Buczek v. HSBC N.A. et al

Filing 13

DECISION AND ORDER GRANTING Plaintiff's 2 Motion to Proceed In Forma Pauperis; DISMISSING with prejudice Plaintiff's federal claims; DECLINING to exercise supplemental jurisdiction over Plaintiff's state claims, which are DISMISSED without prejudice under 28 U.S.C. § 1367(c)(3); DENYING leave to amend; CERTIFYING pursuant to 28 U.S.C. § 1915(a)(3) and Rule 24 (a)(3) of the Federal Rules of Appellate Procedure, that any appeal from this Decision and Order would not be taken in good faith and therefore leave to appeal as a poor person is DENIED; DIRECTING the Clerk of Court to TERMINATE all pending motions and then CLOSE this case. Signed by William M. Skretny, United States District Judge on 3/26/2017. (MEAL) - CLERK TO FOLLOW UP - Copy mailed to Plaintiff.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DEBORAH ANN BUCZEK,
Plaintiff,
v.

DECISION AND ORDER
15-CV-830S

HSBC N.A., ET AL.,
Defendants.

I. INTRODUCTION
Presently before this Court is pro se Plaintiff Deborah Ann Buczek’s complaint
and Motion for Leave to Proceed In Forma Pauperis. (Docket Nos. 1 and 2.) Because
Buczek meets the statutory requirements of 28 U.S.C. § 1915 (a), her request to
proceed in forma pauperis will be granted. The granting of this status triggers the
screening provisions in 28 U.S.C. § 1915 (e)(2)(B). For the following reasons, Buczek’s
complaint will be dismissed.
II. BACKGROUND
Cognizant of the distinct disadvantage that pro se litigants face, federal courts
routinely read their submissions liberally and interpret them to raise the strongest
arguments that they suggest. See Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594,
596, 30 L. Ed. 2d 652 (1972); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Since Buczek is proceeding pro se, this Court has considered her submissions and
arguments accordingly.

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Under 28 U.S.C. § 1915 (e)(2)(B), a court must dismiss a case in which in forma
pauperis status has been granted if, at any time, the court determines that the action (i)
is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief. If the
court plainly lacks jurisdiction to consider the complaint, dismissal of the complaint as
“frivolous” under 28 U.S.C. § 1915 (e)(2) is proper. See McGann v. Comm’r, Soc. Sec.
Admin., 96 F.3d 28, 30 (2d Cir. 1996). The screening process is intended to be “an
efficient means by which a court can screen for and dismiss legally insufficient claims.”
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citing Shakur v. Selsky, 391 F.3d
106, 112 (2d Cir. 2004)).
Section 1915 (e)(2)(B) and Rule 12 (b)(6) of the Federal Rules of Civil Procedure
allow for dismissal of a complaint for failure to state a claim upon which relief can be
granted. Federal pleading standards are generally not stringent: Rule 8 requires only a
short and plain statement of a claim. FED. R. CIV. P. 8 (a)(2). “Specific facts are not
necessary;” the plaintiff “need only ‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.
Ct. 2197, 167 L. Ed. 2d 1081 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 127 S. Ct. 1955, 1966, 167 L. Ed. 2d 929 (2007)) (internal quotation and citation
omitted). But the plain statement must “possess enough heft to show that the pleader is
entitled to relief.” Twombly, 550 U.S. at 555.
When determining whether a complaint states a claim, the court must construe it
liberally, accept all factual allegations as true, and draw all reasonable inferences in the
plaintiff’s favor. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.

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2007).

Legal conclusions, however, are not afforded the same presumption of

truthfulness. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d
868 (2009) (“the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions”).
To survive, “a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S.Ct. at 1945 (quoting
Twombly, 550 U.S. at 570).

Labels, conclusions, or “a formulaic recitation of the

elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Facial plausibility
exists when the facts alleged allow for a reasonable inference that the defendant is
liable for the misconduct charged. Iqbal, 129 S.Ct. at 1949. The plausibility standard is
not, however, a probability requirement: the pleading must show, not merely allege, that
the pleader is entitled to relief. Id. at 1950; FED. R. CIV. P. 8 (a)(2). Well-pleaded
allegations in the complaint must nudge the claim “across the line from conceivable to
plausible.” Twombly, 550 U.S. at 570.
A two-pronged approach is thus used to examine the sufficiency of a complaint,
which includes “any documents that are either incorporated into the complaint by
reference or attached to the complaint as exhibits.” Blue Tree Hotels Inv. (Can.), Ltd. v.
Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). This
examination is context specific and requires that the court draw on its judicial
experience and common sense. Iqbal, 129 S.Ct. at 1950. First, statements that are not
entitled to the presumption of truth, such as conclusory allegations, labels, and legal
conclusions, are identified and stripped away. See Iqbal, 129 S.Ct. at 1950. Second,
well-pleaded, non-conclusory factual allegations are presumed true and examined to

