# Whyte v. Bayview Loan Servicing, LLC

> District Court, E.D. New York · September 27, 2022

URL: https://www.frixlaw.com/law-library/cases/10308578

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 27, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10308578

## How later opinions describe it (automated extraction)

- holding that federal courts may “take judicial notice of relevant matters of public record”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
JIRA C. WHYTE and CARLENE A. WHYTE,

Plaintiffs,
MEMORANDUM & ORDER
- against - 21-CV-3301 (PKC) (LB)

BAYVIEW LOAN SERVICING, LLC, JP
MORGAN CHASE BANK, N.A.,
PRESIDENT RICHARD O’BRIEN, and
C.E.O, JAMIE DIMON,

Defendants.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
Plaintiffs Jira C. Whyte and Carlene A. Whyte bring this action against Bayview Loan
Servicing, LLC (“Bayview”), Bayview’s President Richard O’Brien, JP Morgan Chase Bank, N.A.
(“JPMC”), and JPMC’s CEO James Dimon (collectively, “Defendants”), asserting, inter alia,
claims under the Fair Debt Collection Practices Act, the Truth in Lending Act, and state tort law,
regarding a purportedly fraudulent foreclosure of residential property they once owned. Now
before this Court is Defendants’ motion to dismiss the case in its entirety, arguing that: (1)
Plaintiffs’ claims are barred by res judicata and judicial estoppel; (2) the Court lacks subject matter
jurisdiction over Plaintiffs’ claims under the Rooker-Feldman doctrine; (3) Plaintiffs failed to state
a claim; and (4) service of the summons and Complaint was defective.
For the reasons set forth below, the Court concludes that it does not have jurisdiction over
this matter under Rooker-Feldman, and further finds that Plaintiffs have failed to state a claim on
any of their causes of action. Finally, because an opportunity to amend the Complaint would be
futile, Defendants’ motion to dismiss is granted with prejudice.
BACKGROUND
I. Factual Background
Rife with legal conclusions and summaries of irrelevant cases, Plaintiffs’ Complaint offers
few operative facts of this case, such as the address of their property that was foreclosed on or the
key dates in the foreclosure proceedings or their subsequent eviction. (See generally Complaint
(“Compl.”), Dkt. 1.) Therefore, the facts recounted below are drawn not only from the Complaint,

but also from the underlying state court documents, of which this Court has taken judicial notice,1
and from uncontested facts set forth in Defendants’ motion papers.
On November 22, 2002, Plaintiffs executed a mortgage in favor of JPMC, encumbering a
property located at 131-08 Farmers Boulevard, Springfield Gardens, New York (the “Property”)
as security for a loan for $152,000. (Compl., Ex. A, Dkt. 1-3, at ECF 22; see also Declaration of
Ashley S. Miller, dated November 3, 2021 (“Miller Decl.”), Dkt. 16-1, ¶ 2.) On August 21, 2014,

1 In addition to the allegations in the complaint, a district court may also consider
(1) documents attached as an exhibit to the complaint or answer, (2) documents
incorporated by reference in the complaint . . . , (3) documents that, although not
incorporated by reference, are ‘integral’ to the complaint, or (4) any matter of which
the court can take judicial notice for the factual background of the case.
Doroz v. DeIorio’s Foods, Inc., 437 F. Supp. 3d 140, 149 (N.D.N.Y. 2020) (collecting binding
authorities); see Giraldo v. Kessler, 694 F.3d 161, 164 (2d Cir. 2012) (holding that federal courts
may “take judicial notice of relevant matters of public record”); see also Pani v. Empire Blue Cross
Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998) (“It is well established that a district court may rely on
matters of public record in deciding a motion to dismiss under Rule 12(b)(6)[.]”). In particular,
federal courts routinely take judicial notice of state court documents that are “public court records”
and are “[]material” to the federal court’s disposition of a 12(b)(6) motion. See Thompson v.
Global Contact Servs., LLC, No. 20-CV-651 (MKB), 2021 WL 3425378, at *5–7 (E.D.N.Y. Aug.
4, 2021) (citing cases).
2 Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing
system and not the document’s internal pagination.
JPMC assigned the mortgage to Bayview. (Compl., Ex. C, Dkt. 1-3, at ECF 16–18; see also Miller
Decl., Dkt. 16-1, ¶ 3.)
Following Plaintiffs’ default on the mortgage, Defendant Bayview filed a lawsuit on
December 30, 2016, in the Supreme Court of the State of New York, Queens County, seeking

