MEMORANDUM DECISION AND ORDER RESOLVING MOTIONS TO DISMISS COMPLAINT AND CROSS-COMPLAINTS
JAMES L. GARRITY, Jr., Bankruptcy Judge.
Philip Michael Scott, the plaintiff and chapter 13 debtor herein (the "Debtor"), is party to a Mortgage (defined below) on certain real property located in Scarsdale, New York. In 2014, Ocwen Loan Servicing LLC ("Ocwen"), as servicer for Bank of New York Mellon ("BNY"), as mortgagee, purchased an insurance policy covering the property from American Security Insurance Company ("ASIC"). On December 31, 2014, a fire destroyed the property. The Debtor contends that thereafter, ASIC paid the insurance proceeds (the "Insurance Proceeds") to Ocwen, as BNY's servicer, in full satisfaction of the underlying Note (defined below) and Mortgage, but that BNY and/or Ocwen have wrongfully failed to credit those instruments for the amounts paid and to issue a satisfaction of the Mortgage.
In this adversary proceeding, the Debtor seeks: (i) money damages against most of the named defendants based upon their alleged pre-petition breaches of common law and miscellaneous state and federal laws in connection with their efforts to foreclose the Mortgage, and (ii) a determination that the Note, which he did not sign, and the Mortgage, which he did, are fully and finally satisfied and, as such, the Mortgage and a related judgment of foreclosure and sale entered in 2009 against the property are null and void. He seeks relief against five of the seven defendants named in the Debtor's four-count complaint (the "Complaint"),
In Counts One and Two of the Complaint, the Debtor has aggregated damage claims against ASIC, BNY and/or Ocwen predicated on alleged: (i) conversion; (ii) embezzlement; (iii) breach of contract; (iv) constructively fraudulent conveyances (under the New York Debtor and Creditor Law (the "NY DCL")); (v) violations of the New York General Business Law (New York's Unfair and Deceptive Trade Practices law) (the "NY GBL"); and (vi) violations of the Fair Debt Collection Practices Act (15 U.S.C. § 1692a, et seq.) (the "FDCPA"). In Count Three, he seeks money damages against Ocwen based upon Ocwen's alleged failure to credit the loan balance with the insurance proceeds, and against BNY based upon, among other things, its failure to record a satisfaction of mortgage and satisfaction of judgment as allegedly mandated by section 1921 of the New York Real Property Actions and Proceedings Law (the "NY RPAPL") and section 5020 of the New York Civil Practice Law and Rules (the "NY CPLR"). Finally, in Count Four he asserts damage claims against Vencer and McCabe under the FDCPA.
Only ASIC answered the Complaint. None of the Defendants answered the Cross-Complaints. BNY and Ocwen (collectively, the "Mortgagee Defendants") jointly moved to dismiss the Complaint and Cross-Complaints pursuant to Rule 12(b)(6)
The Debtor, Campbell and Gaethers-Langley oppose all of the motions. The Debtor filed one objection covering the Mortgagee Defendants Motion to Dismiss Complaint, and the ASIC Rule 12(c) Motion
As set forth below, the Court finds that the Debtor, Campbell and Gaethers-Langley lack standing to assert claims against the Defendants under the NY DCL. Accordingly, the Court dismisses those claims for relief in Count One of the Complaint and in Count One of each of the Campbell Cross-Complaint and Gaethers-Langley Cross-Complaint, without leave to amend, for lack of subject matter jurisdiction. The Court dismisses the balance of the claims asserted against the Defendants by Campbell and Gaethers-Langley in their Cross-Complaints, without leave to amend, for lack of subject matter jurisdiction since those claims do not fall within the Court's "core," "non-core related to" or supplemental jurisdiction. See 28 U.S.C. §§ 1334(b), 1367(a). Although the Court finds that it has "non-core related to" jurisdiction over the balance of the claims asserted by the Debtor against the Defendants in the Complaint (Counts One through Four), the Debtor has failed to state any claim for relief in support of those counts, and, as a matter of law, is not able to do so. Accordingly, pursuant to 28 U.S.C. § 157(c)(1), the Court recommends that each of those claims be dismissed, without leave to amend.
LEGAL STANDARD AND SCOPE OF RECORD
Rule 12(b)(6) provides in relevant part:
Fed. R. Civ. P. 12(b)(6). As noted, ASIC joins the Mortgagee Defendants and the McCabe Defendants in urging the Court to dismiss the Cross-Complaints pursuant to Rule 12(b)(6). However, since it answered the Complaint, it is seeking a judgment on the pleadings dismissing the Complaint pursuant to Rule 12(c). Under that rule, "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). In resolving ASIC's motion under Rule 12(c), the Court will apply the same standard applicable to a motion under Rule 12(b)(6). See Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010); Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009); see also Fed. R. Civ. P. 12(h)(2)(B) ("Failure to state a claim upon which relief can be granted . . . may be raised . . . by a motion under Rule 12(c).").
To survive a Rule 12(b)(6) 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, 129 S.Ct. 1937, 173 L. Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L. Ed.2d 929 (2007)). Courts use a two-prong approach in assessing the merits of Rule 12(b)(6) motions. See Pension Benefit Guar. Corp. v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717 (2d Cir. 2013) (noting that Iqbal "creates a `two-pronged approach' . . . based on `[t]wo working principles.'" (quoting Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937)). First, the court must "accept as true all of the factual allegations set out in the plaintiff's complaint, draw inferences from those allegations in the light most favorable to plaintiff, and construe the complaint liberally." Rescuecom Corp. v. Google Inc., 562 F.3d 123, 127 (2d Cir. 2009) (quotation marks omitted) (citation omitted). See also Boykin v. Keycorp, 521 F.3d 202, 204 (2d Cir. 2008) (stating that "[i]n reviewing a motion to dismiss, [the court] accept[s] the allegations in the complaint as true.") (citation omitted). However, even as the Court liberally construes the pleading, "bald assertions and conclusions of law will not suffice." Spool v. World Child Int'l Adoption Agency, 520 F.3d 178, 183 (2d Cir. 2008) (internal quotation marks omitted) (citation omitted). Thus, "[a] pleading that offers `labels and conclusions' or a `formulaic recitation of the elements of a course of actions will not do.'" Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555). Second, the court must determine if those well-pleaded factual allegations state a "plausible claim for relief." Id. at 679. To meet that standard, the plaintiff must "plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. See also Kaufman v. Time Warner, 836 F.3d 137, 141 (2d Cir. 2016) (noting that the "plausibility" standard "asks for more than a sheer possibility that a defendant has acted unlawfully." (quoting Iqbal, 556 U.S. at 678)) (internal quotations marks omitted); Twombly, 550 U.S. at 555 (observing that "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . ." (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004))). In approaching the second prong, the "reviewing court [is required] to draw on its experience and common sense." Iqbal, 556 U.S. at 679.
In opposing the motions, the Debtor and Cross-Claimants argue facts not alleged in the Complaint or Cross-Complaints
The McCabe Defendants submitted an affirmation of Charles Higgs, an attorney with McCabe, in support of their original motion to dismiss the Complaint [ECF No. 9-1], but did not include it with the McCabe Motion to Dismiss Complaint, which amended that original motion. Accordingly, the Court will not consider it for any purpose. The Mortgagee Defendants submitted certifications from their counsel Jacqueline M. Aiello (the "Aiello Certifications") in support of their motions to dismiss the Complaint and the Cross-Complaints.
In resolving these motions, the Court can consider all the documents annexed to the Aiello Certifications since they consist of the Complaint, documents referenced in or integral to the Complaint and the Cross-Complaints and documents filed of record in this Court, the federal District Court and New York state court. See, e.g., Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (noting that on a motion to dismiss, "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.") (citations omitted); Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002) (noting that in assessing the merits of a Rule 12(b)(6) motion, the court "is generally limited to the facts as presented within the four corners of the complaint, to documents attached to the complaint, or to documents incorporated into the complaint by reference."); Bd. of Managers of 195 Hudson St. Condo. v. Jeffrey M. Brown Assocs., Inc., 652 F.Supp.2d 463, 471 (S.D.N.Y. 2009) (noting that a court "may properly rely on matters of public record in deciding a motion to dismiss under Rule 12(b)(6), including the public record of prior judicial decisions.") (internal quotation marks omitted) (citations omitted); Geron v. Seyfarth Saw LLP (In re Thelen LLP), 736 F.3d 213, 219 (2d Cir. 2013) ("[M]atters judicially noticed by the District Court are not considered matters outside the pleadings." (quoting Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 426 (2d Cir. 2008))).
ASIC and the Mortgagee Defendants deny that ASIC paid the insurance proceeds to any party, let alone BNY or Ocwen, and that the Mortgage has been satisfied. ASIC submitted the declaration of James Kroll, Vice President of Claims for ASIC (the "Kroll Declaration"),
Subject to the application of Rule 12(d), in assessing the merits of a motion under Rule 12(b)(6) or 12(c), the court "is generally limited to the facts as presented within the four corners of the complaint, to documents attached to the complaint, or to documents incorporated into the complaint by reference." Taylor, 313 F.3d at 776. In relevant part, Rule 12(d) provides, "[i]f, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d). "[A] district court is not obliged to convert a 12(b)(6) motion to one for summary judgment in every case in which a defendant seeks to rely on matters outside the complaint in support of a 12(b)(6) motion; it may, at its discretion, exclude the extraneous material and construe the motion as one under Rule 12(b)(6)." United States v. Int'l Longshoremen's Ass'n, 518 F.Supp.2d 422, 450 (E.D.N.Y. 2007) (collecting cases). The Lucas, Kroll and Scott Affidavits introduce matters outside of the four corners of the Complaint. ASIC contends that if the Court were to consider the Kroll Affidavit, it would be appropriate to grant it summary judgment dismissing the Complaint and Cross-Complaints. See ASIC Rule 12(c) Motion at 8, n. 7. That might be the case if the Debtor and Cross-Claimants each had not submitted the Scott Affidavit. However, in doing so, they have asserted facts the Court finds sufficient to defeat a summary judgment motion. See Scott Affidavit ¶¶ 2-4.
On or about July 15, 2005, the Debtor, together with Campbell and Gaethers-Langley, purchased certain real property located at 12 Inverness Road, Scarsdale, New York (the "Property"). Compl. ¶ 15.
This is the Debtor's third bankruptcy filing. On May 3, 2013, he filed a chapter 13 petition in this Court,
The Complaint focuses on matters arising after the entry of the Judgement of Foreclosure. According to the Debtor, "[o]n or about September 4, 2013, Campbell and Gaethers-Langley transferred, or had already transferred, all their right, title, and interest in [the Property] to [the Debtor], which transfers were properly memorialized by the timely filing of deeds with the Westchester County Clerk." Compl. ¶ 27. The Debtor maintains that on or about January 1, 2014, Ocwen purchased a forced placed hazard insurance policy (the "Policy") on the Property from ASIC, and charged the Policy premium of $5,998 to the Loan balance. Id. ¶ 16, Ex. B (copy of the Policy). He asserts that the Policy provided a liability limit of $712,908 (the principal amount of the Loan then outstanding), covered the period of May 14, 2014 to May 14, 2015, and identified Barbara Campbell and Ocwen as the named insured and named mortgagee, respectively. Compl. Ex. B.
