King v. Federal National Mortgage Association

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CECIL ROY KING AND VALERIE

HUNTER KING,

Plaintiffs, REPORT AND RECOMMENDATION

-against- 24-CV-1153 (GRB) (ST)

FEDERAL NATIONAL MORTGAGE

ASSOCIATION (FNMA), PRICILLA

ALMODOVAR (CEO), PHH MORTGAGE

CORP, GLEN A. MESSINA (CEO),

COUNSEL DAVID S. HUGHES, FOR

HOUSER LLP,

Defendants.

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TISCIONE, United States Magistrate Judge:

Before this Court is a motion by Defendants Federal National Mortgage Association

(FNMA) (“Defendant Fannie Mae”), Priscilla Almodovar (“Defendant Almodovar”), PHH

Mortgage Corp (“Defendant PHH”), Glen A. Messina (“Defendant Messina”), and Counsel Daniel

S. Hughes, for Houser LLP (“Defendant Hughes”) (collectively, “Defendants”) to dismiss a

complaint filed by pro se Plaintiffs Cecil Roy King and Valerie Hunter King (collectively,

“Plaintiffs”) pursuant to Federal Rules of Civil Procedure (“FRCP”) 12(b)(1), 12(b)(2), 12(b)(5)

and 12(b)(6),1 arguing that Plaintiffs’ claims are barred by the Rooker-Feldman doctrine, that the

Court lacks personal jurisdiction over two of the individual Defendants, that Plaintiffs failed to

effectuate proper service, that Plaintiffs failed to state claims upon which relief can be granted, and

1 Defendants do not identify their motion as being brought pursuant to Rule 12(b)(2). However, Defendants assert

several arguments that personal jurisdiction is lacking for the individual defendants, which are properly understood as

motions pursuant to Rule 12(b)(2).

that Plaintiffs’ claims are barred on res judicata grounds. The motion was referred to this Court for

a Report and Recommendation by the Honorable Gary R. Brown. For the reasons set forth below,

the Court respectfully recommends that Defendants’ motion be GRANTED and that the matter be

remanded in full to New York state court, or that, in the alternative, Defendants’ motion be

GRANTED and the action be DISMISSED WITH PREJUDICE.

BACKGROUND

At this stage, the Court is required to assume Plaintiffs’ alleged facts are true, drawing all

reasonable inferences in Plaintiffs’ favor.2 Tandon v. Captain’s Cove Marina of Bridgeport, Inc.,

752 F.3d 239, 243 (2d Cir. 2014) (discussing this standard in Rule 12(b)(1) context); Costabile v.

New York City Health & Hosps. Corp., 951 F.3d 77, 80 (2d Cir. 2020) (discussing this standard in

Rule 12(b)(6) context). The Court will also draw facts from documents outside the Complaint that

are properly considerable on the motions presented. Tandon, 752 F.3d at 243 (courts may consider

evidence outside complaint on Rule 12(b)(1) motions); United States ex rel. Foreman v. AECOM,

19 F.4th 85, 106 (2d Cir. 2021) (courts may consider, on Rule 12(b)(6) motions, documents

attached to the complaint as exhibits, incorporated by reference, or which are integral to the

complaint).

2 There is some tension in case law regarding drawing inferences in favor of the party asserting jurisdiction for

purposes of a 12(b)(1) motion. See Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011)

(reasonable inferences drawn in plaintiff’s favor); see also Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170

(2d Cir. 2008), aff’d, 561 U.S. 247, 130 S. Ct. 2869, 177 L. Ed. 2d 535 (2010) (examining standard that reasonable

inferences should be drawn in plaintiff’s favor but that jurisdiction must be shown affirmatively, “and that showing is

not made by drawing from the pleadings inferences favorable to the party asserting it” (citation omitted)). But see J.S.

ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004) (ruling that courts “are not to draw inferences from

the complaint favorable to plaintiffs” for purposes of subject matter jurisdiction); Hylton v. J.P. Morgan Chase Bank,

N.A., 338 F. Supp. 3d 263, 272 (S.D.N.Y. 2018) (same, quoting J.S. ex rel. N.S.). This tension is reconcilable. In short,

when jurisdiction is controverted by a movant on a fact-based Rule 12(b)(1) motion, courts may examine evidence

outside the pleadings and, when such evidence reveals factual problems regarding jurisdiction, the burden shifts to the

plaintiffs to establish jurisdiction. Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56–57 (2d Cir. 2016). Put another

way, when a fact-based challenge to jurisdiction is asserted, favorable inferences are not enough to win the day. For

purposes of this motion, which asserts a fact-based challenge to jurisdiction, the Court will draw all reasonable

inferences in favor of Plaintiffs, but will also examine the evidence outside the pleadings.

As Plaintiffs are proceeding pro se, the Court must also construe Plaintiffs’ pleading

liberally and interpret it to raise the strongest claims it suggests. Meadows v. United Servs., Inc.,

963 F.3d 240, 243 (2d Cir. 2020); Costabile, 951 F.3d at 80. Moreover, as Plaintiffs’ opposition to

the instant motion contains several factual assertions that are not alleged in the Complaint, the

Court will also consider the facts alleged therein, in light of the special solicitude to be afforded to

pro se litigants. Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (“A district court deciding

a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing

the motion.”); Kiss v. Torres, No. 21-CV-10391 (KMK), 2024 WL 1210941, at *2 (S.D.N.Y. Mar.

19, 2024) (same, collecting cases).

I. Facts Alleged in the Complaint and Plaintiffs’ Opposition.

Plaintiffs brought this action to reclaim a property that was sold in foreclosure and to pursue

various causes of action arising from a mortgage transaction that was originated at the time

Plaintiffs purchased the foreclosed property. Compl. at 7, ECF No. 2-1; Pl.’s Opp’n ¶ 26, ECF No.

28.

Plaintiffs allege that, “[o]n July 29, 2004, [they] obtained a mortgage loan from Fleet

National Bank” for a property located at 7 Carnaby Avenue, Coram, New York 11727. Compl. at

2‒3. The mortgage transaction was supported by a Note, of which Plaintiffs attached a partial copy

to the Complaint.3 Id. at 8. The Note attached to the Complaint indicates that the mortgage loan

was for $308,750.00. Id. at 8. Plaintiffs, however, “den[y] expressly, directly, and explicitly that

$308,750 was borrowed from Fleet National Bank.” Id. at 4. Plaintiffs dispute that this money was

3 Plaintiffs’ Complaint alleges that they “[d]eny in entirety the execution of the original note and mortgage[,] . . .

except for the admission of executing a promissory note and mortgage.” Id. at 4. The meaning of this allegation is not

clear. The Note that Plaintiffs attached to the Complaint is labeled “Original Note” and appears to contain Plaintiffs’

initials and signatures. Id. at 8. There is no indication from the Complaint that there are two separate notes which

might be referred to separately as an “original note” and a “promissory note.” The Court understands this allegation

to mean that Plaintiffs acknowledge that they executed the Note that Plaintiffs submitted with their Complaint.

borrowed because Plaintiffs believed that the bank “was going to advance to [Plaintiffs] the

entirety of the principal amount, as stated on the note, to the sum of $308,750.00 USD[] [a]nd in

return . . . [Plaintiff] would make monthly payments.” Pl.’s Opp’n ¶ 10. Plaintiffs, however, allege

that they “never received any advances on the principal . . . via cash, check, or direct deposit into

. . . [Plaintiff’s] bank account.” Id. ¶ 11; see also id. ¶¶ 6‒7, 25, 41‒42, 44‒47, 49‒53. Plaintiffs

further allege that they were unaware of a variety of the loan terms, including those related to

default. Compl. at 4. In any event, Plaintiffs deny “any default under the Loan Documents.” Id.

