Jones v. Grisanti

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

LYDIA DIANE JONES,

Plaintiff,

22-CV-145-LJV

v. DECISION & ORDER

MAGISTRATE JUDGE MARK GRISANTI

et al.,

Defendants.

On February 18, 2022, the pro se plaintiff, Lydia Diane Jones, commenced this

action, asserting claims related to a purportedly fraudulent mortgage; state court

foreclosure proceedings that ultimately resulted in her eviction and the sale of her

home; and her arrest as a trespasser when she returned to that property.1 See Docket

Item 1; Docket Item 11 (amended complaint); see also Docket Items 5 and 7 (motions to

amend complaint to include additional claims). Jones sued a number of parties

allegedly involved in those events: New York State Supreme Court Justice Mark J.

Grisanti; the State of New York; the New York State Bar Association; Newrez/PHH

Mortgage Services/PHH Mortgage Corporation 1 Mortgage (“PHH Mortgage”)2;

1 Jones also moved for a temporary restraining order, a preliminary injunction,

and an expedited hearing to “block any further foreclosure action against the property in

dispute.” Docket Item 3 at 1, 8; see also Docket Item 1 at 16 (asking this Court to

“enjoin the foreclosure sale that was on December 3, 2021”). The Court denied that

motion because it lacked jurisdiction to grant the requested relief. Docket Item 4.

Jones then filed two additional motions seeking the same relief, Docket Items 9 and 12,

and the Court again denied those motions, Docket Items 10 and 13.

2 Although Jones names “Newrez/PHH Mortgage Services/PHH Mortgage

Corporation 1 Mortgage” as a defendant, Docket Item 11 at 1 (some capitalization

omitted), the corporation’s full name appears to be simply “PHH Mortgage Corporation,”

Robertson, Anschutz, Schneid, Crane & Partners, PLLC (“Robertson PLLC”), a law firm;

two of Robertson PLLC’s attorneys, Sara Z. Boriskin and Samantha Sandler; four

individuals involved in the sale of Jones’s property; and the Amherst Police Department

and several of its officers. See Docket Items 1, 5, 7, and 11. Jones also moved to

proceed in forma pauperis (“IFP”)—that is, as a person who should have the

prepayment of the ordinary filing fee waived because she cannot afford it. Docket

Item 2.

After this Court granted Jones’s IFP motion, Docket Item 4, it screened both her

complaint, Docket Item 1, as supplemented by her subsequent motions to amend that

complaint, Docket Items 5 and 7, and her amended complaint, Docket Item 11, under

28 U.S.C. § 1915(e)(2). See Docket Item 8 (screening complaint); Docket Item 23

(screening amended complaint). The Court dismissed some of Jones’s claims3 but

allowed several others to proceed to service. See Docket Items 8 and 23. The claims

that proceeded—and remain at issue here—can be grouped into two relatively broad

see Docket Item 38 at 1. As noted, the entity is referred to as “PHH Mortgage”

throughout this opinion.

3 More specifically, in its first screening order, the Court dismissed Jones’s claims

under the Administrative Procedure Act, the Foreign Agents Registration Act, and 42

U.S.C. § 1983, as well as her claims against Justice Grisanti and the New York State

Bar Association. Docket Item 8. In its second screening order, the Court dismissed

Jones’s claims against the State of New York, the four individuals involved in the sale of

her property, the Amherst Police Department, and—to the extent Jones had reasserted

them in her amended complaint—her claims against Justice Grisanti. Docket Item 23.

The Court also dismissed Jones’s claims for forgery, real estate deed fraud, conspiracy

to commit real estate deed fraud, obstruction of justice, and federal criminal conspiracy,

as well as her claims under 42 U.S.C. §§ 1985-1986 and the Racketeer Influenced and

Corrupt Organizations Act. Id. And it allowed Jones’s section 1983 claims to proceed

against the unnamed Amherst police officers, but dismissed them as against Sandler,

Boriskin, Robertson, and PHH Mortgage. Id.

categories: (1) Jones’s claims under the Fair Debt Collection Practices Act (“FDCPA”)

and New York State law against Robertson PLLC, Boriskin, Sandler, and PHH

Mortgage (“the mortgage defendants”) related to Jones’s mortgage and the foreclosure

proceedings against her; and (2) Jones’s section 1983 claims against the individual

Amherst police officers (“the Amherst police defendants”)4 related to her arrest. See

Docket Items 8 and 23.

On June 21, 2023, Robertson PLLC, Boriskin, and Sandler (“the Robertson

defendants”) moved to dismiss the complaint. Docket Item 37. On the same day, PHH

Mortgage likewise moved to dismiss. Docket Item 38. About two months later, the

Amherst police defendants moved to dismiss as well. Docket Item 51. Jones then

responded to all three motions, see Docket Items 58 and 59; see also Docket Item 60

(this Court’s construing Jones’s filings as responses to the motions to dismiss), and the

mortgage and Amherst police defendants replied, Docket Items 63, 66, and 67.5

4 Jones’s amended complaint does not name the individual Amherst police

officers involved in her arrest. Docket Item 11. As part of its second screening order,

this Court issued a Valentin order to the Town of Amherst directing it to identify the

officers involved. Docket Item 23 at 14-15. In response, the Town named Lieutenant

Thomas Brown; Investigator Bradley Canzoneri; Investigator Lucas Kieffer; Officer

Grazyna Arnold; Officer Alicia May; Officer Stacey Hachten; and Officer Novica Vukovic.

Docket Item 32.

5 Jones subsequently filed a motion to strike the notice of appearance of the

Robertson defendants’ counsel, Joseph F. Battista III. Docket Item 68. While the basis

for this motion is somewhat unclear, Jones appears to argue that the notice of

appearance should be stricken because “a corporation or [limited liability corporation]

must be represented by a lawyer.” Id. at 1. Jones is correct on that point as a matter of

law, see Lattanzio v. COMTA, 481 F.3d 137, 140 (2d Cir. 2007) (explaining that

partnerships, corporations, and limited liability companies “may appear in federal court

only through a licensed attorney”), but that is of no moment because Robertson PLLC is

represented in this action through its counsel, Battista. See Docket Items 16 and 69.

Thus, Jones’s motion to strike is denied.

For the reasons that follow, the Court grants the mortgage defendants’ motions

and denies the Amherst police defendants’ motion.

BACKGROUND6

In 2004, Jones and her father “purchased a home and obtained”—or attempted

to obtain—“a mortgage loan” for about $195,300. See Docket Item 1 at ¶ 2.1; Docket

Jones attached a number of exhibits to her motion to strike, see Docket Item 68

at 6-47, and she subsequently filed an affidavit, Docket Item 70, and two “notices of

claim” that include some of the same documents, Docket Items 71 and 72 (capitalization

omitted). Some of Jones’s assertions in those filings repeat claims made in her

complaint and amended complaint, including claims about Justice Grisanti, whom this

Court dismissed from this action on the grounds of judicial immunity, Docket Item 8 at 5-

7 (dismissing Jones’s claims against Justice Grisanti without leave to amend); Docket

Item 23 at 6-9 (reiterating previous reasoning in response to claims against Justice

Grisanti in Jones’s amended complaint), and the Court declines to revisit that issue

here. In any event, a court generally “will not consider . . . factual allegations raised for

the first time in a brief in opposition to a motion to dismiss.” See Harrell v. N.Y. State

Dep’t of Corr. & Cmty. Supervision, 2019 WL 3817190, at *2 n.3 (S.D.N.Y. Aug. 14,

2019). So to the extent that Jones intends her recent filings, Docket Items 68, 70, 71,

and 72, to assert additional factual claims against the remaining defendants, the Court

declines to consider them as such.

6 In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),

the court “accept[s] all factual allegations as true and draw[s] all reasonable inferences

in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt.,

843 F.3d 561, 566 (2d Cir. 2016). A complaint is “deemed to include any written

instrument attached to it as an exhibit, materials incorporated in it by reference, and

documents that, although not incorporated by reference, are integral to the complaint.”

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (citation and

internal quotation marks omitted).