foreclosure of the Property. (Miller Decl., Dkt. 16-1, ¶ 5; see generally, Miller Decl., Ex. D, Dkt.
16-5.) Plaintiffs did not timely appear or answer the complaint in the state court foreclosure
proceedings, leading to an order of default judgment dated to June 29, 2017, against Plaintiffs in
favor of Defendant Bayview. (Miller Decl., Dkt. 16-1, ¶ 6; see generally, Miller Decl., Ex. F, Dkt.
16-7.) The state court entered a judgment of foreclosure and sale on November 22, 2017. (Miller
Decl., Dkt. 16-1, ¶ 6.) On January 19, 2018, the Property was sold at a foreclosure sale, which
generated approximately $130,000 in surplus money. (Miller Decl., Dkt. 16-1, ¶ 7; see generally,
Miller Decl., Ex. G, Dkt. 16-8.)
On April 23, 2019, Plaintiffs, proceeding with counsel, filed a notice of claim for the
surplus money in the foreclosure action (“Surplus Money Motion”). (Miller Decl., Dkt. 16-1, ¶ 9;

see also Ex. J, Dkt. 16-11.) On October 11, 2019, the state foreclosure court appointed a referee
to determine the amount of surplus money due to Plaintiffs. (Miller Decl., Dkt. 16-1, ¶ 10; see
also Ex. L, Dkt. 16-13.) After the referee issued a report on the surplus money and confirmed
Plaintiffs’ portion of the funds, the foreclosure court granted Plaintiffs’ Surplus Money Motion on
February 10, 2021. (Miller Decl., Dkt. 16-1, ¶ 12; see also Ex. N, Dkt. 16-15.)
II. Procedural History
Plaintiffs, proceeding pro se, filed the instant action on June 3, 2021. Liberally construed,
Plaintiff’s complaint alleges that Defendants perpetrated fraud, violated the Truth in Lending Act
(“TILA”), and violated the Fair Debt Collection Practices Act (“FDCPA”). (Compl., Dkt. 1, at 3,
4, 11, 13.) In addition, the Complaint alleges that the Defendants violated certain federal laws,
and also states that it “comes under” Article III, section 8 of the U.S. Constitution, which defines
the crime of Treason.3 (Compl. Dkt. 1, at 3.) The Complaint requests “monetary relief of Eleven
Million Dollars” on account of the “mental distress” caused by Defendants’ “fraudulent and
negligen[t] action[s]… [which] has resulted [in] a Tort.” (Compl., Dkt. 1, at 13.)

On September 14, 2021, Defendants filed a letter requesting a pre-motion conference,
which the Court denied as unnecessary. (Dkt. 9.) Instead, the Court endorsed Defendants’
proposed briefing schedule, which required Defendants to serve their motion on November 5,
2021, Plaintiffs to serve their opposition by December 6, 2021, and Defendants to serve their reply
by December 20, 2021. (10/07/2021 Docket Entry.)
Before the Defendants filed their motion to dismiss, Plaintiffs submitted a “Verified
Answer” dated October 20, 2021, which “requested this court to strike [defense counsel’s] letter
and all briefs submitted by opposing counsel.” (Verified Answer, Dkt. 15, at 5.) Plaintiffs’
Verified Answer raised new claims, namely, that Defendants had violated Plaintiffs’ Fourteenth
Amendment due process and equal protection rights. (Verified Answer, Dkt. 15, at 6.) Defendants

served their motion on November 3, 2021. (See Dkt. 14.) Although Plaintiff did not timely serve
their opposition to Defendants’ motion to dismiss, Defendants served their reply, and filed all of
their motion papers, in accordance with the briefing schedule, on December 20, 2021. (See Dkt.
19; see also Defendants’ Reply Memorandum of Law Supporting the Motion to Dismiss (“Defs.
Rep. Mem.”), Dkt. 18.)