In addition to alleging that they were misled as to, or otherwise unaware of, the nature and

terms of the loan, Plaintiffs also allege several discrepancies in the loan documents. For example,

Plaintiffs allege that it is unclear whether the Note was ever endorsed and that it was subsequently

assigned to a different lender without proper documentation to support the assignment. Compl. at

3. It is unclear from Plaintiffs’ Complaint whether they allege that the mortgage was assigned to

Federal National Mortgage Association or PHH Mortgage Corporation. Id. However, Plaintiffs

allege that, at some unidentified time, they received “a statement from PHH Mortgage

Corp[oration] indicating a delinquency notice and a foreclosure referral.” Id. Due to the

discrepancies in the documentation, Plaintiffs allege that it is unclear whether PHH Mortgage

Corporation had legal standing to pursue foreclosure. Id. at 3‒5. Finally, Plaintiffs allege that

Defendants “concealed the fact that the Loan[] [was] securitized,” including concealing that

Plaintiff’s Note would be pooled with other Notes and that interests therein would be sold to

investors on the stock market. Pl.’s Opp’n ¶ 16. Plaintiffs allege that this practice reduced the value

of their home. Id. ¶ 19.

Plaintiffs allege that Defendants’ conduct with respect to all of the above amounted to

fraud. Specifically, Plaintiffs allege that Defendants misrepresented the nature of their loan and

concealed pertinent information regarding it, engaged in fraudulent practices with respect to the

assignment of the Note, and submitted fraudulent or invalid documentation to the New York state

court in connection with the foreclosure action in order to obtain the foreclosure on the property.

See generally Pl.’s Opp’n; Compl.

II. Evidence Outside of the Pleadings.

As discussed, the Court will also consider evidence outside the pleadings in addressing this

motion. To that end, in support of their motion to dismiss, Defendants submitted several exhibits

regarding Plaintiffs’ mortgage loan. These documents give rise to the following facts.

Plaintiffs, as alleged, originally executed a Note for a mortgage loan in 2004 for $308,750.

Defs.’ Ex. A, ECF No. 27-3. The mortgage was subsequently assigned in 2011. Defs.’ Ex. B, ECF

No. 27-4. Thereafter, in 2012, Plaintiffs sought a loan modification, which appears to have been

for the purpose of making improvements to their property, and which increased the then-remaining

principal balance of $286,971.92 to $342,129.12. Defs.’ Ex. C, ECF No. 27-5.

On May 3, 2017, Defendant PHH commenced a foreclosure action against Plaintiffs in

Suffolk County Supreme Court, alleging that Plaintiffs defaulted on the terms of the mortgage.

Defs.’ Ex. D, ECF No. 27-6. Plaintiffs did not appear or otherwise respond to the action, and

Defendant PHH thereafter moved for default, which motion was granted on December 4, 2017.

Defs.’ Ex. F, ECF No. 27-8. A Judgment of Foreclosure and Sale (“JFS”) was entered on April 11,

2018, and the property was sold at auction on October 3, 2019. Defs.’ Ex. G, ECF No. 27-9; Defs.’

Ex. H, ECF No. 27-10. On October 7, 2019, four days after the sale at auction, Plaintiffs appeared

and moved to dismiss the action and cancel the notice of pendency, which the court denied on

December 10, 2019. Defs.’ Ex. I, ECF No. 27-11. Plaintiffs thereafter filed four additional motions

to vacate the judgment of foreclosure, all of which were denied by the state trial court. Defs.’ Ex.

J, ECF No. 27-12.

Plaintiffs subsequently filed an action in state court to reverse the foreclosure, which the

court dismissed on res judicata grounds. Defs.’ Ex. K, ECF No. 27-13; Defs.’ Ex. L, ECF No. 27-

14. Plaintiffs also made various attempts to appeal that decision, which were denied at the state

appellate court and court of last resort. Defs.’ Ex. M, ECF No. 27-15; Defs.’ Ex. N, ECF No. 27-

16. Plaintiffs then filed two suits in the Eastern District, the first of which was dismissed for want

of subject matter jurisdiction, King v. New York State, No. 23-CV-3421(GRB)(ST), 2023 WL

5625440, at *5 (E.D.N.Y. Aug. 31, 2023), and the second of which was voluntarily dismissed by

Plaintiffs, King v. PHH Mortgage Corp., No. 23-CV-8557(GRB)(ST).

III. Procedural History.

Plaintiffs initiated the instant action in New York state court on January 16, 2024, which

Defendants then removed to this Court based upon federal question jurisdiction. Compl. at 1;

Notice of Removal, ECF No. 1.