On or about December 31, 2014, a fire destroyed the Property. Id. ¶ 17. The Debtor alleges that thereafter, "upon information and belief": (i) Ocwen made a claim for the fire loss to ASIC; (ii) ASIC cut a check (the "Insurance Check") made payable to Ocwen and Campbell in an amount equal to the balance due under the Mortgage, as determined by ASIC; and (iii) Ocwen, not Campbell, took possession of the Insurance Check, "apparently" forged Campbell's signature onto the check and realized payment under the Policy. Id. ¶¶ 18, 30-31. The Debtor contends that by charging the Mortgage for the forced placed insurance, ASIC contracted to insure the Debtor, Campbell and Gaethers-Langley in the amount of the Mortgage, in the event of a casualty loss. Id. ¶ 35. He says that ASIC breached that contract and its legal duty to pay the Insurance Proceeds to them. Id. ¶¶ 34, 36. The Debtor asserts that NY RPAPL § 1921 mandates that a mortgagee that receives full payment must timely file a mortgage satisfaction; and that NY CPLR § 5020 requires a judgment lien holder that receives payment in full to file a satisfaction of judgment. Id. ¶¶ 20, 21. He maintains that, although Ocwen received payment in full on the Mortgage — as allegedly determined by ASIC — neither Ocwen nor BNY filed "satisfactions of the [M]ortgage and the [J]udgment," (id. ¶¶ 19, 22) and "Ocwen did not conform the loan balance to the ASIC determination, and did not credit the loan account with the amount Ocwen received." Id. ¶ 33. Moreover, the Debtor contends that although New York State law prohibits a judgment lien creditor from executing on the judgment lien after being paid in full, BNY nonetheless filed its Notice of Sale in the state court. Id. ¶¶ 23, 24. Further, he contends, in any event, that the notice was defective because: (i) BNY served the parties at old addresses, notwithstanding that it had notice of the correct addresses; (ii) Campbell did not receive the Sale Notice; and (iii) BNY did not comply with any of the statutory requirements to serve notice by local newspaper. Id. The Debtor also alleges that the Sale Notice served on parties "contained different information than that annexed to the affidavit of service filed with the [State Court]." Id.
The Debtor asserts that his action "qualifies as an adversary proceeding pursuant to [Bankruptcy Rule] 7001(2) as an action to determine the validity of a lien," and "to obtain a declaratory judgment relating [thereto]" in accordance with Bankruptcy Rule 7001(9). Id. ¶ 12. The Debtor asks for a declaratory judgment "establishing that the mortgage lien, and the Judgment of Foreclosure and Sale, are paid in full and said mortgage and judgment are null and void[,]" and damages from the Defendants based on miscellaneous legal theories founded on state, federal and common law. Id. He alleges that pursuant to 28 U.S.C. §§ 157(b)(2)(K) and 157(b)(2)(O), the Court has core jurisdiction to finally resolve the claims in the Complaint. See id. ¶ 13. The Debtor's requests for damages are as follows:
The Debtor seeks money damages against ASIC, BNY and/or Ocwen predicated on alleged: (i) conversion; (ii) embezzlement; (iii) constructively fraudulent conveyances (under the NY DCL); (iv) violations of the NY GBL; and (v) violations of the FDCPA. Id. ¶¶ 28-31, 40.
The Debtor seeks money damages against ASIC for alleged breaches of contract. In addition, he seems to be seeking a determination that § 509(b)(2) of the Bankruptcy Code bars ASIC from being subrogated to Ocwen's rights against the Debtor. Id. ¶¶ 32-36, 40.
The Debtor seeks money damages against Ocwen and BNY occasioned by their alleged (i) conversion; (ii) embezzlement; (iii) violations of the FDCPA, and (ii) failure to record a satisfaction of mortgage and a satisfaction of a judgment as allegedly mandated under NY RPAPL § 1921 and NY CPLR § 5020, respectively. Id. ¶¶ 37-40.
The Debtor seeks money damages from the McCabe Defendants, as counsel to BNY and Ocwen, based upon their alleged violations of the FDCPA. Id. ¶¶ 41-42. The Debtor requests money judgments against Ocwen, BNY and ASIC in the sum of $2,195,260, and against Vencer and McCabe in the sum of $2,207,260.37. Id. ¶ 40.
In her Cross-Complaint, Gaethers-Langley purports to incorporate all of the allegations in paragraphs 1 through 41 of the Complaint and the demands for relief in the Complaint's "WHEREFORE" clauses, and "respectfully requests the court grant any relief to Plaintiff/Debtor Phillip Michael Scott in the name of Codebtor Marlene Gaethers-Langley as well." Gaethers-Langley Cross-Complaint ¶ 11(a)-(c).
SUBJECT MATTER JURISDICTION AND AUTHORITY TO ENTER FINAL ORDERS
The Court has an independent obligation to determine the scope of its jurisdiction over the claims in the Complaint and the Cross-Complaints. See Walker, Truesdell, Roth & Assocs. v. Blackstone Grp., L.P. (In re Extended Stay, Inc.), 466 B.R. 188, 201 (S.D.N.Y. 2011) (finding "the bankruptcy court `has jurisdiction to determine its own jurisdiction'" (quoting Hassett v. FDIC (In re CIS Corp.), 140 B.R. 351, 353 (S.D.N.Y. 1992))); accord Mulligan Law Firm v. Zyprexa MDL Plaintiffs' Steering Comm. II (In re Zyprexa Prods. Liab. Litig.), 594 F.3d 113, 126 (2d Cir. 2010) (noting "a federal court has jurisdiction to determine its own jurisdiction" (citing United States v. United Mine Workers of Am., 330 U.S. 258, 291 (1947); Kuhali v. Reno, 266 F.3d 93, 100-01 (2d Cir. 2001))).
Core proceedings are those that either "arise under" title 11, or "arise in" cases under title 11. See 28 U.S.C. § 157(a), (b). See also Stern, 564 U.S. at 476 ("Under our reading of the statute, core proceedings are those that arise in a bankruptcy case or under Title 11"). Proceedings that "arise under" the Bankruptcy Code are those "that clearly invoke substantive rights created by federal bankruptcy law." MBNA Am. Bank, N.A. v. Hill, 436 F.3d 104, 108-09 (2d Cir. 2006). See also In re Adelphia Commc'ns Corp., 307 B.R. 404, 413 (Bankr. S.D.N.Y. 2004) (noting that "[a]rising under jurisdiction relates to federal question claims of a particular type — those federal questions that have their origin in title 11 of the United States Code (i.e., the Bankruptcy Code), and where relief is sought based upon a right created by title 11.") (internal quotation marks omitted) (footnote omitted). "[T]he meaning of the statutory language `arising in' may not be entirely clear." Baker v. Simpson, 613 F.3d 346, 351 (2d Cir. 2010). Still, it is settled that a bankruptcy court's "arising in" jurisdiction includes matters that "are not based on any right expressly created by [T]itle 11, but nevertheless would have no existence outside of the bankruptcy." Id. (quoting In re Wood, 825 F.2d 90, 97 (5th Cir. 1987)). See also Delaware Trust Co. v. Wilmington Trust, N.A., 534 B.R. 500, 511 (S.D.N.Y. 2015) (noting that "[a] claim arises in a bankruptcy proceeding if it would have no practical existence but for the bankruptcy.") (internal quotation marks omitted) (quoting Baker, 613 F.3d at 351); Ames Dep't Stores Inc. v. Lumbermens Mut. Cas. Co. (In re Ames Dept. Stores, Inc.), 542 B.R. 121, 135 (Bankr. S.D.N.Y. 2015) (A claim "arises in" a bankruptcy case if the claim, by its nature, "can only be brought in a bankruptcy case because it has no existence outside of bankruptcy.").
Non-core proceedings are those that are not core "but that [are] otherwise related to a case under title 11." See 28 U.S.C. § 157(c)(1). See also Stern, 564 U.S. at 477 ("The terms `non-core' and `related' are synonymous" (quoting Collier on Bankruptcy ¶ 3.02, p. 3-26, n. 5 (16th ed. 2010))). "The test for determining whether litigation has a significant connection with a pending bankruptcy [sufficient to confer bankruptcy jurisdiction] is whether its outcome might have any conceivable effect on the bankruptcy estate." Pfizer Inc. v. Law Offices of Peter G. Angelos (In re Quigley Co., Inc.), 676 F.3d 45, 53 (2d Cir. 2012) (internal quotation marks omitted) (footnote omitted) (quoting In re Cuyahoga Equip. Corp., 980 F.2d 110, 114 (2d Cir. 1992)). Accord Parmalat Capital Fin. Ltd. v. Bank of Am. Corp., 639 F.3d 572, 579 (2d Cir. 2011) ("[A] civil proceeding is `related to' a title 11 case if the action's outcome might have any conceivable effect on the bankrupt estate." (internal quotation marks omitted)).
Bankruptcy judges may "hear and determine" core matters and, in doing so, "enter appropriate orders and judgments, subject to [appellate review]." 28 U.S.C. § 157(b)(1). See also Executive Benefits Ins. Agency v. Arkison, ___ U.S. ___, 134 S.Ct. 2165, 2171-72 (2014) ("The statute authorizes bankruptcy judges to `hear and determine' [core] claims and `enter appropriate orders and judgments' on them. § 157(b)(1). A final judgment entered in a core proceeding is appealable to the district court, § 158(a)(1), which reviews the judgment under traditional appellate standards, Rule 8013."). The statute contains a non-exclusive list of "core" proceedings. See 28 U.S.C. § 157(b)(2)(A)-(P). In contrast, in non-core "related to" proceedings, a bankruptcy judge cannot enter a final, appealable order unless all of the parties to such proceeding consent. 28 U.S.C. § 157(c). Absent such consent, the bankruptcy judge must "submit proposed findings of fact and conclusions of law to the district court." 28 U.S.C. § 157(c)(1). The district court must then review those proposed findings and conclusions de novo and enter any final orders or judgments. Id. As the Supreme Court made clear
Arkison, 134 S. Ct. at 2172. "Thus a proceeding's core or non-core nature is crucial in bankruptcy cases because it defines both the extent of the Bankruptcy Court's jurisdiction, and the standard by which the District Court reviews its factual findings." Halper v. Halper, 164 F.3d 830, 836 (3d Cir. 1999).
Against this framework, the Court analyzes each of the claims and cross-claims asserted against the Defendants to ascertain the scope of its jurisdiction and its authority to enter final orders resolving the motions to dismiss. Cf. Halper, 164 F.3d at 838 ("To determine the extent of the Bankruptcy Court's jurisdiction in this case we must examine each of the five claims presented to ascertain if it is core, non-core, or wholly unrelated to a bankruptcy case.").