The following facts are taken from the amended complaint, Docket Item 11,

including its attached exhibits. In addition, because Jones did not include many of the

allegations made in her original complaint, Docket Item 1, in her amended complaint,

the Court refers to the original complaint to provide additional context for her claims.

The Court also takes judicial notice of the proceedings in the foreclosure action brought

against Jones in New York State Supreme Court, see Deutsche Bank Nat’l Tr. Co. v.

Jones, Case No. 800319/2015 (Sup. Ct. Erie Cnty. Dec. 26, 2014). See Blue Tree

Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212,

217 (2d Cir. 2004) (stating that courts “may . . . look to public records, including

Item 11 at 3-4.7 That loan, which was “ultimately [acquired] by the Deutsche Bank

National Trust Company” (“Deutsche Bank”), was “serviced” by Option One Mortgage

Corporation (“Option One”). See Docket Item 1 at ¶ 1.2. Jones “made timely

payments” to Option One from 2004 to 2008, and after “the loan was assigned” to

American Home Mortgage Servicing, Inc., Jones made payments to PHH Mortgage, a

loan servicing company.8 See Docket Item 1 at ¶ 11.2; see also Docket Item 11-1 at 5

(document identifying PHH Mortgage as mortgage loan servicer, albeit based on

allegedly fraudulent arrangement).

But Jones had been “tricked” into making those payments because “there was

never any loan provided.” Docket Item 1 at ¶ 4.3. In fact, there were a number of

deficiencies with the mortgage: “the bank misrepresented the elements of the alleged

agreement”; there was “no bona fide signature on the alleged promissory note”; the

“promissory note [wa]s a forgery”; the lender “denied [Jones] equal protection under the

complaints filed in state court, in deciding a motion to dismiss”); Romaka v. H&R Block

Mortg. Corp., 2018 WL 4783979, at *3 n.4 (E.D.N.Y. Sept. 30, 2018) (“[A c]ourt may

take judicial notice of the filings in [a state f]oreclosure [a]ction.” (citation omitted)).

7 Throughout this opinion, references to page numbers for documents on this

Court’s docket refer to ECF pagination. Because Jones is somewhat inconsistent in

numbering the paragraphs in her amended complaint, the Court refers to the relevant

page, rather than paragraph number, in citing it. Some capitalization has been omitted

when quoting the complaint and amended complaint.

8 Jones’s amended complaint identifies the entity to which she made payments

as “Ocwen Loan Servicing, LLC Mortgage, Newrez C/O PHH Mortgage Services.”

Docket Item 1 at ¶ 11.2. Although her amended complaint is not entirely clear on this

point, she appears to be referring to the fact that PHH Mortgage is the “successor by

merger” of Ocwen Loan Servicing, LLC (“Ocwen”). See Powell v. Ocwen Loan

Servicing, LLC, 2024 WL 763406, at *1 & n.2 (2d Cir. Feb. 26, 2024) (addressing claims

against PHH Mortgage and declining to address claims against Ocwen based on

corporate relationship of those entities). In any event, the amended complaint makes

clear that Jones intends to sue PHH Mortgage, not Ocwen. See Docket Item 11 at 1.

law”; and the “mortgage deal was not done according to [Generally Accepted

Accounting Principles] in violation of . . . federal law.” Docket Item 11 at 3-4.

In 2014, defendant Boriskin “filed [a] foreclosure summon[s] and complaint” in

New York State Supreme Court, Erie County. Id. at 5; see Deutsche Bank Nat’l Tr. Co.

v. Jones, Case No. 800319/2015, Docket Item 1 (Sup. Ct. Erie Cnty. Dec. 26, 2014).

But Boriskin “signed on to the case as the attorney of record without standing,” and she

failed to include “an affidavit from an injured party to provide jurisdiction to the court.”

Docket Item 11 at 5. On March 2, 2016, New York State Supreme Court Justice Tracey

A. Bannister signed an order entering a default judgment of foreclosure and sale, see

Jones, Case No. 800319/2015, Docket Item 51 (Sup. Ct. Erie Cnty. Mar. 2, 2016), and

on July 28, 2021, former defendant Justice Grisanti signed an amended default

judgment of foreclosure and sale, see id., Docket Item 115 (Sup. Ct. Erie Cnty. July 29,

2021). That amended judgment was improper because, among other deficiencies,

Justice Grisanti used his “initials in a space reserved for a signature” and did not include

a court seal. Docket Item 11 at 6-7.

On December 3, 2021, the property was sold when the referee in the foreclosure

sale conducted an “illegal sale.”9 Id. at 7. After the property was sold, Jones continued

to challenge the foreclosure proceedings in state court, including by moving to “recuse

[Justice Grisanti].” Id. at 7. Justice Grisanti, however, “refuse[d] to recuse himself”

even though he was “actively involved in a lawsuit of wrongful foreclosure”—that is, this

case. Id.

9 This Court previously dismissed Jones’s claims against the referee, the buyers,

and an attorney involved in that sale. Docket Item 23 at 10 n.15; see note 3, supra.

On June 10, 2022, a process server tried to serve Jones with documents related

to the foreclosure and her eviction from the property. Id. at 8. Although Jones was not

home at the time, the process server filed a false affidavit saying that Jones had been

served. Id. That affidavit swore that the process server had served Jones, but Jones

did not match the description of the person who was allegedly served with the notice of

eviction. Id.

On August 2, 2022, the “Sheriff[’s D]epartment10 put a 14[-]day notice of eviction

on [Jones’s] front door.” Id. Jones then “went to the Sheriff[’s D]epartment and . . .

ask[ed] how [the Sheriff’s Department] could get a warrant of eviction without [going to]

eviction court.” Id. The Sheriff’s Department told Jones to go to “a judge” to “cancel”

the eviction. Id. So Jones “file[d] a[n] order to show cause” in state court to try to stop

the eviction. Id. But Justice Grisanti “refuse[d] to sign the order” or “to give [Jones] a

court date.” Id. at 9.

About two weeks later, the Sheriff’s Department “came to [Jones’s] front door

and [rang] the door[]bell, started banging on the door[,] . . . yell[ed at Jones to] get out of

[the] house[ and] come out[, and] repeated demands [for Jones] to get out[ while]

threatening the use of force.” Id. at 10. Eventually, 15 to 20 police vehicles from the

Amherst Police Department arrived on the scene, and “the Sheriff[’s] Department

10 Jones does not name the Sheriff’s Department as a defendant in this action,

nor does she identify the specific Sheriff’s Department to which she refers, although the

Court assumes—given where Jones lived—that it was the Erie County Sheriff’s

Department. See Docket Item 11. Jones sometimes refers to the “Sheriff[’s]

Department” and sometimes to the “Sheriff” or “Sheriffs”; for the sake of simplicity, and

because Jones appears to use all three terms to refer to a group of individuals

associated with the Sheriff’s Department, see id., the Court refers only to “the Sheriff’s

Department” in summarizing and analyzing the amended complaint in this opinion.

force[d] and busted [Jones’s] front doors and remov[ed] the door at the entrance.” Id.

Jones was allowed to “pack an overnight bag,” but the Sheriff’s Department “would not

let [Jones] take” her pet turtle from the house. Id. Instead, the “Sheriff[’s] Department

abandon[ed] . . . the turtle.” Id.

The next day, Jones returned to the house to feed the turtle and to pick up some

medication and documents that had been left behind. Id. The Sheriff’s Department had

told Jones that she “would have 30 day[s] to pack and get [her] things” from the house.

Id. But at 8:30 a.m., Amherst police officers—more specifically, the Amherst police

officers sued here, see Docket Item 32—“bust[ed] in the front door [and] immediately

grabbed [Jones] and put handcuffs on [her,] arrest[ed her,] and put [her] in [the] back of

a police car,” Docket Item 11 at 11. The Amherst police defendants also handcuffed

and arrested Jones’s goddaughter and took both to a holding center. Id. Jones was

kept overnight, but her goddaughter was held longer. Id. After Jones “had a[] sudden

anxiety attack and pass[ed] out,” she was taken to the hospital where she was

“handcuff[ed] to the bed railing” by Amherst police officers. Id. She later was released

from the hospital and taken back to the holding center. Id.

