Opinion
03 Civ. 1685 (RMB) (JCF)
November 18, 2003
REPORT AND RECOMMENDATION
The pro se plaintiffs bring this action against the defendant, Bank of America, N.A. ("Bank of America"), alleging violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et sea., the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq., and a variety of Minnesota state laws. The allegations relate to a mortgage loan issued to the plaintiffs by Bank of America's predecessor-in-interest.
The plaintiffs named as defendants Bank of America and its affiliates, subsidiaries, and agents, including BA Mortgage. I will refer to them collectively as "Bank of America."
Bank of America has moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim or, in the alternative, for an order granting summary judgment pursuant to Rule 56. The plaintiffs have opposed the motion and filed a cross-motion for summary judgment and a request for sanctions under Rule 11 of the Federal Rules of Civil Procedure. For the reasons that follow, I recommend that the defendant's motion be granted, the plaintiffs' motion denied, and the Complaint dismissed. With respect to the state law claims, I recommend that the plaintiffs be granted leave to amend their Complaint to allege a sufficient basis for diversity jurisdiction.
Background
In or about October 1988, the plaintiffs received a mortgage loan secured by a lien on their property at 13684 Harmony Way in Dakota County, Minnesota. Following a series of disputes over nonpayment, the defendant initiated non-judicial foreclosure proceedings, which resulted in the sale of the property to a third party in December 2002.
In the Complaint, the plaintiffs allege that, on three separate occasions from about September 2001 to May 2002, they disputed an unspecified "trade line" that was reported to various credit bureaus by Bank of America with regard to the plaintiffs. (Complaint ("Compl.") at 3). On June 7, 2002, Douglas Norton, Bank of America's Executive Relations Officer, agreed to delete the disputed "trade line," and Bank of America subsequently contacted the Equifax, Trans Union, and Experian credit reporting services to order the deletion. (Compl. at 3). However, in mid-July 2002, another Bank of America employee named "Diane" directed CSC Credit Services, Inc. ("CSC") to continue reporting the trade line. (Compl. at 4). The plaintiffs allege that CSC reported the trade line seven times, and that the plaintiffs were subsequently denied credit as a result of the report. (Compl. at 4-5).
Additionally, the plaintiffs allege that on October 4, 2002, Fisher Pratt, an agent of the defendant, forcibly entered the plaintiffs' property at 13684 Harmony Way, disabling the deadbolt lock and security system, dismantling and disabling the water-softener system, and "ransacking the residence." (Compl. at 6). They also allege that from October 30, 2002, to the date of the Complaint, the defendant: (1) repeatedly contacted the plaintiffs at inconvenient times without the consent of plaintiffs' counsel, (2) disclosed the nature of the parties' debt dispute to third parties, such as the plaintiffs' neighbors and others in their "residential and professional communities," (3) failed to notify the plaintiffs of their right to dispute and receive written verification of the debt, and (4) directed abusive rhetoric and threats of legal action towards the plaintiffs. (Compl. at 6-7). The plaintiffs allege that these actions constituted unlawful debt collection activities.
Finally, the plaintiffs allege that Bank of America failed to disclose, in relation to the mortgage loan at issue, "applicable finance charges, 'service' charges, charges for unauthorized 'tie-in' sales of financial products, and escrow account debits and charges." (Compl. at 8). They also allege that Bank of America failed to disclose the assignment and/or transfer of its security interest from its predecessors-in-interest. (Compl. at 8).
Discussion
A. Defendant's Motion to Dismiss
In considering a motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, the court must accept as true all factual allegations in the complaint and must draw all inferences in favor of the plaintiff. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993); York v. Association of the Bar of the City of New York, 286 F.3d 122, 125 (2d Cir. 2002); Hernandez v. Coucrhlin, 18 F.3d 133, 136 (2d Cir. 1994). Accordingly, the complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). These principles are even more strictly applied where the plaintiff is proceeding pro se. Haines v. Kerner, 404 U.S. 519, 520 (1972); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999).