The Debtor's Claims Under the Complaint
The Court first considers whether it has subject matter jurisdiction over the claims asserted by the Debtor against the Defendants in the Complaint. As noted, in Count One, the Debtor asserts that he is seeking damages for alleged violations of the NY DCL. The Complaint does not identify particular sections of the NY DCL and fails to allege the elements of any such claim. In fact, the only mention of the statute is in the caption of Count One of the Complaint. That pleading defect cannot be cured since, as explained below, the Debtor lacks standing to bring claims under the NY DCL and, as such, the Court lacks subject matter jurisdiction to adjudicate them.
Section 544(b)(1) of the Bankruptcy Code permits a
11 U.S.C. § 544(b)(1). That provision's reference to interests "voidable under applicable law" includes claims avoidable under state law including the NY DCL. See Geron v. Schulman (In re Manshul Const. Corp.), No. 96B44080, 96B44079, 97 CIV 8851, 99 CIV. 2825, 2000 WL 1228866, at *43 (S.D.N.Y. Aug. 30, 2000) ("The `applicable law' upon which the [t]rustee in this case relies is contained in [NY] DCL §§ 273, 274, 275, and 276."); Messer v. Bentley Manhattan Inc. (In re Madison Bentley Assocs., LLC), No. 09-15479, 2015 Bankr. LEXIS 3507, at *43-44 (Bankr. S.D.N.Y. Oct. 16, 2015) (stating that through § 544(b)(1) "[a] trustee may avoid any transfer that could have been avoided by an unsecured creditor under the New York Debtor and Creditor Law , which sets forth different types of fraudulent conveyances."). As a result, the Debtor's claim for constructive fraudulent conveyance under the NY DCL in Count One "arises under" the Bankruptcy Code because it is only brought under 11 U.S.C. § 544(b). See Rahl v. Bande, 316 B.R. 127, 132 (S.D.N.Y. 2004) ("Absent [§ 544(b)(1)], the [t]rustee would lack standing to bring [a state law fraudulent conveyance] claim . . . .").
However, § 544 speaks to a "trustee's" resort to avoidance powers under state or applicable non-bankruptcy law; it makes no allowance for a chapter 13 debtor to do so. See 11 U.S.C. § 544(b). Neither does § 1303 of the Bankruptcy Code. That provision vests chapter 13 debtors with certain powers that are otherwise reserved for trustees, as follows:
In considering whether the Debtor nonetheless has standing to invoke NY DCL in the Complaint, the case of Hartford Underwriters Ins. Co. v. Union Planters Bank, 530 U.S. 1 (2000), is instructive. There, in a converted chapter 11 case, the debtor's workers' compensation insurer brought an adversary proceeding against a secured creditor pursuant to § 506(c) of the Bankruptcy Code to surcharge its collateral for the unpaid post-petition insurance premiums, even though the statue only affords a "trustee" with the power to do so. The Supreme Court affirmed a judgment denying that request, holding that § 506(c) does not provide an administrative claimant of a bankruptcy estate an independent right to seek payment of its claim from property encumbered by a secured creditor's lien. In part that Court stated, as follows:
Hartford, 530 U.S. at 7. The Bankruptcy Code does not authorize a chapter 13 debtor to "step in the shoes" of a trustee and pursue avoidance actions pursuant to § 544 of the Bankruptcy Code. Based upon the plain language of the statute, the Court finds that the Debtor lacks standing to do so. Cf. In re James Wilson Assocs., 965 F.2d 160, 169 (7th Cir. 1992) (noting that notwithstanding that § 1109(b) of the Bankruptcy Code gives creditors the right to be heard on any matter raised in a chapter 11 case, first mortgagee lacked standing to enforce mandate under § 365(d)(4) of the Bankruptcy Code that debtor assume or reject a non-residential lease of real property of which the debtor was the lessee, within 60 days of the petition date; §1109(b) "was [not] intended to waive other limitations on standing, such as the claimant be within the class of intended beneficiaries of the statute he is relying on . . . .").
The majority of courts that have considered this matter, including courts in this district, have come to the same conclusion.
The remaining claims asserted by the Debtor in the Complaint (the "Non-NY DCL Claims") are prepetition claims predicated on state law, non-bankruptcy federal law and/or common law.
The Court finds no merit to the Debtor's assertions to the contrary. As noted, the Debtor relies in the Complaint on 28 U.S.C. §§ 157(b)(2)(K) and (O) as the grounds for this Court's exercise of core jurisdiction over the claims asserted therein. See Compl. ¶ 13. Under § 157(b)(2)(K), core proceedings include "determinations of the validity, extent or priority of liens[.]" 28 U.S.C. § 157(b)(2)(K). On or about November 29, 2016, well after he commenced this lawsuit, the Debtor filed proofs of claim (the "Surrogate Claims") on behalf of BNY (Claim No. 7) and Ocwen (Claim No. 8). See 11 U.S.C. § 501(c) ("If a creditor does not timely file a proof of such creditor's claim, the debtor . . . may file a proof of claim."). The Debtor contends that the Court has core jurisdiction under § 157(b)(2)(K) to adjudicate the claims in the Complaint because he "seeks to establish the validity, extent, or priority of lien because [the Complaint] seeks to establish the settlement of, or right of setoffs against, a debt for which the secure claims properly appear on the petition." Statement of Consent at 5, 11.
Although he does not allege it in the Complaint, the Debtor also seems to contend that § 157(b)(2)(C) provides a predicate for the Court to assert core jurisdiction over the claims in the Complaint because the damage claims that he is asserting against BNY and Ocwen are "counterclaims" to the Surrogate Claims. Specifically, in his Statement of Consent, the Debtor asserts, as follows:
Statement of Consent at 11-12 (footnote omitted). Section 157(b)(2)(C) provides that "core proceedings" include "counterclaims by the estate against persons filing claims against the estate." 28 U.S.C. § 157(b)(2)(C). However, the Debtor is misplacing his reliance on the Surrogate Claims as the predicate for establishing this Court's core jurisdiction under that section. "A surrogate claim filed under § 501(c) should not be construed as the equivalent of a creditor consenting to bankruptcy court jurisdiction over its claim." In re Nat'l Cattle Congress, 247 B.R. 259, 271 (Bankr. N.D. Iowa 2000). The case of Marcus Dairy, Inc. v. Belford (In re Naugatuck Dairy Ice Cream Co., Inc.), 106 B.R. 24 (Bankr. D. Conn. 1989) is also instructive. There, a bankruptcy trustee filed a claim on behalf of a creditor and thereafter filed an objection to that claim and a counterclaim against the creditor. Id. at 27-28. The trustee argued that the court had core jurisdiction over the trustee's claim as a counterclaim against the surrogate claim. Id. at 27. The bankruptcy court rejected that argument. It noted that the grant of jurisdiction under § 157(b)(2)(C) "is premised upon implied consent by the creditor to the jurisdiction of the bankruptcy court." Id. (citation omitted). It found that "the purported claim was filed merely as a basis to allege bankruptcy court jurisdiction" and that "to construe that procedure as the equivalent of a creditor consenting to bankruptcy court jurisdiction would ignore the distinction between core and noncore proceedings and circumvent the jurisdictional framework created in response to Marathon." Id. at 28. See also Piombo Props. v. Castlerock Props. (In re Castlerock Props.), 781 F.2d 159, 162-63 (9th Cir. 1986) (finding that the creditor's filing of proof of claim after debtor's assertion of a related claim does not constitute implied consent to the jurisdiction of the bankruptcy court over the related claim). Thus, § 157(b)(2)(C) does not provide a basis for finding core jurisdiction in this case.
Finally, the Debtor contends that under 28 U.S.C. § 157(b)(2)(O), the Court has core jurisdiction over the claims in the Complaint because the "Plaintiff-Debtor seeks to address concerns of liquidation of assets of the estate because it seeks to address an improperly attempted mortgage foreclosure sale of vacant residential real [property] which appears as property of the estate on the bankruptcy petition." Statement of Consent at 5, 11. Under that section "core proceedings" include "other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship, except personal injury tort or wrongful death claims." 28 U.S.C. § 157(b)(2)(O). As such, it is commonly referred to as one of the two "catch-all" provisions in § 157(b)(2). See In re Castlerock Properties, 781 F.2d at 161. The other is § 157(b)(2)(A), which vests the bankruptcy court with core jurisdiction over "matters concerning the administration of the estate." 28 U.S.C. § 157(b)(2)(A). Both were enacted as part of the Bankruptcy Amendments and Judgeship Act of 1984, in the wake of the Supreme Court's holding in Northern Pipeline Construction Co. v. Marathon Pipe Line, Inc. (In re Northern Pipeline Construction Co.), 458 U.S. 50, 71-72 (1982) (hereinafter "Marathon"). There, the Supreme Court invalidated the broad grant of jurisdiction to bankruptcy courts under the Bankruptcy Act of 1978 contained in 28 U.S.C. § 1471 (1976 ed. and Supp.IV) that permitted a bankruptcy court to enter final judgment on a creditor's state law claim for breach of contract. The court held that "while Congress, pursuant to its power under the Bankruptcy Clause of the Constitution, U.S. Const., Art. I, § 8, cl. 4, could grant the bankruptcy courts the right to issue final orders in proceedings that were at the core of bankruptcy jurisdiction, primarily the restructuring of the debtor-creditor relationship, it could not give the right to issue such orders in `private right' claims (e.g., tort and contract), merely because those claims involved a debtor . . . Those traditional common law claims were reserved for Article III courts." Ben Cooper, Inc. v. The Ins. Co. of Pennsylvania (In re Ben Cooper, Inc.), 896 F.2d 1394, 1399 (2d Cir. 1990), vacated and remanded, 498 U.S. 964, (1990), reinstated on remand, 924 F.2d 36 (2d Cir. 1991).
The Debtor's successful prosecution of the claims alleged against the Defendants might "affect[ ] the liquidation of the assets of the [Debtor's] estate." See Brandt v. 47-49 Charles Street, Inc. (In re 47-49 Charles Street), No. 98 CIV 4669, 1999 WL 138929, at *2 (S.D.N.Y. Mar. 15, 1999) (denying remand of foreclosure action to state court because property to be foreclosed was sole asset of the debtor which outcome would "likely effect the administration of the estate in bankruptcy court."). As such, the action arguably falls within the scope of the plain language of § 157(b)(2)(O). But see Durso Supermarkets v. D'Urso (In re Durso Supermarkets, Inc.), 170 B.R. 211, 214 (S.D.N.Y.1994) (rejecting contention that bankruptcy court could exert core jurisdiction under §157(b)(2)(O) over fraud claim asserted against a creditor, stating that "[plaintiff]'s claim of fraud may, if successful, enlarge the estate; however, that fact without more does not `affect the liquidation of the assets . . . or the adjustment of the debtor-creditor or the equity security holder relationship"'). However, the Court will not construe the statute so broadly to encompass the claims alleged in the Complaint, because to do so would conflict with the holding in Marathon.