On May 20, 2024, Defendants filed the instant motion to dismiss, which Plaintiffs opposed.

See Def.’s Mem. 29, ECF No. 27-1; Pl.’s Opp’n. The Honorable Gary R. Brown referred all

dispositive pretrial motions to this Court for Report and Recommendation on April 4, 2024. See

Referral Order dated April 4, 2024.

LEGAL STANDARD

Defendants move to dismiss the Complaint under FRCP 12(b)(1), 12(b)(2), 12(b)(5), and

12(b)(6).4 See generally Def.’s Mem. 3.

I. Rule 12(b)(1) Standard

4 As discussed, Defendants do not identify the motion as being brought pursuant to Rule 12(b)(2) but assert various

arguments thereunder.

“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)

when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000). A defendant’s challenge to an action under the

Rooker-Feldman doctrine is properly considered a motion under Rule 12(b)(1) for lack of subject

matter jurisdiction. Hylton, 338 F. Supp. 3d at 273; see also Vossbrinck v. Accredited Home

Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014) (ruling Rooker-Feldman is jurisdictional). When a

court dismisses an action for lack of subject matter jurisdiction, the dismissal must be without

prejudice. Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 121 (2d Cir. 2017) (in Article III

standing context); see also Hylton, 338 F. Supp. 3d at 272 (ruling, in Rooker-Feldman context, that

jurisdictional questions, including Rooker-Feldman, must be decided before ruling on the merits);

John v. Whole Foods Mkt. Grp., Inc., 858 F.3d 732, 735 (2d Cir. 2017) (“[W]ithout jurisdiction,

[a] district court lacks the power to adjudicate the merits of [a] case or dismiss a case with

prejudice.”).

A Rule 12(b)(1) motion may be either facial or fact-based. Carter, 822 F.3d at 56. When

the motion is facial, i.e., based solely on the allegations of the pleading including the complaint

and any exhibits attached to it, the plaintiff has no evidentiary burden. Id.; see also Amidax, 671

F.3d at 145. The task of the district court is to determine whether the pleading “allege[s] facts that

affirmatively and plausibly suggest that [the plaintiff] has standing to sue.” Carter, 822 F.3d at 56.

Alternatively, a defendant is permitted to make a fact-based Rule 12(b)(1) motion,

proffering evidence beyond the pleading. See, e.g., Amidax, 671 F.3d at 145; Robinson v.

Government of Malaysia, 269 F.3d 133, 140 n.6 (2d Cir. 2001). “[I]f the affidavits submitted [by

the defendant] on a 12(b)(1) motion . . . reveal the existence of factual problems” in the assertion

of jurisdiction, plaintiffs must present evidence controverting the alleged defects. Carter, 822 F.3d

at 57. Thus, when a defendant makes a fact-based challenge to jurisdiction, the plaintiff “has the

burden of proving by a preponderance of the evidence that [jurisdiction] exists.” Tandon, 752 F.3d

at 243 (quoting Makarova, 201 F.3d at 113). However, if the defendant’s proffered evidence is

immaterial because it does not contradict plausible allegations that are themselves sufficient to

show standing, then the plaintiffs are entitled to rely on the allegations in the pleading. Carter, 822

F.3d at 57.

Finally, “[w]here jurisdictional facts are placed in dispute, the court has the power and

obligation to decide issues of fact by reference to evidence outside the pleadings, such as

affidavits.” Tandon, 752 F.3d at 243 (quoting APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003)).

As discussed, Defendants have submitted several documents regarding prior actions between the

parties, and thus the instant motion presents a fact-based challenge to jurisdiction.

II. Pro Se Pleading Standard

The Court must hold a complaint filed pro se, “however inartfully pleaded,” to “less

stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see Hogan v. Fischer,

738 F.3d 509, 515 (2d Cir. 2013) (noting that a court must interpret a pro se complaint to “raise

the strongest claims that it suggests.”). Even so, the Court may not “invent factual allegations that

[a pro se plaintiff] has not pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010); see

Williams v. Richardson, 425 F. Supp. 3d 191, 201 (S.D.N.Y. 2019) (“[T]he duty to liberally

construe a plaintiff’s complaint is not the equivalent of a duty to re-write it.” (internal citations

omitted)). Dismissal of a pro se complaint is therefore appropriate where the plaintiff has failed to

meet the minimum pleading requirements. Temple v. Hudson View Owners Corp., 222 F. Supp. 3d

318, 323 (S.D.N.Y. 2016).