3 The Complaint and Plaintiffs’ briefs on the motion to dismiss further suggest that
Plaintiffs’ action arises under Article I, Section 8, clause 6 of the U.S. Constitution, which grants
Congress the power “to provide for the punishment of counterfeiting the securities and current
coin of the United States.” (See, e.g., Compl., Dkt. 1, at 3; Verified Answer, Dkt. 15, at 5.)
On December 22, 2021, Defendants received Plaintiffs’ opposition brief, which the Clerk
of Court docketed on December 28, 2021. (Dkt. 20; see also Affidavit in Support of Opposition
to Attorney Motion to Dismiss (“Pls. Opp.”), Dkt. 21.) With the Court’s permission, Defendants
filed a second reply in response to Plaintiffs’ late opposition brief. (Defendants’ Second Reply

Memorial of Law Supporting the Motion to Dismiss (“Defs. Sec. Rep. Mem.”), Dkt. 22.)
Finally, Plaintiffs filed a document dated February 16, 2022, after the close of briefing,
which the Court construes as a supplement to the Complaint. (Supp. Compl., Dkt. 25.) This
document includes a “Statement of Facts,” raises for the first time a claim against Defendants
under the Real Estate Settlement Procedures Act (“RESPA”), and attaches exhibits. (Id. at 2–12.)
In light of Plaintiffs’ pro se status, the Court construes the facts alleged in this supplement to the
Complaint, together with the facts alleged in the Complaint in deciding this motion.
LEGAL STANDARDS
Defendants move to dismiss Plaintiffs’ Complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1), 12(b)(5), and 12(b)(6). Defendants raise three separate bases for dismissal
under Rule 12(b)(6): res judicata, judicial estoppel, and failure to state a claim. See Mareclin v.

Cortes-Vazquez, No. 09-CV-4303 (RRM) (JMA), 2010 WL 5665037, at *2 (E.D.N.Y. Dec. 9,
2010) (explaining that “[m]otions to dismiss invoking res judicata and collateral estoppel are
properly brought under Rule 12(b)(6)”), report and recommendation adopted, 2011 WL 346682
(E.D.N.Y. Jan. 28, 2011). Because the Court holds that Plaintiffs’ claims do not survive the Rule
12(b)(6) motion for failure to state a claim, it does not discuss or resolve Defendants’ arguments
for dismissal based on judicial estoppel or res judicata, or pursuant to Rule 12(b)(5).
I. Dismissal under Rule 12(b)(1)
“[W]hen a party moves for dismissal under Rule 12(b)(1) and on other grounds, courts
consider the Rule 12(b)(1) challenge first.” Yusim v. U.S. Dep’t of Hous. & Urb. Dev., 409 F.
Supp. 3d 125, 128 (E.D.N.Y. 2018) (citing Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass’n, 896 F.2d
674, 678 (2d Cir. 1990)). This is because if a court determines that it lacks subject-matter
jurisdiction, then the defendant’s other “defenses and objections become moot and do not need to
be determined.” See Daly v. Citigroup Inc., 939 F.3d 415, 426 (2d Cir. 2019) (citation omitted).

In reviewing a motion to dismiss under Rule 12(b)(1), courts must “accept as true all
material factual allegations in the complaint,” Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129,
131 (2d Cir. 1998) (citation omitted), while refraining from “drawing from the pleadings
inferences favorable to the party asserting [jurisdiction],” APWU v. Potter, 343 F.3d 619, 623 (2d
Cir. 2003) (citation omitted). The party “asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000). “Notwithstanding the liberal pleading standard afforded pro se litigants,
federal courts are courts of limited jurisdiction and may not preside over cases if subject matter
jurisdiction is lacking.” Chestnut v. Wells Fargo Bank, N.A., No. 11-CV-3369 (JS) (ARL), 2012
WL 1657362, at *3 (E.D.N.Y. May 7, 2012) (citing Lyndonville Sav. Bank & Trust Co. v. Lussier,

211 F.3d 697, 700–01 (2d Cir. 2000)). District courts may consider evidence outside of the
pleadings when resolving a motion to dismiss under Rule 12(b)(1). See Morrison v. Nat’l Austl.
Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citing Makoraova, 201 F.3d at 113)).
II. Dismissal under Rule 12(b)(6)
To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain
sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). Determining whether a complaint states a
plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 679 (citation omitted). “In addressing the

sufficiency of a complaint, [the Court] accept[s] as true all factual allegations and draw[s] from
them all reasonable inferences; but [the Court is] not required to credit conclusory allegations or
legal conclusions couched as factual allegations.” Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir.
2013). “A document filed pro se is to be liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation and internal quotation marks
omitted). District courts must interpret a pro se complaint “to raise the strongest claims that it
suggests.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (cleaned up).
DISCUSSION
I. This Court has No Jurisdiction over Plaintiffs’ Claims under the Rooker-Feldman
Doctrine
Defendants argue five separate grounds for dismissal, starting with the argument that this
Court has no subject matter jurisdiction because of the Rooker-Feldman doctrine. Defendants
contend that Rooker-Feldman applies to Plaintiffs’ entire Complaint because their “sole purpose
in bringing this action is to undo the results of the foreclosure action.” (Defendants’ Memorandum
of Law Supporting the Motion to Dismiss (“Defs. Mem.”), Dkt. 16-18, at 6.) Plaintiffs respond
that they are “not asking this court to reverse any decision of the lower court,” (see Compl., Dkt.

