mihee Cho" and "Mee Jin-Jo" are the same person. A c c o rd in g to defendant, the mortgagor of the Property never appeared in th e foreclosure action. Defendant consequently obtained a judgment of fo re c lo s u re and sale for the Property that was entered in the Steuben County C le rk 's Office on or around September 28, 2006. The foreclosure sale occurred o n November 14, 2006, with defendant purchasing the Property. Defendant then b e g a n eviction proceedings on December 18, 2006 with service of a Ten-Day N o tic e to Quit on the mortgagor pursuant to N.Y. Real Property Actions and P ro c e e d in g s Law ("RPAPL") § 735. Plaintiff was not served with the Notice to Q u it. Plaintiff was evicted from the Property on March 23, 2007 by the Steuben C o u n ty Sheriff. P la in tiff commenced this diversity action on March 18, 2008. The c o m p la in t contains eight claims:

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(1 )

A violation of New York's "Truth-in-Storage" Act, N.Y. Gen. Bus. Law § § 605­610; In te n tio n a l torts; C o n v e r s io n ; A violation of Fifth Amendment due process rights by way of a v io la tio n of the notice requirements in N.Y. RPAPL § 1511 for fo r e c lo s u r e s ; A violation of N.Y. RPAPL § 713 and its notice requirements for e v ic tio n ; A violation of N.Y. CPLR 735 and its notice requirements for special p r o c e e d in g s such as eviction proceedings; 2 A violation of CPLR 3215 and its notice requirements for default ju d g m e n ts ;3 and A violation of N.Y. Gen. Bus. Law § 607 against a since-terminated d e fe n d a n t.4 In lieu of answering, defendant made a motion to d is m is s on June 1, 2009.

(2) (3) (4)

(5)

(6)

(7 )

(8 )

S in c e January 2009, plaintiff has made 13 motions containing a variety of re q u e s ts . Three of the motions have been adjudicated:

There is no provision in New York's CPLR numbered 735. From the c o n te xt of the claim, the Court will infer for this decision that plaintiff meant to re fe r to CPLR Article 4, which does govern special proceedings. T h e Court will assume from context that plaintiff's reference to "NYS C o n s o lid a te d Law Section 3215" means CPLR 3215, which governs default ju d g m e n t s .
4 3

2

P la in tiff has withdrawn the eighth claim in the complaint. (See Dkt. No. 6

a t 3.) 3

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O n January 14, 2009 (Dkt. No. 8), plaintiff made a motion to re vo k e an order to show cause that allegedly "was made b a s e d on the unlawful and ungranted Ex parte motion and/or communication between the chamber of Hon. Charles J. S ira g u s a and the attorney for the defendant." This motion was d e n ie d indirectly in light of an automatic bankruptcy stay that a ffe c te d this case when a prior defendant filed for bankruptcy; it was denied on more specific grounds in an Order entered on F e b ru a ry 9, 2009. O n January 30, 2009 (Dkt. No. 11), plaintiff made a motion to re p la c e the name of the former bankrupt defendant with that of th e current defendant, a request that this Court granted. The m o tio n also sought to name two of defendant's attorneys as d e fe n d a n ts themselves for violations of New York attorney d is c ip lin a r y rules, and to name another corporate entity as a d e fe n d a n t despite alleging no tortious conduct by this party. The Court denied the requests to name additional defendants in an Order entered on March 30, 2009. A ls o on June 9, 2009 (Dkt. No. 36), plaintiff made a motion for a n extension of time to respond to defendant's motion to d is m is s . The Court granted this motion to allow a more e xte n d e d response to the motion to dismiss, which plaintiff file d on July 10, 2009.

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T e n of plaintiff's motions are pending: (1 ) O n May 5, 2009 (Dkt. No. 26), plaintiff made a motion to v a c a te the Order of February 9, 2009, asserting that proper s e rv ic e of the complaint was made and again asserting that "th e re was Ex parte communication between the defendant's a tto rn e y and the Court." O n May 26, 2009 (Dkt. No. 27), plaintiff made a motion for re c o n s id e ra tio n of the second extension of defendant's time to a n s w e r to June 1, 2009, alleging, inter alia, that defendant re q u e s te d an extension relying on "an inexcusable false s ta te m e n t of fact interfering with the Court's fair and proper p ro c e e d in g and an obvious violation of The Lawyer Code of P ro fe s s io n a l Responsibility DR7-102 A." 4

(2 )

(3 )