Although the Court lacks core jurisdiction over the Non-NY DCL Claims, the Court finds that it can exercise its non-core, "related to" jurisdiction over those claims because they constitute "causes of action owned by the debtor which become property of the estate pursuant to 11 U.S.C. § 541 . . . ." Celotex Corp. v. Edwards, 514 U.S. 300, 307 n.5 (1995). See also Florida Dev. Assocs., Ltd. v. Knezevich and Assocs., Inc. (In re Florida Dev. Assocs., Ltd.), Bankr. Nos. 04-12033, 04-12034, 04-12035, Adv. No. 08-1380, 2009 WL 393870, at *4 (Bankr. S.D. Fla. Feb. 4, 2009) (finding debtor's adversary proceeding for damages arising out of alleged construction defects to balconies of condominium building of which debtor was developer was within court's related to jurisdiction since action arose prepetition and was estate property on petition date); Pan Am. World Airways, Inc. v. Evergreen Int'l Airlines, Inc., 132 B.R. 4, 8 (S.D.N.Y. 1991) (stating that actions being referred to bankruptcy court as core proceedings would, even if not found to be core, be referred nonetheless as "related to" proceedings based on claims "owned by the debtor that became property of the estate under section 541."); Medina-Figueroa v. Heylinger, 63 B.R. 572, 574-75 (D. P.R. 1986) (finding debtors' medical malpractice action was "related to" debtors' bankruptcy case under § 1334(b) because "a debtor's claim for injuries to the person whether the claim is unliquidated or settled at the time of filing the bankruptcy petition was property of the estate"). Claims owned by a debtor's estate that would augment that estate for the benefit of creditors fall within the "related to" scope of § 1334(b). See Dev. Specialists, Inc. v. Akin Gump Strauss Hauer & Feld LLP, 462 B.R. 457, 463 (S.D.N.Y. 2011) (finding that proceedings that would "augment for the benefit of all creditors" were "related to" the debtor's estate for subject matter jurisdiction purposes under § 1334(b).); Goldsmith v. Massad (In re Fiorillo), 494 B.R. 119, 144 (Bankr. D. Mass. 2013) ("[A]s actions with the potential to augment the bankruptcy estates, the adversary proceedings fall within the court's related-to jurisdiction.").
Through their respective counsel, ASIC, Ocwen, and BNY consented to this Court's entry of a final order in this Adversary Proceeding. See Letter from Robert W DiUbaldo, dated December 2, 2016 [AP ECF No. 53]; Letter from Jacqueline Aiello, dated November 28, 2016 [AP ECF No. 48]. The Debtor does not so consent. See Statement of Consent ¶¶ 1-2. Except for offering a general denial in their memorandum of law, neither McCabe nor Vencer took a position on the matter. Accordingly, pursuant to § 157(c)(1), in resolving the motions to dismiss the Non-NY DCL Claims, and as set forth below, the Court will treat this Memorandum Decision as proposed findings of fact and conclusions of law, subject to the objection procedure in Federal Rule of Bankruptcy Procedure 9033.
The Claims Under the Cross Complaints
Like the Debtor, the Cross-Claimants lack standing to assert claims under the NY DCL against BNY and Ocwen. See, e.g., Carey v. Ernst, 333 B.R. 666, 677-80 (S.D.N.Y. 2005) (affirming the bankruptcy court's holding that creditor lacked standing in chapter 13 case to commence avoidance actions under §§ 547 and 548 of the Bankruptcy Code.). As such, the Court will dismiss those cross-claims for lack of subject matter jurisdiction. Hansen, 332 B.R. at 11. The Court also lacks core jurisdiction over the remaining cross-claims asserted in the Cross-Complaints (including Counts Five and Six in the Campbell Cross-Complaint (the "Non-NY DCL Cross-Claims") since "section 1334(b) cannot possibly be applicable to [a] dispute between. . . nonparties to the bankruptcy proceeding. Its domain is limited to questions that arise during the bankruptcy proceeding and concern administration of the bankruptcy estate, such as whether to discharge a debtor." Zerand-Bernal Group, Inc. v. Cox, 23 F.3d 159, 162 (7th Cir. 1994) (citations omitted). See also Joremi Enter., Inc. v. Hershkowitz (In re New 118th LLC), 396 B.R. 885, 890 (Bankr. S.D.N.Y. 2008) (garden-variety state court claims between non-debtor parties not within court's core jurisdiction); Lead I JV, LP v. North Fork Bank, 401 B.R. 571, 581-82 (Bankr. E.D.N.Y. 2009) (finding purely state law claims between non-debtors sounding in tort and contract law at best are related to, non-core matters.). The Debtor contends that
See Statement of Consent at 17. The Court understands the Debtor to be asserting that the Court has non-core related to jurisdiction over the Non-NY DCL Cross Claims because a determination of the Cross-Claimants' request for a declaration that the Note and Mortgage have been satisfied would impact the size of the estate available for distribution to the Debtor's creditors. That argument fails because the Court lacks jurisdiction over those cross-claims. The source of the Court's power to issue a declaratory judgment is the Declaratory Judgment Act. See 28 U.S.C. § 2201 (the "Declaratory Judgment Act"). See also Sears, Roebuck and Co. v. O'Brien, 178 F.3d 962, 964 (8th Cir. 1999) (noting that pursuant to the Declaratory Judgment Act, "the bankruptcy court has the power to issue declaratory judgments when the matter in controversy regards the administration of a pending bankruptcy estate."). However, section 2201 is procedural, not jurisdictional. It grants authority to the courts to issue declaratory judgments in cases over which it otherwise already has jurisdiction. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950) (noting that through the Declaratory Judgment Act, "Congress enlarged the range of remedies available in the federal courts but did not extend their jurisdiction."). The Court has neither core nor non-core, related to jurisdiction over the Non-NY DCL Cross-Claims. Accordingly, the Court will dismiss all of the claims in the Cross-Complaints, including the requests for declaratory relief, for lack of subject matter jurisdiction.
As a preliminary matter, and before considering the adequacy of the pleadings relating to the Non-NY DCL Claims, the Court notes that the Debtor cited no case law in the Scott Opposition to ASIC/Ocwen/BNY Motion to Dismiss Complaint, and made only the following incomplete references to the standards governing a Rule 12(b)(6) motion:
See Scott Opposition to ASIC/Ocwen/BNY Motions to Dismiss Complaint ¶¶ 3, 5. He did not respond to ASIC's and the Mortgagee Defendants' contentions that the Complaint fails to state claims for (i) conversion; (ii) embezzlement; (iii) violations of NY RPAPL § 1921 and NY CPLR § 5020; and (iv) breach of contract.
In any event, the many pleading defects doom the Complaint. Rule 8(a)(2) mandates that a complaint contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).
The Court construes the Debtor's opposition to the motions to include a request for leave to amend the Complaint, should the Court find that the Debtor has failed to state claims for relief. See Scott Opposition to ASIC/Ocwen/BNY Motions to Dismiss Complaint ¶ 5 (noting that "[t]he standard remedy if the court rules that pleader fails to state a cause of action, is to permit the pleader to amend the complaint."); Scott Opposition to McCabe Defendants Motion to Dismiss ¶ 3 (same). Although Rule 15(a)(2) states that a court should "freely give leave [to amend] when justice so requires," whether to grant that relief is within the Court's sound discretion. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). It is well settled that courts will deny leave to amend when amendment would be futile. See Terry v. Inc. Vill. of Patchoque Board of Trustees, 826 F.3d 631, 633 (2d Cir. 2016) ("Although district judges should, as a general matter, liberally permit pro se litigants to amend their pleadings, leave to amend need not be granted when amendment would be futile."); Stephens v. Trump Org. LLC, 15 Civ. 2217, 2016 WL 4702437, at *6 (E.D.N.Y. Sept. 7, 2016) (noting that leave to amend a pleading "is properly denied when the amendment would be futile."). See also Loreley Financing (Jersey) No. 3 Ltd. v. Wells Fargo Securities, LLC, 797 F.3d 160, 190 (2d Cir. 2015) ("leav[ing] unaltered the grounds on which denial of leave to amend has long been held proper, such as . . . futility."). An amendment to a pleading is futile "if the proposed claim could not withstand a motion to dismiss under Rule 12(b)(6)." Lucente v. Int'l Business Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002).
BNY and Ocwen are correct that the Debtor's claims under the FDCPA, as well as his claims for conversion, embezzlement, and unfair and deceptive trade practices under the NY GBL in Counts One and Three must be dismissed since the Debtor failed to plead any of the elements of those claims against either of them. See Mortgagee Defendants Motion To Dismiss Complaint at 6-14. It is also true, as they contend, that the Debtor's allegations in support of Count Three fail to state claims against them under NY RPAPL §1921 and NY CPLR §5020. Id. at 16-17. Moreover, there is merit to ASIC's contentions that the Debtor has failed to plead any of the elements of its alleged breach of contract and as such, Count Two should be dismissed. See ASIC Rule 12(c) Motion at 14-16. Finally, the McCabe Defendants are correct that Count Four should be dismissed, since the Debtor has failed to state claims for relief against either of them. See McCabe Motion to Dismiss Complaint at 3-6.
As discussed below in a claim-by-claim review of the Complaint, the Debtor's problem is not merely that his pleadings are defective and that he has failed to state claims for relief against the Defendants. It is that as a matter of law, he cannot do so. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) ("The problem with the [plaintiff]'s causes of action is substantive; better pleading will not cure it."). As such, in this case, "[r]epleading would be futile [and] such a futile request to replead should be denied." Id. See also Ades & Berg Group Investors v. Breeden (In re Ades & Berg Group Investors), 550 F.3d 240, 245 (2d Cir. 2008) (denying defendant leave to replead counterclaim for imposition of constructive trust because defendant could not establish that plaintiff was unjustly enriched); Flaxer v. Gifford (In re Lehr Constr. Corp.), 551 B.R. 732, 744-45 (S.D.N.Y. 2016) (affirming dismissal of chapter 11 trustee's faithless servant's claim against debtor's former employee on the grounds that it was barred by the in pari delicto doctrine, and denying trustee's request for leave to replead complaint to add allegations that debtor's owners and most senior executives were unaware of criminal scheme and had they known they would have put a stop to it as futile, since argument was foreclosed by state law and debtor was itself convicted of criminal activity); Brady v. Basic Research, L.L.C., 101 F.Supp.3d 217, 238 (E.D.N.Y. 2015) (denying leave to amend where "[p]laintiff's dismissed claims are either barred as a matter of law or are not achievable based upon the facts, and, thus, leave to replead will not cure the defects."); Farzan v. Bridgewater Assocs., No. 3:16-cv-00935, 2017 WL 354685, at *11 (D. Conn. Jan. 24, 2017) (denying leave to amend complaint to alleged breach of oral contract and a violation of 42 U.S.C. § 1981 because both will "fail as a matter of law" and, as such, plaintiff "would not benefit from a chance to reframe."). Accordingly, the Court recommends dismissing those claims and the request for declaratory judgment without granting the Debtor leave to amend.
Below, the Court reviews the claims underlying each of the Counts in the Complaint.