1, at 3), and instead are “referencing” the state court judgments, primarily “to show the fraud
[perpetrated by Defendants], which does not violate the Rooker-Feldman doctrine,” (see Verified
Answer, Dkt. 15, at 5; see also Pls. Opp., Dkt. 21, at 7–8 (same); Supp. Compl., Dkt. 25, at 12
(same)). As this jurisdictional argument must be addressed before others, the Court turns first to
the Rooker-Feldman argument.
A. Applicable Law
Under the Rooker-Feldman doctrine, federal district and circuit courts lack subject-matter
jurisdiction over cases that are essentially “appeals from state-court judgments.” Hoblock v.

Albany Cnty. Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005); see also District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462, 486‒87 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,
416 (1923). “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, 422 F.3d at 85; see also Williams v. 2720 Realty Co., No. 12-CV-
6408 (BMC), 2013 WL 55685, at *2 (E.D.N.Y. Jan. 3, 2013) (“[O]nly the United States Supreme
Court is vested with jurisdiction over appeals from final state court judgments.”). “This comity
principle seeks to prevent ‘state and federal courts . . . [from] fighting each other for control of a
particular case.’” Kropelincki v. Seigel, 290 F.3d 118, 128 (2d Cir. 2002) (quoting Atl. Coast Line
R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281 (1970)) (alteration in original).

Under Second Circuit precedent, there are four requirements for applying the Rooker-
Feldman doctrine: (1) the federal-court plaintiff must have lost in state court; (2) the plaintiff “must
complain of injuries caused by a state-court judgment”; (3) the plaintiff “must invite district court
review and rejection of that judgment”; and (4) “the state-court judgment must have been rendered
before the district court proceedings commenced.” See McKithen v. Brown, 481 F.3d 89, 97 (2d
Cir. 2007) (cleaned up). If all of these requirements are met, the district court lacks subject matter
jurisdiction over the claim. See Graham v. Select Portfolio Serv., Co., 156 F. Supp. 3d 491, 502
(S.D.N.Y. 2016).
Of the four Rooker-Feldman requirements, the second and third requirements are
considered the “‘substantive’ requirements – present[ing] a less simple question” for courts to
answer. Charles v. Levitt, 716 F. App’x 18, 21 (2d Cir. 2017). Because “federal suits that purport
to complain of injury” caused by the defendants, often “in reality complain of injury by state-court

judgments,” Sung Cho v. City of New York, 910 F.3d 639, 646 (2d Cir. 2018) (citation omitted),
federal courts examining the substantive Rooker-Feldman requirements “must scrutinize the injury
of which a plaintiff complains” to determine whether the “suit impermissibly seeks review and
rejection of a state court judgment,” Charles, 716 F. App’x at 21; see also Hoblock, 422 F.3d at
88 (courts must “consider whether the injury was produced by a state-court judgment and not
simply ratified, acquiesced in, or left unpunished by it.”). One important indicator of whether a
plaintiff’s claims satisfy this second requirement is whether the plaintiff alleges any injuries that
occurred before the state court judgment. See Yan Ping Xu v. Suffolk Cnty., No. 19-CV-1362
(JMA) (ARL), 2021 WL 1163007, at *4 (E.D.N.Y. Mar. 26, 2021) (citing Roberts v. Perez, No.
13-CV-5612 (JMF), 2014 WL 3883418, at *3 (S.D.N.Y. Aug. 7, 2014) (“Most telling for purposes