Jones’s house was sold on December 3, 2021. Id. at 12. She was unable to

retrieve her furniture, clothes, and other personal belongings from her home. Id. at 11

(bold omitted). Her cat died, and her dog and turtle are missing. Id.

LEGAL PRINCIPLES

“To survive a motion to dismiss, a 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) (quoting Bell Atl. 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).

DISCUSSION

I. MORTGAGE DEFENDANTS’ MOTION TO DISMISS

Jones asserts claims against the mortgage defendants under the FDCPA as well

as for breach of contract, wrongful foreclosure, slander of title, slander of credit, and

negligent and intentional infliction of emotional distress. Docket Item 11 at 1, 15-18; see

Docket Item 23 at 13-14 (allowing those claims to proceed to service). She seeks

damages and for an order vacating the state court’s judgment of foreclosure. Docket

Item 11 at 9-10, 22-23. The mortgage defendants say that all of those claims must be

dismissed for several reasons. See Docket Items 37-3 and 39. The Court addresses

each of the defendants’ arguments as follows.

A. Rooker-Feldman

The mortgage defendants first argue that this Court lacks subject matter

jurisdiction over Jones’s claims against them under the Rooker-Feldman doctrine.

Docket Item 37-3 at 7-8; Docket Item 39 at 16-18. According to that doctrine—which is

named for the two Supreme Court cases from which it derives—federal district courts

have no appellate jurisdiction to review state court decisions. See Rooker v. Fid. Tr.

Co., 263 U.S. 413 (1923); D.C. Ct. of App. v. Feldman, 460 U.S. 462 (1983); see also

Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014) (noting

that “[t]he [Rooker-Feldman] doctrine is rooted in the principle that appellate jurisdiction

to reverse or modify a state[ ]court judgment is lodged exclusively in the Supreme

Court” (alterations, citation, and internal quotation marks omitted)). In other words, the

Rooker-Feldman doctrine applies to 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.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).

The Second Circuit has “articulated a four-part test” for determining whether the

Rooker-Feldman doctrine applies in a given case. Hunter v. McMahon, 75 F.4th 62, 68

(2d Cir. 2023). Under that test, a district court cannot exercise jurisdiction if: “(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.”

Id. (citation omitted).

The Second Circuit has stressed that “Rooker-Feldman applies only when the

plaintiff complains of injuries caused by a state court judgment.” Id. at 71 (citation and

internal quotation marks omitted). That is, under Rooker-Feldman, a district court

cannot exercise jurisdiction over claims of injury stemming “from a state[ ]court

judgment, even if [the plaintiff] appears to complain only of a third party’s actions, when

th[ose] actions are produced by a state[ ]court judgment.” Id. (emphasis omitted). But

“Rooker-Feldman does not bar claims based on an opponent’s misconduct that

precede[d] the state court proceeding[] if the plaintiff[’s] alleged injuries were merely

ratified by the state[ ]court judgment[] rather than caused by [it].” Id. (emphases

omitted). Instead, in such cases, “the connection between the [relevant] state and

federal cases” are governed by “the rules of preclusion, which are not jurisdictional.”11

Id. at 72.

Under Rooker-Feldman, this Court lacks subject matter jurisdiction over some—

but not all—of Jones’s claims against the mortgage defendants. More specifically, the

Court cannot exercise jurisdiction over Jones’s claims for wrongful foreclosure and

slander of title because all four of the Rooker-Feldman requirements are met with

respect to those claims. But Jones’s other claims survive the Rooker-Feldman bar.

An analysis of the four factors delineated above demonstrates why this is so.

First, Jones lost in state court when Justice Grisanti entered an amended judgment of

foreclosure and sale against her on July 29, 2021.12 See Jones, Case No.

800319/2015, Docket Item 115; Hunter, 75 F.4th at 68 (first requirement). Moreover,

Jones’s claims for wrongful foreclosure and slander of title effectively “complain[] of

injuries caused by” that judgment of foreclosure and ask this Court to “review and

reject[]” it. Hunter, 75 F.4th at 68 (second and third requirements); Worthy-Pugh v.

Deutsche Bank Nat’l Tr. Co., 664 F. App’x 20, 21 (2d Cir. 2016) (summary order)

(plaintiff’s claims that state judgment of foreclosure was void and for slander of title were

11 The Court considers the application of the preclusion rules below. See Section

I.B, infra.

12 As noted above, Justice Bannister previously had entered a judgment of

foreclosure and sale against Jones on March 2, 2016. See Jones, Case No.

800319/2015, Docket Item 51. The Court assumes without deciding that the amended

judgment issued by Justice Grisanti is the relevant one for the sake of determining the

Court’s subject matter jurisdiction.

“barred by the Rooker-Feldman doctrine” because they “effectively request[ed] that the

federal district court rule that the [state] judgment was void”); Vossbrinck, 773 F.3d at

427 (Rooker-Feldman barred plaintiff’s request that “the federal court . . . grant him title

to his property [on the grounds that] the foreclosure judgment was obtained

fraudulently” because plaintiff was “asking the federal court to determine whether the

state judgment was wrongfully issued”); Romaka v. H&R Block Mortg. Corp., 2018 WL

4783979, at *4 (E.D.N.Y. Sept. 30, 2018) (finding plaintiff’s wrongful foreclosure claim

barred by Rooker-Feldman).

Finally, “the state judgment was rendered before the district court proceedings

commenced.” Hunter, 75 F.4th at 68 (fourth requirement). The amended judgment of

foreclosure was entered on July 29, 2021, see Jones, Case No. 800319/2015, Docket

Item 115, and Jones did not appeal that judgement within the 30 days allowed under

New York State law, see Jones, Case No. 800319/2015; N.Y. C.P.L.R. § 5513 (setting

time limits for appealing judgements). And because Jones did not commence this

action until February 18, 2022, see Docket Item 1—long after her time to appeal

expired—the state judgment was “rendered” for the purposes of Rooker-Feldman before

the federal proceedings were initiated. See Borrani v. Nationstar Mortg. LLC, 820 F.

App’x 20, 22 (2d Cir. 2020) (summary order) (“The state[ ]court judgment of foreclosure

was rendered before Borrani began federal proceedings because she filed her federal

complaint . . . more than [30] days after the . . . judgment of foreclosure and sale was

entered.”); Powell v. Ocwen Loan Servicing, LLC, 840 F. App’x 610, 612 (2d Cir. 2020)

(finding fourth Rooker-Feldman requirement met when plaintiffs’ “time to appeal the

judgment [of foreclosure] had passed”); cf. Hunter, 75 F.4th at 69-70 & n.9 (holding that

“[i]f a federal[ ]court plaintiff’s state[ ]court appeal remains pending when she files her

federal suit, the state[ ]court proceedings have not ended and Rooker-Feldman does

not apply” (citing holdings in Borrani and Powell with approval)).

Thus, this Court cannot exercise jurisdiction over Jones’s claims for wrongful

foreclosure and slander of title, and those claims are dismissed without prejudice.13 But

as noted above, Rooker-Feldman bars only those claims that meet all four of the

delineated requirements—and more specifically, “only when the plaintiff complains of

injuries caused by a state court judgment,” not about conduct that was the subject of the

state litigation. Hunter, 75 F.4th at 71 (citation and internal quotation marks omitted).

Indeed, the Second Circuit has held that although Rooker-Feldman bars federal courts

from reviewing foreclosure judgments, it does not bar claims for damages for fraudulent

conduct allegedly related to or underlying foreclosure proceedings. See Vossbrinck,

773 F.3d at 427 (holding that “[t]o the extent [the] pro se complaint can be liberally

construed as asserting fraud claims that . . . seek damages from [the d]efendants for

injuries [the plaintiff] suffered from their alleged fraud, the adjudication of which does not

require the federal court to sit in review of the state court judgment,” those claims are

not barred by Rooker-Feldman).

The Court therefore rejects the mortgage defendants’ argument that Rooker-

Feldman bars Jones’s FDCPA, slander of credit, breach of contract, and negligent or

intentional infliction of emotional distress claims.14

13 To the extent that Jones asks this Court to vacate the judgment in the state

foreclosure action, Docket Item 11 at 9, this Court lacks subject matter jurisdiction over

that claim under Rooker-Feldman for the reasons explained.

