WARIDI v. STERN & EISENBERG et al

Filing 2

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 4/3/2017. 4/4/2017 ENTERED AND COPIES MAILED TO PRO SE.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ZENOBIA WARIDI

CIVIL ACTION

v.
STERN & EISENBERG, et al.

NO. 17-1329
MEMORANDUM OPINION

RUFE, J.

APRI(J , 2017

Plaintiff Zenobia Waridi brings this civil action based on foreclosure proceedings that
have been ongoing since 2002. She seeks leave to proceed informa pauperis. The Court will
grant plaintiff leave to proceed in forma pauperis and dismiss her complaint without prejudice to
her filing an amended complaint.
I.

FACTS 1

Although the manner in which the complaint is pled makes the nature of plaintiffs claims
somewhat unclear, the Court understands plaintiff to be raising claims based on foreclosure
proceedings involving her home and various banks' efforts to collect on her mortgage debt.
Plaintiff alleges that National Penn Bank, which apparently initiated foreclosure proceedings
against her in 2002, violated its "mandatory fiduciary responsibilities by failing to file and
misfile documents required by law and not following the Judge[']s orders." (Compl. at 2.)
National Penn Bank apparently received a judgment against plaintiff contingent upon attending
an assessment hearing. However, plaintiff alleges that the judge presiding over the case did not
assess an amount she owed due to the bank's failure to attend that hearing.

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The following facts are taken from the complaint.
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National Penn Bank sold plaintiffs debt to Christiana Bank, which filed a new case
against her in 2009. Plaintiff filed a counterclaim, claiming violations of the Fair Debt
Collection Practices Act. She contends that the 2009 case should have been dismissed "based on
RES JUDICATA, which was uncovered by Legal Aid in 2013." (Compl. at 3.)
Plaintiffs mortgage debt has continuously been sold to different financial entities over
the years, including U.S. Bank, Deutsche Bank, Wilmington Savings Fund Society, and Equity
Trust Company. With each sale, the most recent owner of the debt has attempted to collect from
plaintiff. Plaintiff claims that Christiana Bank and U.S. Bank failed to send her an Act 91 notice
prior to foreclosing on her and failed to provide an accurate payment history. She also contends
that "the banks continued to pass on distorted and inflated amounts of the debt." (Compl. at 4.)
It also appears from plaintiffs allegations that one of the banks was awarded summary

judgment, despite her belief that her counterclaim should have prevented the case from moving
forward. Plaintiff claims that "the banks have used [her] lack of income, gender, age and race to
continue to fight [her] with aggressive lawyers in a case that should have been dismissed in 2009
based on the fact that the case had been tried and a judgment awarded in their favor." (Compl. at
3.)
On March 24, 2017, plaintiff filed her complaint in this Court. The caption of the
complaint names the following three defendants: Stem & Eisenberg, Equity Trust Company
FBO, and Dennis T. Regan. However, the second page of the complaint lists the defendants as
Equity Trust Company FBO, Stem & Eiseberg, Christiana Bank, U.S. Bank, and Wilmington
Savings Fund Company. Plaintiff asks this court to stop the foreclosure proceedings because
"the banks violated state and federal laws." (Compl. at 4.) She also asks the Court to "find in

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favor of RES JUDI CATA," dismiss the 2009 case, and "[a]ct in favor of [her] counterclaim for
[her] home to be awarded to [her] free and clear." (Id.) She also seeks damages.

II.

STANDARD OF REVIEW

Plaintiffs motion to proceed in forma pauperis is granted because it appears that she is
incapable of paying the fees to commence this civil action. Accordingly, 28 U.S.C. §
1915(e)(2)(B)(ii) requires the Court to dismiss the complaint if it is frivolous or fails to state a
claim. To survive dismissal for failure to state a claim, the complaint must contain "sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). "[M]ere conclusory statements[] do not
suffice." Id. Additionally, the Court may dismiss claims based on an affirmative defense if the
affirmative defense is obvious from the face of the complaint. See Fogle v. Pierson, 435 F.3d
1252, 1258 (10th Cir. 2006); cf Ball v. Famiglio, 726 F.3d 448, 459 (3d Cir. 2013). As plaintiff
is proceedingpro se, the Court must construe her allegations liberally. Higgs v. Att'y Gen., 655
F.3d 333, 339 (3d Cir. 2011). Furthermore, "[i]fthe court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3).

III.

DISCUSSION

The primary problem with the complaint is that the manner in which it is plead makes it
difficult for the Court to determine who plaintiff seeks to sue and what, precisely, each defendant
did. As noted above, plaintiff identified three defendants in the caption of the complaint in
accordance with Federal Rule of Civil Procedure lO(a), and five defendants on the second page
of her complaint, only two of whom are the same as the defendants listed in the caption. In the
body of the complaint, plaintiff does not indicate what each of the defendants did so as to give
rise to a claim. For instance, defendants Regan and Stern & Eisenberg are identified in the