1. FCRA Claim
The FCRA was enacted "to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit . . . in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information." 15 U.S.C. § 1681(b). The FCRA "places distinct obligations on three types of entities: consumer reporting agencies, users of consumer reports, and furnishers of information to consumer reporting agencies." Redhead v. Winston Winston P.C., No. 01 Civ. 11475, 2002 WL 31106934, at *3 (S.D.N.Y. Sept. 20, 2002).
Furnishers of information are subject to two duties under the FCRA. Section 1681s-2(a) of the FCRA, concerning the duty to report accurate information, provides in relevant part: "[a] person shall not furnish information relating to a consumer . . . if the person knows or consciously avoids knowing that the information is inaccurate." 15 U.S.C. § 1681s-2(a)(1)(A). A person is also prohibited from furnishing information if "(i) the person has been notified by the consumer . . . that specific information is inaccurate; and (ii) the information is, in fact, inaccurate." 15 U.S.C. § 1681s-2(a)(1)(B).
By contrast, section 1681s-2(b) of the FCRA, concerning the duty to investigate reports of inaccurate information, provides in part: " [a]fter receiving notice pursuant to section 16811(a)(2) of this title of a dispute with regard to the completeness or accuracy of any information . . . the person shall (A) conduct an investigation with respect to the disputed information; (B) review all relevant information provided by the consumer reporting agency pursuant to 1681i(a)(2) of this title; (C) report the results of the investigation to the consumer reporting agency; and (D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information." 15 U.S.C. § 1681s-2(b)(1). This section requires that the furnisher of information receive notice from a consumer reporting agency before the duty to investigate is triggered. See Redhead, 2002 WL 31106934, at *5 (citing Young v. Equifax Credit Information Services, Inc., 294 F.3d 631, 639 (5th Cir. 2002)); see also 15 U.S.C. § 1681i(a)(2).
While the Complaint does not specify which type of entity Bank of America would constitute under the FCRA, the plaintiffs' allegations make clear that their claims relate to the accuracy of information that Bank of America provided to a specific credit reporting agency: CSC Credit Services, Inc. The Complaint therefore alleges violations of the defendant's duties as a "furnisher of information" and in particular, the duty to provide accurate information under § 1681s-2(a) of the FCRA.
The Complaint cannot be construed as alleging a violation of § 1681s-2(b) because, as noted above, a furnisher of information must receive notice from a consumer reporting agency before the duty to investigate inaccuracies in a credit report is triggered. See Redhead, 2002 WL 31106934, at *5. The Complaint makes no allegation that the defendant received such notice from CSC or any other consumer reporting agency.
However, the FCRA provides no private right of action for alleged violations of § 1681s-2(a). See 15 U.S.C. § 1681s-2(d) ("Subsection (a) of this section shall be enforced exclusively . . . by the Federal agencies and officials and the State officials identified in that section."); Nelson v. Chase Manhattan Mortgage Corp., 282 F.3d 1057, 1059 (9th Cir. 2002); Redhead, 2002 WL 31106934, at *4; McMillan v. Experian Information Services, Inc., 119 F. Supp.2d 84, 88 (D. Conn. 2000). As the plaintiffs lack standing to bring a claim under 15 U.S.C. § 1681s-2(a), this portion of the Complaint must be dismissed for failure to state a claim pursuant to Rule 12(b)(6).
2. FDCPA Claim
The FDCPA seeks "to eliminate abusive debt collection practices by debt collectors," 15 U.S.C. § 1692(e), and to that end prohibits particular actions by debt collectors, such as improper communications with the consumer, see 15 U.S.C. § 1692c; harassing or oppressive behavior, including the use of violence to harm the property of another, see 15 U.S.C. § 1692d; false or misleading representations, including threats of legal actions that cannot be taken and the failure to communicate to others that the debt is disputed, see 15 U.S.C. § 1692e; and the use of unfair or unconscionable means of debt collection, see 15 U.S.C. § 1692f. The FDCPA also requires a debt collector to provide written notice of the debt and the consumer's right to dispute it. See 15 U.S.C. § 1692g(a).