Under New York law, "[c]onversion is the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights." Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 403-04 (2d Cir. 2006) (internal quotation marks omitted) (quoting Vigilant Ins. Co. of Am. v. Housing Auth., N.Y. 2d 36, 44 (1995)). See also Colavito v. New York Organ Donor Network, Inc., 8 N.Y.3d 43, 49-50 (2006) ("A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession."). Thus, to state a claim for conversion, "a plaintiff must allege: (1) the property subject to conversion is a specific identifiable thing; (2) plaintiff had ownership, possession or control over the property before its conversion; and (3) defendant exercised an unauthorized dominion over the thing in question, to the alteration of its condition or to the exclusion of the plaintiff's rights." Kirschner v. Bennett, 648 F.Supp.2d 525, 540 (S.D.N.Y. 2009) (quotation marks omitted) (quoting Moses v. Martin, 360 F.Supp.2d 533, 541 (S.D.N.Y. 2004)). See also Channel Marine Sales, Inc. v. City of New York, 75 A.D.3d 600, 601 (2d Dep't 2010) (noting that to prevail on a claim for conversion, the plaintiff "must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized dominion . . . to the exclusion of the plaintiff's rights.").
It is settled that money, including the proceeds of an insurance policy, can be the subject of a claim for conversion, but only if that money is "specifically identifiable and segregated." See Lan v. Time Warner, Inc., No. 11 CIV. 2870, 2014 WL 764250, at *6 (S.D.N.Y. Feb. 25, 2014). Even assuming, arguendo, that ASIC paid the Insurance Proceeds to Ocwen (see Compl. ¶ 18), to prevail on his claim that Ocwen and/or BNY converted the Insurance Proceeds, the Debtor must plead and prove that he had an immediate superior right of possession in those proceeds, and that Ocwen and/or BNY exercised unauthorized dominion and control over them. See Massive Paper Mills v. Two-Ten Corp., 669 F.Supp. 94, 95 (S.D.N.Y. 1987). To prove his "immediate superior right of possession," the Debtor must show that the Insurance Proceeds were "contained in a specific, identifiable fund and [were] designated for a particular purpose for [Debtor's] benefit." Id. See also Republic of Haiti v. Duvalier, 626 N.Y.S.2d 472, 475 (App. Div. 1995) (noting that when property allegedly converted is money, "it must be specifically identifiable and be subject to an obligation to be returned or to be otherwise treated in a particular manner."); Peters Griffin Woodward, Inc. v. WCSC, Inc., 88 A.D.2d 883, 452 N.Y.S.2d 599, 600 (1st Dept. 1982) ("Money, if specifically identifiable, may be the subject of a conversion action."). The Debtor has plainly failed to meet that pleading burden. As support for his claim, the Debtor alleges that by "failing to credit the loan balance account with the [Insurance Proceeds] . . . Ocwen, claiming to act as servicer for BNY converted, and embezzled the [Insurance Proceeds] . . . ." Compl. ¶ 37. Further, he says that "[b]y failing to issue a satisfaction of mortgage and satisfaction of judgment and by seeking to execute an obsolete judgment of foreclosure and sale after the loan balance had been paid in full, BNY converted and embezzled the [Insurance Proceeds]." Id. ¶ 38. Thus, the Mortgagee Defendants correctly contend that the claim should be dismissed since it does not state a claim for relief.
There is no point in granting the Debtor leave to replead his conversion claim. He did not name any fund or trust in which the Insurance Proceeds were deposited, and there was none. Since the proceeds were not held in trust or in "specifically identifiable fund," they cannot be the subject of a conversion action. See Lan, 2014 WL 764250, at *6. Moreover, the Debtor has not, and cannot, allege that he had "ownership, possession or control" over the Insurance Proceeds, prior to the alleged conversion, or that Ocwen and/or BNY exercised unauthorized dominion and control over those proceeds. Ocwen, as mortgagee, is named on the Policy, and, as such, has an interest in the Insurance Proceeds. See EverHome Mortg. Co. v. Charter Oak Fire Ins. Co., No. 07-CV-98, 2012 WL 868961, at *5 (E.D.N.Y. Mar. 14, 2012) ("If the policy . . . is issued to a mortgagee and mortgagor `as their interests may appear,' then the mortgagee obtains a vested legal interest in the contract.").
Accordingly, the Court recommends dismissing the claim for conversion, without leave to amend.
Federal law defines "embezzlement" as the "fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come." Moore v. United States, 160 U.S. 268, 269, 16 S.Ct. 294, 295, 40 S.Ct. 422 (1895). See also Spiegel v. Levine, 161 A.D. 764, 768 (1st Dep't 1914) (Barrett, J., concurring) (delineating the elements of common law embezzlement as: (1) a breach of duty or trust in respect of money, property or effects in a party's possession that belongs to another, and (2) the intentional wrongful or fraudulent appropriation of such money, property or effects).
The Debtor alleges that Ocwen embezzled the Insurance Proceeds when it failed to apply them in satisfaction of the Loan balance, and that BNY embezzled them when it failed to issue a satisfaction of the Mortgage and the Judgement of Foreclosure. Compl. ¶¶ 37-38.
Accordingly, the Court recommends dismissing the embezzlement claim, without leave to amend.
Fair Debt Collection Practices
"Congress enacted the FDCPA `to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." Vincent v. The Money Store, 736 F.3d 88, 96 (2d Cir. 2013) (quoting 15 U.S.C. § 1692(e)); see also Kropelnicki v. Siegel, 290 F.3d 118, 127 (2d Cir. 2002) (noting that "[t]he FDCPA was passed to protect consumers from deceptive or harassing actions taken by debt collectors."). "To accomplish these goals, the FDCPA creates a private right of action for debtors who have been harmed by abusive debt collection practices." Benzemann v. Citibank, 806 F.3d 98, 100 (2d Cir. 2015) (citing 15 U.S.C. § 1692k). The Debtor did not cite any specific provision of the FDCPA in support of his claim. However, it seems clear that he is relying on § 1692e(2) as against the Mortgagee Defendants since his complaint is that they continued the foreclosure process by issuing a Notice of Sale even though the underlying indebtedness had been satisfied. See Compl. ¶¶ 38, 39.
The threshold requirements for relief under the FDCPA are: (1) the plaintiff must be a "consumer," (2) the defendant must be a "debt collector," and (3) the defendant must have committed some act or omission in violation of the FDCPA. See Scarola Malone & Zubatov LLP v. Verizon Commc'ns, Inc., No. 14-CV-4518, 2015 WL 3884211, at *4 (S.D.N.Y. June 24, 2015) (citing 15 U.S.C. § 1692e-f)).
Under the FDCPA, a "consumer" is "any natural person obligated or allegedly obligated to pay any debt." 15 U.S.C. § 1692a(3).
Under the FDCPA, a "debt collector" is "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." See 15 U.S.C. § 1692a(6). That otherwise broad definition is subject to a significant limitation. It excludes "any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity... concerns a debt which was not in default at the time it was obtained by such person." Id. § 1692a(6)(F). According to the report of the United States Senate, Committee on Banking, Housing, and Urban Affairs on the FDCPA, "[t]he committee does not intend the definition [of debt collector] to cover ... mortgage service companies and others who service outstanding debts for others, so long as the debts were not in default when taken for servicing." See S. Rep. No. 95-382, at 2 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1696. BNY acquired the Loan before it went into default. See Scott, 2015 U.S. Dist. LEXIS 187978, at *2-3. As such, by definition, BNY is not a "debt collector" and is not subject to regulation under the FDCPA. See Muniz v. Bank of America, N.A., No 11 Civ. 8296, 2012 WL 2878120, at *3 (S.D.N.Y. 2012) ("[W]here the debt at issue was not in default at the time it was obtained by the defendant, the defendant, in seeking repayment, is not a "debt collector" and is not subject to regulation under the FDCPA."). See also Ines v. Countrywide Home Loans, Inc., No. 08cv1267, 2008 WL 4791863, at *2 (S.D. Cal. Nov. 3, 2008) ("To state a claim for violation of the FDCPA, a plaintiff must allege that the defendant is a `debt collector' collecting a `debt.'"); Feldman v. Sanders Legal Grp., 914 F.Supp.2d 595, 599 (S.D.N.Y. 2012) ("[A] defendant can only be held liable for violating the FDCPA if he is a `debt collector' within the meaning of the Act."); Schuh v. Druckman & Sinel, L.L.P., 602 F.Supp.2d 454, 462 (S.D.N.Y. 2009) (noting that "[t]he relevant provisions of the FDCPA apply only to the activities of a `debt collector'") (citing 15 U.S.C. §§ 1692e, 1692f, 1692g). Although the Mortgagee Defendants contend that Ocwen, likewise, is not a "debt collector," the record is not clear on when Ocwen assumed its role as loan servicer.
The actions that the Debtor says the Mortgagee Defendants took in connection with the foreclosure process fall outside the scope of the FDCPA. "The FDCPA imposes liability only when an entity is attempting to collect debt." Ho v. ReconTrust Co., NA, 840 F.3d 618, 621 (9th Cir. 2016). For these purposes, "the word `debt' is synonymous with `money.'" Id. Under the FDCPA, "the protection of an interest in real property is not the same as collecting a debt." Laurent v. Bank of America, N.A., Case No. 2:14-CV-863, 2017 WL 68622, at *3 (D. Nev. Jan. 5, 2017). Accordingly, "the majority rule [is] that `the enforcement of a security interest through foreclosure proceedings that do not seek monetary judgments against debtors is not debt collection for purposes of the FDCPA.'" Carlin v. Davidson Fink LLP, No. 13-CV-6062, 2015 WL 5794250, at *4 (E.D.N.Y. Sept. 30, 2015) (quoting Boyd v. J.E. Robert Co., No. 13-CV-6062, 2013 WL 5436969, at *9 (E.D.N.Y. Sept. 27, 2013) (hereinafter Boyd II) (collecting cases)), vacated on other grounds, 852 F.3d 207 (2d Cir. 2017). The Debtor's FDCPA-based claim against the Mortgagee Defendants stems from their continuation of the foreclosure process through the issuance of the Notice of Sale. See Compl. ¶ 39. They generated that notice in furtherance of the foreclosure action against the Property (see Compl. ¶ 19), not the collection of money from the Debtor.
Accordingly, for all of those reasons, the Debtor has not and cannot state a claim for relief under the FDCPA against either BNY or Ocwen. The Court recommends dismissing that claim, without leave to amend.
Unfair and Deceptive Trade Practices
The Complaint only mentions the NY General Business Law in the caption of Count One. Thus, it does not allege the elements of a claim under the NY GBL. However, in his opposition, the Debtor argues that the Complaint states a claim for relief against the Defendants under NY GBL § 349. See Scott Opposition to ASIC/Ocwen/BNY Motions to Dismiss Complaint ¶ 24. "Section 349 of the New York General Business Law was intended to be a consumer protection statute." Teller v. Bill Hayes, Ltd., 213 A.D.2d 141, 145, 630 N.Y.S.2d 769 (N.Y. App. Div. 1995). As such, it makes it unlawful to engage in "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of service in [New York]." N.Y. Gen. Bus. Law § 349(a). It also provides a cause of action to "any person who has been injured by reason of any violation" of the Act, and provides for the recovery of actual damages. Id. § 349(h).