of Rooker-Feldman’s causation requirement, Plaintiff suffered no tangible injuries prior to the
issuance of the state-court judgment.”)). Where a plaintiff alleges no injuries before the issuance
of the state court judgment, and any alleged injuries stem from the loss of their property, it is
reasonable to infer that the plaintiff is claiming injury as a result of the judgment and therefore
trying to undo it. See Roberts, 2014 WL 3883418, at *3 (applying Rooker-Feldman where “the
only source of [the] [p]laintiff’s current injuries is the as-yet-unsatisfied judgment”).
B. Analysis
All of Plaintiffs’ claims easily satisfy the first and fourth requirements of Rooker-Feldman.
Plaintiffs lost their foreclosure action in state court. Even though Plaintiffs did not challenge the
foreclosure action or the judgment of foreclosure of sale, they are still considered the “losers” of
the state court proceedings for the purposes of Rooker-Feldman. See Kristopher v. Stone Street
Props., LLC, No. 13-CV-566 (RJS), 2013 WL 499752, at *3 (S.D.N.Y. Jan. 29, 2013) (considering
plaintiff to be the “loser” for Rooker-Feldman purposes even though the judgment was entered in
default). As for the fourth requirement, the parties do not dispute that the foreclosure judgment

was entered on November 22, 2017, and the property was sold on January 19, 2018. (Miller Decl.,
Dkt. 16-1, ¶¶ 6–8; see also Exs. F, G, H, I, Dkts. 16-7, 16-8, 16-9, 16-10.) Therefore, the state
court proceedings concluded years before Plaintiffs commenced this action on June 3, 2021.
With respect to the second and third requirements, this Court first examines Plaintiffs’
fraud claims, before turning to their FDCPA and TILA claims. Plaintiffs contend that Defendants
“knowingly committed fraud to the highest degree,” and that this fraud caused “mental anguish”
that was allegedly the result of “a lot of stress, to a point where [Plaintiffs] cannot maintain” their
livelihoods. (Compl., Dkt. 1, at 13.) While Plaintiffs’ allegations about the fraud are conclusory
and confusing, the Court understands Plaintiffs to be arguing that Defendant Bayview “never
owned the [promissory] Note” for the Property’s mortgage, and therefore Defendants “ha[ve] in

fact brought fraud into the [state] court [foreclosure proceedings.]” (Id. at 7.) Plaintiffs seek $11
million in damages for alleged injuries caused by the fraud. (Id. at 13.)
The Court finds that Plaintiffs’ fraud claims are barred by Rooker-Feldman. As Defendants
correctly point out, there is “no general exception to the [Rooker-Feldman] doctrine when it is
alleged that the state court judgment was procured by fraud.” (See Defs. Sec. Rep. Mem., Dkt. 22,
at 1 (citing Grundstein v. Lamoille Superior Docket Entries/Ords., 821 F. App’x 46, 48 (2d Cir.
2020)).) In fact, the Second Circuit has “clearly held that a plaintiff cannot rely on allegations that
the state court judgment at issue was obtained fraudulently to avoid application” of the Rooker-
Feldman doctrine, since such an exception “would require the federal courts to review the state
proceedings and determine that the . . . judgment was issued in error, which Rooker-Feldman
instructs [lower federal courts] cannot do.” Fiorilla v. Citigroup Glob. Mkts., 771 F. App’x 114,
115 (2d Cir. 2019) (alterations in the original) (citation and internal quotation marks omitted).
To be sure, there are several recent decisions from the Second Circuit in which the court

interpreted pro se complaints “as asserting fraud claims that are not barred by Rooker-Feldman,
because they seek damages” for the allegedly fraudulent actions, “the adjudication of which does
not require the federal court to sit in review of the state court judgment[.]” See Vossbrinck v.
Accredited Home Lenders, Inc., 773 F.3d 423, 427 (2d Cir. 2014). Yet even when plaintiffs request
damages for a fraud claim, the ultimate inquiry remains whether the fraud-related “damage
complained of . . . comes from the unfavorable state court judgment.” Lorick v. Kilpatrick
Townsend and Stockton LLP, No. 18-CV-7178 (ENV) (RLM), 2021 WL 7906510, at *7 (E.D.N.Y.
Aug. 20, 2021) (citation omitted), report and recommendation adopted, 2022 WL 1104849
(E.D.N.Y. Apr. 13, 2022); see also Gifford v. United N. Mortg. Bankers, Ltd., No. 18-CV-6324
(PAE) (HBP), 2019 WL 3685225, at *5 (S.D.N.Y. July 8, 2019) (finding allegations of “a pattern

of allegedly fraudulent activity from the initial loan agreement” between plaintiff and the
mortgagee is “inextricably intertwined” with the state foreclosure judgment) (citation and internal
quotation marks omitted), report and recommendation adopted sub nom. Gifford v. Knuckles,
Komosinki & Elliot, LLP, 2019 WL 3564581 (S.D.N.Y. Aug. 6, 2019).
Here, Plaintiffs’ (conclusory) factual allegations on the fraud claim all relate to the loan
agreement, the promissory note, and the mortgage, and whether Defendant Bayview had standing
to foreclose on the Property.4 There are no allegations that Plaintiffs’ injuries occurred before the