14 Jones’s claims for slander of credit and intentional and negligent infliction of

emotional distress are ill-defined. She asserts that “the actions and inactions of the

B. Preclusion

The Court next considers whether preclusion bars Jones’s claims against the

mortgage defendants. The Full Faith and Credit Act, 28 U.S.C. § 1738, requires federal

district courts to “give the same preclusive effect to a state[ ]court judgment as another

court of that [s]tate would give [that judgment].” Exxon Mobil Corp., 544 U.S. at 282.

So here, New York preclusion law governs the preclusive effect this Court must afford to

the judgment of foreclosure entered against Jones in New York State Supreme Court

under the doctrines of res judicata and collateral estoppel. See Buczek, 2021 WL

2917684, at *4 (“To determine the effect of a state court judgment, federal courts,

including those sitting in diversity, are required to apply the preclusion law of the

rendering state.” (quoting Conopco, Inc. v. Roll Int’l, 231 F.3d 82, 87 (2d Cir. 2000)));

Yeiser v. GMAC Mortg. Corp., 535 F. Supp. 2d 413, 421 (S.D.N.Y. 2008) (“Because the

prior decision was rendered by a New York state court, New York’s res judicata and

collateral estoppel doctrines govern.”).

defendants have impaired [Jones’s] credit, causing [Jones] to lose the ability to have

good credit” and that “[t]he defendants have intentionally and negligently taken illegal

actions which have caused [her] severe emotional distress.” Docket Item 11 at 18. To

the extent that Jones seeks relief for slander or emotional distress caused by the state

foreclosure judgment itself, those claims are barred by Rooker-Feldman. See

Ramnarine v. Johnson, 2019 WL 5309994, at *2 (E.D.N.Y. Oct. 21, 2019) (court lacked

jurisdiction under Rooker-Feldman over plaintiff’s claims for slander of credit that were

based on defendants’ bringing of a foreclosure action against him); Gifford v. United N.

Mortg. Bankers, Ltd., 2019 WL 2912489, at *6 (S.D.N.Y. July 8, 2019) (“Although

plaintiff claims her damages are for emotional distress and expenses incurred in

defending the foreclosure action, such injuries, assuming they exist, were directly

caused by the adverse judgment in the foreclosure action and, thus, are barred by the

Rooker-Feldman doctrine.” (alterations, citation, and internal quotation marks omitted)).

But to the extent Jones asserts claims for slander and emotional distress based on the

defendants’ underlying conduct, they are not so barred and are further addressed

below, see Section I.D, infra.

The mortgage defendants argue that even if this Court has jurisdiction over some

or all of Jones’s claims against them, all such claims are barred by res judicata. Docket

Item 37-3 at 8-11; Docket Item 39 at 14-16. For the reasons that follow, this Court holds

that res judicata bars Jones’s claims against PHH Mortgage but not her claims against

the Robertson defendants.

1. Res Judicata

Under the doctrine of res judicata, also known as claim preclusion, “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.” Buczek, 2021 WL 2917684,

at *5.

New York takes a “transactional approach to the rule,” so “once a claim is

brought to a final conclusion, all other claims arising out of the same transaction or

series of transactions are barred, even if based upon different theories or if seeking a

different remedy.” Josey v. Goord, 9 N.Y.3d 386, 389-90, 880 N.E.2d 18, 20 (2007)

(citation and internal quotation marks omitted). In other words, “[u]nder New York law,

res judicata 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.” Lorick v. Kilpatrick Townsend & Stockton LLP, 2021 WL

7906510, at *9 (E.D.N.Y. Aug. 20, 2021) (citations and internal quotation marks

omitted), report and recommendation adopted, 2022 WL 1104849 (E.D.N.Y. Apr. 13,

2022); see Dekom v. Fannie Mae, 846 F. App’x 14, 19 (2d Cir. 2021) (summary order);

People ex rel. Spitzer v. Applied Card Sys., Inc., 11 N.Y.3d 105, 122, 894 N.E.2d 1, 12

(2008). “Pro se litigants are equally bound by the doctrine of res judicata.” Romaka,

2018 WL 4783979, at *5.

The first res judicata requirement clearly is met here with respect to both PHH

Mortgage and the Robertson defendants. There is a previous adjudication: the

judgment of foreclosure entered by the New York State Supreme Court, Jones, Case

No. 800319/2015, Docket Item 115, which is a “court of competent jurisdiction,”15 see

Borrani, 820 F. App’x at 22 (noting that to have preclusive effect, a prior judgment must

be issued by “a court of competent jurisdiction”); Hansen v. Miller, 52 F.4th 96, 100 (2d

Cir. 2022) (same).16 And although that judgment was obtained by Jones’s default,

15 Jones argues that the state court lacked jurisdiction in the foreclosure action

between she is both a “Yamas[]ee Native American” as well as a “State National.”

Docket Item 11 at 6; see also Docket Item 1 at 19-21. With respect to Jones’s first

argument, the Court notes that while “states broadly lack authority to regulate the

activity of tribal members on reservation lands,” Cayuga Nation v. Tanner, 6 F.4th 361,

370 n.7 (2d Cir. 2021) (emphasis added), Jones does not allege that the property at

issue here was part of a reservation, see generally Docket Items 1, 5, 7, and 11. Nor

did Jones’s identity deprive the New York State Supreme Court of jurisdiction. Such

courts possess “jurisdiction over, inter alia, ‘private civil claims by Indians against

Indians.’” Cayuga Nation v. Jacobs, 44 Misc. 3d 389, 391, 986 N.Y.S.2d 791, 793 (Sup.

Ct. Seneca Cnty. 2014) (quoting People v. Anderson, 137 A.D.2d 259, 270, 529

N.Y.S.2d 917, 923 (4th Dep’t 1988)); see also Alexander v. Hart, 64 A.D.3d 940, 942,

884 N.Y.S.2d 181, 184 (3d Dep’t 2009) (“State courts do not violate an Indian nation’s

sovereign right to self-government by exercising jurisdiction over disputes between

private civil litigants on matters that have no bearing on the internal affairs of the tribal

nation’s government.” (collecting cases)).

Second, to the extent that Jones intends to argue that she is some variety of

“sovereign citizen” in identifying as a “State National,” see Docket Item 11 at 6; Docket

Item 1 at 19-21, the Court notes that district courts in this circuit generally “have rejected

jurisdictional claims from ‘sovereign citizens’ as patently frivolous.” Ramos v. Semple,

2019 WL 2437851, at *4 (D. Conn. June 11, 2019) (collecting cases). This Court

similarly declines to entertain such an argument here.

16 Hansen describes the requirement that the judgment be entered “by a court of

competent jurisdiction” as a separate requirement, so that there are four preconditions

Jones, Case No. 800319/2015, Docket Item 115, that does not mean that it was not “on

the merits,” Lorick, 2021 WL 7906510, at *9. On the contrary, “[u]nder New York law, it

is established that a decision granting a judgment of foreclosure and sale on default

constitutes a decision on the merits.” Council v. Better Homes Depot, Inc., 2006 WL

2376381, at *4 (E.D.N.Y. Aug. 16, 2006), adhered to on denial of reconsideration, 2007

WL 680768 (E.D.N.Y. Mar. 2, 2007); see also Niles v. Wilshire Inv. Grp., LLC, 859 F.

Supp. 2d 308, 338-39 (E.D.N.Y. 2012) (“A judgment of foreclosure and sale obtained by

default constitutes a decision on the merits.”); Dekom, 846 F. App’x at 19 (holding that

“[a] foreclosure default judgment [wa]s a final judgment on the merits”).

Moreover, Jones’s claim that the state action was fraudulent does not change the

analysis. Indeed, in Dekom, the Second Circuit treated a default judgment of

foreclosure as a “previous adjudication” for the purposes of its res judicata analysis

notwithstanding the fact that the plaintiff claimed that the judgment had been obtained

by fraud. 846 F. App’x at 18-20.