To state a claim under NY GBL § 349, a plaintiff must allege that: (1) the defendant's deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result thereof. See PB Americas Inc. v. Cont'l Cas. Co., 690 F.Supp.2d 242, 251 (S.D.N.Y. 2010) (citations omitted). "Whether a representation or an omission, the deceptive practice must be `likely to mislead a reasonable consumer acting reasonably under the circumstances.'" Stutman v. Chemical Bank, 95 N.Y.2d 24, 29 (2000) (quoting Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 26 (1995)). Thus, to be actionable under § 349, "[the] deceptive practice . . . need not reach the level of common law fraud[.]" Id. (citation omitted). However, to recover under the statute, "a plaintiff must prove `actual' injury . . . though not necessarily pecuniary harm." Id. (citations omitted). "The typical violation contemplated by the statute involves an individual consumer who falls victim to misrepresentations made by a seller of consumer goods usually by way of false and misleading advertising." Genesco Entm't v. Koch, 593 F.Supp. 743, 751 (S.D.N.Y. 1984).
The Debtor does not mention BNY at all in support of his claim under the NY GBL, and merely states in a conclusory fashion that "Ocwen engages in a pattern, course, and conduct of unfair and deceptive trade practices, including, but not limited to, failing to credit consumer (borrowers) with amounts which should properly offset the balance on the account." Compl. ¶ 29. He has failed to allege "facts from which a reasonable inference can be drawn that [Ocwen's] practices impact consumers at large, or indeed a single consumer other than himself." Frederick v. Capital One Bank (USA), N.A., No. 14-CV-5460, 2015 WL 5521769, at *11 (S.D.N.Y. Sept. 17, 2015). Consequently, "he does not state a plausible claim to relief and his § 349 claim must be dismissed as to [Ocwen]." Id. (dismissing claim brought under NY GBL § 349 based on wholly conclusory and unsupported generalized allegation). Moreover, the Debtor cannot plead actual injury under § 349. His personal obligations under the Mortgage were discharged in his Chapter 7 case. Consequently, Ocwen's alleged failure to apply payments to a loan balance for which he has no personal liability could not have injured him. Accordingly, the Court recommends that the claim under NY GBL § 349 against Ocwen be dismissed, without leave to replead.
The same holds true for Debtor's claim against ASIC. In support of that claim, the Debtor baldly asserts that
Compl. ¶ 26. The Complaint plainly fails to state a claim against ASIC that is plausible on its face, or otherwise. See, e.g., Ashcroft v. Iqbal, 556 U.S. at 678. As previously noted, the Debtor alleged facts in his opposition to the ASIC Rule 12(c) Motion to the effect that authorities in Kansas, Massachusetts, Colorado, Florida and Connecticut have sanctioned ASIC for its alleged bad acts. See Scott Opposition to ASIC/Ocwen/BNY Motions to Dismiss Complaint ¶¶ 25, 26, 62-69; Exs. A and B. As already noted, under Rule 12(b)(6), the Debtor's new allegations contained in his opposition cannot salvage the Complaint. See discussion, supra; see also O'Brien v. Nat'l Prop. Analysts Partners, 719 F.Supp. 222, 229 (S.D.N.Y. 1989). Nor would they if the Court granted the Debtor leave to amend the Complaint to include those allegations. "[Section 349] was meant to empower consumers; to even the playing field in their disputes with better funded and superiorly situated fraudulent businesses. It was not intended to supplant an action to recover damages for breach of contract between parties to an arm's length contract." Teller, 213 A.D.2d at 148, 630 N.Y.S.2d 769. That is precisely what the Debtor is attempting to do. See, e.g., Scott Opposition to ASIC/Ocwen/BNY Motions to Dismiss Complaint ¶ 40. Accordingly, the Court recommends dismissing the Debtor's claim against ASIC for unfair trade practices, without leave to amend.
Count Two: Breach of Contract, Violation of 11 U.S.C. § 509(b)(2) Prohibiting Subrogation To Compensated Insurer
In Count Two, the Debtor asserts that by charging the forced placed insurance premium to the Mortgage, ASIC contracted with the Debtor, Campbell and Gaethers-Langley to insure them against casualty losses and had a "legal duty" to pay the Insurance Proceeds to them. He says ASIC breached that contract by failing to ensure the security of the "payout check," and by failing to provide them with the benefits of the Policy.
Before turning to those contentions, and as a preliminary matter, the Court addresses the Debtor's allegations in Count Two relating to § 509 of the Bankruptcy Code. Specifically, he asserts that
Compl. ¶ 32 (bracketed language in original). The Debtor misplaces his reliance on § 509; it has no application to the claims in the Complaint. In relevant part, § 509(a) of the Bankruptcy Code states that "an entity that is liable with the debtor on . . . a claim of a creditor against the debtor, and that pays such claim, is subrogated to the rights of such creditor to the extent of such payment." 11 U.S.C. § 509(a). Thus, it codifies the common law doctrine of equitable subrogation for a co-obligor of a debtor who pays a creditor's claim post-petition. See Aetna Cir. 1996). See also Stephenson v. Salisbury (In re Matter of Cortland Corp.), 967 F.2d 1069, 1078 (5th Cir. 1992) (noting that "§ 509(a)'s right of subrogation has meaning only if the payment is made post-petition; otherwise there would be nothing to subrogate because a pre-petition payoff to the creditor would leave the creditor with no claim against the estate"); Brown v. Rust (In re Rust), 510 B.R. 562, 569 n.2 (Bankr. E.D. Ky. 2014) ("[I]n order for a co-obligor to exercise subrogation rights under § 509, the co-obligor must pay the claims of a `creditor' (i.e., an entity that has a right of payment from the debtor as of the petition date)."). In this way, § 509 is designed to provide a remedy to a co-obligor of a debtor whose claims against the debtor for contribution, reimbursement or subrogation otherwise would be discharged. See 4 Collier on Bankruptcy, ¶ 509.01, p. 509-3 (16th ed. 2015) (hereinafter Collier). Accordingly, "section 509 acts as a narrow, equitable backstop to ensure that a codebtor will receive some distribution (specifically the original creditor's distribution) from the debtor's estate if the codebtor pays a creditor's claim." Prim Capital Corp. v. May (In re May), Bankr. No. 05-10521, Adv. No. 05-1098, 2006 WL 4458360, at *6 (Bankr. N.D. Ohio, Aug. 14, 2006), aff'd 368 B.R. 85 (B.A.P. 6th Cir. 2007). Section 509(b)(2) offers an exception to that general rule by providing that the creditor who pays a claim on which it is liable with the debtor is not subrogated to the rights of that creditor, "to the extent that . . . as between the debtor and such entity, such entity received the consideration for the claim held by such creditors." 11 U.S.C. § 509(b)(2). See also 4 Collier, ¶ 509.03, p. 509-9 (Section 509 "implements the public policy . . . to permit subrogation of those secondarily liable with the debtor but to deny subrogation where the paying co-obligor is merely paying its own debt."). Section 509 addresses issues between a debtor and his co-debtor when the co-debtor has paid the creditor's debt. See id. at ¶ 509.02, p. 509-5 ("Section 509 is chiefly aimed at claims of sureties, guarantors and co-makers, although these terms do not appear in the text."). Contrary to the Debtor's assertion, ASIC and Ocwen are not "debtors" or "co-debtors" for purposes of § 509 of the Bankruptcy Code. Accordingly, that provision is simply not relevant to the subrogation rights among them and is not applicable to the relief that the Debtor is seeking in the Complaint.
In New York, a breach of contract action requires proof by the plaintiff of: (i) a contract; (ii) performance of that contract by one party; (iii) breach of the contract by the other party; and (iv) damages resulting from that breach. See Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525 (2d Cir. 1994). Accordingly, to survive a motion to dismiss a breach of contract claim, among other things, the Debtor "must set forth the terms of the agreement upon which liability is predicated." Window Headquarters, Inc. v. MAI Basic Four, Inc., Nos. 91 Civ. 1816, 92 Civ. 5283, 1993 WL 312899, at *3 (S.D.N.Y. Aug. 12, 1993). See also Berman v. Sugo LLC, 580 F.Supp.2d 191, 202 (S.D.N.Y. 2008) ("Although it is not necessary for each element to be pleaded individually, a claim that fails to allege facts sufficient to show that an enforceable contract existed between the parties is subject to dismissal.") (citation and internal quotation omitted); Mayes v. Local 106, Int'l Union of Operating Engineers, 739 F.Supp. 744, 748 (N.D.N.Y. 1990) ("A complaint . . . in a breach of contract action must, among other things, set forth the terms of the agreement upon which liability is predicated."). The Debtor has not pointed to a specific contract or contract provision underlying his breach of contract claim. Rather, as noted, he states that "[b]y reason of charging the premium against Barbara Campbell, Marlene Gaethers-Langley, and Phillip Scott, for the forced placed insurance, ASIC contracted to insure them in the amount of the mortgage in the event of a casualty loss." Compl. ¶ 35. As such, the Debtor contends that ASIC "had a legal duty to pay the insurance proceeds" to him, Campbell and Gaethers-Langley, "which duty [ASIC] breached." Id. ¶ 34. However, "[s]tating in a conclusory manner that an agreement was breached does not sustain a claim of breach of contract." Berman, 580 F. Supp. 2d at 202; see also Person v. Hewlett-Packard Co., Index No. 601614/08, 2009 N.Y. Misc. LEXIS 5312, at *4 (Sup. Ct. Jan. 7, 2009) (slip op.) ("In order to defeat a motion to dismiss a breach of contract claim, the complaint must allege, in non-conclusory language, the essential terms of the contract and which provision was breached." (citing Sheridan v. Trs. of Columbia Univ., 296 A.D.2d 314, 745 N.Y.S.2d 18 (1st Dep't 2002)); City of Syracuse v. Loomis Armored US, LLC, No. 5:11-cv-00744, 2012 WL 88332, at *5 (N.D.N.Y. Jan. 11, 2012) (dismissing breach of contract claim based upon plaintiff's "vague and conclusory" allegations). Accordingly, the Court recommends that pursuant to Rule 12(c), ASIC be awarded judgment on the pleadings dismissing Count Two of the Complaint. See, e.g., Posner v. Minnesota Mining & Mfg. Co., 713 F.Supp. 562, 563 (E.D.N.Y. 1989) (dismissing a breach of contract claim, brought by pro se plaintiffs, noting that "[a]lthough the existence of a contract is alleged, plaintiffs fail to set forth any specific information as to when the agreement was made, the terms of the agreement upon which liability is predicated, or any other evidence supporting the formation of an agreement"); Window Headquarters, 1993 WL 312899, at *3 (denying a breach of contract claim where plaintiff failed to plead the existence of a contract between the parties, alleged only that the lenders "agreed to advance funds," and failed to plead the terms of the contract); Banco Espirito Santo de Investimento, S.A. v. Citibank, N.A., No. 03 Civ. 1537, 2003 WL 23018888, at *4-5 (S.D.N.Y. Dec. 22, 2003) (dismissing a breach of contract claim where insufficient facts were alleged to show an oral agreement existed and letter of intent contemplated a final agreement in writing); see also Rouse v. Elliot Stevens, Ltd., 13-CV-01443, 2016 WL 8674688, at *4 (S.D.N.Y. June 24, 2016) (granting Rule 12(c) motion for judgment in favor of the defendants on plaintiff's breach of contract claim for having being time barred).
