Forde v. PHH Mortgage Corporation

• Court: District Court, S.D. New York
• Decided: July 7, 2023
• Docket: 7:23-cv-04090
• Status: Unknown

Opinion

VUITECHUels Wau rls Leah N. Jacob Tel 212.801.9200 Leah jacob@gtlaw.com

June 21, 2023 Judge Philip M. Halpern Federal Building and United States Courthouse 300 Quarropas St. White Plains, NY 10601-4150 Re: — Glenn Forde v. PHH Mortgage Corporation, et al., No. 7:23-cv-04090-PMH Dear Judge Halpern: My firm is coun|Defendants PHH Mortgage Corporation, the Honorable above-referenced David F. Everett, and Westchester County's respective matter. Pursuant to Rirequests for leave to move to dismiss are granted. (Docs. 9, fest a pre-motion 13, 14). Each Defendant shall file a notice of motion. conference in advance o|Defendants shall file one, joint set of briefs which adhere to |t “Complaint” or the page limits set out in the Court's Individual Practices Compl.”) [Dkt. No. 8] jRule A(G). In light of Plaintiff's pro se status, the Court's pre- |t© Fed. R. Civ. P. motion conference requirement is hereby waived. 12 (the “Motion”)!. Ths Defendants shall file their notices of motion and joint opening brief by August 7, 2023; Plaintiff shall file his On September 1 opposition brief by September 4, 2023; Defendants shall file it I Beeprember their joint reply brief by September 18, 2023. Se MOMBABS □□□□ in the original principa . . . located at 230 P P The Clerk of Court is respectfully directed to: (i) terminate y Hamilton Ave, New Rqthe motion sequences pending at Docs. 9, 13, 14, and 15; da Home Equity and (ii) mail a copy of this Order to Plaintiff. Conversion Loan Agre| greement.” The SO ORQERED. Borrower passed away ayment in full in accordance with the teriPhilip M. Halpern United States District Judge In December 20 rt of the State of Dated: White Plains, New York July 7, 2023 ' PHH has not yet been served with the Amended Complaint and there is no Affidavit of Service filed with the Court. 2 A copy of the loan documents in connection with the Loan were filed in the underlying foreclosure action and this Court can take sudicial notice of the docket and documents filed in the foreclosure action as a matter of public record. Indeed, on a “motion to dismiss, the Court may consider a document that is attached to the complaint, incorporated by reference, or integral to the complaint, provided there is no dispute regarding its authenticity, accuracy or relevance.” See DiFolco v. MSNBC Cable L.L.C ., 622 F.3d 104, 111 (2d Cir.2010) (citations omitted). “To be incorporated by reference, the [c]omplaint must make a clear, definite and substantial reference to the documents.” Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 815 F.Supp.2d 679, 691 (S.D.N.Y.2011) (internal quotation marks and citation omitted). “A court may also take into account matters of which judicial notice can be taken.” Leonard F. v. Israel Disc. Bank of New York, 199 F.3d 99, 107 (2d Cir.1999).

New York, Westchester County (Index No. 71046/2014) against Alva N. Harris, as beneficiary under the last will and testament of Daisy S. McKenzie and Glenn Forde, as beneficiary under the law will and restatement of Daisy S. McKenzie, among others (the “State Court Foreclosure Action”). On February 4, 2015, Glenn Forde (the plaintiff herein) served a pro se Answer in response to the State Court Foreclosure Action Complaint. On January 17, 2019, the State Court struck Forde’s Answer with

prejudice and granted summary judgment in the State Court Foreclosure Action. On May 16, 2019, the State Court granted a combined Order of Reference and Judgment of Foreclosure and Sale. On or about May 31, 2019, the servicing of the subject loan was transferred to PHH. On November 8, 2019, the State Court (Ecker, J.) issued an Order for Extension of Time to Conduct Foreclosure Sale amending the caption to substitute PHH as Plaintiff, and granting PHH an additional 90 days to conduct the foreclosure sale. On November 21, 2019, Forde filed for bankruptcy, which triggered an automatic stay of further proceedings in the State Court. By Order dated January 10, 2022, Hon. Cecilia C. Morris, Chief U.S. Bankruptcy Judge, granted PHH’s motion for relief from the automatic stay allowing PHH to proceed with the State Court Foreclosure Action. In September 2022, PHH moved for a 90 day extension of time to proceed with the foreclosure. Forde opposed PHH’s application and moved

to dismiss the State Court Foreclosure Action. PHH’s motion was granted by Order dated April 6, 2023. Forde’s motion to dismiss was denied by the State Court in its entirety. Forde now brings this Federal Court action as a “collateral attack for misconduct related to [t]he defendants attempt to foreclosure on an alleged single family residential mortgage of private property.” The causes of action include Count 1 for 42 USC 1983 claim for 4th and 5th amendment invasion (against county), Count 2 for 42 USC 1983 claim 4th and 5th amendment invasion of Privacy (against the servicer and agents), and Count 3 for Abuse of Process (against attorney and agents). BASIS FOR ANTICIPATED MOTION Plaintiff’s Claims Are Barred By The Binding Judgment of Foreclosure and Sale in the State Court Foreclosure Action The Rooker-Feldman doctrine, which is based on the Supreme Court cases Rooker v. Fidelity Tr. Co, 263 US 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), precludes federal district courts from exercising appellate jurisdiction over final state court judgments. “Courts in this Circuit have consistently held that any attack on a judgment of foreclosure is clearly barred by the Rooker-Feldman doctrine.” In re Moise, 575 B.R. 191, 202 (Bankr. E.D.N.Y. 2017) (dismissing complaint under the Rooker-Feldman doctrine seeking to reverse the state court foreclosure judgment). Further, the doctrines of res judicata and collateral estoppel also preclude claims that have been fully litigated in a related state court foreclosure action. See Nath v. Select Portfolio Servicing, Inc., No.

15-CV-8183 (KMK), 2017 WL 782914, at *10 (S.D.N.Y. Feb. 28, 2017), aff'd, 732 F. App'x 85 (2d Cir. 2018) (dismissing claims under res judicata and collateral estoppel because a “[f]oreclosure Judgment is final as to all questions at issue between ... parties”). Here, the Amended Complaint explicitly seeks to undermine the decisions rendered in the State Court Foreclosure Action finding, inter alia, that the foreclosing plaintiff proved its entitlement to foreclosure of the Property. Although difficult to comprehend, the allegations in the Complaint appear to relate to the meritless claims that PHH “had no standing to institute foreclosure” and “the servicer fail[ed] to follow proper appropriate foreclosure procedures” resulting in an “illegal foreclosure.” The claims are thus clearly barred by the Rooker-Feldman doctrine, res judicata and collateral estoppel.

For these reasons, among others, dismissal of the Amended Complaint is warranted. Respectfully submitted, /s/ Leah N. Jacob Leah N. Jacob CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 21, 2023 a copy of the foregoing was filed electronically through the Court’s CM/ECF which will, in turn, send a notice of electronic filing to all counsel of record and a copy of the foregoing was sent by overnight mail to

Glenn Forde c/o GFD Family Trust 230 Hamilton Ave New Rochelle, NY 10801

/s/ Leah N. Jacob