O n June 9, 2009 (Dkt. No. 35), plaintiff made a motion to d is m is s her own action without prejudice "when the Court p ro ve s my service was improper and insufficient." O n June 22, 2009 (Dkt. No. 40), plaintiff made a motion for re c u s a l of this Court and Judge Siragusa, the pro se duty ju d g e who signed some of the initial orders in this case, b e c a u s e "someone in the court must switch [sic] the original d o c u m e n t s with the copy to nullify my service" and because "th is case is proceeding outrageously beyond the law and ru le s based on unlawful favoritism and prejudice." O n June 29, 2009 (Dkt. No. 43), plaintiff made a motion re q u e s tin g that this Court warn defendant's counsel "to comply w ith the Court Rules because her wild practice and wilful, re p e a te d violation beyond the rules and law is appalling." The a lle g e d violations included "[a] fraudulent using [sic] of the U .S . mail or the postal system [which] is a serious crime" and "fil[in g ] a false Certificate of Service based on perjury to the C o u rt on 6/23/2009 without serving me." O n July 2, 2009 (Dkt. No. 45), plaintiff made a motion to a m e n d or correct the Court's Order granting plaintiff's request fo r an extension of time, alleging, inter alia, that "[t]he Court's D o c k e t History on my Response is totally manipulated." O n July 20, 2009 (Dkt. No. 57), plaintiff made a motion to stay th is case because, inter alia, it "was and is proceeding beyond th e law and court rules," because the Court "is not sure which ju d g e is ruling this case currently," and because the motion for re c u s a l must be decided first to avoid further rulings "based on f a v o r i t is m . " A ls o on July 20, 2009 (Dkt. No. 58), plaintiff made a motion "(1 ) to give the defendant's attorney a warning to serve the d o c u m e n ts properly because it is not the first time, [and] (2) to o rd e r the defendant's attorney to serve on me immediately the w h o le genuine documents she filed to the Court properly for fa ir and proper proceeding," all based on a contention that c e rta in documents filed by defendant were not served.

(4 )

(5 )

(6 )

(7 )

(8 )

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(9 )

O n July 24, 2009 (Dkt. No. 59), plaintiff made a motion to s trik e certain documents as filed untimely, including a Notice o f Change of Address that defendant filed on July 16, 2009. A lso on July 24, 2009 (Dkt. No. 60), plaintiff made a motion to a m e n d the caption to reflect the change in defendant's name, b u t not before ordering defendant "to submit all of the d o c u m e n ts including when the acquisition between JP Morgan C h a s e and W M Specialty Mortgage LLC was made and the A r tic le s of the Incorporation of JPMC Specialty Mortgage LLC to prove `W M ' is now `JPMC.'" D IS C U S S I O N D e fe n d a n t's Motion to Dismiss

(1 0 )

D e fe n d a n t has made a motion to dismiss this case for three different re a s o n s . Defendant contends that all of plaintiff's claims are inextricably in te rtw in e d with the underlying foreclosure in state court and thus barred by the R o o k e r-F e ld m a n doctrine.5 Defendant contends further that the principle of res ju d ica ta bars plaintiff's claims because a final judgment of eviction was entered in s ta te court and "[t]he parties in that litigation were the same as those before this c o u rt." Finally, defendant contends that plaintiff's due process and Truth-inS to ra g e Act claims fail to state a justiciable claim against it. In opposition, plaintiff e m p h a s iz e s that she never received notice of the foreclosure and eviction p ro c e e d in g s , and that she was a tenant at will, not the mortgagor of the Property. Plaintiff also contends that the Rooker-Feldman doctrine does not apply because

See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Ct. of Appeals v . Feldman, 460 U.S. 462 (1983). 6

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th e essence of her claims is conversion, not the underlying judgments of fo r e c lo s u r e and eviction in themselves. "W h e n (as here) a jurisdictional challenge under Fed. R. Civ. P. 12(b)(1) is a d d re s s e d to the complaint, a court accepts as true all the factual allegations in the complaint and must draw all reasonable inferences in favor of the plaintiff." Lunney v. U.S., 319 F.3d 550, 554 (2d Cir. 2003) (citations omitted). Additionally, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual m a tte r, accepted as true, to state a claim to relief that is plausible on its face. A c la im has facial plausibility when the plaintiff pleads factual content that allows th e court to draw the reasonable inference that the defendant is liable for the m is c o n d u c t alleged." Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2 0 0 9 ) (internal quotation marks and citations omitted). D e fe n d a n t's inability to identify plaintiff as a named defendant served with p r o c e s s in the underlying state court proceedings makes dismissal of this case in a p p ro p ria te . Plaintiff has stated in her complaint that she was a tenant at the P ro p e rty, that she was not the mortgagor, that defendant did not serve her with a n y papers during the state court proceedings, and that she lost her personal p r o p e rty as a result. For purposes of this motion, the Court must accept these a lle g a tio n s as true. Additionally, however, defendant has not submitted any in form a tio n suggesting that plaintiff and any named defendant in the state court p ro c e e d in g s are the same person. Defendant also has admitted that "[n]o party 7