ASIC argues that the Debtor has not established and cannot establish the existence of a contract between ASIC and the Debtor, and that this lack of contractual privity bars the Debtor's breach of contract claim. See ASIC Rule 12(c) Motion at 14. The Debtor is not party to the Policy and cannot point to any agreement with ASIC obligating ASIC to pay him the Insurance Proceeds. Indeed, the Debtor's premise that ASIC charged the premium to the amount due under the Note and thus obligated itself to provide insurance to the Debtor, Campbell and Gaethers-Langley is simply wrong. Under the Mortgage, at its option and at the borrower's expense, the lender can, but is not required to, obtain Property insurance coverage in an amount it determines in its sole discretion. See Aiello Cert., Ex. B, Mortgage ¶ 5.
Count 3: Violation of NY Real Property Actions and Proceedings Law § 1921 Requiring Timely Filing of Discharge of Mortgage, Violation of NY Civil Practice Law an Rules Requiring Timely Filing of Discharge of Judgment Lien, and Unfair Debt Collection Practices (15 U.S.C. § 1692a et seq.)
In Count Three, the Debtor focuses on Ocwen's alleged receipt of the Insurance Proceeds that, according to the Debtor, were sufficient to satisfy the Loan in full thereby triggering an obligation under NY RPAPL § 1921 and/or NY CPLR § 5020 to record satisfactions. The Debtor alleges that: (i) after fire destroyed the Property, Ocwen made a claim under the Policy; (ii) ASIC paid Ocwen the sum of $712,908.00, which was the "face value on the [P]olicy;" and (iii) the "Defendants did not file satisfactions of the mortgage and the judgment." Compl. ¶¶ 18, 22.
Section 1921(a) mandates that "[a]fter payment of authorized principal, interest and any other amounts due" under a mortgage, the mortgagee `must execute and acknowledge . . . a satisfaction of mortgage" and record it in "the county where the mortgage is recorded. . . ." NY RPAPL § 1921(a). Section 5020 of the NY CPLR provides for the imposition of penalties if a creditor fails to execute and file a satisfaction of judgment "when the judgment is finally satisfied." NY CPLR § 5020. Even accepting as true the disputed assertion that Ocwen received Insurance Proceeds totaling $712,908, and applied them to the Loan, the proceeds were insufficient to satisfy the Loan. The Judgement of Foreclosure states that the obligation under the Loan as of its entry on March 25, 2009 was no less than $881,774.84. See Compl. Ex. A, Judgment of Foreclosure at 3. Thus, even if Ocwen applied the Insurance Proceeds to the Loan balance — which the Defendants deny — no less than $168,866.84 would remain unpaid. As a result, even if the Debtor's contentions were true, the payment of the Insurance Proceeds would not trigger an obligation on Ocwen's behalf under either NY RPAPL § 1921(a) or NY CPLR § 1921(a).
Count 4: Violation of FDCPA with Special Damages (15 U.S.C. § 1692a et seq.
In support of Count Four, the Debtor alleges that he is entitled to awards of "actual" and "statutory" damages (Compl. ¶ 42) on the grounds that "in the process of representing BNY and Ocwen, McCabe, by and through, Vencer" violated the FDCPA by:
Id. ¶ 41. The McCabe Defendants insist that the Complaint fails to state claims for relief against either of them because it does not specify the provisions of the FDCPA that they allegedly violated or how they violated them. See McCabe Motion to Dismiss Complaint ¶¶ 8, 9. At the hearing on December 22, 2016, the Debtor advised the Court that he was limiting Count Four to a single claim against Vencer under § 1621f(6) of the FDCPA predicated on the acts alleged in ¶ 41(d) (above). He also clarified that he was seeking to hold McCabe liable for Vencer's actions solely under the doctrine of respondeat superior.
Even with that modification to the pleadings, the Debtor has not, and cannot state a claim for relief under § 1692f(6). Section 1692f bars "debt collector[s]" from using "unfair or unconscionable means to collect or attempt to collect any debt." 11 U.S.C. § 1692f. That "prefatory clause is followed by a list of specific examples of . . . conduct that constitutes a violation of this section." Sutton v. Financial Recovery Servs., Inc., 121 F.Supp.3d 309, 314 (E.D.N.Y. 2015) (internal quotation marks omitted) (citation omitted). Accordingly, "[s]ection 1692f . . . broadly prohibits improper means `to collect or attempt to collect' any debt, and its list of violative conduct in 1692f is not exhaustive." Allen v. LaSalle Bank, N.A., 629 F.3d 364, 367 n.4 (3d Cir. 2011). See also Foti v. NCO Fin. Sys., Inc., 424 F.Supp.2d 643, 667 (S.D.N.Y. 2006) ("[Section] 1692f allows the court to sanction improper conduct that the FDCPA fails to address specifically.") (internal quotation marks omitted) (citation omitted). To establish a right to relief under § 1692f, the Debtor must demonstrate that he is a "consumer," and that Vencer is a "debt collector" who utilized "unfair and unconscionable means" in collecting or attempting to collect a "debt" from him. See 15 U.S.C. §§ 1692a, 1692f.
The Court previously recommended dismissing the Debtor's FDCPA claims against the Mortgagee Defendants in Count One, with prejudice, because, among other things, the Debtor did not, and cannot, plead that he is a "consumer" under the FDCPA. That rationale holds true for Count Four. The Debtor cannot qualify as a "consumer" because, as previously discussed, he is not obligated to pay the debt at issue herein. See 15 U.S.C. § 1692a(3) (a "consumer" is "any natural person obligated to pay a debt.").
The McCabe Defendants also contend that Vencer does not qualify as a "debt collector" under the FDCPA because (i) he is simply an attorney at McCabe and is not an owner or partner of the firm; (ii) the Debtor's obligations under the Note were discharged prior to the publication of the Notice of Sale; and (iii) McCabe was foreclosing on the Property. See McCabe Motion to Dismiss Complaint at 6. There is no merit to the first contention because an attorney in a law firm who otherwise qualifies as a "debt collector" is not shielded from liability under the FDCPA simply because the attorney is an associate at the law firm. Cf. Teng v. Metropolitan Retail Recovery Inc., 851 F.Supp. 61, 67 (E.D.N.Y. 1994) (finding collection agency and its employees, jointly and severally, for violations of FDCPA because each was, in their own right, a "debt collector" without regard to their employment status). Nor does the second contention have merit. Whether a debtor's liability under a note has been discharged in a bankruptcy is not defense to an allegation that a person is a "debt collector" under § 1692f(6). As noted previously, the general rule under § 1692a(6) is that to qualify as a "debt collector" under the FDCPA, the party's principal business must be the collection of "debts owed or due or asserted to be owed or due to another." 15 U.S.C. § 1692a(6). Section 1692f(6) provides an exception to that general rule. Under that section, the term "debt collector" includes "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests." See 15 U.S.C. § 1692a(6). Thus, the fact that the Debtor's personal liability under the Note was discharged in his Chapter 7 case is irrelevant to Vencer's status as a "debt collector" if Vencer was engaged in enforcing BNY's security interest in the Property. Cf. Derisme v. Hunt Leibert Jacobson P.C., 880 F.Supp.2d 311, 323 (D. Conn. 2012) (concluding that FDCPA "expressly includes enforcers of security interests only in reference to § 1692f(6) [ ]."). That is what the Debtor alleges (Compl. ¶ 7) and the McCabe Defendants concede. See McCabe Motion to Dismiss Complaint at 6 (stating that they were engaged in in rem enforcement through continuing a foreclosure action against the Property). However, contrary to the Debtor's assertion during oral argument, it does not necessarily follow that Vencer was engaged in collecting or attempting to collect a "debt." Indeed, the weight of authority in this Circuit is that actions taken solely to enforce a security agreement are not considered collection of a debt under the FDCPA. See, e.g., Boyd v. J.E. Robert Co., No. 05-CV-2455, 2012 WL 4718723, at *19 (holding that proceeding solely against property without seeking deficiency judgment "constitute[s] the enforcement of a security interest not subject to the protections of [§ 1692f(6)] of the FDCPA."); Carlin v. Davidson Fink LLP, No. 13-CV-6062, 2015 WL 5794250, at *4 (E.D.N.Y. Sept. 30, 2015) (dismissing complaint asserting FDCPA violation based on "the majority rule that the enforcement of a security interest through foreclosure proceedings that do not seek monetary judgments against debtors is not debt collection for purposes of the FDCPA." (internal quotation marks omitted) (quoting Boyd II, at *9)). There is no dispute that BNY and Ocwen engaged the McCabe Defendants to complete the foreclosure process, and that they generated the Notice of Sale as part of that process. The Debtor cannot allege, let alone establish, that for purposes of the FDCPA, either Vencer or McCabe were engaged in collecting a "debt" from him. This is another ground for dismissing Count Four.
Under § 1692f(6), a debt collector will be deemed to have employed "unfair and unconscionable" means to collect a debt if it takes, or threatens to take, "nonjudicial action to effect disposition or disablement of property" at a time that (i) the debtor does not have a present right to possession of the property claimed as collateral through an enforceable security agreement; (ii) the debtor does not have a present intention to take possession of the property; or (iii) the property is exempt by law from such dispossession or disablement. 15 U.S.C. § 1692f(6). The Debtor argues that by failing to comply with the statutory requirement to post the Notice of Sale in a newspaper for consecutive weeks, Vencer utilized `unfair and unconscionable" means in attempting to collect a debt from the Debtor. He put a finer point on that contention in his opposition, arguing:
Debtor Opposition to McCabe Motion to Dismiss Complaint ¶¶ 17-18. However, even if true, those allegations do not support the Debtor's claim for relief under § 1692f(6) because the Notice of Sale is part of BNY's judicial proceeding, not a non-judicial proceeding. See Estep v. Manley Deas Kochalski, LLC, 942 F.Supp.2d 758, 770 (S.D. Ohio 2013) (finding that letter from HUD that referred only "to the pending foreclosure action, a judicial proceeding" did not threaten to "take possession of plaintiffs' property by nonjudicial means;" and "[by] itself did nothing to achieve possession of the property" did not violate § 1692f(6)). Thus, by definition, Vencer's conduct was not "unfair and unconscionable." For that additional reason, the Debtor cannot state a claim for relief against Vencer under § 1692f(6).
