El Bey v. Nationstar Mortgage LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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VICTORY ASAD EL BEY, f/k/a VINSON

MCCRAE,

NOT FOR PUBLICATION

Plaintiff,

MEMORANDUM & ORDER

v. 20-CV-2187 (MKB)

NATIONSTAR MORTGAGE LLC, SHAPIRO,

DiCARO & BARAK LLC, and MR. COOPER,

Defendants.

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MARGO K. BRODIE, United States District Judge:

Plaintiff Victory Asad El Bey, formerly known as Vinson McCrae, proceeding pro se,

commenced the above-captioned action on May 14, 2020, against Defendants Nationstar

Mortgage LLC (“Nationstar”), Shapiro DiCaro & Barak LLC, and Mr. Cooper, disputing a

judgment of foreclosure and sale of real property located at 176-10 129th Avenue, Jamaica, New

York (the “Property”) entered on February 18, 2020 in New York Supreme Court, Queens

County, under Index No. 712187/2016 (the “State Foreclosure Action”). (Compl. 7, Docket

Entry No. 1.)1 Because, as explained below, the Court lacks subject matter jurisdiction, the

Court dismisses the Complaint and grants Plaintiff thirty (30) days from the date of this

Memorandum and Order to file an amended complaint.

I. Background

The Court assumes the truth of the factual allegations in the Complaint for purposes of

this Memorandum and Order.

1 Because the Complaint is not consecutively paginated, the Court refers to the page

numbers assigned by the Electronic Case Filing (“ECF”) system.

Plaintiff attaches to his form Complaint an Order Confirming Referee Report and

Judgment of Foreclosure and Sale that was signed by a judge in the State Foreclosure Action and

filed and recorded in the Queens County Clerk’s Office on February 18, 2020 (the “Foreclosure

Judgment”). (Compl. 7.) According to the Foreclosure Judgment, on March 12, 2016,

Defendant Nationstar initiated the State Foreclosure Action against Plaintiff and others in

Queens County Supreme Court to foreclose on a mortgage on the Property. (Id. at 8.) On March

25, 2019, Nationstar moved for a judgment of foreclosure and sale, which the state court granted

on February 18, 2020. (See id. at 8–17.)

Defendants are the mortgage company, its law firm, and an agent, Mr. Cooper,2

apparently because of their involvement in the State Foreclosure Action. (See id. at 7–8, 13.) In

the Complaint, Plaintiff alleges that Nationstar “never submitted the original note upon request

($375,031.00),” and asserts the following statement of claim:

I am a Moor/Muur and have provided all necessary proof. I have

received threatening letters and phone calls dates include 3/25/19,

5/22/19, 2/19/20. I (Pro Se) was never notified of court dates and

decision was made. I am a creditor.

(Id. at 1, 5.) Plaintiff alleges that Nationstar “has taken the private property under extreme

duress and threat of violence.” (Id. at 6.) He seeks unspecified “damages in equity.” (Id.)

II. Discussion

a. Standard of review

A complaint must plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the

2 Plaintiff does not provide Mr. Cooper’s full name. Mr. Cooper appears to be the law

firm’s agent responsible for submitting an affidavit of merit and amount due in the State

Foreclosure Action. (Compl. 8.)

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.

2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations contained

in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal,

556 U.S. at 678. In reviewing a pro se complaint, the court must be mindful that a plaintiff’s

pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S.

97, 106 (1976)); see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that after Twombly,

the court “remain[s] obligated to construe a pro se complaint liberally”).

In addition, if the court “determines at any time that it lacks subject-matter jurisdiction,

the Court must dismiss the action.” Fed. R. Civ. P. 12(h)(3); see also Cortlandt St. Recovery

Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 416–17 (2d Cir. 2015) (A district court may

dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) when the court

“lacks the statutory or constitutional power to adjudicate it . . . .” (quoting Makarova v. United

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

b. The Court lacks subject matter jurisdiction

Because Plaintiff seeks to challenge the state court’s final Foreclosure Judgment, his

claim is barred by the Rooker-Feldman doctrine.