Section 1692a of the FDCPA defines a "debt collector" as any person who uses interstate commerce "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." 15 U.S.C. § 1692a(6). The term does not include "any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor." 15 U.S.C. § 1692a(6) (A). However, if a creditor, in collecting his own debts, "uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts," the creditor can be considered a "debt collector." 15 U.S.C. § 1692a(6).
While the Complaint alleges a wide variety of acts that purportedly violate the FDCPA, none of those allegations suggests that the defendant-creditor was seeking to collect any debt other than its own, which arose from the 1988 mortgage loan issued to the plaintiffs. See Shevach v. American Fitness Franchise Corp., No. 98 Civ. 2938, 2001 WL 274121, at *3 (S.D.N.Y. March 19, 2001) ("[T]he statute creates a cause of action against independent debt collectors rather than creditors seeking to enforce collection of their own debts."); Beck v. Alliance Funding Company, 113 F. Supp.2d 274, 275 (D. Conn. 2000) ("The [FDCPA] is quite clear that it is directed at independent debt collectors and not creditors attempting to collect on their own debts."). The Complaint also does not allege that the defendant used the names of third parties in collecting its debt. Compare Maguire v. Citicorp Retail Services, Inc., 147 F.3d 232, 235 (2d Cir. 1998) (reversing summary judgment for creditor because it used name other than its own to collect debt) with Thomasson v. Bank One, Louisiana, N.A., 137 F. Supp.2d 721, 724 (E.D. La. 2001) (dismissing debtor's claim where creditor merely employed services of "third party or subsidiary agent"); see also Bleich v. Revenue Maximization Group, Inc., 239 F. Supp.2d 262, 264 (E.D.N.Y. 2002) (use of collection agency did not convert creditor into "debt collector").
For the foregoing reasons, the plaintiffs have failed to allege that the defendant fits the definition of a "debt collector" under the FDCPA. Accordingly, this portion of the Complaint must be dismissed for failure to state a claim.
3. TILA Claim
The purpose of the TILA is "to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit." 15 U.S.C. § 1601(a). Section 1638 of the TILA and the corresponding portions of Regulation Z, promulgated under the Act, set forth specific disclosure requirements for creditors in "closed-end" credit transactions, such as the mortgage loan at issue in this case. See 15 U.S.C. § 1638(a); 12 C.F.R. § 226.18.
15 U.S.C. § 1638 pertains to transactions other than an "open end credit plan," which is defined by the TILA as "a plan under which the creditor reasonably contemplates repeated transactions." 15 U.S.C. § 1602(i). As the mortgage loan in this case constituted a single transaction, it is subject to the disclosure requirements for "closed end" transactions. See Maes v. Motivation for Tomorrow, Inc., 356 F. Supp. 47, 50 (N.D. Cal. 1973); see also Cardiello v. The Money Store, Inc., No. 00 Civ. 7332, 2001 WL 604007, at *3 (S.D.N.Y. June 1, 2001) (construing mortgage to be "closed end" transaction).
A "creditor" is defined by the TILA as a person who "(1) regularly extends . . . consumer credit . . . and (2) is the person to whom the debt arising from the consumer credit transaction is initially payable on the face of the evidence of indebtedness." 15 U.S.C. § 1602(f). Under section 1641 of the TILA, a civil action against a creditor "may be maintained against any assignee of such creditor only if the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement." 15 U.S.C. § 1641 (a). In the case of a consumer credit transaction secured by real property, a violation is apparent on the face of the disclosure statement if: "(A) the disclosure can be determined to be incomplete or inaccurate by a comparison among the disclosure statement, any itemization of the amount financed, the note, or any other disclosure of disbursement; or (B) the disclosure statement does not use the terms or format required to be used by this title." 15 U.S.C. § 1641(e)(2).