DISCUSSION

Defendants move to dismiss Plaintiffs’ Complaint on a variety of grounds, including res

judicata, the Rooker-Feldman doctrine, failure to state a claim on the grounds that various requisite

elements of the causes of action have not been alleged, failure to effectuate proper service, a lack

of personal jurisdiction over two of the individual defendants, and a veil piercing argument with

respect to two of the individual defendants. See generally Defs.’ Mem. Defendants do not clearly

label the grounds for all of these arguments, but they span jurisdictional and non-jurisdictional

issues. However, the Court must first address jurisdictional issues before it can proceed to the

merits. Hylton, 338 F. Supp. 3d at 272 (citing Sinochem Int’l Co., Ltd. v. Malaysia Int’l Shipping

Corp., 549 U.S. 422, 430-31 (2007)). To that end, the Court will first categorize Defendants’

arguments before examining them accordingly.

Defendants’ argument that Plaintiffs’ claims are barred by the Rooker-Feldman doctrine is

a jurisdictional argument, properly understood as one for lack of subject matter jurisdiction under

Rule 12(b)(1). Hylton, 338 F. Supp. 3d at 273. Defendants’ arguments regarding personal

jurisdiction are aptly named in that they, too, are jurisdictional and must precede merits

determinations. Beijing Neu Cloud Oriental Sys. Tech. Co. v. Int’l Bus. Machines Corp., 110 F.4th

106, 111 n.2 (2d Cir. 2024). To the extent that Defendants’ arguments for lack of personal

jurisdiction rely upon the arguments regarding improper service with respect to the individual

defendants, those service arguments would also be jurisdictional in nature. Finally, Defendants’

veil piercing argument is identified as falling under personal jurisdiction, but the grounds for this

argument are not immediately clear, as Defendants’ only citation is to an action to compel

arbitration. Defs.’ Mem. at 28. It seems best understood as an Article III injury argument, in that it

effectively argues that two of the individual defendants cannot properly be understood to have

caused injury because they had no personal involvement in the foreclosure action and corporate

veil principles preclude individual liability. To the extent Defendants have cited no applicable case

law and have failed to clearly identify the grounds for this argument, the Court deems it perfunctory

and thus waived. LCS Grp., LLC v. Shire Dev. LLC, No. 20-2319, 2022 WL 1217961, at *3 n.1 (2d

Cir. Apr. 26, 2022) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived.”) (quoting Tolbert v. Queens Coll., 242 F.3d 58,

75 (2d Cir. 2001)).

By contrast, a motion to dismiss brought on res judicata grounds is properly understood as

one brought under Rule 12(b)(6), and a decision on such grounds constitutes a decision on the

merits. TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 498 (2d Cir. 2014). Moreover,

Defendants’ arguments regarding failure to state a claim with respect to the various causes of action

are also merits issues.

Having determined the jurisdictional and non-jurisdictional issues, the Court will begin by

addressing Defendants’ Rooker-Feldman argument because it relates to all of the claims at issue,

whereas Defendants’ other jurisdictional arguments only relate to the individual defendants.

I. Defendants’ Motion Under Rule 12(b)(1) to Dismiss Plaintiffs’ Complaint as Barred

by the Rooker-Feldman Doctrine Should Be Granted, but the Action Should Be

Remanded to State Court, Because Defendants Improperly Removed this Action to

Federal Court.

“Under the Rooker–Feldman doctrine, federal district courts lack jurisdiction over cases

that essentially amount to appeals of state court judgments.” Vossbrinck, 773 F.3d at 426 (citing

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283–84 (2005)).

There are four requirements for the application of Rooker-Feldman: (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. (quoting Hoblock v. Albany Cnty. Bd. of Elecs., 422 F.3d 77, 85 (2d Cir. 2005)) (internal

quotations and alterations omitted).