4 For example, one representative paragraph of factual allegations from the Complaint
reads:
foreclosure judgment, and courts have recognized the absence of such injuries prior to the state
court judgment as the “[m]ost telling” sign that Plaintiffs are actually attacking the state court
judgment. See Roberts, 2014 WL 3883418, at *3. Furthermore, the only factual allegation that
Plaintiffs appear to make in support of their claim of “mental anguish” is that they were homeless

after being evicted “[a]s a result of the foreclosure of the Property,” (see Miller Decl., Ex. K., Dkt.
16-12, at ECF 8 (emphasis added)5), which further supports the conclusion that “the only source
of Plaintiff[s’] current injuries” is the state court’s foreclosure judgment. See Roberts, 2014 WL
3883418, at *3. Absent any allegations that further explain the damages Plaintiffs claim, the
logical conclusion is that Plaintiffs’ fraud-related injuries are “inextricably intertwined” with the
state court judgment, and that Plaintiffs’ fraud claims are thus barred by Rooker-Feldman. See
Yan Ping Xu, 2021 WL 1163007, at *4 (finding that plaintiff’s “damages claims, based on fraud
and other purported misconduct” are barred by Rooker-Feldman where “the damages she seeks
were caused by the state court orders at issue”). Therefore, even construing the complaint liberally,
the Court can only construe the complained-of injuries of “mental anguish” and “losing their

Under the Consumer Credit Protection Act, Title 15 U.S.C. Chapter 41 § 1614(g):
any transfers of the Whyte’s mortgage Loan to multiple classes, would be in
violation of Federal Statute, if those transfers have not been recorded in the Official
Records of the Queens County Record’s Office within 30 days along with
notification [] that the transfers had occurred. As there are no recorded assignments
of the Whyte’s Mortgage to multiple classes, within 30 days, there has been a
violation of Federal Law or multiple classes, [Defendants] do[] not have an interest
in the Whyte’s Intangible Obligation, and are not the owners of either the Whyte’s
Note or the Whyte’s Mortgage.
(Compl., Dkt. 1, at 6.)
5 This allegation appears in the affidavits that Plaintiffs’ submitted in the underlying state
court proceedings. (See Miller Decl., Ex. K., Dkt. 16-12, at ECF 8.)
livelihood” as allegations of injuries that were “produced by the state-court judgments” and not
“merely ratified by such judgments.”6
Separately, in their supplement to the Complaint, Plaintiffs appear to present a theory of
fraud challenging the formation of the mortgage contract. Plaintiffs allege that they never received

a loan from Bayview, that they in fact “got up from the table . . . , left the loan check and the
promissory Note.” (Supp. Compl., Dkt. 25, at 4.) Plaintiffs further claim that Defendants “signed
the check ‘for me’/in my place.” (Id.) Yet, even under this separate theory of fraud, Plaintiff’s
claims are similarly barred by Rooker-Feldman because “attacking the very contract enforced by
the state court judgment as fraudulent is a claim that cannot be stated independently of the prior
state court judgment[.]” See Desir v. Florida Cap. Bank, N.A., 377 F. Supp. 3d 168, 173–74
(E.D.N.Y. 2019).
Finally, the Court finds that Plaintiffs’ TILA and FDCPA claims also invite the Court to
review and reject the state court judgment. With respect to the TILA claims, Plaintiff alleges that
there were “no recorded assignments of the Whyte’s Mortgage” and no timely notification to

Plaintiffs of such assignments, which constituted “a violation of Federal Law.” (Compl., Dkt. 1,
at 6.) But the Complaint does not include factual allegations on how these supposed violations of
TILA injured Plaintiffs, let alone how any injuries are not “intertwined” with the state court
foreclosure judgment. The Complaint’s factual allegations for the FDCPA claim are even more