To maintain their action, the plaintiffs in this case must show that the defendant, Bank of America, is either a "creditor," or an "assignee" against whom a civil action can be maintained under the TILA. Bank of America is not a "creditor" because the "evidence of indebtedness" in this case — i.e., the promissory note and mortgage dated October 28, 1988 — lists "Ameristar Financial Corporation" ("Ameristar") as the entity to whom the plaintiffs' debt was initially payable. (Declaration of Jacqueline M. Tobolski in Support of Bank of America, N.A.'s Motion to Dismiss Plaintiffs' Complaint dated May 13, 2003 ("Tobolski Decl."), Exh. A). However, Bank of America may be an "assignee" because the mortgage was subsequently assigned to Goldome Realty Credit Corporation ("Goldome") in February 1990. (Tobolski Decl., Exh. C). After several name changes and mergers, Goldome eventually came to be known as BA Mortgage, LLC, a wholly owned subsidiary of Bank of America, N.A. (Tobolski Decl., Exhs. C, E).
As discussed in the section concerning the plaintiff's FDCPA claim, Bank of America is functionally a "creditor" as that term is generally used. It does not, however, come within the specific statutory definition set forth in the TILA.
In considering the defendant's motion to dismiss, I have reviewed the 1988 promissory note and mortgage; public filings with the Registrar of Titles in Dakota County, Minnesota, and the State of Delaware Office of the Secretary of State; and, as noted below, the 1988 "Final Disclosure" statement issued by Ameristar. While these documents were not attached to or incorporated by reference in the Complaint, they either were integral to framing the allegations in the Complaint, or were public documents required by law to be filed. Accordingly, reliance on these documents in deciding a motion to dismiss is proper. See Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991). Even assuming, however, that considering these documents requires me to convert the defendant's motion into a motion for summary judgment under Rule 56, I conclude, for the same reasons discussed below, that the defendant has established the absence of a genuine dispute of material fact on the plaintiffs' TILA claims, and is therefore entitled to summary judgment on this portion of the Complaint.
For an assignee to be held liable for a violation of the TILA, the alleged violation must appear on the face of the disclosure statement. As an initial matter, the plaintiffs' claim that the defendant failed to disclose the assignment and/or transfer of its security interest is meritless because the TILA does not require the disclosure of such information. See 15 U.S.C. § 1638(a). The plaintiffs also allege, however, that the defendant failed to disclose "applicable finance charges, 'service' charges, charges for unauthorized 'tie-in' sales of financial products, and escrow account debits and charges." (Compl. at 8). The defendant, in turn, has submitted a "Final Disclosure" statement dated October 28, 1988, and apparently bearing the signatures of Kevin E. Burns and Barbara R. Burns. The name "Ameristar Financial" appears at the top of the page. (Tobolski Decl., Exh. B).
Ameristar's "Final Statement" discloses a dollar amount identified as a "Finance Charge" in a separate box at the top of the page. At the bottom of the page, a itemized list appears under the general heading, "Amounts Paid to Others on Your Behalf." These amounts include: (1) "Title Insurance Premium — to Title Company," (2) "Recording Fees — to county recorder," (3) "Appraisal Fees — to appraiser," (4) "Closing Fee — to Escrow/ closing agent," and (5) "Net Proceeds — to Title company or closing agent." A second itemized list entitled, "Prepaid Finance Charge," discloses: (1) an "Origination Fee Paid by Borrower," (2) "Prepaid Interest," (3) a "Buyer Discount Fee," and (4) a "Commitment Fee." (Tobolski Decl., Exh. B).