But a prior judgment on the merits is not enough. As already noted, “the

previous action [also must] involve[] the same adverse parties or those in privity with

them.” Lorick, 2021 WL 7906510, at *9. Jones, of course, is the plaintiff in this action

and was a defendant in the prior one. Jones, Case No. 800319/2015. But the sole

plaintiff in the prior action—Deutsche Bank—is not a defendant in this case. So

whether or not res judicata bars Jones’s claims against the mortgage defendants turns

on whether or not each defendant is in privity with Deutsche Bank.

for the application of res judicata, rather than three. 52 F.4th at 100-01. But with

respect to the analysis here, that is a distinction without a difference.

“Under New York law, ‘privity is not susceptible to a hard-and-fast definition.’”

Lipman v. Rodenbach, 852 F. App’x 578, 581 (2d Cir. 2021) (summary order) (quoting

Applied Card Sys., 863 N.Y.S.2d at 626, 894 N.E.2d at 12). “Ultimately, [New York

courts] determine whether the severe consequences of preclusion flowing from a finding

of privity strike a fair result under the circumstances,” taking into account “the policies

that res judicata is designed to protect,” such as “a party’s right to rely upon the finality

of the results of previous litigation.” Applied Card Sys., 863 N.Y.S.2d at 626-27, 894

N.E.2d at 13 (italics added). Courts have found that “privity extends to parties ‘who are

successors to a property interest, those who control an action although [are] not formal

parties to it, [and] those whose interests are represented by a party to the action.’”

Yeiser, 535 F. Supp. 2d at 423 (quoting Watts v. Swiss Bank Corp., 27 N.Y.2d 270, 277,

265 N.E.2d 739, 743 (N.Y. 1970)).

In light of that law, PHH Mortgage clearly is in privity with Deutsche Bank for the

purposes of res judicata. As already noted, Jones took out a mortgage with her father

in 2004, Docket Item 1 at ¶¶ 1.2, 2.1; that loan was acquired by Deutsche Bank; and

from 2008 onward, the loan was serviced either by Ocwen or by Ocwen’s “successor by

merger,” PHH Mortgage, id. at ¶ 11.2; see note 8, supra. As such, PHH Mortgage’s

“interest was represented” by Deutsche Bank in the state foreclosure action. See

Yeiser, 535 F. Supp. 2d at 417-19, 423 (finding that loan servicing company was “in

privity” with mortgage holder that had obtained judgment of foreclosure against plaintiff

in state court because that company “serviced the loan at the time . . . the foreclosure

action [was commenced]”); cf. Dekom, 846 F. App’x at 20 (finding Fannie Mae in privity

with the “mortgage loan servicers” that “pursue[d] the foreclosure action on its behalf”).

The Robertson defendants argue that they also are in privity with Deutsche Bank,

apparently because they represented it in the foreclosure action. See Docket Item 37-3

at 5, 10; see generally Jones, Case No. 800319/2015. But that alone is not enough to

establish privity. Instead, New York courts have held that “an attorney may be found to

be in privity with the parties that [the attorney] represents” only “when the particular

circumstances otherwise satisfy the requirements of collateral estoppel [or res

judicata].” Anonymous v. N.Y. State Just. Ctr. for the Prot. of People With Special

Needs, 167 A.D.3d 113, 117, 89 N.Y.S.3d 346, 351 (3d Dep’t. 2018) (emphasis added)

(finding that entity was “in privity” with former client because entity’s role was unlike

“that of an ordinary attorney, who typically acts as a disinterested advocate with the

purpose of representing the [client’s] interests . . . rather than [the attorney’s] own”);

Goodman v. Solack Ests., Inc., 78 A.D.2d 512, 513, 432 N.Y.S.2d 5, 6 (1st Dep’t 1980)

(“We do not believe that collateral estoppel is appropriately applied to a law firm on the

basis of a judgment entered against a client in a proceeding in which the law firm was

not a litigant but was acting solely as counsel.”); Lyons v. Med. Malpractice Ins. Ass’n,

275 A.D.2d 396, 397, 713 N.Y.S.2d 61, 62 (2000) (holding that “[u]nder the settled

principles of law regarding res judicata and collateral estoppel, [attorneys]—who were

not parties to [a] medical malpractice action—c[ould ]not be bound by the verdict”

entered in that action). Indeed, in Hansen v. Miller, the Second Circuit held that an

attorney who represented a client in a foreclosure action was not in privity with that

client under New York law because he “did not have a cognizable personal interest in

the subject of the [prior] action.”17 52 F.4th at 101 (emphasis added).

The Robertson defendants do not argue that they had a “cognizable personal

interest” in the state foreclosure action against Jones, nor do they point to any particular

circumstances indicating that a finding of privity would be appropriate here. See Docket

Item 37-3 at 8-11. Instead, they merely state, in conclusory fashion, that res judicata

“applies . . . to those in privity.” Id. at 10. But in the absence of any proffered reason

why this Court should find them to be in privity here, this Court declines to do so.

Third, and finally, the claims that Jones presses here are those that “were, or

could have been, raised in the prior action.” Lorick, 2021 WL 7906510, at *9. As

already explained above, under New York law, the causes of action between two suits

need not be the same for res judicata to apply. Instead, the question is whether “the

claims are based on the same set of facts.” Harris v. BNC Mortg., Inc., 737 F. App’x

573, 576 (2d Cir. 2018) (summary order). In Harris, “[b]oth the [federal] complaint”

brought by the plaintiff and “the [state] foreclosure action involved allegations relating to

the origin of [the plaintiff’s] mortgage and its subsequent assignment.” Id. The Second

17 Some district courts have suggested that an attorney-client relationship itself is

enough to support a finding that two parties were in privity for res judicata purposes.

See, e.g., Lorick, 2021 WL 7906510, at *9 (mere fact that bank bringing foreclosure

proceeding was represented in that action by a law firm and several of its lawyers was

enough to support finding that the latter were “in privity” with the former); Ray Legal

Consulting Grp. v. Gray, 37 F. Supp. 3d 689, 701 (S.D.N.Y. 2014) (“[C]ourts have held

that the attorney-client relationship itself establishes privity.” (citation omitted)). But this

Court is bound to follow New York State law on this issue, see Buczek, 2021 WL

2917684, at *4, as well as the Second Circuit’s interpretation of that law in Hansen, see

Adelphia Recovery Tr. v. Bank of Am., N.A., 624 F. Supp. 2d 292, 309 (S.D.N.Y. 2009)

(“In the Second Circuit, a federal district court will conclusively defer to a federal court of

appeals’ interpretation of the law of a state that is within its circuit.” (citation and internal

quotation marks omitted)).

Circuit found that enough to satisfy the third res judicata requirement. Id.; see also

Dekom, 846 F. App’x at 20 (third requirement satisfied in case in which plaintiff’s

“federal complaint allege[d] that the 2013 foreclosure action was fraudulently brought

and prosecuted [against him]” because “[the plaintiff’s] claim rest[ed] on the same [set

of] facts that [the three defendants in the federal action had been] obliged to show to

secure foreclosure” in the state action).

In sum, res judicata bars Jones’s claims against PHH Mortgage but not against

the Robertson defendants.

C. Collateral Estoppel

The Robertson defendants also argue that collateral estoppel bars Jones’s

claims against them.18 Docket Item 37-3 at 10-11.

“The doctrine of collateral estoppel precludes a party from relitigating in a

subsequent action or proceeding an issue clearly raised in a prior action or proceeding

and decided against that party or those in privity, whether or not the tribunals or causes

of action are the same.” Williams v. N.Y.C. Transit Auth., 171 A.D.3d 990, 991, 97

N.Y.S.3d 692, 695 (2d Dep’t 2019) (citation and internal quotation marks omitted); see

Romaka, 2018 WL 4783979, at *5. But “under New York law, collateral estoppel

forecloses only those issues that have been ‘actually litigated and determined in a prior

action,’ and ‘[a]n issue is not actually litigated if there has been a default.’” Yoon v.