As clarified during the hearing on December 22, 2016, the Debtor does not seek relief against McCabe under the FDCPA. Rather, he rests his claim against McCabe exclusively on the doctrine of respondeat superior. It is hornbook law that "the doctrine of respondeat superior renders a master vicariously liable for a tort committed by his servant while acting within the scope of his employment[.]" Riviello v. Waldron, 47 N.Y.2d 297, 302 (1979) (citation omitted). In effect, that doctrine involves the imputation to an employer of the "knowledge and conduct" of a legal entity's "human actors — its officers, agents and employees." Prudential-Bache Sec., Inc. v. Citibank, N.A., 73 N.Y.2d 263, 276 (1989). The FDCPA is silent on the issue of vicarious liability. District courts in this circuit have found that only entities that meet the FDCPA's definition of "debt collector" may be held vicariously liable for the wrongful collection activity of another carried on for its behalf. See, e.g., Okyere v. Palisades Collection, LLC, 961 F.Supp.2d 508, 515-16 (S.D.N.Y. 2013) ("[A]n entity that itself meets the definition of `debt collector' may be held vicariously liable for unlawful collection activities carried out by another on its behalf." (internal quotation marks omitted) (quoting Pollice v. Nat'l Tax Funding, L.P., 225 F.3d 379. 404 (3d Cir. 2000))); Doherty v. Citibank (S.Dak.) N.A., 375 F.Supp.2d 158, 162 (E.D.N.Y. 2005) ("[A] creditor that is not itself a debt collector is not vicariously liable for the actions of a debt collector it has engaged to collect its debts."); Fritz v. Resurgent Capital Servs., LP, 955 F.Supp.2d 163, 177 (E.D.N.Y. 2013); Polanco v. NCO Portfolio Mgmt., Inc., 132 F.Supp.3d 567, 584 (S.D.N.Y. 2015). However, the Court does not need to reach that issue because (i) the Debtor waived his FDCPA claims against McCabe, including his allegation that McCabe is a "debt collector" under the FDCPA; and (ii) regardless, his failure to state a claim against Vencer means, as a matter of law, that he cannot state a claim against McCabe.
The Court recommends dismissing Count Four as to Vencer and McCabe, without leave to amend.
Based upon the foregoing, the Court determines and recommends as follows:
IT IS SO ORDERED.
Furthermore, the Mortgagee Defendants filed replies in further support of their motions to dismiss. See Reply Memorandum in Further Support of Defendants' Motion to Dismiss [Responding to the Scott Opposition], dated November 2, 2016 [AP ECF No. 36]; Reply Memorandum of Law in Further Support of Defendants' Motion to Dismiss Cross-Complaint Filed by Co-Defendant Barbara Campbell, dated November 29, 2016 [AP ECF No. 49]; and Reply Memorandum of Law in Further Support of Defendants' Motion to Dismiss Cross-Complaint Filed by Co-Defendant Marlene Gaethers-Langley, dated November 29, 2016 [AP ECF No. 50], respectively.
2012 State Court Decision (Aiello Cert., Ex. E) [AP ECF No. 10-6].
The Debtor also brought two actions in the United States District Court for the Southern District of New York. Acting pro se, Debtor, Campbell, and Gaethers-Langley filed an action against BNY and Chase, seeking monetary damages and to void the Judgment of Foreclosure. See Campbell v. Bank of N.Y. Trust Co., N.A., No. 11 CV 1588 (CS) (S.D.N.Y.). Debtor brought a separate action seeking similar relief against BNY, Mortgage Electronics Registration Systems, Inc., and Residential Capital, LLC. See Scott v. Bank of N.Y. Trust Co., N.A., No. 12 CV 2607 (CS) (S.D.N.Y.). Both actions asserted numerous federal and state law claims, in essence alleging appellee's foreclosure action was fraudulent because Chase never actually assigned appellant's mortgage to BNY. Both actions were eventually dismissed in their entirety. See In re Scott, 2015 U.S. Dist. LEXIS 187978, at *4. See also Aiello Cert. Exs. F (dismissing complaint in Campbell v. Bank of N.Y. Trust Co, N.A. after adoption of magistrate judge's report and recommendation) and G (dismissing amended complaint in Scott v. Bank of N.Y. Trust Co., N.A. by order dated August 13, 2012), respectively.
The 1978 Act vested district courts with subject matter jurisdiction over all "cases under title 11," 28 U.S.C. § 1471(a), and all "civil proceedings arising under title 11 or arising in or related to cases under title 11." Id. § 1471(b). The 1978 Act also established bankruptcy courts as adjuncts to the district court. Id. § 151(a). Judges of the bankruptcy courts were appointed to office for 14-year terms by the President, with the advice and consent of the Senate. Id. §§ 152, 153(a). They were subject to removal by the "judicial council of the circuit" on account of "incompetency, misconduct, neglect of duty or physical or mental disability," id. § 153(b), and their salaries were set by statute and were subject to adjustment under the Federal Salary Act, 2 U.S.C. §§ 351-361 (1976 ed. and Supp.IV); 28 U.S.C. § 154 (1976 ed., Supp.IV). As such, bankruptcy judges, unlike the district court judges, were not Art. III judges. See Marathon, 458 U.S. at 61. Nonetheless, the 1978 Act conferred the bankruptcy court with jurisdiction over all civil proceedings arising under title 11 or arising in or related to cases under title 11, that was co-extensive to that of the district court. See 28 U.S.C. § 1471(c) (providing that "[t]he bankruptcy court for the district in which a case under title 11 is commenced shall exercise all of the jurisdiction conferred by this section on the district courts."). "Thus, the ultimate repository of the  Act's broad jurisdictional grant [were] the bankruptcy courts." Marathon, 458 U.S. at 54, n.3 (citing 1 W. Collier, Bankruptcy ¶ 3.01, pp. 3-37, 3-44 to 3-49 (15th ed. 1982)).
The issue before the Marathon court was "whether the assignment by Congress to bankruptcy judges of the jurisdiction granted in 28 U.S.C. § 1471 . . . by the  act violates Art. III of the Constitution." 458 U.S. at 53. A plurality of the Court found that it did, at least to the extent that "Congress may not vest in a non-Art. III court the power to adjudicate, render final judgment and issue binding orders in a traditional contract action arising under state law, without the consent of the litigants, and subject only to ordinary appellate reviews." Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 569 (1985) (describing plurality's holding in Marathon). In reaching that determination the plurality held that controversies involving "public rights" may be delegated to non-Art. III tribunals, whereas matters involving private rights must be resolved by Art. III tribunals. See Marathon, 458 U.S. at 69-70 ("Our precedents clearly establish that only controversies [involving public rights] may be removed from Art. III courts and delegated to legislative courts or administrative agencies for their determination.. . . Private-rights disputes, on the other hand, lie at the core of the historically recognized judicial power."). From that, it found that
Marathon, 458 U.S. at 71-72 (quoting Crowell v. Benson, 285 U.S. 22, 51 (1932)). The public rights doctrine is at the heart of the core/non-core distinction in § 157(b)(2). See In re Wood, 825 F.2d 90, 96 (5th Cir. 1987) ("The reference in [§ 157] to `core' proceedings is taken directly from Justice Brennan's description of matters that involve the peculiar powers of bankruptcy courts. The Act describes non-core proceedings as `otherwise related', an apparent reference to Chief Justice Burger's description of the Marathon proceeding as `related only peripherally to an adjudication of bankruptcy.'").
28 U.S.C. § 1367(a). "This section allows a district court that has original jurisdiction over some claims in an action to exercise supplemental jurisdiction over additional claims that are part of the same case or controversy." In re Enron Corp., 353 B.R. 51, 55 (Bankr. S.D.N.Y. 2006) (citation omitted). "While not free from doubt, there is authority, including in the Second Circuit, that bankruptcy courts may exercise supplemental jurisdiction." Shafferman v. The Queens Borough Public Library (In re JMK Constr. Grp., Ltd.), 502 B.R. 396, 403 n.4 (Bankr. S.D.N.Y. 2013) (citing In re Pegasus Gold Corp., 394 F.3d 1189, 1195 (9th Cir. 2005); Lionel Corp. v. Civale & Trovato, Inc. (In re Lionel Corp.), 29 F.3d 88, 92 (2d Cir. 1994)).
A district court is not required to exercise supplemental jurisdiction over state law claims in all cases. It may decline to do so when "[it] has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). In those circumstances, in determining whether to exercise supplemental jurisdiction, the court must "balance the traditional values of judicial economy, convenience, fairness, and comity." Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). "[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors ... will point toward declining to exercise jurisdiction over the remaining state law claims." Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003) (quoting Cohill, 484 U.S. at 350 n.7); see also Baylis v. Marriott Corp., 843 F.2d 658, 665 (2d Cir. 1988) ("When all bases for federal jurisdiction have been eliminated ..., the federal court should ordinarily dismiss the state claims."). As discussed above, the Court has non-core related to jurisdiction over the Non-NY DCL claims in Counts One through Four of the Complaint. However, as is explained below, the Court recommends that pursuant to Rule 12(b)(6), the District Court dismiss each of those claims, without leave to amend. Accordingly, the Court declines to exercise supplemental jurisdiction over the claims at issue in the Cross-Complaints. See, e.g., Merhav Ampal Grp., Ltd. v. Merhav (M.N.F.) Ltd. (In re Ampal-American Israel Corp.), 545 B.R. 802, 815 (Bankr. S.D.N.Y. 2016) (declining to exercise supplemental jurisdiction under § 1367(c) over unrelated, non-core claims between non-debtor parties because the claim over which the bankruptcy court had original jurisdiction had been dismissed); Am. Residential Equities, LLC v. GMAC Mortg. LLC (In re Residential Capital, LLC), No. 12-12020, 2013 Bankr. LEXIS 3045, at *15, n.3 (Bankr. S.D.N.Y. July 30, 2013) (noting that the Court would have, in the exercise of its discretion under § 1367(c), declined to exercise supplemental jurisdiction because underlying federal claims against co-defendant had been dismissed).
Aiello Cert. Ex. B, Mortgage ¶ 5.
N. Y. Gen. Bus. Law § 349(a), (h).
Compl. ¶¶ 34, 35. From that he further contends:
Id. ¶ 36.
Compl. Ex. B.
Furthermore, at best, the Policy provided ASIC the option, in the event it denies payment to Campbell, but pays Ocwen, to pay "the whole principal on the mortgage plus any accrued interest." Id. ¶ 15, ECF p. 14 of 20. Such language, however, actually further contradicts several of the Debtor's assertions. First, the Policy clearly provides a mechanism for the mortgagee, in this case Ocwen, to receive payment under the Policy, but have payment denied to the insured, in this case Campbell. That undercuts the Debtor's wholly speculative and unsupported contention that Ocwen forged Campbell's name on the purported Insurance Check. Second, even if Debtor's allegation that it was ASIC that made any determination concerning paying off the total amount owed on the Loan balance, the language of the Policy clearly indicates that the most that would occur would be ASIC taking an assignment of the loan debt if it pays the total amount outstanding. It would not actually satisfy the debt.