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determine whether they “plausibly give rise to an entitlement to relief.” Id. “Where the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct,” the complaint fails to state a claim. Id.
In pro se actions, the United States Supreme Court has rejected the idea that the
plausibility standard requires amplification with factual allegations to render the claim
plausible. In Erickson, the Supreme Court reversed the dismissal of a prisoner’s Eighth
Amendment claim, holding that the court of appeals had “depart[ed] from the liberal
pleading standards” of Rule 8(a). Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008)
(quoting Erickson, 127 S.Ct. at 2200). Although the Court did not clarify when the
plausibility standard requires factual amplification, it noted that “a pro se complaint
however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson, 127 S.Ct at 2200 (quoting Estelle v. Gamble,
429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)).
Upon determination that a pro se complaint is deficient, a court will generally
afford the plaintiff an opportunity to amend or to be heard before dismissal, “unless the
court can rule out any possibility, however unlikely it might be, that an amended
complaint would succeed in stating a claim.” Abbas, 480 F.3d at 639 (2d Cir. 2007)
(quoting Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999) (per
curiam)). But leave to amend need not be afforded when amendment would be futile,
such as when the proposed claim could not withstand a Rule 12 (b)(6) motion. See
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.
2002).

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Buczek’s complaint in this case—spanning a bewildering 471 pages, with
attachments—is a disconnected aggregation of citations and excerpts from various legal
authorities, newspapers, and unidentified sources that serve only to obfuscate what
appears to be Buczek’s attempt to rescind a 23-year-old loan secured by her primary
dwelling, to have her past loan payments returned to her, and to collect actual and
statutory damages. Although Buczek scatters references to various criminal and civil
statutes throughout her complaint, including the Fair Debt Collection Practices Act, “Civil
RICO,” “defamation of character,” and the False Claim Act, her scant factual allegations
relate only to claims under the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601, et seq.,
and possibly N.Y. Gen. Bus. Law § 349. Consequently, any federal claims under any
statutes other than TILA are dismissed for failure to state a claim upon which relief can
be granted.
The only claim that can be gleaned from Buczek’s complaint is that various
individuals and entities violated TILA (and possibly N.Y. Gen. Bus. Law § 349) by failing
to recognize her rescission of “a note for $110,536” executed on April 20, 1994, which
was secured by her principal dwelling at 7335 Derby Road in Derby, N.Y. (Complaint,
¶¶ 61, 62-64.) Buczek alleges that she exercised her right to rescind this transaction on
July 20, 2015, when she sent written correspondence to “all known parties in interest.”
(Complaint, ¶ 69.) The basis for Buczek’s rescission is that she did not receive certain
documents required under TILA at the time the note was executed. (Complaint, ¶ 65.)
Buczek alleges that the defendants ignored her rescission correspondence or, in the
case of Defendant HSBC N.A., refused to accept it. (Complaint, ¶¶ 71, 72, 76.)

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Buczek asserts that she properly rescinded the note under 15 U.S.C. § 1635.
(Complaint, ¶ 73.) She seeks a declaration to that effect as well as actual and statutory
damages.
III. DISCUSSION
A.

Truth in Lending Act
TILA was enacted “to assure a meaningful disclosure of credit terms so that the

consumer will be able to compare more readily the various credit terms available to him
and avoid the uninformed use of credit, and to protect the consumer against inaccurate
and unfair credit billing and credit card practices.” 15 U.S.C. § 1601 (a).
Under TILA, a borrower who enters a credit transaction secured by his or her
principal dwelling has a statutory right to rescind the transaction “until midnight of the
third business day following the consummation of the transaction,” or until the lender
delivers certain forms and disclosures required by TILA, whichever is later. See 15
U.S.C. § 1635 (a); Beach v. Ocwen Fed. Bank, 523 U.S. 410, 411, 118 S. Ct. 1408, 140
L. Ed. 2d 566 (1998) (“Under [TILA], when a loan made in a consumer credit transaction
is secured by the borrower’s principal dwelling, the borrower may rescind the loan
agreement if the lender fails to deliver certain forms or to disclose important terms
accurately.”). If the lender fails to provide the forms and disclosures required by TILA,
the borrower’s right to rescind expires three years after the consummation date of the
transaction or upon the sale of the property, whichever occurs first. See 15 U.S.C. §
1635 (f).