In Rooker v. Fidelity Trust Company, 263 U.S. 413, 415–16 (1923) and District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486–87 (1983), the Supreme Court held

that federal district courts lack subject matter jurisdiction over disputes where a plaintiff

essentially seeks review of a state-court decision. Feldman, 460 U.S. at 482 (“[A] United States

District Court has no authority to review final judgments of a state court in judicial

proceedings.”); Rooker, 263 U.S. at 416 (holding that “no court of the United States other than

[the Supreme Court] could entertain a proceeding to reverse or modify [a state court’s] judgment

for errors”); see also Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283–84

(2005) (holding that Rooker-Feldman bars “cases brought by state-court losers complaining of

injuries caused by state-court judgments rendered before the district court proceedings

commenced and inviting district court review and rejection of those judgments”); Vossbrinck v.

Accredited Home Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014) (“Under the Rooker-Feldman

doctrine, federal district courts lack jurisdiction over cases that essentially amount to appeals of

state court judgments.” (citing Exxon Mobil Corp., 544 U.S. at 284)). “Underlying the Rooker-

Feldman doctrine is the principle, expressed by Congress in 28 U.S.C. § 1257, that within the

federal judicial system, only the Supreme Court may review state-court decisions.” Hoblock v.

Albany Cty. Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005); Vossbrinck, 773 F.3d at 426 (“The

doctrine is rooted in the principle that appellate jurisdiction to reverse or modify a state-court

judgment is lodged exclusively in the Supreme Court.” (alteration, citation and internal quotation

marks omitted)).

In order for the Rooker-Feldman doctrine to apply, the following four-part test must be

satisfied: “(1) the federal-court plaintiff lost in state court; (2) the plaintiff complains of injuries

caused by a state[-]court judgment; (3) the plaintiff invites review and rejection of that judgment;

and (4) the state judgment was rendered before the district court proceedings commenced.”

Vosbrinck, 773 F.3d at 426 (alterations and internal quotation marks omitted) (quoting Hoblock,

422 F.3d at 85); see also McKithen v. Brown, 626 F.3d 143, 154 (2d Cir. 2010) (outlining

the Rooker-Feldman test).

Plaintiff appears to challenge the Foreclosure Judgment entered on February 18, 2020,

by asserting that he was “never notified of court dates and decision,” and further asserting that

Nationstar “has taken the private property.” (Compl. 6.) To the extent Plaintiff is seeking to

either set aside the Foreclosure Judgment or seek damages because Nationstar foreclosed on the

Property, his claim is barred by the Rooker-Feldman doctrine because (1) Plaintiff lost in the

State Foreclosure Action which resulted in the Foreclosure Judgment; (2) Plaintiff’s alleged

injuries stem directly from the Foreclosure Judgment — his loss of the Property; (3) Plaintiff’s

federal Complaint invites review of the state court Foreclosure Judgment; and (4) Plaintiff filed

this action on May 14, 2020, approximately three months after the Foreclosure Judgment had

been filed and entered by the County Clerk’s office. (See Compl.) Because Plaintiff’s injury

stems from the adverse Foreclosure Judgment, review of that judgment is precluded under

Rooker-Feldman. See Vossbrinck, 773 F.3d at 427 (“To the extent [the plaintiff] asks the federal

court to grant him title to his property because the foreclosure judgment was obtained

fraudulently, Rooker–Feldman bars [his] claim.”).3

However, because Plaintiff seeks monetary damages, but does not specify the basis for

the damages (Plaintiff seeks “damages in equity,” and also alleges that he is a “creditor”),

broadly construing the allegations as asserting a claim that may not necessarily require the Court

3 Plaintiff’s reference to the “Treaty of Peace and Friendship,” (Compl. 4), does not

change this conclusion. See, e.g., Bey v. Barnett, No. 18-CV-3935, 2018 WL 5830815, at *1

(E.D.N.Y. Nov. 7, 2018) (finding in a case challenging family court proceedings that neither the

plaintiff’s reliance on the Treaty of Peace and Friendship nor the proposed Sundry Free Moors

Act of 2012 provided the court with jurisdiction); El v. O’Brien, No. 12-CV-01793, 2012 WL

2367096, at *3 (E.D.N.Y. June 20, 2012) (finding that the Treaty of Peace and Friendship

“simply has no relevance to [the p]laintiff's or [the d]efendants’ rights or obligations with respect

to a mortgage or property located in this state”); Bey v. City of Rochester, No. 11-CV-6457, 2012