On its face, Ameristar's statement therefore appears to disclose a number of applicable finance and service charges. To the extent that the other charges mentioned in the Complaint — i.e., charges for "tie-in sales," escrow debits and charges, and other unspecified finance and service charges — were not disclosed, Bank of America could not have known about those charges unless it had possessed independent knowledge about the loan practices of Ameristar and other predecessors-in-interest, or about its own practices. Charges that are apparent, not from the disclosure statement itself, but by virtue of extrinsic knowledge cannot render an assignee liable for failing to disclose those charges. See Balderos v. City Chevrolet, 214 F.3d 849, 853 (7th Cir. 2000) (denying assignee liability where charges are apparent "only by virtue of special knowledge, whether about the practices of other firms,. . . or its own practices") (citingTaylor v. Quality Hyundai, Inc., 150 F.3d 689, 694 (7th Cir. 1998), Green v. Levis Motors, Inc., 179 F.3d 286, 295 (5th Cir. 1999), and Ellis v. General Motors Acceptance Corporation, 160 F.3d 703, 709-10 (11th Cir. 1998)); see also Mayfield v. General Electric Capital Corp., No. 97 Civ. 2786, 1999 WL 182586, at *4 (S.D.N.Y. March 31, 1999); General Electric Capital Corp. v. DirecTV, Inc., 94 F. Supp.2d 190, 203 (D. Conn. 1999).
This conclusion is also warranted by a "a comparison among the disclosure statement,. . . the note, or any other disclosure of disbursement." 15 U.S.C. § 1641(e)(2). Under section 1605(e) of the TILA, a creditor is entitled to exclude from the finance charge "escrows for future payments of taxes and insurance." In the mortgage agreement attached to the plaintiffs' promissory note, paragraph 2 of the section on "Uniform Covenants" states that the borrower shall pay certain "escrow items" into a deposit account as funds for "taxes and insurance." (Tobolsk! Decl., Exh. A). Accordingly, the creditor was not required to disclose the amounts in this escrow account as part of the finance charge. Additionally, none of the other charges cited by the plaintiffs appears by name in the promissory note or mortgage.
For the foregoing reasons, the plaintiffs have failed to show that Bank of America can be held liable as an assignee under section 1641 of the TILA. Accordingly, this portion of the Complaint must be dismissed for failure to state a claim or, in the alternative, based on the absence of a genuine dispute of fact pursuant to Rule 56.
I also note that the plaintiffs' claim appears to be time-barred. A damages action to enforce the provisions of the TILA must be brought "within one year from the date of the occurrence of the violation." 15 U.S.C. § 1640(e); Cardiello, 2001 WL 604007, at *3;Van Pier v. Long Island Savings Bank, 20 F. Supp.2d 535, 536 (S.D.N.Y. 1998). Here, the plaintiffs filed their claim in March 2003, almost 15 years after the alleged nondisclosure occurred in October 1988. However, the defendant has not raised the statute of limitations defense as a ground for its motion to dismiss. Cf. Van Pier, 20 F. Supp.2d at 540 n. 6. As this affirmative defense is personal to the defendant and can be waived if not promptly pleaded, see Fed.R.Civ.P. 8(c), this Court may not raise the defense sua sponte and dismiss the Complaint on that basis. See Davis v. Bryan, 810 F.2d 42, 44-45 (2d Cir. 1987).
4. State Law Claims
If all of the plaintiffs' federal claims are dismissed, this Court should normally decline to exercise supplemental jurisdiction over the remaining state law claims. See 28 U.S.C. § 1367(c);Carnecrie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7 (1988); Valencia v. Lee, 316 F.3d 299, 305 (2d Cir. 2003). However, dismissal is improper if an independent basis for original jurisdiction is present. See Lerner v. Fleet Bank, N.A., 318 F.3d 113, 124-25 (2d Cir. 2003).
Diversity jurisdiction exists where there is complete diversity of citizenship among the parties and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). "[I]t is firmly established that diversity of citizenship should be distinctly and positively averred in the pleadings or should appear with equal distinctness in other parts of the record." Jarmuth v. Jarmuth, No. 99 Civ. 3073, 1999 WL 349626, at *1 (S.D.N.Y. May 28, 1999) (quoting Leveraged Leasing Administration Corp. v. Pacifi Corp Capital, Inc., 87 F.3d 44, 47 (2d Cir. 1996)) (internal quotation marks and citation omitted);see also Fed.R.Civ.P. 8(a)(1) (pleadings should set forth "short and plain statement of the grounds upon which the court's jurisdiction depends").