Defendants argue that “Plaintiffs[’] federal claims are barred by the Rooker-Feldman

doctrine” because they were brought for the purpose of unwinding the foreclosure sale. Defs.’

Mem. at 9. In support, Defendants provide several reasons why Plaintiffs’ claims effectively

attempt to appeal the state court foreclosure judgment. Defs.’ Mem. at 10‒11. The problem with

Defendants’ argument is the characterization that these claims are Plaintiffs’ federal claims.

Indeed, in support of their argument, Defendants rely on the Second Circuit’s decision in

Vossbrinck v. Accredited Home Lenders, Inc., but apparently overlook its holding. Critically, while

the Second Circuit held in Vossbrinck that claims that a foreclosure action was begotten by fraud

are barred by Rooker-Feldman, the Court’s holding continued as follows:

While we agree with the district court that Rooker–Feldman bars such claims, the

district court erred in dismissing these claims outright. Vossbrinck’s claims that

Defendants made fraudulent representations during the foreclosure action were

removed by Deutsche Bank from state court to federal court. The Rooker–Feldman

doctrine pertains not to the validity of the suit but to the federal court’s subject

matter jurisdiction to hear it. When a case has been removed from state court to

federal court, “[i]f at any time before final judgment it appears that the district court

lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).

Thus, to the extent the barred fraud claims originated in Vossbrinck’s state-court

complaint, the district court’s judgment dismissing the claims should be vacated

and those claims remanded to state court. When a defendant is sued in state court

on a claim appropriately brought in state court, which a federal court would be

powerless to adjudicate, the defendant may not defeat the claim by removing it to

federal court and then obtaining its dismissal on the grounds of the federal court’s

lack of jurisdiction.

Vossbrinck, 773 F.3d at 427 (internal citations omitted). Thus, to the extent that Plaintiffs’ claims

are barred by Rooker-Feldman, this Court lacks jurisdiction to hear those claims. However

Defendants, who improperly removed the action notwithstanding the lack of jurisdiction, cannot

now rely on that lack of jurisdiction to secure dismissal. To that end, the Court will determine

which of Plaintiffs’ claims are barred by Rooker-Feldman and must be remanded back to state

court.

Plaintiffs’ Complaint brings the following causes of action: (1) a violation of the Real

Estate Settlement Procedures Act (“RESPA”); (2) an action under Rule 10b-5 of the Securities

Exchange Act; (3) an action under the Truth in Lending Act (“TILA”); (4) an action under the

California Consumer Privacy Act; (5) an action for breach of contract; (6) an action for fraudulent

misrepresentation.5 Compl. at 6‒7; Pl.’s Opp’n at 10. Plaintiffs’ prayed-for relief on these causes

of action are that the property be returned to Plaintiffs, that the payments and down payment made

on the mortgage loan be returned to Plaintiffs’, and that the Court enter a declaratory judgment to

the effect that Plaintiff has full title in the property free from any encumbrances. Pl.’s Opp’n 19‒

20; Compl. at 7. All of these claims are barred by Rooker-Feldman because the relief sought

“invites review and rejection of the state judgment,” Vossbrinck, 773 F.3d at 427 (cleaned up), in

that the damages alleged all arise “from the unfavorable state court judgment.” Fiorilla v. Citigroup

Glob. Markets, Inc., 771 F. App’x 114, 115 (2d Cir. 2019). Indeed, courts in this District to have

addressed causes of action alleging fraudulent foreclosures have routinely held such claims barred

by the Rooker-Feldman doctrine. Lorick v. Kilpatrick Townsend & Stockton LLP, No. 18-CV-7178

(ENV), 2021 WL 7906510, at *5–8 (E.D.N.Y. Aug. 20, 2021), report and recommendation

adopted, No. 18CV7178ENVRLM, 2022 WL 1104849 (E.D.N.Y. Apr. 13, 2022) (discussing, at

length, the precedent regarding the Rooker-Feldman as it relates to fraudulent foreclosure actions

in this District).

