The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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PERRY FRANCIS,
Plaintiff, MEMORANDUM & ORDER
20-CV-5863(EK)(LB)
-against-
FEDERAL NATIONAL MORTGAGE
ASSOCIATION; JPMORGAN CHASE BANK;
CEO HUGH R. FRATER; CFO CELESTE
MELLET BROWN; and CEO JAMES DIMON,
Defendants.
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ERIC KOMITEE, United States District Judge:
Plaintiff Perry Francis brings this action pro se
against Federal National Mortgage Association (“Fannie Mae”),
JPMorgan Chase Bank (“JPMorgan Chase”), and certain of these
companies’ chief executives. His claims arise from the
foreclosure of a property in Queens, New York. For the reasons
that follow, the amended complaint is dismissed.1 Plaintiff is
directed to file a second amended complaint within thirty days.
I. Background
Plaintiff’s amended complaint is over 600 pages long
and consists mainly of attachments, making it difficult to parse
the facts and identify legal claims. It is evident, however,
1 The operative complaint in this action is the amended complaint, filed
on January 5, 2021 after certain of the Defendants requested leave to file a
motion to dismiss. ECF No. 8.
that this action relates to the foreclosure of a property
located at 169-06 Linden Boulevard (the “property”) in Queens,
New York, which was owned by Alfredo and Williette M. Francis.
Ms. Francis is now deceased. It appears that in 2015, JPMorgan
Chase assigned the mortgage on the property to Fannie Mae.
Fannie Mae then filed a foreclosure action against the unnamed
“heirs-at-large” of Williette Francis in New York State Supreme
Court, County of Queens. Id. at 58, 67-68. Although Plaintiff
has the same last name as Williette Francis, their relationship
is not apparent from the amended complaint; nor does the
complaint allege any interest of Plaintiff’s in the mortgage at
issue.
Read liberally, the amended complaint alleges that in
connection with the assignment of the mortgage, Defendants
failed to provide certain mortgage-transfer disclosures required
by the Truth in Lending Act, 15 U.S.C. § 1641(g), and its
implementing regulation, Regulation Z, 12 C.F.R. part 226. As a
result, Plaintiff claims, the Defendants “committed fraud” in
bringing the foreclosure action because Fannie Mae “never owned”
the mortgage. The complaint can also be read to assert several
claims under the federal criminal code, and, without further
explanation, Plaintiff lists 42 U.S.C. § 1983 as a cause of
action. In addition, throughout the complaint, Plaintiff
alleges that Defendants violated various provisions of the
Uniform Commercial Code.
Plaintiff claims that he is “not taking action in
federal court to stop or argue the pending foreclosure.” Id. at
14 (“[Defendants] can have the property, but they must be held
accountable for their fraudulent actions.”). However, Plaintiff
does request that “all mortgage(s) [be] cleared on the grounds
of fraudulent concealment.” Id. In addition, he seeks eleven
million dollars in damages. Id.
II. Discussion
The Court must construe pro se pleadings broadly and
interpret them to raise the strongest arguments that they
suggest. Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000).
Nevertheless, the Court has the inherent power to dismiss any
claim as “frivolous” when the “factual contentions are clearly
baseless” or the claim is “based on an indisputably meritless
legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d
434, 437 (2d Cir. 1998). In addition, the Court has an
obligation to examine its subject matter jurisdiction sua sponte
and must dismiss where jurisdiction is lacking. Manway Constr.
Co. v. Housing Auth. of Hartford, 711 F.2d 501, 503 (2d Cir.
1983).
A. Standing
Standing is “the threshold question in every federal
case,” and it implicates the Court's subject matter
jurisdiction. Ross v. Bank of Am., N.A. (USA), 524 F.3d 217,
222 (2d Cir. 2008). To establish standing, a plaintiff “must
have (1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016). At the pleading stage, a plaintiff must allege facts
demonstrating each element. Id.
Here, Plaintiff fails to allege how he was personally
injured by the Defendants’ alleged conduct. He does not explain
his relationship to the mortgage-holder, Williette Francis, or
claim to be her heir. Without an articulated interest in the
mortgage or the property in question, Plaintiff has not alleged
a personal injury that could be redressed by a favorable
decision of this Court. See, e.g., Hernandez v. Calber Home
Loans, No. 16-CV-3755, 2016 WL 4764960, at *2 (S.D.N.Y. Aug. 19,
2016), R. & R. adopted 2016 WL 4750182 (S.D.N.Y. Sept. 12, 2016)
(dismissing without prejudice where pro se plaintiff did not
show that she personally had standing to assert claims regarding
mortgage loan). In deference to Plaintiff’s pro se status, the
Court grants Plaintiff thirty days from the date of this Order
to amend his complaint to plead standing.
B. Causes of Action Based in Federal Criminal Law
The amended complaint also alleges that Defendants
violated criminal statutes including 18 U.S.C. § 1341 (wire
fraud), 18 U.S.C. § 1348 (securities and commodities fraud),
18 U.S.C. § 241 (conspiracy against rights), and 18 U.S.C. § 242
(deprivation of rights under color of law). Generally speaking,
violations of Title 18 do not provide a basis for a civil cause
of action. See, e.g., Hill v. Didio, 191 Fed. Appx. 13, 14 (2d
Cir. 2006). No private right of action exists under the
criminal statutes that Plaintiff has invoked. Accordingly, all
counts under such statutes are dismissed with prejudice. In
addition, because the amended complaint asserts no factual
allegations against Hugh Frater, Celeste Brown, or James Dimon,
and alleges only criminal causes of action against them, these
defendants are dismissed.
C. Cause of Action under Section 1983
Plaintiff also cites 42 U.S.C. § 1983 in his
complaint. Section 1983 imposes liability for constitutional
deprivations caused by state actors and generally cannot be
applied to the actions of private individuals or private
organizations. See American Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 50 (1999). “[T]he under-color-of-state-law element
of § 1983 excludes from its reach merely private conduct, no
matter how discriminatory or wrongful.” Id. (internal
quotations omitted). Plaintiff does not allege any state action
or bring this case against any New York State actors.
Therefore, any claim under Section 1983 is dismissed.
III. Conclusion
Accordingly, the amended complaint is dismissed and
the claims brought under the listed criminal statutes are
dismissed with prejudice.
However, the Court grants the pro se Plaintiff thirty
days from the date of this Order to file a second amended
complaint that is consistent with this Order. In the second
amended complaint, Plaintiff should state whether he is an heir
to Williette Francis, state the status of the foreclosure action
(as well as of any other state court proceeding related to the
property), and attach relevant state court documents, if
available. Plaintiff is informed that the second amended
complaint must comply with Rule 8(a) of the Federal Rules of
Civil Procedure and set forth the facts in a clear and
comprehensible manner. Plaintiff shall separate and identify
claims so that it is clear what claims are being presented
against which defendant(s).
The second amended complaint must be captioned “Second
Amended Complaint” and bear the same docket number as this
Order. If Plaintiff fails to file a second amended complaint
within the time allowed, or if the second amended complaint
fails to cure the deficiencies noted herein, the action may be
dismissed.
In the event that Plaintiff elects to proceed in forma
pauperis on appeal from this Order, the Court certifies pursuant
to 28 U.S.C. § 1915(a)(3) that any such appeal would not be
taken in good faith and therefore denies in forma pauperis
status. Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED.
_/s Eric Komitee____________
ERIC KOMITEE
United States District Judge
Dated: March 15, 2021
Brooklyn, New York