w ith the name Mee Jin-Jo (the Plaintiff in the instant case), was named or served w ith process in the foreclosure action." (Dkt. No. 29 at 5.) Meanwhile, plaintiff h a s alleged that defendant allowed plaintiff only three minutes to gather personal b e lo n g in g s when it took possession of the Property, and that it arranged with a n o th e r company to clear all personal belongings from the Property without a d vis in g plaintiff as to what those arrangements were. As a result, plaintiff s u c c e s s fu lly has alleged a lack of notice that, by itself, led to damages in d e p e n d e n t of the foreclosure and eviction. New York's Truth-in-Storage Act c o n ta in s a provision that creates a private right of action for damages resulting fro m a loss of personal property that violates that statute. See N.Y. Gen. Bus. L a w § 609(1) ("Any consumer bailor damaged by an unlawful detention of his g o o d s or any other violation of this article may bring an action for recovery of d a m a g e s and the return of his goods. Judgment may be entered in an amount n o t to exceed three times the actual damages plus reasonable attorneys fees."). Section 609(1) does not specify against whom an action may be brought "for recovery of damages." Although defendant argues in its motion that plaintiff s h o u ld have maintained this case against a moving company no longer named, th e plain language of Section 609(1) does not prevent plaintiff from establishing d u rin g discovery, if she can, that defendant somehow helped bring about an u n la w fu l detention of her property. Similarly, plaintiff's intentional tort and c o n ve rs io n claims are sufficiently pled that defendant is on notice of claims that 8

p la in tiff plausibly could establish during discovery. For these reasons, d e fe n d a n t's motion is denied as to the first (Truth-in-Storage Act), second (in te n tio n a l torts), and third (conversion) claims in plaintiff's complaint. L e g a l deficiencies, however, will require dismissal of the remaining claims in plaintiff's complaint. These claims--the fourth through seventh claims--allege vio la tio n s of notice requirements that defendant allegedly did not follow during the s ta te court proceedings. Unlike Section 609(1) of the General Business Law, n o n e of these statutes create a private right of action for violations thereof, in th e m s e lve s . W ith o u t private rights of action that this Court could adjudicate in d e p e n d e n tly, ruling in plaintiff's favor on these claims would imply that the state c o u rt overlooked important procedural defects, and that the state court p ro c e e d in g s were suspect as a result. Cf. Kropelnicki v. Siegel, 290 F.3d 118, 1 2 9 (2d Cir. 2002) ("[I]f adjudication of a claim in federal court would require the c o u rt to determine that a state court judgment was erroneously entered or was vo id , the claim is inextricably intertwined with the merits of the state court ju d g m e n t. W e re we to accept [plaintiff's] argument . . . our ruling would e ffe c tive ly declare the state court judgment fraudulently procured and thus void. This is precisely the result that the Rooker-Feldman doctrine seeks to avoid: `The R o o k e r-F e ld m a n doctrine provides that the lower federal courts lack subject m a tte r jurisdiction over a case if the exercise of jurisdiction over that case would re s u lt in the reversal or modification of a state court judgment.'") (citations 9

o m itte d ). This Court is obligated to give full faith and credit to the state court p ro c e e d in g s . See 28 U.S.C. § 1738. Plaintiff will have to pursue remedies in s ta te court if she wants to assert that the foreclosure and eviction proceeded in a w a y that deprived her of her right to appear in those proceedings or to respond to th e papers for those proceedings. For these reasons, defendant's motion is g ra n te d as to the fourth (notice under RPAPL § 1511), fifth (notice under RPAPL § 713), sixth (notice under CPLR Article 4), and seventh (notice under CPLR 3 2 1 5 ) claims in plaintiff's complaint. As stated in note 4 supra, plaintiff withdrew her eighth claim previously. P la in tiff's Motions, Generally T h e Court will assess each of plaintiff's pending motions individually. W h e n assessing plaintiff's motions, the Court will keep in mind that plaintiff has a p p e a re d pro se. "Because [plaintiff] is a pro se litigant, we read [the] supporting p a p e rs liberally, and will interpret them to raise the strongest arguments that they s u g g e s t." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (citation omitted). P la in t iff's Motion for Recusal (P e n d in g Motion No. 4 as Listed Above) P la in tiff has made a motion for recusal (Dkt. No. 40) of both this Court and J u d g e Siragusa from this case. Plaintiff asserted two reasons for recusal. First, p la in tiff expressed concern that the adequacy of service of process of the c o m p la in t was not resolved to her satisfaction, prompting her to allege that