WL 1565636, at *7 (W.D.N.Y. Apr. 30, 2012) (dismissing as frivolous the plaintiffs’ claim

against the city’s foreclosure of their property based on Treaty of Peace and Friendship and

references to the Rights of Indigenous Peoples).

to review the state court’s Foreclosure Judgment, the Court grants Plaintiff leave to amend the

Complaint. See Vossbrinck, 773 F.3d at 427; Worthy-Pugh v. Deutsche Bank Nat’l Tr. Co., 664

F. App’x 20, 21 (2d Cir. 2016) (“The Rooker–Feldman doctrine does not prevent a district court

from reviewing a claim for damages stemming from an allegedly fraudulent foreclosure

judgment, because the district court can determine damages liability without reviewing the

propriety of the state court judgment.”).

Accordingly, to the extent Plaintiff seeks to challenge the Foreclosure Judgment, such a

claim is barred by the Rooker-Feldman doctrine. To the extent Plaintiff is asserting a separate

claim for damages that does not implicate the Foreclosure Judgment, the Court grants Plaintiff

leave to file an amended complaint asserting such a claim. While a separate claim for damages

may well be barred by claim or issue preclusion,4 until Plaintiff has articulated his damages

claim, the Court is unable to determine whether it is so barred.

If Plaintiff amends the Complaint to assert a damages claim, Plaintiff must identify a

basis for the Court to exercise jurisdiction over any such claim. While Plaintiff identifies

4 “The doctrine of res judictata, or claim preclusion, holds that ‘a final judgment on the

merits of an action precludes the parties or their privies from relitigating issues that were or

could have been raised in that action.’” Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150,

157 (2d Cir. 2017) (quoting Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 284 (2d Cir.

2000); Proctor v. LeClaire, 715 F.3d 401, 411 (2d Cir. 2013). Under New York law, claim

preclusion bars a claim where “(1) the previous action involved an adjudication on the merits; (2)

the previous action involved the same adverse parties or those in privity with them; and (3) the

claims asserted in the subsequent action were, or could have been raised, in the prior

action.” Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d 102, 108 (2d Cir.

2015) (alterations and citation omitted). Relatedly, “[i]ssue preclusion, or collateral estoppel, . . .

applies not to claims or to causes of action as a whole but rather to issues . . . .” Proctor, 715

F.3d at 414. “Under New York law, collateral estoppel bars claims where (1) the issue in

question was actually and necessarily decided in a prior proceeding, and (2) the party against

whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first

proceeding.” Abdelal v. Kelly, 726 F. App’x 8, 11 (2d Cir. 2018) (quoting Colon v. Coughlin, 58

F.3d 865, 869 (2d Cir. 1995).

diversity of citizenship as a basis for the Court’s exercise of jurisdiction, Plaintiff also alleges

that both he and Shapiro DiCaro & Barak LLC are residents of New York State, defeating

diversity jurisdiction. See Bartlett v. Honeywell Int’l Inc., 737 F. App’x 543, 547 (2d Cir. 2018)

(“Diversity jurisdiction is present when there is complete diversity between the parties . . . .”

(citing 28 U.S.C. § 1332(a))); Pa. Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d

111, 117–18 (2d Cir. 2014) (“Subject matter jurisdiction is based on 28 U.S.C. § 1332, which

requires ‘complete diversity,’ i.e. all plaintiffs must be citizens of states diverse from those of all

defendants.”).

III. Conclusion

For the reasons set forth above, the Court dismisses the Complaint for lack of subject

matter jurisdiction. The Court grants Plaintiff thirty (30) days from the date of this

Memorandum and Order to file an amended complaint. The amended complaint must be

captioned “Amended Complaint” and bear the same docket number as this Memorandum and

Order. If Plaintiff fails to file an amended complaint within thirty (30) days, the Court shall

dismiss the action. No summonses shall issue at this time, and all further proceedings shall be

stayed for thirty (30) days. The Clerk of Court is directed to mail a copy of this Memorandum

and Order to Plaintiff at the address of record.

Dated: May 28, 2020

Brooklyn, New York

SO ORDERED:

s/ MKB

MARGO K. BRODIE

United States District Judge