Barlow v. Nationstar Mortgage LLC et al

Filing 20

ORDER ADOPTING 19 REPORT AND RECOMMENDATION that defendants' motions to dismiss 12 13 are granted; the complaint 1 is dismissed, and the Clerk of the Court is instructed to close this case. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 1/30/2017. (Chambers mailed a copy of Order to pro se plaintiff). (CMD) -CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________
MICHAEL BARLOW,
Plaintiff,

16-CV-818(LJV)(HKS)
ORDER

v.
NATIONSTAR MORTGAGE, INC., a
Delaware limited liability corporation;
BANK OF AMERICA, N.A., a national
corporation,
Defendants.
__________________________________
INTRODUCTION
On November 1, 2016, the Court referred this case to United States Magistrate
Judge H. Kenneth Schroeder, Jr., for all proceedings pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B). Docket Item 3. On November 29, 2016, both defendants
moved to dismiss. Docket Items 12, 13. On December 13, 2016, the plaintiff
responded to the defendants’ motions, Docket Items 15, 16, and on December 30,
2016, the defendants replied. Docket Items 17, 18.
On January 3, 2017, Judge Schroeder issued a Report and Recommendation
finding that the defendants’ motions should be granted. Docket Item 19. The parties
did not object to the Report and Recommendation, and the time to do so now has
expired. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
A district court may accept, reject, or modify, in whole or in part, the findings or
recommendation of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
A district court must conduct a de novo review of those portions of a magistrate judge’s

recommendation to which objection is made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b)(3). But neither 28 U.S.C. § 636 nor Federal Rule of Civil Procedure 72 requires a
district court to review the recommendation of a magistrate judge to which no objections
are addressed. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985).
Nevertheless, this Court has carefully reviewed Judge Schroeder’s Report and
Recommendation as well as the parties’ submissions to him. Based on that review and
the absence of any objections, the Court accepts and adopts Judge Schroeder’s
recommendation to grant the defendants’ motions.
DISCUSSION
The plaintiff asks this Court for relief with respect to a mortgage. He specifically
requests, among other things, an injunction of “any foreclosure activity” in connection
with property located at 6348 Ward Road, Sanborn, New York. See Docket Item 1 at
17-18. The New York State Supreme Court, Niagara County, entered a judgment of
foreclosure and sale on September 21, 2016, but the plaintiff claims that several
representations made in connection with the underlying loan were fraudulent, false, and
in violation of New York Business Law § 349. See id. at 5-9, 10-13, 14-17. The plaintiff
apparently did not appeal the foreclosure in the state court system, instead bringing the
action at bar.
Federal courts are not courts of appeal for litigants unhappy with a state court
decision. In fact, the Rooker-Feldman doctrine precludes federal court jurisdiction over
such matters. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284
(2005); see also District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983);
Rooker v. Fidelity Trust Co., 263 U.S. 413, 414-15 (1923). Rooker-Feldman applies

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when four factors are present: (1) the federal-court plaintiff lost in state court, (2) the
plaintiff seeks redress for injuries caused by the state court judgment, (3) the plaintiff
seeks federal court review of the state court judgment, and (4) the state court judgment
was issued before the federal action was filed. Hoblock v. Albany Cty Bd. of Elections,
422 F.3d 77, 85 (2d Cir. 2005).
Here, the plaintiff concedes that the third and fourth factors are satisfied. See,
e.g., Docket Item 15 at 4; Docket Item 16 at 4. But the plaintiff claims that because he
“did not lose on the issues adjudicated in state court” and “does not complain of injuries
caused by the state court judgment,” Rooker-Feldman does not apply. Docket Item 15
at 4; Docket Item 16 at 4. The plaintiff is incorrect.
First, it appears that the plaintiff actually argued the issue of allegedly false and
fraudulent representations in the state court foreclosure proceeding—and lost. See
Docket Item 13-12 at 2-3; see also Docket Item 19 at 8. Even if he had not argued that
issue, however, the plaintiff explicitly attacks the state court judgment rendered against
him: he invites this Court to review and reject that judgment. See Docket Item 15 at 3-4;
Docket Item 16 at 3-4. Because the plaintiff asks this Court to review and reject a state
court judgment, he must have lost in state court; otherwise, why bring the federal court
action asking that the judgment be rejected?
Second, the state court judgment was the vehicle by which the defendants’
alleged misrepresentations and fraud actually injured the plaintiff. The allegedly false
representations—about an escrow deficiency, a “new unpaid principal balance,” etc.—
did not result in actual injury to the plaintiff until the state court’s judgment of foreclosure
was entered. For that reason as well, the second factor of Rooker-Feldman is met.

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In sum, attacks on state court judgments of foreclosure are “clearly barred by the
Rooker-Feldman doctrine.” Niles v. Wilshore Inv. Grp., LLC, 859 F. Supp. 2d 308, 334
(E.D.N.Y. 2012); see also Ashby v. Polinsky, 328 F. App’x 20 (2d Cir. 2009) (summary
order) (affirming lower court’s dismissal for lack of subject matter jurisdiction). This
case is precisely an attack on the New York state court’s foreclosure judgment. For that
reason, and as Judge Schroeder concluded, the Court lacks jurisdiction over this
matter.
ORDER
For the reasons stated above and in the Report and Recommendation, and
pursuant to Fed. R. Civ. P. 12(b)(1), the defendants’ motions to dismiss (Docket Items
12, 13) are GRANTED; the complaint (Docket Item 1) is DISMISSED; and the Clerk of
the Court is instructed to close this case.

SO ORDERED.
Dated: January 30, 2017
Buffalo, New York
s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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