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caption, but they are not mentioned anywhere in the complaint. Accordingly, plaintiff has not
stated a claim against those defendants.
The remaining entities either identified as a defendant in the caption or listed as a
defendant on page two of the complaint are all financial entities that, according to the complaint,
owned plaintiffs debt at some point during the fifteen years of litigation. The Court understands
plaintiff to be raising claims against some or all of those defendants pursuant to the Fair Debt
Collection Practices Act (FDCPA) based on their initiation and/or pursuit of foreclosure
proceedings against her in attempt to collect on her mortgage debt. Although it is unclear, the
gist of plaintiffs allegations appears to be that the defendants engaged in unfair or deceptive
debt collection practices by repeatedly misrepresenting the amount of her mortgage debt,
pursuing a foreclosure action that should be barred by res judicata, and possibly by taking
advantage of her "lack of income, gender, age, and race" to aggressively pursue the foreclosure
proceedings. (Compl. at 4.)
The Rooker-Feldman doctrine deprives federal district courts of jurisdiction over claims
that are essentially appeals from state court judgments. Great W. Mining & Mineral Co. v. Fox
Rothschild L.L.P., 615 F.3d 159, 165 (3d Cir. 2010). "[F]our requirements ... must be met for

the Rooker-Feldman doctrine to apply: (1) the federal plaintiff lost in state court; (2) the plaintiff
'complain[s] of injuries caused by [the] state-courtjudgments'; (3) those judgments were
rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court to
review and reject the state judgments." Id. at 166. It appears that a judgment was entered
against plaintiff in the foreclosure proceeding and that, to some extent, she seeks review and
rejection of that judgment because it has caused her injuries. Pursuant to the Rooker-Feldman
doctrine the Court lacks jurisdiction over any of plaintiff's claims seeking review and rejection

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of the judgment in the foreclosure proceeding. See Gilarmo v. US Bank NA ex rel. CSAB

Mortgage Backed Trust 2006-1, 643 F. App'x 97, 100 (3d Cir. 2016) (per curiam) ("[T]o the
extent that Gilarmo complained of injuries caused by the state court foreclosure judgment and
invited the Court to review it and reject it, subject matter jurisdiction was lacking.").
To the extent plaintiffs claims are not barred by the Rooker-Feldman doctrine, they
suffer from other deficiencies. The FDCP A prohibits debt collectors from using false,
misleading, deceptive, unfair, or unconscionable means of collecting a debt. See 15 U.S.C. §§
1692e & 1692f. Private litigants are limited to a damages remedy under the FDCPA. See Weiss

v. Regal Collections, 385 F.3d 337, 342 (3d Cir. 2004), abrogated on other grounds by
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016); see also Franklin v. GMAC Mortg., 523
F. App'x 172, 173 (3d Cir. 2013) ("Franklin is not entitled to injunctive relief under the
FDCPA."). Accordingly, plaintiff is not entitled to an injunction interfering with the foreclosure
proceedings in state court based on alleged violations of the FDCPA. 2

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In any event, pursuant to the Anti-Injunction Act, "[a] court of the United States may not grant
an injunction to stay proceedings in a State court except as expressly authorized by Act of
Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."
28 U.S.C. § 2283. Several district courts in this circuit have held that the Anti-Injunction Act
precludes a federal court from enjoining state court eviction or foreclosure proceedings. See, e.g.,
Coppedge v. Conway, No. CV 14-1477-GMS, 2015 WL 168839, at **1-2 (D. Del. Jan. 12, 2015)
(Anti-Injunction Act prohibited federal court from enjoining sheriffs sale ordered by state
court); Rhett v. Div. of Hous., Dep't ofCmty. Affairs, No. CIV.A. 14-5055 SRC, 2014 WL
7051787, at *3 n.2 (D.N.J. Dec. 12, 2014) ("[T]o the extent Plaintiff requests that this Court
dismiss the eviction proceedings or order them transferred to this Court, the Anti-Injunction Act
prohibits this Court from taking such action."); E. Liggon-Redding v. Generations, No. 143191(JBS), 2014 WL 2805097, at *2 (D.N.J. June 20, 2014) (holding that under the AntiInjunction Act, federal courts generally "lack the authority to stay any state court proceedings,
including Eviction Actions" (quotations omitted)); Mason v. Bank ofAm., N.A., No. CIV.A. 133966, 2013 WL 5574439, at *7 (E.D. Pa. Oct. 10, 2013) ("Courts within the Eastern District of
Pennsylvania have declined to enjoin state court proceedings involving foreclosures and sheriffs
sales pursuant to the Anti-Injunction Act."). Thus, the Anti-Injunction Act provides another
reason why this Court cannot enjoin the foreclosure proceedings in state court.
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"A claim under the FDCPA 'may be brought ... within one year from the date on which
the violation occurs."' Glover v. FD.JC., 698 F.3d 139, 148 (3d Cir. 2012) (quoting 15 U.S.C. §
1692k(d)). When a FDCPA claim is based on a defendant's allegedly improper initiation of
litigation to collect a debt, the FDCPA's one-year statute of limitations accrues at the latest when
the plaintiff is served with process. See Schaffoauser v. Citibank (SD.) NA., 340 F. App'x 128,
130-31 (3d Cir. 2009) (per curiam); Hua v. Mortg., No. 14-7821(JBS/AMD),2015 WL
5722610, at *3 (D.N.J. Sept. 29, 2015). Accordingly, it is apparent from the complaint that
plaintiffs claims based on the initiation of foreclosure proceedings against her in 2002 and 2009
are time-barred.
It is not clear whether plaintiff has a basis for FDCPA claims that are not barred by the

one-year statute of limitations and, if so, what the factual basis is for those claims and which of
the defendants' conduct is at issue. Accordingly, plaintiff will be given leave to file an amended
complaint.

IV.

CONCLUSION

For the foregoing reasons, the Court will dismiss plaintiffs complaint. She may file an
amended complaint in accordance with the Court's order, which follows this memorandum.

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