Fordham Univ. Fac. & Admin. Ret. Plan, 263 F.3d 196, 202 n.7 (2d Cir. 2001) (alteration

18 PHH Mortgage does not argue that collateral estoppel bars Jones’s claims

against it, see Docket Item 39, but those claims are barred by res judicata for the

reasons explained, see Section I.B, supra.

in original) (quoting Pigliavento v. Tyler Equip. Corp., 233 A.D.2d 810, 811, 650

N.Y.S.2d 414, 415 (3d Dep’t 1996)); see also Gianatasio v. D’Agostino, 862 F. Supp. 2d

343, 350 (S.D.N.Y. 2012) (“[T]he general rule is well-established that default judgments

lack issue-preclusive effect.” (alteration in original) (quoting In re Adler, Coleman

Clearing Corp., 205 F. App’x 856, 857 (2d Cir. 2006))). A default judgment of

foreclosure was entered against Jones. Jones, Case No. 800319/2015, Docket Item

115; see also id., Docket Item 51. And while such judgments may have a preclusive

effect under the doctrine of res judicata, the same is not true under the doctrine of

collateral estoppel. See Giantasio, 862 F. Supp. 2d at 250 (finding that state default

judgment triggered res judicata but not collateral estoppel). Collateral estoppel

therefore does not bar Jones’s claims here.

D. Failure to State a Claim

Finally, the Robertson defendants argue that Jones’s claims against them should

be dismissed for failure to state a claim. Docket Item 37-3 at 12-15. For the reasons

that follow, the Court agrees.19

1. FDCPA Claim

Jones asserts that the defendants have violated the FDCPA by “engag[ing] in

abuse, threats, coercion, misrepresentation, fraud, harassment, unfair means, and

deception to collect a debt.” Docket Item 11 at 6. With respect to the Robertson

19 Jones does not always specify which defendants committed which violations.

Because the Court previously dismissed many of the defendants named in this action,

see Docket Items 8 and 23, and because the Court has determined that res judicata

bars Jones’s claims against PHH Mortgage, it analyzes her remaining mortgage-related

claims against only the Robertson defendants.

defendants in particular, she states that “[t]he attorneys”—presumably Boriskin and

Sandler—“are misrepresenting themselves as working for a lender when they are

illegally collecting as . . . [third] party debt collector[s] in violation of the [FDCPA].” Id.

at 17.

“The FDCPA’s purpose is, in part, ‘to eliminate abusive debt collection practices

by debt collectors.’” Goodman v. Bd. of Managers of Harborview Condo., 2023 WL

6977450, at *3 (S.D.N.Y. Oct. 23, 2023) (quoting 15 U.S.C. § 1692(e)), appeal

dismissed (Feb. 28, 2024). “To state a[n] FDCPA claim, a plaintiff must show that: (1)

[the plaintiff] has been the object of collection activity arising from consumer debt, (2)

the defendant is a debt collector as defined by the FDCPA, and (3) the defendant has

engaged in an act or omission prohibited by the FDCPA.” Id. (citations omitted). “A

plaintiff must bring a[n] FDCPA action ‘within one year from the date on which the

violation occurs.’” Weaver v. Boriskin, 751 F. App’x 96, 98-99 (2d Cir. 2018) (summary

order) (quoting 15 U.S.C. § 1692k(d)).

The Robertson defendants argue that Jones cannot assert any claims under the

FDCPA because the “one[-]year statute of limitations” clearly has run. Docket Item 37-3

at 12-13. More specifically, they argue that because the violations that Jones says they

committed occurred several years before Jones filed this case in February 2022, her

FDCPA claims must be dismissed. Id. This Court agrees.

Jones’s FDCPA claims against the Robertson defendants are not entirely clear,

but all of them relate to the filing and prosecution of the state foreclosure action against

her. See Docket Item 11 at 5-6, 12, 17. Indeed, although Jones states generally that

the Robertson defendants violated the FDCPA, the only specific actions she attributes

to them are the filing of certain documents in the state court action. See, e.g., id. at 17

(stating that the Robertson defendants acted “as . . . [third] party debt collector[s] . . .

when the attorney[s] filed [an] unlawful foreclosure [action] using a[n invalid] foreclosure

statute”); id. at 6 (stating that Jones “was subjected to harassment from [four] or [five]

attorneys”—presumably including Sandler and Boriskin—“that all signed on [to the

foreclosure action] and signed out when they could not prove jurisdiction on the court

record”). But the state foreclosure action was filed in December 2014, see Jones, Case

No. 800319/2015, Docket Item 1 (Sup. Ct. Erie Cnty. Dec. 26, 2014), and a judgment of

foreclosure and sale was entered on March 2, 2016, id., Docket Item 51. In other

words, both occurred several years before Jones commenced this case in 2022, Docket

Item 1.

It is true that an amended judgment was entered on July 29, 2021, Jones, Case

No. 800319/2015, Docket Item 115, and that the Robertson defendants continued to file

documents in state court until and even after that, see generally Jones, Case No.

800319/2015. Nonetheless, all of the conduct about which Jones complains here—that

is, fraudulently bringing a foreclosure action—happened more than a year before

February 2021 and thus, any claims based on that conduct are barred by the statute of

limitations. Moreover, the fact that the lawsuit itself continued is not relevant: Courts

have held that “the statute of limitations on an FDCPA claim premised on the fraudulent

filing of a debt[ ]collection suit begins to run when the complaint is filed or when the

debtor receives notice of the action, rather than on the filing of any individual documents

within the lawsuit.”20 Weaver v. Boriskin, 2020 WL 13558738, at *3 (E.D.N.Y. Mar. 10,

2020); see id. (noting that “[n]o court of appeals has held that debt[ ]collection litigation

(or a misleading statement made in connection with that litigation) is a continuing

violation of the FDCPA” (collecting cases)).

Of course, if “subsequent filings in an allegedly fraudulently filed debt[ ]collection

proceeding . . . independently violate[d] the FDCPA,” they would “have their own

statutes of limitations.” Id. But Jones does not allege that here. Instead, her

allegations center on the fact that the foreclosure action was fraudulently commenced.

See Docket Item 11. And so she has failed to state a timely claim against the

Robertson defendants for violating the FDCPA, and those claims are dismissed as

barred by the statute of limitations.

2. Slander of Credit

As already noted, Jones’s claim for slander of credit is somewhat unclear. See

Docket Item 11 at 18; see note 14, supra. She says only that “the actions and inactions

of the defendants have impaired [her] credit,” with the circular result that she has “los[t]

the ability to have good credit.” Docket Item 11 at 18. She also includes as an exhibit

to her amended complaint a 2008 letter sent to her father by American Home Mortgage

Servicing, Inc.—not a defendant here—informing him that “a negative credit report

20 According to an affidavit of service filed in the foreclosure action, the summons

and complaint were served on Jones on January 15, 2015. See Jones, Case No.

800319/2015, Docket Item 7 (Sup. Ct. Erie Cnty. Jan. 22, 2015). Jones asserts that

another affidavit of service filed in the state action was fraudulent, Docket Item 11 at 8,

but she does not allege that she did not have notice of the initial action, see generally id.

In any event, it is clear that Jones was aware of the foreclosure action no later than May

2018, when she filed a motion to dismiss the complaint in state court. See Jones, Case

No. 800319/2015, Docket Item 65 (Sup. Ct. Erie Cnty. May 23, 2018).

reflecting on the borrower’s credit record may be submitted to a credit reporting agency

if the borrower fails to fulfill the terms of the obligations under the loan.” Docket Item

11-1 at 1-2.

Jones may be claiming that the defendants slandered (or defamed) her credit by

“report[ing] to credit bureaus that [she] had defaulted on [her l]oans and that foreclosure

proceedings had been commenced.” See Ferber v. Citicorp Mortg., Inc., 1996 WL

46874, at *2 (S.D.N.Y. Feb. 6, 1996) (treating such claims as sounding in defamation).21

But to the extent that Jones is attempting to bring such a claim, it is preempted by the

federal Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. See Campbell v.

Bank of N.Y. Mellon Tr. Co., 2012 WL 2952852, at *1, *9 (S.D.N.Y. May 8, 2012)

(holding that plaintiffs who sued defendants for “violat[ing] various federal and state

laws in the course of administering [the p]laintiffs’ mortgage loan and initiating

foreclosure proceedings against them” were “unable to establish [the d]efendants’

liability as a matter of law on their common law slander of credit claim . . . because the

FCRA preempts such state law claims”), report and recommendation adopted sub nom.