6 Plaintiffs also suggest that they are seeking damages for Defendants’ commission of some
unidentified tort. (See Compl., Dkt. 1, at 13.) If Plaintiffs are alleging damages for a tort that
Defendants committed causing them “mental distress,” such a tort claim would also be barred by
Rooker-Feldman. See Worthy-Pugh v. Deustche Bank Nat’l Trust Co., No. 14-CV-1620 (AWT),
2016 WL 2944535, at *4–5 (D. Conn. Jan. 29, 2016) (“To the extent that the plaintiffs claim that
the defendant intentionally inflicted emotional distress on the plaintiff by foreclosing on their
house, such a claim is barred by the Rooker-Feldman doctrine,” as that would also require federal
court review of a state court judgment), aff’d, 664 F. App’x 20 (2d Cir. 2016).
sparse, with only a single reference to the statute and no allegations on how Defendants purportedly
violated that statute, or even what the resulting damage was. Plaintiffs have failed to meet their
burden to prove subject matter jurisdiction as the factual allegations for their TILA and FDCPA
claims are bereft of details that would connect their claims to “conduct in executing and servicing

the mortgage,” which would mean these claims are exempt from Rooker-Feldman, as opposed to
conduct that would directly implicate the foreclosure judgment. George v. Nationstar Mortg.,
LLC, No. 16-CV-261 (MKB), 2017 WL 3316065, at * 2 (E.D.N.Y. Aug. 2, 2017). To the extent
that Plaintiffs are claiming that their “mental anguish” injury is connected to Defendants’ alleged
violations of TILA and FDCPA, the Court again finds that such complained-of injuries are caused
by the state court judgment, and therefore the claims are barred by Rooker-Feldman.
For the reasons explained above, this Court lacks subject matter jurisdiction over Plaintiffs’
fraud, TILA, and FDCPA claims. To the extent Plaintiffs also assert claims under RESPA or the
U.S. Constitution, Defendants did not brief whether those claims should be barred by Rooker-
Feldman. In any event, this Court explains why any additional claims should be dismissed in its

discussion below of Defendants’ Rule 12(b)(6) motion.
II. Plaintiffs’ Complaint is Dismissed for Failure to State a Claim
Even if this Court had subject matter jurisdiction over the Plaintiffs’ claims, this case would
still be dismissed on Rule 12(b)(6) grounds, since the factual allegations Plaintiffs put forth are
almost entirely conclusory and speculative, and fail to state a claim on any cause of action.
Plaintiffs assert claims for violations of TILA, FDCPA, fraud, and arguably claims pursuant to
RESPA, and various criminal statutes. Defendants correctly point out that the Complaint is
“disorganized and incomprehensible” comprised of “a series of legal conclusions and bald
references to causes of action, without any factual support,” thereby falling well short of the “basic
pleading standard[s] of Iqbal, Twombly, and Federal Rule of Civil Procedure 8(a)(2). (See Defs.
Rep. Mem., Dkt. 18, at 8–9.)
The gravamen of Plaintiffs’ fraud argument is that the mortgage agreement is invalid,
arguing that the United States’ financial system going off of the gold standard almost 100 years

ago was an unconstitutional act:
There is no money. What money did they give me? Was the contract based on the
lawful money of the United States? No. If they gave me a check, there is no money,
checks are debts [sic] instruments. Federal Reserve Notes are debt instruments,
because I cannot pay a debt with a debt. When did I get the money? They still owe
me. A debt is an IOU. So when are they going to pay me? I could contest the loan
because #1; There is no money. The US went bankrupt in 1933. In order to begin
with Federal Reserve Note’s [sic] you’re committing an act of fraud because the
Constitution clearly states what the lawful money of the United States is Gold and
Silver . . . .

(Supp. Compl., Dkt. 25, at 4.) As Defendants correctly point out, the FDCPA claim is similarly
underdeveloped. (See Defs. Sec. Rep. Mem., Dkt. 22, at 3.) Although Plaintiffs suggest that
Defendants Bayview and JPMC violated the FDCPA by “sending unsubstantiated demands for
payment,” (see Pls. Opp., Dkt. 21, at 2), nowhere in their Complaint or any of their briefing papers
do Plaintiffs provide even the bare minimum information as to these purported demands for
payment. Further, Plaintiffs mention only in their supplement to the Complaint, which was filed
after the close of briefing, that Defendants violated RESPA. (Supp. Compl., Dkt. 25, at 2.) Once
again, Plaintiffs do not put forth any factual allegations that would show how Defendants violated
that statute.
Beyond the largely unintelligible attacks on the loan agreement and the underdeveloped
statutory claims, Plaintiffs repeatedly state various regulations, criminal statutes, and provisions
of the Constitution, without any factual allegations. (See Compl., Dkt. 1, at 7–8, 10–11; see also
Pls. Opp., Dkt. 21, at 2 (claiming that Defendants may have committed “mail fraud under federal
and state law” by allegedly “sending unsubstantiated demands for payment through the United
States Mail System,” and that Defendants committed crimes of “theft, fraud, conspiracy and
racketeering”).) For example, Plaintiffs state in their Complaint and again in their briefing papers
that “this complaint comes under Art I, sec 8, of the Constitution: Counterfeiting of Securities and