Here, the Complaint does not explicitly allege diversity of citizenship as a basis for jurisdiction. The Complaint does state, however, that the plaintiffs, Kevin E. Burns, Barbara R. Burns, and Renee A De Fina, are each a "citizen" of the United States and a "domiciliary" of either Minnesota or New Jersey. (Compl. at 1-2). Since an individual, for diversity purposes, is a "citizen" of the state where he is "domiciled," Jarmuth, 1999 WL 349626, at *1, the plaintiffs' allegations are sufficient to identify the citizenship of the individual plaintiffs.
With respect to the defendant, the plaintiffs allege that Bank of America is a corporation and a "corporate domiciliary of the State of North Carolina." (Compl. at 2). They also allege that BA Mortgage is a "wholly-owned subsidiary of Defendant Bank of America,. . . and a corporate domiciliary of the State of New York." (Compl. at 2). These allegations are insufficient because a corporation is a citizen for diversity purposes in the state where "it has been incorporated"and where it has its "principal place of business." 28 U.S.C. § 1332 (c)(1). Even if the term "corporate domiciliary" is construed to mean either of these locations, the failure to allege both renders the Complaint jurisdictionally defective. See American National Fire Insurance Co. v. Mirasco, Inc., No. 99 Civ. 12405, 2000 WL 1368009, at *3 (S.D.N.Y. Sept. 20, 2000) ("[T]he pleadings must contain allegations as to both the state of incorporation and the principal place of business of any corporation."); Royal Insurance Company of America v. Caleb V. Smith Sons, Inc., 929 F. Supp. 606, 608 (D. Conn. 1996) (same).
Moreover, while this Court could deem the Complaint amended to cure the jurisdictional defect if the record establishes complete diversity, see American National, 2000 WL 1368009, at *3, the exhibits and materials submitted by the parties in connection with their respective motions do not support such a resolution. Nowhere in the record is a clear statement made regarding the defendant's state of incorporation or principal place of business. Id. Instead, one filing with the Secretary of State, which was submitted by the defendant to show the merger of BA Mortgage, LLC with Nationsbanc Mortgage Corporation, only states that BA Mortgage was organized under the laws of the state of Delaware. (Tobolsk! Decl., Exh. E).
Accordingly, the plaintiffs should be granted leave to amend their complaint to properly plead the complete diversity of the parties.See 28 U.S.C. § 1653; Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 831 (1989). In amending their pleadings, the plaintiffs must allege both the state of incorporation and principal place of business of each corporate defendant. The plaintiffs should also note that a corporation only hasone principal place of business for purposes of diversity jurisdiction; it is insufficient to allege in the pleadings "that a corporation does business in a state, that 'a' principal place of business is in a certain state, or that the corporation is licensed to do business in a state." Royal Insurance, 929 F. Supp. at 608 (citations omitted); see also American National, 2000 WL 1368009, at *4.
B. Plaintiffs' Cross-Motion for Summary Judgment and Request for Rule 11 Sanctions
As all of the plaintiffs' claims should be dismissed, their cross-motion for summary judgment and sanctions should be denied. Conclusion
The plaintiffs' alternative argument that the defendant defaulted this action by failing to answer was rejected by this Court in a separate order dated July 9, 2003.
For the reasons set forth above, I recommend that the plaintiffs' claims under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., the Fair Debt Collection Practices Act, 15 U.S.C. § 1692et seq., and the Truth in Lending Act, 15 U.S.C. § 1601et seq., be dismissed with prejudice. With respect to the remaining claims under Minnesota law, I recommend that plaintiffs be given thirty (30) days to amend the Complaint to allege a sufficient basis for diversity jurisdiction.
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Richard M. Berman, 40 Foley Square, Room 201, New York, New York 10007, and to the chambers of the undersigned, 500 Pearl Street, Room 1960, New York, New York 10007. Failure to file timely objections will preclude appellate review.