Campbell v. Bank of New York Tr. Co., 2012 WL 2953967 (S.D.N.Y. July 18, 2012);

Macpherson v. JPMorgan Chase Bank, N.A., 665 F.3d 45, 46-48 (2d Cir. 2011) (holding

that “state common law claims . . . for defamation and intentional infliction of emotional

distress” are preempted by FCRA).

21 Setting aside its exhibits, the amended complaint does not even mention credit

reporting agencies. See Docket Item 11. But because of Jones’s pro se status, the

Court reads her pleadings liberally to give her the benefit of any doubt.

Jones does not include any other allegations suggesting that the Robertson

defendants—or, indeed, any defendants—spread falsehoods about her credit. See

Docket Item 11. She therefore has failed to state a viable claim for slander of credit.22

3. Breach of Contract

Jones asserts that all the defendants—including the Robertson defendants—are

liable for breach of contract. Docket Item 11 at 16-17. “To recover on a claim for

breach of contract under New York law, ‘a plaintiff must prove (1) a contract; (2)

performance of the contract by one party; (3) breach by the other party; and (4)

damages.’” Vista Food Exch., Inc. v. Comercial De Alimentos Sanchez S de R L de

C.V., 627 F. Supp. 3d 408, 419 (S.D.N.Y. 2022) (quoting Terwilliger v. Terwilliger, 206

F.3d 240, 245-46 (2d Cir. 2000)); see also Nassau Operating Co. v. DeSimone, 206

A.D.3d 920, 926, 171 N.Y.S.3d 528, 535 (2d Dep’t 2022) (same).

Jones does not satisfy even the first of those requirements with respect to the

Robertson defendants—that is, she does not allege that she and any of the Robertson

defendants entered into a contract of any kind. See Docket Item 11. Instead, Jones’s

claims for breach of contract center on an “alleged agreement” that she entered into

with “[t]he bank,” id. at 16-17, and she says that the Robertson defendants represented

the bank by “fil[ing] a forged contract in the state foreclosure case,” id. at 17. But that

does not and cannot state a viable claim for breach of contract.

22 As noted above, see note 14, supra, to the extent that Jones seeks to bring a

claim based on the fact that her credit was impacted by the judgment of foreclosure

itself, that claim is barred by Rooker-Feldman.

As part of her claim, Jones alleges that “[t]he attorneys are misrepresenting

themselves as working for a lender when they are illegally collecting as . . . [third] party

debt collector[s].” Id. She also states that “[t]he contract should be rescinded because

the attorneys did not provide full disclosure.” Id. at 12. Even assuming that both

assertions refer to the Robertson defendants, neither suggests that Jones entered in a

contract with any attorneys, including the Robertson defendants—much less that the

Robertson defendants breached any such contract. So Jones has not stated a viable

claim for breach of contract.

4. Infliction of Emotional Distress

Jones also asserts claims against the Robertson defendants for negligent and

intentional inflection of emotional distress. Id. at 18. More specifically, she says that

the Robertson defendants took “illegal actions [that] . . . caused [her] severe emotional

distress”—specifically citing an “attack on [her] home using a[n invalid] statute”—and

that “[t]he fact [that] part of the original agreement is missing from the contract filed in

the state foreclosure case is a clear showing of illegal intent to cause distress.” Id. at

18-19. But those allegations fail to state a claim for either negligent or intentional

infliction of emotional distress.

a. Negligent Infliction

“To plead a negligent infliction of emotional distress claim under New York law, a

plaintiff must allege (1) a breach of a duty owed to the plaintiff; (2) emotional harm; (3) a

direct causal connection between the breach and the emotional harm; and (4)

circumstances providing some guarantee of genuineness of the harm.” Francis v. Kings

Park Manor, Inc., 992 F.3d 67, 81 (2d Cir. 2021); see Ornstein v. N.Y.C. Health &

Hosps. Corp., 10 N.Y.3d 1, 6, 881 N.E.2d 1187, 1189 (2008) (discussing this standard).

Moreover, “[n]egligent infliction of emotional distress requires that the emotional distress

stem from either (1) physical injury or the threat of physical injury, or (2) breach of a

special duty between [the] plaintiff and [the] defendant.” Campbell, 2012 WL 2952852,

at *11.

Again, Jones fails to plead even the first of those requirements: She does not

say that the Robertson defendants owed her any kind of duty of care that was breached

here. Nor does it seem likely that she could: “It is well settled under New York law that

a lender is not in a fiduciary relationship with a borrower, and thus a lender does not

owe a borrower any special duties.” Miyamoto v. Bank of Am., N.A., 2020 WL 5577730,

at *3 (E.D.N.Y. Sept. 17, 2020) (citation and internal quotation marks omitted); see

Guido v. Wells Fargo Bank, N.A., 2017 WL 5515859, at *7 (S.D.N.Y. Mar. 21, 2017)

(holding that plaintiffs failed to state a claim for negligent infliction of emotional distress

against bank that filed foreclosure action because, among other things, “[p]laintiffs

fail[ed] to allege what duty [the bank] owed [them] in the first instance”), aff’d, 699 F.

App’x 54 (2d Cir. 2017). And if a lender does not owe any special duty to a borrower, a

lender’s lawyers certainly owe no such duty.23

23 Lawyers owe duties to their clients. See Lan Sang v. Ming Hai, 951 F. Supp.

2d 504, 529 (S.D.N.Y. 2013) (“[A]n attorney stands in a fiduciary relationship to the

client, a relationship that imposes a set of special duties.” (alteration in original)). But

“[a] lawyer owes a duty to a nonclient[] and can be held liable for breach[ only] in

narrower circumstances”—when, among other things, “the lawyer’s client is a trustee,

guardian, executor, or fiduciary acting primarily to perform similar functions for the

nonclient” and “the lawyer knows that appropriate action by the lawyer is necessary with

respect to a matter within the scope of the representation to prevent or rectify the

breach of a fiduciary duty owed by the client to the nonclient.” In re Food Mgmt. Grp.,

LLC, 380 B.R. 677, 708 (Bankr. S.D.N.Y. 2008); see also Lydian Priv. Bank v. Leff,

Further, while this Court does not “minimize the emotional tumult” that

foreclosure proceedings may cause the person subjected to them, the facts presented

here are unlike the circumstances in which New York courts historically have

recognized a cause of action for negligent infliction of emotional distress. Those

circumstances generally involve “physical danger” or distinct kinds of emotional harm,

such as that caused by the “mishandling of a corpse.” See Rosendale v. Mr. Cooper

Grp. Inc., 2024 WL 1484248, at *15 (S.D.N.Y. Apr. 5, 2024).

Jones therefore has not stated a viable claim for negligent infliction of emotional

distress against the Robertson defendants.

b. Intentional Infliction

“To establish a claim for intentional infliction of emotional distress, a plaintiff

must allege (1) extreme and outrageous conduct, (2) intent to cause severe emotional

distress, (3) a causal connection between the conduct and the injury, and (4) severe

emotional distress.” Campbell, 2012 WL 2952852, at *11 (citation and internal

quotation marks omitted). “New York sets a high threshold for conduct that is ‘extreme

and outrageous’ enough to constitute intentional infliction of emotional distress.” A.M.

ex rel. J.M. v. NYC Dep’t of Educ., 840 F. Supp. 2d 660, 690 (E.D.N.Y. 2012) (citations

omitted), aff’d sub nom. Moody ex rel. J.M. v. NYC Dep't of Educ., 513 F. App’x 95 (2d

Cir. 2013). In fact, “[l]iability has been found only where the conduct has been so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds

of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

2009 WL 1649689, at *3 n.4 (S.D.N.Y. June 9, 2009) (same). So because Jones was

not in a fiduciary relationship with the bank, neither was she in one with its attorneys.

community.” Chanko v. Am. Broad. Cos., 27 N.Y.3d 46, 56, 49 N.E.3d 1171, 1178

(2016) (citation omitted).