5 Plaintiffs also assert claims under criminal statutes including tax evasion and grand larceny. Under well-established

law of the Supreme Court and Second Circuit, private plaintiffs cannot bring causes of action under criminal statutes,

see Townsend v. Dordofsky, No. 1:13-CV-1603 MAD/ATB, 2014 WL 1572884, at *6 (N.D.N.Y. Apr. 18, 2014)

(collecting cases), and thus the Court disregards criminal claims asserted in Plaintiffs’ filings.

As a result, this Court lacks subject matter jurisdiction to reach a determination on the

merits of Plaintiffs’ claims. Thus, the Court respectfully recommends that this action be remanded

in full back to the Suffolk County Supreme Court. See Vossbrinck, 773 F.3d at 427.

II. Plaintiffs’ Claims Are Nevertheless Barred by the Doctrine of Res Judicata.6

Courts deciding motions under the Rooker-Feldman doctrine often address, in the

alternative, whether claims are barred by the doctrine of res judicata. Vossbrinck, 773 F.3d at 427

(“To the extent Vossbrinck’s pro se complaint can be liberally construed as asserting fraud claims

that are not barred by Rooker–Feldman . . . we nonetheless affirm the dismissal of those claims

[on res judicata grounds].”). To that end, the Court makes reference to the thorough and lengthy

discussion in Lorick v. Kilpatrick Townsend & Stockton LLP regarding why claims effectively

identical to those at issue here are barred by the doctrine of res judicata under New York law.

Lorick, 2021 WL 7906510, at *8–11; see also Dekom v. Fannie Mae, 846 F. App’x 14, 19 (2d Cir.

2021) (“Under the Full Faith and Credit Act, 28 U.S.C. § 1738, we must apply New York res

judicata law to New York state court judgments.” (citation omitted)). Indeed, the Second Circuit

has recently held the same in an action alleging RESPA, TILA, and fraud claims regarding a New

York state court foreclosure judgment—causes of action which are also alleged in the case at bar.

Dekom, 846 F. App’x at 19–21. Moreover, the New York state court has already itself ruled that an

action filed by Plaintiffs to unwind the foreclosure sale at issue here was barred by res judicata

under New York law. See Defs.’ Ex. L. As such, in the alternative, the Court respectfully

6 While Defendants raise other jurisdictional arguments that would typically be addressed before issues addressed to

the merits of the claims, the merits argument with respect to res judicata disposes of all claims, whereas the personal

jurisdiction arguments pertain only to some of the defendants. Moreover, personal jurisdiction is waivable. Lyndonville

Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000). As Defendants would likely prefer an adjudication

of all claims on the merits, one would presume that Defendants would consent to personal jurisdiction in the event the

Court could reach such a holding. To that end, because courts can avoid jurisdictional questions for waivable hurdles

thereto when the “jurisdictional issue[s are] complex and the merits are straightforward,” see Springfield Hosp., Inc.

v. Guzman, 28 F.4th 403, 415–17 (2d Cir. 2022), the Court proceeds to a straightforward merits issue that disposes of

all claims.

recommends that, should the District Judge find the action properly considerable on the merits,

that the action nevertheless be dismissed with prejudice on the grounds that it is barred by the

doctrine of res judicata.

CONCLUSION

For the reasons set forth above, the Court respectfully recommends that Defendants’

motion to dismiss be GRANTED and that the action be REMANDED IN FULL to the Suffolk

County Supreme Court or, in the alternative, that Defendants’ motion be GRANTED, and that

Plaintiffs’ action be DISMISSED WITH PREJUDICE.

OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil

Procedure, the parties shall have fourteen (14) days from service of this Report and

Recommendation to file written objections. Failure to file timely objections shall constitute a

waiver of those objections both in the District Court and on later appeal to the United States Court

of Appeals. See Marcella v. Capital Dist. Physicians’ Health Plan, Inc., 293 F.3d 42, 46 (2d Cir.

2002); Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); see also Thomas

v. Arn, 474 U.S. 140 (1985).

SO ORDERED.

/s/ Steven Tiscione

Steven Tiscione

United States Magistrate Judge

Eastern District of New York

Dated: Central Islip, New York

March 10, 2025