current coins; Art III, Sec 3: Treason against the United States, which is a violation of the doctrine
of unclean hands, a mortgage without a note is a nullity and is not enforceable.” (Compl., Dkt. 1,
at 3.) None of these baffling invocations to statutory provisions and regulations are accompanied
by factual allegations that are sufficient to state a claim.7
III. Leave to Amend
The Second Circuit has cautioned district courts to “not dismiss [a pro se complaint]
without granting leave to amend at least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000) (citation omitted). Moreover, “where a court lacks subject matter jurisdiction, it also lacks
power to dismiss with prejudice.” Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir.
1999). Therefore, if Rooker-Feldman is the only basis on which a case is dismissed, the district

court may not dismiss claims with prejudice. See Charles, 716 F. App’x at 22. However, if a

7 Of course, even if there were factual allegations to support some of these claims, Plaintiffs
would have no cause of action to pursue the claims under the criminal statutes. See Nath v. Select
Portfolio Serv., Inc., 732 F. App’x 85, 87 (2d Cir. 2018) (“[N]o private right of action exists under
criminal statutes absent an indication that Congress intended to create such a private right of
action[.]”). Similarly, any due process or equal protection claims under the Fourteenth
Amendment are “unavailing because Defendants are not state actors, but plainly private entities
that had a contractual interest” in Plaintiffs’ mortgage. Encarnacion v. RMS Asset Mgmt. LLC,
No. 17-CV-5299 (WHP), 2018 WL 4572240, at *4 (S.D.N.Y. Sept. 24, 2018) (citation and internal
quotation marks omitted). Finally, and needless to say, the Court banishes any suggestion that
Defendants or their counsel committed crimes such as violating the Foreign Agents Registration
Act, 22 U.S.C. § 611 et. seq., or treason, and dismisses Plaintiffs’ spurious and irresponsible claims
to that effect. (See, e.g., Suppl. Compl., Dkt. 25, at 5–6 (accusing defense counsel of acting as “a
foreign Agent & Propagandist[]”); Verified Answer, Dkt. 15, at 2 (similar)).
complaint is dismissed on Rule 12(b)(6) grounds and “it appears that granting leave to amend is
unlikely to be productive,” then “it is not an abuse of discretion to deny leave to amend.” Lucente
v. Int’l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002) (quoting Ruffolo v. Oppenheimer
& Co., 987 F.2d 129, 131 (2d Cir. 1993) (per curiam)). “One appropriate basis for denying leave

to amend is that the proposed amendment is futile.” Id.; see also Roth v. CitiMortgage Inc., 756
F.3d 178, 183 (2d Cir. 2014) (“[L]eave to amend need not be granted where the proposed
amendment would be futile.”).
Here, Plaintiffs’ claims have been dismissed not only for lack of subject-matter jurisdiction
under the Rooker-Feldman doctrine, but also for failure to state a claim under Rule 12(b)(6). As
the Court has explained, Plaintiffs’ Complaint is riddled with conclusory allegations and has a
dearth of factual allegations. This is so even after Plaintiffs supplemented their Complaint
following Defendants’ full motion briefing. (See generally Supp. Compl., Dkt. 25.) Even giving
full consideration to the factual allegations in Plaintiffs’ supplemental filing, which included
additional factual allegations and exhibits, the Court finds that Plaintiffs have failed to state a claim

for any cause of action. Thus, based on the nature of Plaintiffs’ claims, as reflected in their multiple
submissions, the Court is convinced that allowing Plaintiffs another opportunity to replead their
claims would be futile. Accordingly, the Court is not granting Plaintiffs leave to amend their
Complaint again, and dismisses the Complaint with prejudice.
CONCLUSION
For the reasons explained above, the Court grants Defendants’ motion to dismiss Plaintiffs’
complaint for lack of subject matter jurisdiction, and dismisses it, with prejudice, for failure to
state a claim.8 The Clerk of Court is respectfully directed to enter judgment and close this case.

SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: September 27, 2022
Brooklyn, New York

8 As Plaintiffs’ claims have been dismissed for lack of subject-matter jurisdiction and for
failure to state a claim, the Court need not address Defendants’ other arguments for dismissal.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10308578. Public record. Not legal advice.