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"s o m e o n e in the court must switch [sic] the original documents with the copy to n u llify my service." Second, plaintiff asserted, without explanation, that "this case is proceeding outrageously beyond the law and rules based on unlawful favo ritis m and prejudice." "In determining whether [28 U.S.C. § 455(a)] requires recusal, the a p p ro p ria te standard is objective reasonableness--whether an objective, d is in te re s te d observer fully informed of the underlying facts, [would] entertain s ig n ific a n t doubt that justice would be done absent recusal." U.S. v. Carlton, 534 F .3 d 97, 100 (2d Cir. 2008) (citations omitted). Here, plaintiff has not set forth a n y facts to assess under the standard of objective reasonableness. The a lle g a tio n about switching documents is unfounded--and in any event, as e xp la in e d below, any objections to service of process are deemed waived at this p o in t. Similarly, plaintiff has set forth no facts in the motion to explain in what way th is case has proceeded "outrageously" and what rules may have been violated. Since plaintiff's motion rests only on conclusory allegations, it is denied. S e r v ic e of Process (Motion Nos. 1, 3) P la in tiff has expressed a repeated concern about service of process. Plaintiff has made motions seeking clarification as to whether repeated service of p ro c e s s would be necessary in light of the docket entry of May 8, 2008, rejecting h e r waiver of service paperwork, and the Order of February 5, 2009, addressing h o w plaintiff would complete service. 11

"A party waives any defense listed in Rule 12(b)(2)-(5) by . . . omitting it fro m a motion in the circumstances described in Rule 12(g)(2)." Fed R. Civ. P. 1 2 (h )(1 )(A ); see also Fed. R. Civ. P. 12(g)(2) ("[A] party that makes a motion u n d e r this rule must not make another motion under this rule raising a defense or o b je c tio n that was available to the party but omitted from its earlier motion."). Here, defendant's pending motion to dismiss does not allege defective service of p ro c e s s . Defendant's other filings, including the motions for extensions of time to a n s w e r, did not allege defective service of process. Defendant consented to an a m e n d m e n t of the complaint in March 2009 without objecting that service of the c o m p la in t was improper. In short, defendant has litigated this case since at least J a n u a ry 26, 2009, the date of its first filing on the docket, without raising the issue o f service of process. Cf. Totalplan Corp. of Am. v. Lure Camera Ltd., 613 F. S u p p . 451, 456 (W .D .N .Y . 1985) (Elfvin, J.) ("By appearing on the instant motion w ith o u t objecting to any lack of service of process on himself, defendant . . . has s u b m itte d to this court's jurisdiction and waived any objection to the sufficiency of s e rvic e of process."). Any defects in service of process thus are no longer an iss u e in this case, and any objections to service of process are deemed waived. Accordingly, plaintiff's motions of May 5, 2009 (Dkt. No. 26) and June 9, 2009 (D k t. No. 35) are denied.

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M is c e lla n e o u s Motions P la in tiff's motion (Motion No. 2) of May 26, 2009 (Dkt. No. 27), which re q u e s ted reconsideration of a deadline extension that expired only six days later, is denied as moot. Plaintiff's motion (Motion No. 5) of June 29, 2009 (Dkt. No. 43) contains a lle g a tio n s that defendant did not serve plaintiff with the notice of bankruptcy filin g (Dkt. No. 9) or the papers (Dkt. Nos. 14­16) in opposition to plaintiff's m o tio n to amend of January 30, 2009. The notice of bankruptcy filing indicates at th e bottom that plaintiff was sent a copy. The certificate of service for the d e fen s e opposition papers referenced in this motion states that those papers w e re served by mail on March 9, 2009 to the address of 660 W e s t Robinwood S tre e t, Highland Park, Michigan 48203. Plaintiff used this address as her a d d re s s for several filings in January 2009. (See Dkt. Nos. 8, 11, 12.) Plaintiff u s e d a different address in a filing dated May 5, 2009, after the service of the d o c u m e n ts referenced in this motion. (See Dkt. No. 26.) Exactly when plaintiff c h a n g e d addresses is unclear, but if she changed addresses after defendant's s e rvic e then she is presumed to have received the papers at her address of re c o rd at that time. See Local Rule 5.2(d) ("A party appearing pro se must fu rn is h the Court with a current address at which papers may be served on the litig a n t. Papers sent to this address will be assumed to have been received by p la in tiff." ). On the other hand, if plaintiff changed addresses before defendant's 13

s e rvic e then she violated Local Rule 5.2(d) by failing to inform the Court of the c h a n g e , which defendant would have learned through the CM/ECF electronic filin g system. See id. ("[T]he Court must have a current address at all times. Thus, a pro se litigant must inform the Court immediately in writing of any change o f address. Failure to do so may result in dismissal of the case with prejudice.") Either way, defendant appears to have made a good-faith effort to serve plaintiff a t what was her last known address at the time in question. Plaintiff's motion th u s is denied. Plaintiff's motion (Motion No. 6) of July 2, 2009 (Dkt. No. 45) is denied as m o o t in light of the extension of time granted on June 23, 2009 and the s u p p le m e n ta l response that plaintiff subsequently filed (Dkt. No 46). P la in tiff's motion (Motion No. 7) to stay of July 20, 2009 (Dkt. No. 57) is d e n ie d as moot in light of the denial of the motion for recusal contained in this O rd e r. P la in tiff's additional motion (Motion No. 8) of July 20, 2009 (Dkt. No. 58) c o n ta in s an allegation that defendant failed to serve certain documents. In the m o tio n papers, however, plaintiff admits to receiving the reply papers in support o f the motion to dismiss, which would have covered Docket Nos. 47­49; the m e m o ra n d u m of law in opposition to the motion for recusal (Dkt. No. 51); and the N o tic e of Change of Address (Dkt. No. 55). The only document referenced in p la in tiff's motion that she has not admitted receiving is the affidavit in opposition 14

(D k t. No. 53) to plaintiff's motion of June 29, 2009. The certificate of service for th a t affidavit (Dkt. No. 54) indicates that defendant served that affidavit to all three a d d re s s e s that plaintiff has ever used in this case. Under these circumstances, p la in tiff's motion is denied. P la in tiff's motion (Motion No. 9) to strike (Dkt. No. 59) is denied for the re a s o n s stated in the preceding paragraph for denying the motion filed as Docket N o . 58. P la in tiff's motion (Motion No. 10) to amend (Dkt. No. 60) is denied in light o f the instruction to the Clerk of the Court contained in note 1 supra. CONCLUSION F o r all of the foregoing reasons: (1 ) A ll ten of plaintiff's pending motions--the motions of May 5, 2009

(D k t. No. 26); May 26, 2009 (Dkt. No. 27); June 9, 2009 (Dkt. No. 35); June 22, 2 0 0 9 (Dkt. No. 40); June 29, 2009 (Dkt. No. 43); July 2, 2009 (Dkt. No. 45); July 2 0 , 2009 (Dkt. Nos. 57 and 58); and July 24, 2009 (Dkt. Nos. 59 and 60)--are d e n ie d . (2 ) D e fe n d a n t's motion to dismiss (Dkt. No. 28) is GRANTED as to the

fo u rth (notice under RPAPL § 1511), fifth (notice under RPAPL § 713), sixth (n o tic e under CPLR Article 4), and seventh (notice under CPLR 3215) claims in p la in tiff's complaint, but DENIED as to the first (Truth-in-Storage Act), second (in te n tio n a l torts), and third (conversion) claims in the complaint. 15

(3 )

T h e Clerk of the Court is directed to amend the caption of the case

to list defendant's name as "JPMC Specialty Mortgage LLC," for the reason set forth in note 1 supra. (4 ) D e fe n d a n t is directed to answer the complaint within 20 days of the

e n try of this Order. (5 ) P u r s u a n t to Local Rule 83.2, defendant is directed to obtain local

c o u n s e l. Local counsel shall file a written notice of appearance with the Clerk of the Court within 20 days of the entry of this Order.

SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA CHIEF JUDGE UNITED STATES DISTRICT COURT DATED: August 5, 2009

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