At the end of the three-year period, the borrower’s right to rescind is

“completely extinguish[ed].” Beach v. Ocwen Fed. Bank, 523 U.S. 410, 413, 118 S. Ct.
1408, 140 L. Ed. 2d 566 (1998) (noting that § 1635 (f) governs “the life of the underlying
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right [of rescission],” as distinguished from simply limiting the time for bringing a suit,
and observing that [§ 1635 (f)] “talks not of a suit’s commencement but of a right’s
duration”). This is so even if the disclosures required under TILA are never made. Id.
at 413; Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790, 792, 190 L. Ed. 2d
650 (2015) (“Even if a lender never makes the required disclosures, the “right of
rescission shall expire three years after the date of consummation of the transaction or
upon the sale of the property, whichever comes first.” (quoting 15 U.S.C. § 1635 (f))
(emphasis in original)).
The TILA claim here is time-barred. Buczek alleges that she did not receive all of
the forms and disclosures required by TILA at the time she executed the note—on April
20, 1994. (Complaint, ¶¶ 62, 63, 65.) She further alleges that she attempted to rescind
these transactions under TILA by written correspondence sent on July 20, 2015, more
than 21 years later. (Complaint, ¶ 69.) This attempted rescission thus came well after
the three-year rescission period expired. It is therefore untimely. Because Buczek’s
right to rescind the note has been forever extinguished, see Beach, 523 U.S. at 413, her
TILA claim must be dismissed as to each defendant for failure to state a claim upon
which relief can be granted.
B.

State Claims
Having disposed of Buczek’s federal claims, this Court finds it appropriate to

decline to exercise supplemental jurisdiction over whatever state claims may be
cognizable in the complaint. See 28 U.S.C. § 1367(c)(3). The United States Supreme
Court has instructed that courts should ordinarily decline to exercise supplemental

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jurisdiction in the absence of federal claims. See Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 n. 7, 108 S. Ct. 614, 98 L. Ed. 2d 720 (1988) (noting that in the usual
case where all federal claims are eliminated before trial, the relevant factors informing
the decision of whether to exercise supplemental jurisdiction will “point towards
declining to exercise jurisdiction over the remaining state-law claims”); United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966)
(“Certainly, if the federal claims are dismissed before trial, . . . the state claims should
be dismissed as well.”).
The Second Circuit shares this view: where “federal-law claims are eliminated
before trial, the balance of factors to be considered under the pendent jurisdiction
doctrine—judicial economy, convenience, fairness, and comity—will point toward
declining to exercise jurisdiction over the remaining state-law claims.” Valencia ex rel.
Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003); see also Marcus v. AT&T Corp., 138
F.3d 46, 57 (2d Cir. 1998) (“In general, where the federal claims are dismissed before
trial the state claims should be dismissed as well.”)
Accordingly, this Court declines to exercise supplemental jurisdiction over
whatever state claims may be present in Buczek’s complaint.

They are instead

dismissed without prejudice under 28 U.S.C. § 1367(c)(3).
C.

Leave to Amend
The Second Circuit has held that “a district court should not dismiss a pro se

complaint without granting leave to amend at least once, unless amendment would be
futile.” Garcia v. Superintendent of Great Meadow Corr. Facility, 841 F.3d 581, 583 (2d
Cir. 2016) (per curiam) (internal quotation marks omitted). Amendment would indeed
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be futile here, where Buczek’s rescission claim has been forever extinguished.
Consequently, leave to amend will not be granted.
IV. CONCLUSION
Buczek’s TILA claim is barred by the applicable statute of repose, and therefore
must be dismissed with prejudice. Buczek’s state claims, however, will be dismissed
without prejudice.
V. ORDERS
IT HEREBY IS ORDERED, that Plaintiff’s Motion to Proceed In Forma Pauperis
(Docket No. 2) is GRANTED.
FURTHER, that Plaintiff’s federal claims are DISMISSED with prejudice.
FURTHER, that this Court declines to exercise supplemental jurisdiction over
Plaintiff’s state claims, which are DISMISSED without prejudice under 28 U.S.C. §
1367(c)(3).
FURTHER, that leave to amend is DENIED.
FURTHER, that this Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3)
and Rule 24 (a)(3) of the Federal Rules of Appellate Procedure, that any appeal from
this Decision and Order would not be taken in good faith and therefore leave to appeal
as a poor person is DENIED. See Coppedge v. United States, 369 U.S. 438, 82 S. Ct.
917, 8 L. Ed. 2d 21 (1962).

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FURTHER, that the Clerk of Court is directed to TERMINATE all pending
motions and then CLOSE this case.
SO ORDERED.

Dated:

March 26, 2017
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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