Mongiello v. HSBC Bank USA NA

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CHRISTOPHER M. MONGIELLO, Plaintiff, -against- HSBC BANK USA NA, as Trustee for the LMT No. 24-CV-2291 (KMK) 2006-6 Trust Fund, aka HSBC BANK USA NA ORDER OF SERVICE as Trustee for the Lehman Mortgage Trust Mortgage Pass-Through Certificates, Series 2006-6; PHH MORTGAGE; PHH CORPORATION, Defendants. KENNETH M. KARAS, United States District Judge: Plaintiff, who is appearing pro se, brings this action asserting claims under the Real Estate Settlement Practices Act (“RESPA”), 12 U.S.C. § 2601 et seq., and N.Y. Real. Prop. Acts. Law § 1501, in connection with real property in New Rochelle, NY. By order dated April 2, 2024, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. (See Dkt. No. 6.) I. Discussion Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the Court and the U.S. Marshals Service to effect service.1 Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all

1 Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a summons be served within ninety days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have effected service until the Court reviewed the complaint and ordered that any summonses be issued. The Court therefore extends the time to serve until ninety days after the date any summonses issue. process . . . in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (explaining that courts must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP). To allow Plaintiff to effect service on Defendants HSBC Bank USA NA, as Trustee for the LMT 2006-6 Trust Fund, PHH Mortgage, and PHH Corporation through the U.S. Marshals Service, the Clerk of Court is respectfully instructed to fill out a U.S. Marshals Service Process

Receipt and Return form (USM-285 form) for each Defendant. The Clerk of Court is further instructed to issue summonses and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon Defendants. If the complaint is not served within ninety days after the date summonses are issued, Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiff’s responsibility to request an extension of time for service). Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so.

II. Conclusion The Clerk of Court is respectfully directed to mail an information package to Plaintiff. The Clerk of Court is further instructed to issue summonses for Defendants HSBC Bank USA NA, as Trustee for the LMT 2006-6 Trust Fund; PHH Mortgage; and PHH Corporation; complete the USM-285 forms with the addresses for Defendants; and deliver to the U.S. Marshals Service all of the documents necessary to effect service. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). Plaintiff consents to electronic service of court documents. (See Dkt. No. 4.) SO ORDERED. Dated: April 17, 2024 White Plains, New York Ant KENNETHM. KARAS) United States District Judge

DEFENDANTS AND SERVICE ADDRESSES

HSBC Bank USA NA, as Trustee for the LMT 2006-6 Trust Fund 452 Fifth Avenue New York, NY 10018 PHH Mortgage Corporation Service Company 80 State Street Albany, NY 12207- 2543 PHH Corporation Corporation Service Company 80 State Street Albany, NY 12207- 2543