As already noted, see note 14, supra, this Court lacks jurisdiction over claims for

intentional infliction of emotional distress caused by the state court judgment itself—that

is, the judgment of foreclosure. And even assuming that the actions of the Robertson

defendants were “extreme and outrageous,” Jones has not alleged that their conduct in

bringing the foreclosure action—as opposed to the judgment itself—caused her “severe

emotional distress.” See Docket Item 11. In fact, courts have found similar allegations

insufficient to state a claim for intentional infliction of emotional distress. See Guido,

2017 WL 5515859, at *6 (allegations that bank “attempted to wrongfully and unlawfully

take away the [plaintiffs’] home,” without any “basis in law” and when the plaintiffs owed

“no debt” to the bank, did not “describe conduct that is ‘atrocious’ or ‘utterly intolerable

in a civilized community’” (citation omitted)); cf. Worthy-Pugh, 664 F. App’x at 22

(affirming district court’s dismissal of intentional infliction of emotional distress claim

because plaintiff’s allegation that defendants fraudulently obtained judgment of

foreclosure against her did not “allege emotional distress that was sufficiently severe to

trigger liability” under similar Connecticut law standard). This Court likewise finds that

Jones has failed to state a claim for intentional infliction of emotional distress here.

E. Mortgage Defendants’ Motion to Dismiss

In sum, because the Court lacks jurisdiction over Jones’s claims for wrongful

foreclosure and slander of title, and because res judicata precludes the Court from

adjudicating her remaining claims against PHH Mortgage, PHH Mortgage’s motion to

dismiss, Docket Item 38, is granted. Furthermore, because Jones’s allegations against

the Robertson defendants fail to state a claim upon which relief can be granted, those

defendants’ motion to dismiss, Docket Item 37, is granted as well.

II. AMHERST POLICE OFFICERS’ MOTION TO DISMISS

In addition to her claims against the mortgage defendants, Jones asserts claims

against the Amherst police defendants under 42 U.S.C § 1983. More specifically, she

alleges that despite the fact that the Sheriff’s Department told her that she had 30 days

to collect her things, the Amherst police defendants arrested her when she returned to

her house to do just that. Docket Item 11 at 10-11. Read liberally, the complaint

asserts claims for false arrest under section 1983 and New York state law. See Harley

v. City of New York, 2016 WL 552477, at *2 (E.D.N.Y. Feb. 10, 2016) (“The elements of

a false arrest claim under [s]ection 1983 are substantially the same as the elements

under New York State law: [A p]laintiff must show that the defendant intentionally

confined him without his consent and without justification.” (citation and internal

quotation marks omitted)). But the Amherst police defendants say that because “they

are entitled to qualified immunity for [Jones’s] arrest,” Jones’s claims against them must

be dismissed. Docket Item 51-8 at 5-8. The Court disagrees.

“Qualified immunity shields officials [including police officers] performing

discretionary functions ‘from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person

would have known.’” Rupp v. Buffalo, 91 F.4th 623, 642 (2d Cir. 2024) (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). “With respect to a claim of arrest without

probable cause, the doctrine shields officers from suit for damages if a reasonable

officer could have believed [the] action to be lawful[] in light of clearly established law

and the information [the officer] possessed” or if “officers of reasonable competence

could disagree on whether the probable cause test was met.” Id. (alteration, citation,

emphasis, and internal quotation marks omitted).

“Although a defendant may assert the defense of qualified immunity in a motion

to dismiss, the Second Circuit has held that it is very difficult for such a defense to

succeed at the pleading stage.” Collins v. Ferguson, 804 F. Supp. 2d 134, 140

(W.D.N.Y. 2011). As the Second Circuit recently has explained, while “qualified

immunity should be resolved at the earliest possible stage in litigation[,] . . . [it] cannot

be resolved . . . . prior to ascertainment of the truth of the plausible factual allegations

on which a finding of qualified immunity is premised.” Chamberlain Est. of Chamberlain

v. City of White Plains, 960 F.3d 100, 110 (2d Cir. 2020) (citations and internal quotation

marks omitted). “And since qualified immunity is an affirmative defense that is typically

asserted in an answer, as a general rule, the defense of qualified immunity cannot

support the grant of a Rule 12(b)(6) motion.” Id. (alteration, citations, and internal

quotation marks omitted). Instead, qualified immunity is appropriate at the motion to

dismiss stage only if “the facts supporting the qualified immunity defense . . . appear on

the face of the complaint.” Pourkavoos v. Town of Avon, 823 F. App’x 53, 59 (2d Cir.

2020) (summary order) (alterations and citation omitted).

The Amherst police defendants argue that it is undisputed that Jones had been

“evicted from the property”—“in the presence of Amherst [p]olice . . . [o]fficers”—and

that they therefore reasonably believed that they had probable cause to arrest her for

trespassing. Docket Item 51-8 at 8. But as already noted, Jones says that she had

been given permission to return to the property by the Sheriff’s Department. Docket

Item 11 at 10. Jones also says that the Sheriff’s Department previously had instructed

the Amherst police to “leave” her property when she was being evicted and that the

Amherst police followed that instruction. Id. (“The Sheriff[’s] Department [a]sk[ed] the

Amherst police to leave, so the Amherst police left.”). So Jones says that she explicitly

was given permission to return to her home by the law enforcement officers with primary

responsibility for her eviction but that she was arrested when she did that.

It is true that Jones does not explicitly allege that the Amherst police defendants

knew that the Sheriff’s Department had given Jones permission to return. But in light of

its obligation to afford plaintiffs, particularly pro se plaintiffs, all “reasonable inferences”

on a motion to dismiss, see Trs. of Upstate N.Y. Eng’rs Pension Fund, 843 F.3d at 566,

this Court must infer that they did. And if the Amherst police knew that Jones had been

given permission by law enforcement to return to the property, they lacked probable

cause to arrest her for trespassing. See United States v. Pabon, 871 F.3d 164, 175 (2d

Cir. 2017) (“[O]fficers may not disregard facts tending to dissipate probable cause when

directly confronted with such facts before an arrest is made.” (citation and internal

quotation marks omitted)).

Palmer v. City of New York, 564 F. Supp. 3d 221 (E.D.N.Y. 2021), illustrates the

point. In that case, the plaintiff was arrested for trespassing on premises from which a

court had ordered him evicted, id. at 233-35, and the plaintiff even “acknowledge[d] that

[he had] broke[n] a lock to reenter the [p]remises, ” id. at 245. But the plaintiff also said

that “the arresting police officer[ had been] shown court documents reflecting a stay on

[the] eviction and . . . ignored those documents before arresting [the plaintiff].” Id.

(alteration, citation, and internal quotation marks omitted). Under those circumstances,

the court found that the plaintiff had “adequately pleaded that officers lacked probable

cause to arrest him" and denied as “premature” the arresting officer’s motion to dismiss.

Id. at 245-46. Indeed, the court explained, “[v]iewing the allegations in the complaint in

the light most favorable to [the] plaintiff, [the officer] ha[d] failed to establish at this stage

that an officer of reasonable competence could have concluded that probable cause

supported [the plaintiff’s] arrest.” Id. at 246.

The same analysis applies here. If the Amherst police defendants knew that

Jones had permission to return to the property to collect her belongings, as this Court

must assume at this juncture, then Jones has adequately pleaded a claim for false

arrest. Likewise, because the Amherst police defendants’ entitlement to qualified

immunity is not apparent “on the face” of the amended complaint, the Court is unable to

conclude at the pleading stage that they are entitled to qualified immunity. Their motion

to dismiss therefore is denied.

CONCLUSION

For the reasons stated above, the motions to dismiss filed by the Robertson

defendants and PHH Mortgage, Docket Items 37 and 38, are GRANTED, and the

motion to dismiss filed by the Amherst police defendants, Docket Item 51, is DENIED.

Jones’s motion to strike, Docket Item 68, also is DENIED. The Clerk of the Court shall

remove Robertson PLLC, Boriskin, Sandler, and PHH Mortgage as defendants. The

Amherst police defendants shall answer Jones’s amended complaint within 30 days of

the date of this order.

SO ORDERED.

Dated: July 15, 2024

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE