Lewis v. Legal Servicing, LLC

Full title: BERNARD LEWIS, Plaintiff, v. LEGAL SERVICING, LLC, et al., Defendants.

Court: United States District Court, S.D. New York

Date published: Mar 15, 2022

19-CV-8085 (PAE) (OTW) (S.D.N.Y. Mar. 15, 2022)

Opinion

19-CV-8085 (PAE) (OTW)

03-15-2022

BERNARD LEWIS, Plaintiff, v. LEGAL SERVICING, LLC, et al., Defendants.

ONA T. WANG, UNITED STATES MAGISTRATE JUDGE

REPORT & RECOMMENDATION

ONA T. WANG, UNITED STATES MAGISTRATE JUDGE

To the Honorable Paul A. Engelmayer, United States District Judge:

I. Introduction

Pro se plaintiff Bernard Lewis (“Plaintiff”) brings this action against defendants Annemarie Steward, Legal Servicing, LLC (“LS”), Robert T. Van De Mark, North American Process Serving, LLC (“NAPS”), Rodney A. Giove, Robert Crandall, William Singler, Resolution Management, LLC (“RM”), Mark H. Stein, and Erin Capital Management, LLC (“ECM”) asserting a claim of negligence and violations of New York Judiciary Law § 487(1), the Fair Debt Collection Practice Act (“FDCPA”), and the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Plaintiff's claims arise from two default judgments entered against Plaintiff in state court as a result of unpaid debt on a credit card issued to him by JP Morgan Chase Bank, N.A. (“Chase”), a former defendant in this case. Presently before the Court is a motion for judgment on the pleadings filed by defendants Steward, Giove, Van De Mark, and LS (“Moving Defendants”). For the reasons set forth below, the Court recommends that the Moving Defendants' motion be 1 GRANTED and that the Court dismiss Plaintiff's claims against Moving Defendants with prejudice and without leave to amend.

II. Background

Before 2005, Plaintiff obtained a Chase credit card and thereafter incurred debt on it. Compl. ¶ 16. The Complaint does not specify when the debt was incurred or sold. After the debt was 90 days in default, Chase sold the debt to LS and ECM. Id. ¶¶ 16, 18, 37. Though Plaintiff alleges that Chase sold the debt associated with the same account to LS and ECM, exhibits to the Complaint suggest that the debt may have been associated with two separate accounts, with the debt for account ending in 0847 sold to ECM and the debt for account ending in 9503 sold to LS. Id. ¶ 37, Exs. E-F. In the Complaint, Plaintiff alleges that the debt was, at the time of the sales, “inaccurate, not owed, and or otherwise not collectable.” Id. ¶ 18.

Following the sales, LS and ECM attempted to collect on the debt. Id. ¶¶ 39-41, 43-46. In 2002, ECM obtained a default judgment against Plaintiff. Id. ¶ 38. Plaintiff allegedly did not learn about the ECM default judgment until 2019 when the judgment was assigned to another entity, Caddis Investments, LLC. Id. ¶ 38. In 2005, LS obtained a default judgment against Plaintiff for $15,844.06 (“2005 Action”). Id. ¶ 46, Ex. J. In the 2005 Action, affidavits of service affirm delivery and mailing of the summons and complaint to Plaintiff at 4058 Pratt Avenue, Bronx, NY 10466 in May 2005, as well as mailing of the summons and complaint to the same address in July 2005.¹Id. ¶¶ 44, 45, Exs. H-J; ECF 89 at 13. The May affidavit of service was 2 notarized by Singler, owner of process serving company, American Legal Process, Inc. (“ALP”). Id. ¶ 10, 45, Exs. I, L. The Complaint makes conclusory allegations that Giove and Steward, attorneys for LS, directed Singler “to engage in sewer service upon [P]laintiff.”²Id. ¶ 153.

1 Delivery was made upon a co-tenant described in the affidavit as “Jane Doe” and identified by Plaintiff as Grace Edwards, who (together with her husband) resides at the property and has filed an adverse possession action against Plaintiff. Id. ¶ 45; ECF 89 at 9-10, 13; see generally Lewis v. Hatem, No. 19-CV-6446 (GBD) (KHP), 2020 WL 9815189, at *1 (S.D.N.Y. Jan. 30, 2020), report and recommendation adopted, 2020 WL 4747503 (S.D.N.Y. Aug. 17, 2020); Lewis v. Hatem, No. 19-CV-6446 (GBD) (KHP), 2019 WL 12339640 (S.D.N.Y. Dec. 23, 2019), report and recommendation adopted, 2020 WL 1528153 (S.D.N.Y. Mar. 31, 2020).

2 “Sewer service” refers to “a service through which defendants intentionally fail to serve parties and then often falsely affirm to the court that they had in order to obtain default judgment against a debtor.” Conklin v. Jeffrey A. Maidenbaum, Esq., No. 12-CV-3606 (ER), 2013 WL 4083279, at * 7 n. 9 (S.D.N.Y. Aug.13, 2013); see also Rotkiske v. Klemm, 140 S.Ct. 355, 365 (2019) (Ginsburg, J., dissenting) (“[S]ewer service” refers to “intentionally serving process in a manner designed to prevent [a defendant] from learning of the collection suit.”).

Plaintiff's allegations largely arise out of the default judgment secured by LS in the 2005 Action, as well as criminal and civil actions related to Singler. Singler and ALP were criminally prosecuted in 2009 for engaging in “sewer service,” and Honorable Ann Pfau, the Chief Administrative Judge of the New York State United Court System, initiated a special proceeding to void thousands of default judgments in which Singler or his company allegedly served the complaint on the wrong address, misrepresented the method of service, or falsely notarized affidavits of service. See Id. ¶¶ 47-49, 53-61, 93-95, Exs. K, L, N. In the special proceeding, Judge Timothy Drury of the Erie County Supreme Court ordered respondents (law firms and lawyers, including Giove, who had used ALP to serve process and subsequently obtained default judgments) to show cause why the court should not, inter alia, (a) require respondents to identify actions for which ALP served process and a default judgment was taken and notify parties in those actions of their right to be heard and (b) vacate and set aside default judgments except upon a showing (without reference to an ALP affidavit of service) that service was proper (“Judge Drury's Order to Show Cause”). Id., Ex. M. Following Judge Drury's Order to Show Cause, Giove entered into a consent order, signed by Judge Drury on August 2, 2010, severing and dismissing the claims against Giove and more narrowly requiring him to identify 3 and provide notice to individuals against whom default judgments were entered in actions filed on or after January 1, 2006 based on a complaint served by ALP. (ECF 25-2 ¶¶ 1, 3.c).³

3 The 2005 Action against Plaintiff by LS was filed on May 19, 2005. Id. ¶ 39.

Plaintiff alleges that, to avoid complying with Judge Drury's Order to Show Cause, Giove turned Plaintiff's file over to Steward, who then assigned (on behalf of LS) the 2005 default judgment to RM in June 2010. Compl. ¶¶ 62-63, 99-100, 111. Defendant Stein was allegedly the attorney who represented RM in its purchase of the default judgment from LS. Id. ¶¶ 12, 129. Plaintiff acknowledges that Steward has made statements affirming that RM assigned the default judgment back to LS in May 2012. Id. ¶¶ 83, 107. Plaintiff alleges, however, that on June 11, 2015, despite having assigned LS's default judgment to RM, Steward filed a summons and complaint for a “judgment lien renewal” in the New York Supreme Court in Bronx County (“2015 Action”). Id. ¶¶ 65-66, 69. In the 2015 Action, an affidavit of service affirms that defendant NAPS delivered and mailed the summons and complaint to Plaintiff at 4818 Wilder Avenue, Bronx, New York 10470 in June 2015. Id. ¶¶ 70, 101, Ex. S.⁴ On February 25, 2016, the Supreme Court entered an order granting LS a renewal judgment in the amount of $31,007.85. Id. ¶ 71.

4 Delivery was made upon a co-tenant identified as “Katherine Doe.” Id.

On November 16, 2017, LS, through Steward, filed a petition to auction Plaintiff's 4058 Pratt Avenue property to satisfy the judgment (“2017 Action”). Id. ¶ 72, Ex. U. The Complaint is not clear as to when Plaintiff discovered the renewed judgment and petition to auction his property. Id. ¶ 74. On October 1, 2018, Plaintiff filed a motion to “vacate the default judgment, judgment lien renewal, and dismissal for misrepresentation, fraud and lack of jurisdiction.” Id. 4 On June 6, 2019, the Bronx County Supreme Court denied Plaintiff's motion. Id. ¶ 87; see also ECF 24-1 at 3-7. In denying Plaintiff's motion, Justice Brigantti found that LS had obtained a valid lien and lien renewal on the property and was therefore entitled to an order authorizing the sale of the property. (ECF 24-1 at 4). While Plaintiff made standing arguments alleging that LS did not actually own the debt when it commenced the action resulting in the 2005 default judgment, Justice Brigantti found that those arguments had been waived by Plaintiff's failure to timely move to dismiss or answer, and that he had not provided any reasonable excuse for that default. Id. at 4, 6. Justice Brigantti also rejected as conclusory and unsupported Plaintiff's allegations that LS and Steward had a conflict of interest, had violated New York Gen. Business Law § 349(a) and the FDCPA, and had engaged in “sewer service.” Id. at 5.⁵ On November 25, 2019, the Bronx County Supreme Court ordered the 2017 Action be stayed pending resolution of an adverse possession action involving the 4058 Pratt Avenue property. (ECF 24-1 at 23; ECF 76-6; see supra n.1). The 2017 Action remained stayed as of the date of Moving Defendants' motion. (ECF 76-7 at 4).

5 Plaintiff filed another unsuccessful motion in the 2017 Action requesting that the court take judicial notice of, inter alia, the fact that the complaint in the 2005 Action was filed by Giove who was subject to Judge Drury's Order to Show Cause, (ECF 76-4; see ECF 76-5 at 2) (denying the motion and “admonish[ing]” Plaintiff for “us[ing] . . . the court's time in this wasteful matter” and filing frivolous actions and motions).

III. Relevant Procedural History

On August 29, 2019, Plaintiff filed his Complaint, bringing claims against 11 defendants. Compl. ¶¶ 4-14. On August 30, 2019, this case was referred to me for general pretrial supervision. (ECF 3). On December 13, 2019, the Moving Defendants filed an Answer. (ECF 16). On December 16, 2019, Plaintiff filed a motion seeking a preliminary injunction and temporary restraining order (“TRO”) to enjoin LS from auctioning Plaintiff's property at 4058 Pratt Avenue, 5 and to compel Giove to comply with Judge Drury's Order to Show Cause. (ECF 17). On December 17, 2019, the Court referred that motion to me for a report and recommendation. (ECF 20). On the same date, Moving Defendants filed an opposition to Plaintiff's motion. (ECF 21).

On December 20, 2019, having determined that there was no emergency, I issued an order to show cause as to why I should not treat Plaintiff's request as a motion for a preliminary injunction. (ECF 22). On December 27, 2019, Plaintiff filed an opposition. (ECF 23). On December 30, 2019, Moving Defendants filed a letter supplementing the record by setting out the procedural history of the underlying state court actions. (ECF 24). On January 3, 2020, the Moving Defendants filed an opposition to Plaintiff's motion for a preliminary injunction. (ECF 25). On January 21, 2020, Plaintiff filed his reply. (ECF 28). On August 18, 2020, I issued a report and recommendation recommending that the Court deny Plaintiff's motion for a preliminary injunction, as well as grant a motion to dismiss filed by prior defendant Chase.⁶ (ECF 68). Judge Engelmayer adopted the report and recommendation in full on November 19, 2020. (ECF 88).

6 Chase's motion to dismiss was referred to me for a report and recommendation on February 14, 2022. (ECF 35).

On October 30, 2020, the Moving Defendants filed a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (ECF 76). On November 2, 2020, the Court referred that motion to me for a report and recommendation. (ECF 78). On November 17, 2020, the Court stayed discovery pending the resolution of Moving Defendants' motion. (ECF 87). On December 14, 2020, Plaintiff filed an opposition to Moving Defendants' motion. (ECF 89). On January 22, 2021, Moving Defendants filed their reply. (ECF 91). 6

a. Other Remaining Defendants

On December 10, 2019, Plaintiff filed an affidavit of service on defendants Singler, RM, and ECM. (ECF 5-6, 12). On November 12, 2020, Plaintiff requested a Clerk's Certificate of Default as to RM, Singler, and ECM. (ECF 83-85). On the same day, the Clerk of Court issued such certificates as to those three defendants. (ECF 86). On December 30, 2020, Plaintiff filed an affidavit of service for defendant Stein. (ECF 90). On February 5, 2021, Plaintiff again applied for an entry of default against Singler, RM, and ECM, and added Stein. (ECF 93-94). The same day, a Clerk's Certificate of Default issued for Stein. (ECF 96). On February 9, 2021, Stein filed an objection for an entry of default (which had already been issued) on the basis that Plaintiff had not filed an affidavit of service as to him. (ECF 96). On February 17, 2021, Plaintiff responded to Stein's objection. (ECF 97). The same day, Plaintiff filed a motion for a default judgment against Singler, RM, ECM, and Stein. (ECF 98). On March 17, 2021, Stein moved to set aside the entry of default and opposed Plaintiff's motion for a default judgment. (ECF 103, as amended ECF 105, 107). On March 30, 2021, Plaintiff opposed Stein's motion to set aside the entry of default. (ECF 104). On August 9, 2021, Judge Engelmayer denied Plaintiff's motion for default judgment and granted Stein's motion to vacate the Clerk's Certificate of Default against him. (ECF 109). On August 26, 2021, Stein answered the Complaint. (ECF 112). Defendants RM, ECM, NAPS, Crandall, and Singler have not appeared.

IV. Discussion

a. Legal Standard

A Rule 12(c) motion for judgment on the pleadings is subject to the same standard applicable to a motion to dismiss for failure to state a claim under Rule 12(b)(6). 7 Patel v. Contemp. Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). When presented with such a motion, a court must accept as true all non-conclusory factual allegations in the complaint, together with the contents of documents attached to or incorporated by reference in the complaint and any matters of which courts may take judicial notice,⁷ and draw all reasonable inferences in favor of the plaintiff. See Doe v. Columbia Univ., 831 F.3d 46, 48 (2d Cir. 2016); McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007); Brody v. Vill. of Port Chester, No. 00-CV-7481 (HB), 2007 WL 704002, at *4 (S.D.N.Y. Mar. 7, 2007). However, “a pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)).

7 The Court may take notice of public judicial documents in the state court actions related to Plaintiff's claims. See, e.g., Swiatkowski v. Citibank, 446 Fed.Appx. 360, 361 (2d Cir. 2011) (“[W]here public records that are integral to a complaint are not attached to it, the court, in considering a Rule 12(b)(6) motion, is permitted to take judicial notice of those records.”) (cleaned up); Zappin v. Cooper, No. 16-CV-5985 (KPF), 2018 WL 708369, at *7 (S.D.N.Y. Feb. 2, 2018), aff'd, 768 Fed.Appx. 51 (2d Cir. 2019) (collecting cases for the proposition that “[i]n the Rule 12(b)(6) context, a court may take judicial notice of prior pleadings, orders, judgments, and other related documents that appear in the court records of prior litigation and that relate to the case sub judice.”) (quoting Jianjun Lou v. Trutex, Inc., 872 F.Supp.2d 344, 250 n.6 (S.D.N.Y. 2012); Reisner v. Stoller, 51 F.Supp.2d 430, 440 (S.D.N.Y. 1999) (“The court may also take judicial notice of matters of public record, such as pleadings and court orders from prior litigation between the parties.”).

To survive a Rule 12(c) motion, the complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. Thus, the non-conclusory factual allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. 8 More specifically, Plaintiff must show “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. If the plaintiff has not “nudged [the] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Twombly, 550 U.S. at 570.

As relevant here, a court is “obligated to afford a special solicitude to pro se litigants.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010); accord Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Thus, when considering Plaintiff's submissions, the Court must interpret them “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal citations omitted). Nevertheless, “to survive a motion [for judgment on the pleadings], a pro se plaintiff must still plead sufficient facts to state a claim that is plausible on its face.” Chukwueze v. NYCERS, 891 F.Supp.2d 443, 450 (S.D.N.Y. 2012) (internal citations omitted); see, e.g., Green v. McLaughlin, 480 Fed.Appx. 44, 46 (2d Cir. 2012) (summary order) (“[P]ro se complaints must contain sufficient factual allegations to meet the plausibility standard.”); Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (emphasizing that, even in pro se cases, courts “cannot invent factual allegations that [the plaintiff] has not pled”). Thus, to defeat a defendant's motion under Rule 12(c), “a pro se plaintiff's pleadings must go beyond mere conclusory allegations or legal conclusions masquerading as factual conclusions.” Galtieri v. New York City Police Pension Fund, No. 12-CV-1159 (PGG), 2014 WL 4593927, at *8 (S.D.N.Y. Sept. 15, 2014) (internal citations omitted). 9

b. Rooker-Feldman and Younger Abstention Doctrines⁸

8 Although Moving Defendants have asserted their Rooker-Feldman and Younger doctrine defenses in their 12(c) motions, “the appropriate vehicle” for such defenses is in a “Rule 12(b)(1) motion.” Pelt v. City of New York, No. 11-CV-5633 (KAM) (CLP), 2013 WL 4647500, at *4 n. 6 (E.D.N.Y. Aug. 28, 2013); see Wilmington Tr., Nat'l Ass'n v. Est. of McClendon, 287 F.Supp.3d 353, 360 (S.D.N.Y. 2018); see also Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.”). However, “Defendants' failure to invoke Rule 12(b)(1) is immaterial because the court is independently obligated to determine whether it has subject matter jurisdiction.” Pelt, 2013 WL 4647500, at *4 n. 6 (internal citations omitted).

Moving Defendants argue that the Court lacks subject matter jurisdiction over Plaintiff's claims pursuant to the Rooker-Feldman and Younger abstention doctrines. As explained below, neither doctrine bars Plaintiff's suit in its entirety.

i. Rooker-Feldman Doctrine

“Under the Rooker-Feldman doctrine, federal district courts lack jurisdiction over cases that essentially amount to appeals of state court judgments.” Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014); Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). District court review of claims is barred under the Rooker-Feldman doctrine when four requirements are met: (1) the plaintiff must have lost in state court; (2) the plaintiff must complain of injuries caused by a state court judgment; (3) the plaintiff must invite district court review and rejection of that judgment; and (4) the state court judgment must have been rendered before the district court proceedings commenced. Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005) (describing the first and fourth of these requirements as “procedural” and the second and third as “substantive”). As particularly relevant here, for purposes of the second requirement, “a federal suit complains of injury from a state-court judgment, even if it appears to complain only of a third party's actions, when the third party's actions are produced by a state-court judgment and not simply ratified, acquiesced 10 in, or left unpunished by it.” Sung Cho v. City of New York, 910 F.3d 639, 646 (2d Cir. 2018) (quoting Hoblock, 422 F.3d at 88); Dorce v. City of New York, 2 F.4th 82, 104 (2d Cir. 2021) (“[P]laintiffs are permitted to seek damages for injuries caused by a defendant's misconduct in procuring a state court judgment, but not for injuries directly caused by that judgment.”).

Here, to the extent that Plaintiff alleges injuries caused by the default judgment issued in the 2005 Action and judgment renewal issued in the 2015 Action and asks the Court to vacate those judgments, Plaintiff's claims are barred by the Rooker-Feldman doctrine. Shetiwy v. Midland Credit Mgmt., 980 F.Supp.2d 461, 471 (S.D.N.Y. 2013) (“To the extent that plaintiffs allege injuries caused by faulty state court [default] judgments and seek to vacate those judgments, plaintiffs' claims are barred by the Rooker-Feldman doctrine.”). However, the Rooker-Feldman doctrine does not bar plaintiff's suit in its entirety for at least two reasons. First, while Plaintiff also seems to invite the Court to review and reject the Bronx County Supreme Court's order in the 2017 Action granting LS's petition to auction Plaintiff's property and denying Plaintiff's motion to vacate the default judgment and judgment lien renewal and dismiss the action based on misrepresentation, fraud, and lack of jurisdiction, the 2017 Action remains open and no final judgment has been entered; thus, the fourth procedural requirement that the state court judgment be rendered before the start of the district court proceedings has not been met.⁹See Hassan v. Marks, 735 Fed.Appx. 19, 20 (2d Cir. 2018) (summary order) (concluding that Rooker-Feldman did not apply where the state court denied plaintiff's motion 11 for summary judgment but issued no final judgment); Sanchez v. Hoosac Bank, No. 12-CV-8455 (ALC), 2014 WL 1326031, at *1 n.1 (S.D.N.Y. Mar. 31, 2014) (“Although the Rooker-Feldman doctrine is superficially an issue, this case was filed, perhaps inappropriately, while the Underlying State Action was still pending and before judgment was entered against the plaintiffs . . . Therefore, the doctrine is inapplicable.”).

9 Though Moving Defendants do not argue for dismissal based on the doctrine of collateral estoppel, the Court notes that, though Judge Brigantti's opinion in the 2017 Action touches upon multiple issues raised in the Complaint, that opinion does not have preclusive effect at least because there has been no final judgment in the 2017 Action. See, e.g., Wills v. RadioShack Corp., 981 F.Supp.2d 245, 265 (S.D.N.Y. 2013) (“[T]here has been no final judgment, because the litigation between plaintiffs and [defendant] is ongoing and currently stayed . . . . Accordingly, there is no final judgment to which the Court could grant preclusive effect.”)

Additionally, Plaintiff also seeks monetary damages for injuries caused by misconduct “ratified, acquiesced in, or left unpunished”-rather than produced-by the state court decisions. Compl. at Prayer for Relief ¶¶ A, B; see Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 94-95 (2d Cir. 2015) (finding claims “sounding under the FDCPA, RICO, and state law speak not to the propriety of the state court judgments, but to the fraudulent course of conduct [including a sewer service scheme] that defendants pursued in obtaining such judgments”); Gabriele v. Am. Home Mortg. Servicing, Inc., 503 Fed.Appx. 89, 92 (2d Cir. 2012) (finding Rooker-Feldman did not apply where a plaintiff filed a federal suit alleging that defendants' conduct during the course of a state foreclosure action violated the FCDPA, emphasizing that the “alleged litigation misconduct was not the product of the state court's denial of sanctions, its judgment of strict foreclosure, or any other decision rendered, but rather, was simply ratified, acquiesced in, or left unpunished by the state court judgment”) (internal citation omitted); Shetiwy, 980 F.Supp.2d at 471-72 (“[P]laintiffs' claims are not based only on injuries caused by state court judgments, and plaintiffs do not seek only to vacate such judgments. The litigation misconduct alleged by plaintiffs, such as the repeated submission of false affidavits, was not the product of the state court's judgment, or any other decision rendered, but rather, was simply 12 ratified, acquiesced in, or left unpunished by the state court judgment. Thus, Rooker-Feldman does not bar plaintiffs' suit in its entirety.”) (internal citations omitted).

ii. Younger Abstention Doctrine

Generally, “federal courts are obliged to decide cases within the scope of federal jurisdiction.” Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013). Under Younger v. Harris, 401 U.S. 37 (1971) and its progeny, “federal courts should generally refrain from enjoining or otherwise interfering in ongoing state proceedings.” Spargo v. N.Y. State Comm'n on Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003). In Sprint, the Supreme Court clarified, however, that federal courts should abstain from exercising jurisdiction only in three “exceptional circumstances,” namely when maintaining a federal action would interfere with: (1) “state criminal prosecutions”; (2) state civil enforcement proceedings that are “akin to criminal prosecutions”; or (3) state civil proceedings “implicat[ing] a [s]tate's interest in enforcing the orders and judgments of its courts.” Sprint, 571 U.S. at 78; see Toczek v. Alvord, 841 Fed.Appx. 263, 266 (2d Cir. 2021); Trump v. Vance, 941 F.3d 631 (2d Cir. 2019).¹⁰

10 Moreover, “[a]s further explained by the Second Circuit, the court should only abstain from exercising its subject-matter jurisdiction under the Younger abstention doctrine where it answers the following three questions affirmatively: (1) is there an ongoing state proceeding; (2) is an important state interest implicated; and (3) does the plaintiff have an avenue open for review of constitutional claims in the state court?” Plotch v. Wells Fargo Bank, N.A., 413 F.Supp.3d 129, 133 (E.D.N.Y. 2018) (citing Cecos Int'l, Inc. v. Jorling, 895 F.2d 66, 70 (2d. Cir. 1990)).

Here, to the extent Plaintiff seeks to have the Court intervene in his dispute with Moving Defendants in the 2017 Action and prevent Moving Defendants from auctioning Plaintiff's property, this case falls under Sprint's third category because Plaintiff essentially “asks this Court to intervene in a civil proceeding that implicates a state's interest in enforcing the orders 13 and judgments of its courts.” El Bey v. Bellis, No. 19-CV-336, 2019 WL 2502929, at *4 (D. Conn. June 17, 2019) (applying Younger abstention where plaintiff sought to enjoin the state court from enforcing its judgment of strict foreclosure); see Ochei v. Lapes, No. 19-CV-3700 (CM), 2020 WL 528705, at *4 (S.D.N.Y. Jan. 31, 2020) (“When a plaintiff seeks injunctive relief relating to the same property that is the subject matter of the underlying state court action, [the third] Sprint prong applies.”) (internal citations omitted); Clark v. Bloomberg, No. 10-CV-1263, 2010 WL 1438803, at *2 (E.D.N.Y. Apr. 12, 2010) (finding Younger abstention doctrine precludes district court from staying pending state court foreclosure and eviction proceedings because “both concern[ed] the disposition of real property and hence implicate[d] important state interests, and there [was] no reason to doubt that the state proceedings provide[d] [the plaintiff] with an adequate forum to make the arguments he [sought] to raise in this court”). Still, Younger abstention does not apply to Plaintiff's claims to the extent Plaintiff seeks monetary damages. Compl. at Prayer for Relief ¶¶ A, B; see Koltun v. Berry, No. 13-CV-1612 (PAC) (JCF), 2013 WL 3816603, at *6 (S.D.N.Y. July 19, 2013) (collecting Second Circuit cases and holding that Younger abstention only barred plaintiff's claims to the extent plaintiff sought injunctive or declaratory relief as opposed to monetary damages); see Henderson v. Fludd, No. 19-CV-02675, 2019 WL 4306376, at *3 (E.D.N.Y. Sept. 11, 2019) (“Unlike claims for declaratory and injunctive relief, the Second Circuit has held that claims for monetary damages should not be dismissed under Younger abstention.”).¹¹ 14

11 Though a court may stay claims for monetary damages pending resolution of the state action, that is unnecessary since Plaintiff's claims “plainly fail” for failure to state a claim. Bukowski v. Spinner, 709 Fed.Appx. 87, 88 (2d Cir. 2018) (citing Kirschner v. Klemons, 225 F.3d 227, 238 (2d Cir. 2000); Koltun, 2013 WL 3816603, at *6 n. 4.

c. New York Judiciary Law Claim

Plaintiff brings claims against Steward and Giove under New York Judiciary Law § 487(1). Plaintiff's claim against Giove seems to be based on the following allegations: (a) in the 2005 Action in which Giove represented LS, Giove caused service of the summons and complaint to be made upon a Jane Doe co-tenant at 4058 Pratt Avenue as per an affidavit of service notarized by Singler and (b) Giove transferred Plaintiff's case to Steward instead of complying with Judge Drury's Order to Show Cause. Compl. ¶¶ 91-92, 99, 110-11. Plaintiff's claim against Steward is based on allegations that she (a) assigned (on LS's behalf) the 2005 default judgment to RM to circumvent Judge Drury's Order to Show Cause, (b) brought the 2015 Action in Bronx County Supreme Court instead of Bronx County Civil Court where the default judgment assignment was recorded, and (c) opposed Plaintiff's motion in the 2017 Action with supposedly false statements about when the default judgment was assigned to RM and assigned back to LS. Id. ¶¶ 100-09, 112, 114, 116. Plaintiff suggests that such conduct was motivated by an intent to steal Plaintiff's property and prevent the 2005 default judgment from being vacated following Judge Drury's Order to Show Cause. Id. ¶ 117. Ultimately, Plaintiff's § 487 claim fails because it is partially time-barred and because Plaintiff fails to sufficiently allege egregious, intentionally deceitful conduct.

i. Statute of Limitations

Claims for attorney deceit must be brought within six years of accrual. Melcher v. Greenberg Traurig, LLP, 23 N.Y.3d 10, 15 (2014) (applying CPLR 213(1)). Thus, absent tolling of the statute of limitations, Plaintiff cannot maintain claims for violations of § 487 occurring before August 29, 2013. 15

“[E]quitable tolling pauses the running of, or tolls, a statute of limitations when [1] a litigant has pursued his rights diligently but [2] some extraordinary circumstance prevents him from bringing a timely action.” Benzemann v. Houslanger & Assocs., PLLC, 924 F.3d 73, 82 (2d Cir. 2019) (internal citations omitted); see DeSuze v. Ammon, 990 F.3d 264, 271 (2d Cir. 2021) (“A statute of limitations may be equitably tolled as a matter of fairness where a plaintiff has been prevented in some extraordinary way from exercising his rights, that is, in a situation where a plaintiff could show that it would have been impossible for a reasonably prudent person to learn about his or her cause of action.”) (internal citations omitted).

Tolling on the grounds of fraudulent concealment is permitted only where: “(1) the defendant wrongfully concealed material facts relating to defendant's wrongdoing; (2) the concealment prevented plaintiff's discovery of the nature of the claim within the limitations period; and (3) plaintiff exercised due diligence in pursuing the discovery of the claim during the period plaintiff seeks to have tolled.” Koch v. Christie's Int'l, PLC, 699 F.3d 141, 157 (2d Cir. 2012) (internal citations omitted). A plaintiff must plausibly allege “that the defendant took affirmative steps to prevent the plaintiff's discovery of his claim or injury or that the wrong itself was of such a nature as to be self-concealing.” De Sole v. Knoedler Gallery, LLC, 974 F.Supp.2d 274, 318 (S.D.N.Y. 2013) (quoting State of New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1083 (2d Cir. 1988)). Claims of fraudulent concealment are subject to the heightened pleading standards of Fed.R.Civ.P. 9(b) and thus must be pleaded with particularity. See, e.g. Zirvi v. Flatley, 838 Fed.Appx. 582, 585 (2d Cir. 2020) (citing Armstrong v. McAlpin, 699 F.2d 79, 90 (2d Cir. 1983)), cert. denied, 142 S.Ct. 311 (2021); Fire & Police Pension Ass'n of Colorado v. Bank of Montreal, 368 F.Supp.3d 681, 703 (S.D.N.Y. 2019). 16

Plaintiff's § 487 claim against Giove is untimely because it is based on alleged violations occurring before 2013, as is his § 487 claim against Steward in so far as it is premised on the alleged transfer of Plaintiff's file to Steward or Steward's involvement in the 2010 assignment to RM. As more fully explained in the following sections, Plaintiff has not sufficiently pleaded fraudulent concealment based on his conclusory, speculative allegations that Giove and Steward directed Singler to subject him to sewer service or engaged in conduct to circumvent Judge Drury's Order to Show Cause. See Carvel v. Durst, No. 09-CV-6733 (LAP) (GAY), 2013 WL 7766314, at *5 (S.D.N.Y. Oct. 11, 2013), report and recommendation adopted, 2014 WL 787829 (S.D.N.Y. Feb. 25, 2014) (“Apart from plaintiff's conclusory statements, however, she alleges no facts which would justify the application of equitable estoppel or equitable tolling.”); see infra Sections IV.c.ii, IV.e.ii.2.

ii. Merits

Pursuant to New York Judiciary Law § 487(1), an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is liable for treble damages. To state a claim under § 487(1), a plaintiff must allege that “(1) defendant is guilty of deceit or collusion, (2) defendant had an intent to deceive the court or any party, and (3) that there were actual damages caused by the deceit or collusion alleged.” Makhnevich v. MTGLQ Invs., L.P., No. 19-CV-72 (AT) (SN), 2021 WL 3406484, at *9 (S.D.N.Y. Aug. 4, 2021). New York's courts have held that such a claim must be pleaded with particularity under the New York analog to Fed.R.Civ.P. 9(b), see Jean v. Chinitz, 83 N.Y.S.3d 55, 58 (1st Dep't 2018); Facebook, Inc. v. DLA Piper LLP, 23 N.Y.S.3d 173, 178 (1st Dep't 2015), and multiple federal courts have accordingly held that Rule 9(b) applies to § 487 claims. 17 See, e.g., Brake v. Slochowsky & Slochowsky, LLP, 504 F.Supp.3d 103, 116 n.6, 117 (E.D.N.Y. 2020); Bryant v. Silverman, 284 F.Supp.3d 458, 469 (S.D.N.Y. 2018).¹²

12 But see M'Baye v. New Jersey Sports Prod., Inc., No. 06-CV-3439 (DC), 2007 WL 431881, at *13 (S.D.N.Y. Feb. 7, 2007) (“[Defendant] cites no law to show that allegations under § 487 must be pled with particularity, and an allegation that a defendant has deceived a court is not the same as an allegation of fraud under Rule 9(b).”).

Further, numerous New York state and federal courts have held that § 487 liability only attaches if the alleged deceit is “extreme or egregious” or there is a “chronic and extreme pattern of legal delinquency.” Ray v. Watnick, 182 F.Supp.3d 23, 31 (S.D.N.Y. 2016), as amended (May 3, 2016), aff'd, 688 Fed.Appx. 41 (2d Cir. 2017) (internal citations omitted); Kuruwa v. Meyers, 823 F.Supp.2d 253, 259-60 (S.D.N.Y. 2011), aff'd, 512 Fed.Appx. 45 (2d Cir. 2013); see, e.g., Shawe v. Elting, 77 N.Y.S.3d 400 (1st Dep't 2018); Savitt v. Greenberg Traurig, LLP, 5 N.Y.S.3d 415, 416 (1st Dep't 2015).¹³ The plaintiff must also show that the alleged deceit was directed at a court or occurred during a pending judicial proceeding. Costalas v. Amalfitano, 760 N.Y.S.2d 422, 425 (1st Dep't 2003); Henry v. Brenner, 706 N.Y.S.2d 465, 466 (2d Dep't 2000); see also Sam v. Midland Credit Mgmt., Inc., No. 15-CV-1029V(SR), 2021 WL 5772471, at *7 (W.D.N.Y. June 15, 2021) (collecting cases). Further, if a § 487 claim is brought in a lawsuit separate from the one in which the deceit allegedly occurred, the deceit generally must be “merely a means to the accomplishment of a larger fraudulent scheme,” Michelo, 419 F.Supp.3d at 710 (internal citations omitted).¹⁴ 18

13 There appears to be no ruling from the New York Court of Appeals regarding whether the deceit must be chronic, extreme, and/or egregious. Michelo v. Nat'l Collegiate Student Loan Tr. 2007-2, 419 F.Supp.3d 668, 710 n.25 (S.D.N.Y. 2019).

14 See, e.g., Specialized Indus. Servs. Corp. v. Carter, 890 N.Y.S.2d 90, 92 (2d Dep't 2009) (“Generally, a party who has lost a case as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action for damages against the party who adduced the false evidence, and the plaintiff's remedy lies exclusively in moving to vacate the default judgment. Under an exception to that rule, a separate lawsuit may be brought where the alleged perjury or fraud in the underlying action was merely a means to the accomplishment of a larger fraudulent scheme which was greater in scope than the issues determined in the prior proceeding.”) (internal citations omitted).

Plaintiff's allegations fail to meet the “strict test New York law imposes to satisfy § 487.” O'Callaghan v. Sifre, 537 F.Supp.2d 594, 597 (S.D.N.Y. 2008). As to Giove, Plaintiff does not allege facts indicating Giove had knowledge of or participated in Singler's engagement in sewer service or did anything deceitful by causing process to be served at 4058 Pratt Avenue (a property Plaintiff owns) or filing an affidavit of service with that address. Cf. ECF 25-2 ¶ 28. Plaintiff does not provide any facts suggesting Giove knew Plaintiff did not reside at that address in 2005 or that the affidavit was perjured, and actually acknowledges that the description of the Jane Doe in the affidavit matches the description of a tenant of the property. See supra n.1; cf. Scott v. Greenberg, No. 15-CV-05527 (MKB), 2017 WL 1214441, at *2, *15 (E.D.N.Y. Mar. 31, 2017) (denying motion to dismiss § 487 claim where defendant filed a false affidavit of service reporting service on a Jane Doe whose description did not match the description of plaintiff or any co-tenant and where defendant told plaintiff that she did not need to appear in court). Additionally, Plaintiff's allegation that Giove transferred Plaintiff's file to Steward to circumvent Judge Drury's Order to Show Cause is vague and entirely speculative, as well as undermined by judicial documents suggesting Giove was only required take certain actions regarding suits initiated in or after January 1, 2006. Compl. ¶ 62.; ECF 25-2 ¶ 3.c.

As to Steward, Plaintiff also does not allege any facts suggesting Steward knew about Judge Drury's Order to Show Cause, let alone intended to circumvent it. Facebook, Inc., 23 N.Y.S.3d 173, 178 (1st Dep't 2015) (emphasizing that § 487 claims “will be dismissed if the allegations as to scienter are conclusory and factually insufficient” and affirming dismissal where “the allegations that defendants knew of [the] fraud are conclusory and not supported by the record”). Plaintiff also does not provide facts suggesting Steward was being deceitful 19 when she affirmed that RM re-assigned the default judgment to Steward or when she initiated the 2017 Action in Bronx Supreme Court rather than Civil Court. Further, any misstatement regarding the date of LS's assignment to RS cannot be deemed egregious misconduct as Plaintiff does not indicate why it is relevant, let alone significant, whether the assignment to RM occurred in November 2009 or June 2010. Compl. ¶¶ 82, 105-08.¹⁵

15 Moreover, Plaintiff should not be allowed to employ § 487 to collaterally attack the judgments and orders in the 2005, 2015, and 2017 actions because (with the exception of a speculative statement in ¶ 152 of the Complaint) Plaintiff merely alleges litigation misconduct by Giove and Steward in order to seize his property, as opposed to a larger fraudulent scheme by Giove and Steward exceeding the scope of the state court actions. See Heriveaux v. Lopez-Reyes, 779 Fed.Appx. 758, 760 (2d Cir. 2019) (holding “larger fraudulent scheme” exception did not apply because plaintiff “ha[d] alleged only fraudulent acts that took place in the underlying litigation”); cf. Michelo, 419 F.Supp.3d at 710 (applying exception where plaintiff alleged defendants “operated a widespread scheme to fraudulently obtain default judgments in debt collection proceedings”).

d. Negligence Claim

Plaintiff alleges that Defendants Giove and Van De Mark were negligent when they purchased the debts from Chase and/or made false statements about the purchase and that Giove was negligent when he transferred Plaintiff's file to Steward with intent to circumvent Judge Drury's Order to Show Cause. Compl. ¶¶ 122, 124. Plaintiff adds that Steward rendered aid to Giove in circumventing Judge Drury's July Order to Show Cause when Plaintiff's file was transferred and that LS and Van De Mark also intended to circumvent Judge Drury's Order to Show Cause by way of the assignment to RM. Id. ¶¶ 125, 130. Plaintiff fails to state plausible negligence claims at least because his claims are time-barred and because Defendants did not owe Plaintiff any legal duty. 20

i. Statute of Limitations

The statute of limitations in New York for a negligence claim is three years. See N.Y. C.P.L.R. § 214. The limitations period begins to run when “the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint.” IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 140 (2009) (internal citations omitted). The limitations period for claims sounding in fraud, however, is the greater of six years or two years after the plaintiff could have, with reasonable diligence, discovered the fraud. N.Y. C.P.L.R. § 213(8); see Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 403 (1993) (“We have stated that except in cases of fraud where the statute expressly provides otherwise, the statutory period of limitations begins to run from the time when liability for [the] wrong has arisen even though the injured party may be ignorant of the existence of the wrong or injury.”) (internal citations omitted).

Here, though Plaintiff's damages and date(s) thereof are far from clear, Plaintiff bases his negligence claim on conduct that took place during or before 2010, about 9 years before Plaintiff initiated this action. Even if the Court were to apply the longer limitations period set by § 213(8), Plaintiff's claim appears untimely because the Complaint and documents attached thereto indicate that Plaintiff could have, with reasonable diligence, discovered any alleged fraud associated with the 2005 Action by or around June 27, 2015. Though Plaintiff does not state when he discovered the challenged conduct, an affidavit of service attached to Plaintiff's Complaint indicates that, on such date, service of the Complaint in the 2015 Action (providing information and documents regarding the 2005 Action) was delivered to a Katherine Doe at 4818 Wilder Avenue, Plaintiff's self-claimed residence, and service via mail to the same address 21 was made the following day. Compl. Ex. S. Plaintiff seems to accept that such service indeed occurred in June 2015, Compl. ¶ 70; Opposition at 6, 12, and the Complaint does not otherwise indicate Plaintiff could not have reasonably discovered any alleged fraud at or after that time.

ii. Merits

Pursuant to New York law, the elements of common law negligence are “duty, breach, damages, causation and foreseeability.” Hyatt v. Metro-N. Commuter R.R., 792 N.Y.S.2d 391, 392 (1st Dep't 2005). “[T]o prevail on [a] claim of common-law negligence, there must first be a legal duty owed by defendant to” the plaintiff. D'Amico v. Christie, 71 N.Y.2d 76, 87 (1987).

Here, Plaintiff cannot meet even the first element. Plaintiff's relationship to Moving Defendants all arise out of their efforts to collect on Plaintiff's debt, and Giove and Steward did not represent Plaintiff at any point. Plaintiff does not allege that the Moving Defendants owed him a legal duty, and I agree with Moving Defendants that “there is a clear absence of any duty.” (ECF 91-4 at 9).¹⁶

16 Moreover, Plaintiff's allegations regarding breach are conclusory and contradicted by public judicial filings, as emphasized throughout this opinion, and his damages are also far from clear as his property has not been sold and the Bronx County Supreme Court has stayed the 2017 Action pending resolution of an adverse possession action involving the same property.

e. FDCPA Claim

Plaintiff alleges violations of sections 1692d, 1692e, 1692f, and 1692g. 15 U.S.C. §§ 1692d-g. Plaintiff claims Moving Defendants violated the FDCPA by “attempting to collect zombie debts allegedly purchased from Chase Bank that included accounts that were inaccurate, settled, discharged in Bankruptcy, not owed, or otherwise not collectable”; “failing to cease collection of an alleged debt, and not providing proper verification of the debt . . . prior to initiating lawsuits”; “filing suit on invalid debt” and “forcing plaintiff to defend against invalid 22 actions”; “communicat[ing] [false] credit information to persons, including but not limited to credit reporting bureaus or agencies”; “fail[ing] to communicate . . . that plaintiff disputes the alleged debt”; “falsely representing that [LS] and [ECM] are either assignees of an original creditor, and/or that said assignments constitutes [sic] proper, competent, or valid assignments”; and making “other material false and misleading representations.” Compl. ¶¶ 134-35, 140-44. As discussed below, Plaintiff FDCPA claims are time-barred and fail on their merits.

i. Statute of Limitations

FDCPA claims are subject to a one-year statute of limitations that begins to run on the date the alleged violation actually occurred, not the date on which the violation is discovered. See 15 U.S.C. § 1692k(d); Rotkiske v. Klemm, 140 S.Ct. 355, 361 (2019) (rejecting discovery rule for FDCPA claim). Where a plaintiff alleges multiple violations of the FDCPA, “some occurring before and others occurring after the statute of limitations has expired, a court must determine if the non-time-barred allegations are new and independent FDCPA violations.” Scott, 2017 WL 1214441, at *5 (collecting cases). However, “[t]he continued prosecution of a foreclosure or collection suit is not a continuing violation under the FDCPA-if the same alleged misrepresentation is repeated in court filings, the claim accrues on the date of the initial representation. A new FDCPA claim only arises if a new misrepresentation is alleged.” Oliver v. U.S. Bancorp, No. 14-CV-8948 PKC, 2015 WL 4111908, at *2 (S.D.N.Y. July 8, 2015) (finding that untimely FDCPA claim based on false representations made in the complaint in a foreclosure action was not revived by subsequent identical false representations in a state court filing). 23

Here, Plaintiff filed suit on August 29, 2019. Thus, absent equitable tolling, only violations that accrued on or after August 29, 2018 are timely. Any FDCPA claim premised upon Moving Defendants' purchase of the debt and collection efforts and representations in the 2005 Action, 2015 Action, or 2017 Action Complaint is untimely, and “[t]hat some of the alleged misrepresentations . . . were repeated in subsequent state court filings [after August 29, 2018] does not amount to a new violation of the FDCPA and does not restart the statute of limitations.” Oliver, 2015 WL 4111908, at *2; Walker v. Pitnell, No. 19CV4344PKCLB, 2020 WL 5764102, at *6 (E.D.N.Y. Sept. 26, 2020) (rejecting Plaintiff's argument that his FDCPA claim was timely because it was initiated within one year of defendants' opposition affirmation in state court, emphasizing that “Plaintiff cannot argue that Defendants committed a new violation of the FDCPA each and every time they filed a document or made a statement in the foreclosure action concerning [defendants'] authority . . . to proceed with the action.”) (cleaned up), aff'd, 860 Fed.Appx. 210 (2d Cir. 2021).

Assuming equitable tolling doctrine applies to FDCPA claims, it still does not apply to Plaintiff's claim. Benzemann, 924 F.3d at 82 (“[a]ssuming, for the sake of argument only, that the doctrine of equitable tolling applies to the FDCPA”). Even if the Court were to credit Plaintiff's conclusory allegations that Moving Defendants directed Singler to engage in sewer service in the 2005 Action, Plaintiff does not allege any act of concealment justifying tolling beyond June 2015. As previously discussed, an affidavit of service attached to Plaintiff's Complaint shows that, on June 27, 2015, service of the Complaint in the 2015 Action (providing information and documents regarding the 2005 Action) was made upon a Katherine Doe at 4818 Wilder Avenue; despite observing that the affidavit failed to list a floor number, Plaintiff 24 does not allege that the person described as Katherine Doe was not his co-tenant or that the affidavit (which also swears that service via mail was made on June 28, 2015) was otherwise false. Compl. ¶ 7, 70, Ex. S; ECF 89 at 6, 12, 26. Thus, Plaintiff does not sufficiently allege that he was prevented from discovering the nature of his claims (at least) after June 2015, or allege facts illustrating that he exercised due diligence in pursuing the discovery of his claim. Accordingly, Plaintiff's FCDPA claim is time-barred.

ii. Merits

The purpose of the FDCPA is 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.” 15 U.S.C. § 1692(e); Benzemann v. Citibank, N.A., 806 F.3d 98, 100 (2d Cir. 2015). “To accomplish these goals, the FDCPA creates a private right of action for debtors who have been harmed by abusive debt collection practices.” Id. at 100 (citing 15 U.S.C. § 1692k).

To state a claim under the FDCPA, a plaintiff must demonstrate that: (1) the plaintiff has been the object of efforts to collect a consumer debt; (2) the defendant is a debt collector; and (3) the defendant has engaged in an act or omission in violation of the FDCPA. Schik v. Miramed Revenue Group, LLC, 18-CV-7897 (NSR), 2020 WL 5659553, at *3 (S.D.N.Y. Sept. 23, 2020). In evaluating potential violations of the FDCPA, courts must apply an objective standard based on whether the “least sophisticated consumer” would be deceived by the collection practice. Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). 25

1. 1692d

Section 1692d of the FDCPA states that “a debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d (explicitly prohibiting conduct including “use of threat of violence or other criminal means to harm the physical person, reputation, or property of any person”; “use of obscene or profane language”; “publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency”; “advertisement for sale of any debt to coerce payment of the debt”; and “[c]ausing a telephone to ring or engag[ing] any person in telephone conversation repeatedly or continuously”). This section has been interpreted to bar “extrajudicial techniques of harassment designed to humiliate or annoy a debtor,” and “[s]ituations involving improper litigation conduct have been held to fall outside section 1692d.” Okyere v. Palisades Collection, LLC, 961 F.Supp.2d 508, 520-21 (S.D.N.Y. 2013) (collecting cases); see also Finch v. Slochowsky & Slochowsky, LLP, No. 19-CV-6273 (RPK), 2020 WL 5848616, at *3 (E.D.N.Y. Sept. 30, 2020).

Plaintiff's allegations fail to state a Section 1692d claim. The gravamen of Plaintiff's claim is that Moving Defendants harassed, oppressed, and abused him by trying to collect on his debt by initiating the 2005, 2015, and 2017 Actions, and through their conduct and representations during those actions. Such litigation conduct, however, falls outside the ambit of Section 1692d. Additionally, any failure to adequately communicate with or serve Plaintiff regarding his debt or litigation proceedings “is the opposite of the conduct prohibited under” this section. Scott, 2017 WL 1214441, at *10. 26

2. 1692e and 1692f

Section 1692e states, in relevant part, that a “debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. However, “not every technically false representation by a debt collector amounts to a violation of the FDCPA.” Cohen v. Rosicki, Rosicki & Assocs., P.C., 897 F.3d 75, 85 (2d Cir. 2018) (quoting Gabriele, 503 Fed.Appx. 89 at 94) (summary order). For an allegedly false representation to violate the FDCPA, the statement must be material such that it would frustrate a consumer's ability to intelligently choose his or her response. Cohen, 897 F.3d at 87. Section 1692f further provides that a “debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f; see Rogers v. Capital One Servs., LLC, 447 Fed.Appx. 246, 249 (2d Cir. 2011) (describing section 1692f as a “catchall provision prohibiting the use of any unfair or unconscionable means to collect or attempt to collect any debt”) (internal citations omitted). “The practice of ‘sewer service,' which includes filing a false affidavit of service, violates the FDCPA,” including 1692e and 1962f. Scott, 2017 WL 1214441, at *11 (collecting cases); Sykes v. Mel Harris & Assocs., LLC, 757 F.Supp.2d 413, 424 (S.D.N.Y. 2010).

As an initial matter, Plaintiff cannot merely rely on the language of the statute (namely, 1692e(8)) to support his claim, and thus Plaintiff's bare allegations in ¶¶ 141-43 that Moving Defendants knowingly communicated false credit information and failed to communicate that the debt is disputed are insufficient to state a claim. See Scott, WL 1214441, at *10; Oliver, 2015 WL 4111908, at *5 (“[A] formulaic recitation of acts prohibited by the FDCPA, without any alleged factual content, cannot survive a motion to dismiss.”). Moreover, to the extent 27 Plaintiff's claim is based on LS's representations to the state court regarding the validity of the debt or their purchase of the debt from Chase, Plaintiff's claim also fails because Plaintiff acknowledges defaulting on the credit card debt at issue and does not explain why the debt was “inaccurate, not owed, and or otherwise not collectable.” Compl. ¶¶ 16, 18, 134, 150; see ECF 68 at 6 n.4.¹⁷ Further, Plaintiff cannot base a 1692e claim on any misstatement regarding the dates of the transactions between LS to RCM because there is no indication that they are material.

17 Plaintiff's exhibits to the Complaint also contradict Plaintiff's suggestion that Chase sold the same accounts to ECM and LS. Id. Exs. E-F.

Moreover, while sewer service can constitute a 1692e and 1692f violation, Plaintiff has not provided any facts suggesting that he was actually subject to sewer service and does not explain why it was deceptive for Moving Defendants, in 2005, to file affidavits of service listing Plaintiff's Pratt Avenue property.¹⁸ Moreover, Plaintiff's conclusory and speculative arguments related to improper service and invalidity of the judgments have been previously rejected by the state court. Compare Shetiwy v. Midland Credit Mgmt., 15 F.Supp.3d 437, 446-47 (S.D.N.Y. 2014) (finding Plaintiff did not state 1692e or 1692f claim where Plaintiff did not provide “sufficient factual support” to support the “general refrain” that “that the Debt Buyers sent their attorneys into court with perjured documents and ... falsely testified that they knew the contents of what they were presenting to the court when they had no knowledge of the papers that they were presenting to the court”) with Scott, 2017 WL 1214441, at *11 (finding Plaintiff had stated 1692e and 1692f claims where Plaintiff alleged defendants filed false affidavits of 28 service providing a physical description that did not match anyone living at the address and where the state court had vacated default judgment in part because of Plaintiff's allegations of improper service) and Sykes v. Mel Harris & Assocs., LLC, 757 F.Supp.2d 413, 424 (S.D.N.Y. 2010) (finding Plaintiffs stated 1692e and 1692f claim where plaintiffs alleged process servers failed to serve process and defendants thereafter knowingly authorized the filing of perjured affidavits of service).

18 For example, the Complaint does not suggest that service was not actually made to the Pratt Avenue address, indicate why it was wrong for Moving Defendants to believe the Pratt Avenue address was a proper service address for Plaintiff in 2005, or provide facts creating a reasonable inference that Defendants intentionally served process at this address to prevent Plaintiff from learning about the 2005 Action.

3. 1692g

Section 1692g(a) establishes a scheme in which once a debt collector has an “initial communication” with a consumer, the debt collector has five days to send the consumer written notice containing certain specified information about the debt and the consumer's rights to dispute the debt. 15 U.S.C. § 1692g(a). The written notice must, for example, explain that if, within thirty days of receipt of the notice, the consumer notifies the debt collector that the consumer contests the debt, the debt collector will send verification of the debt or a copy of a judgment against the consumer pending mailing of the verification or judgment. Id. § 1692g(a)(4). If within the thirty-day period just mentioned, the consumer in fact notifies the debt collector in writing that the debt is disputed, section 1692g(b) provides for a temporary moratorium on collection efforts. Id. § 1692g(b). The statute specifies that formal pleadings in a civil action are not considered an “initial communication” for purposes of section 1692g(a). Id. § 1692g(d). “Application of both 1692g(a) and (b) depend on the existence of an ‘initial communication' from the debt collector to the consumer.” Oliver, 2015 WL 4111908, at *4; Lane v. Fein, Such & Crane, LLP, 767 F.Supp.2d 382, 385-88 (E.D.N.Y.2011) (dismissing plaintiffs' claims pursuant to 1692g(a) and (b) where the only communication from the debt collector 29 identified by plaintiff was the service of a state court complaint, reasoning that plaintiff failed to identify an “initial communication”).

Here, Plaintiff fails to identify any “initial communication” or provide any other factual support for his 1692(g) claim. Plaintiff's mere allusion to the language of 1692(g) is plainly insufficient to state a claim for a violation of 1692g(a) or (b). Oliver, 2015 WL 4111908, at *4-5.

f. RICO Claim

Finally, Plaintiff fails to state a claim under RICO. “Section 1964(c) of RICO . . . provides a private right of action to any person injured in its business or property by reason of a violation of the activities prohibited by section 1962.” Kim v. Kimm, 884 F.3d 98, 103 (2d Cir. 2018). A plaintiff brining a RICO claim must allege: “(1) a violation of the RICO statute, 18 U.S.C. § 1962; (2) an injury to business or property; and (3) that the injury was caused by the violation of Section 1962.” Cruz v. FXDirectDealer, LLC, 720 F.3d 115, 120 (2d Cir. 2013) (quoting DeFalco v. Bernas, 244 F.3d 286, 305 (2d Cir. 2001)). A violation of section 1962 entails “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Kim, 884 F.3d at 103 (quoting DeFalco, 244 F.3d at 306). Moreover, “[a] ‘pattern of racketeering activity' requires that: ‘(1) the defendants committed at least two predicate acts of racketeering within ten years of one another, (2) that these racketeering predicates are interrelated; and (3) that they reveal continued, or the threat of continued, racketeering activity.” Rivera v. Golden Nat. Mortg. Banking Corp., No. 04-cv-4545 (RMB), 2005 WL 1514043, at *3 (S.D.N.Y. June 27, 2005) (quoting U.S. v. Diaz, 176 F.3d 52, 93 (2d Cir. 1999); see Reich v. Lopez, 858 F.3d 55, 59 (2d Cir. 2017).

“A complaint alleging mail and wire fraud as the predicate acts of a RICO claim must show: (1) the existence of a scheme to defraud; (2) defendant's knowing or intentional 30 participation in the scheme; and (3) the use of interstate mails or transmission facilities in furtherance of the scheme.” Sykes v. Mel Harris and Associates, LLC, 757 F.Supp.2d 413, 425 (S.D.N.Y. 2010). “Where . . . a complaint alleges that the RICO predicate acts involve (mail and wire) fraud, the pleading requirements of Rule 9(b) of the Federal Rules apply and plaintiff must allege the circumstances constituting fraud with particularity, including the relevant details of each act, such as when it was committed and how it was fraudulent.” Rivera, 2005 WL 1514043, at *3 (citing First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994); Nials v. Bank of America, No. 13-CV-5720 (AJN), 2014 WL 1174504, at *8 (S.D.N.Y. Mar. 21, 2014) (dismissing plaintiff's RICO claim where his fraud allegations failed to meet the heightened pleading standard of Rule 9(b)). “To satisfy this requirement, a complaint must specify the time, place, speaker, and content of the alleged misrepresentations, explain how the misrepresentations were fraudulent and plead those events which give rise to a strong inference that the defendant[] had an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth.” Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 359 (2d Cir. 2013) (internal citations omitted).

The RICO statute defines “enterprise” as “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). Showing the existence of an association-in-fact enterprise requires proof of “an ongoing organization, formal or informal, and . . . that the various members function as a continuing unit.” Zamora v. FIT Int'l Grp. Corp., 834 Fed.Appx. 622, 625 (2d Cir. 2020) (quoting Boyle v. United States, 556 U.S. 938 (2009)). The enterprise “must have at least three structural features: a purpose, relationships among those associated with 31 the enterprise, and longevity sufficient to permit these associates to pursue the enterprise's purpose.” Id. “Its associates must not operate entirely ‘independently and without coordination;' instead, the enterprise must have some existence beyond the commission of the individual racketeering violations alone.” Edmond v. Live Well Financial, Inc., No. 19-CV-703, 2019 WL 8111919, at *4 (S.D.N.Y. Dec. 2, 2019), report and recommendation adopted, 2020 WL 64747 (S.D.N.Y. Jan. 6, 2020) (quoting Boyle, 556 U.S. at 947). “To satisfy the enterprise element of a RICO claim, a plaintiff must allege that the defendants operated symbiotically and played necessary roles in the achievement of a common purpose.” Cedar Swamp Holdings, Inc. v. Zaman, 487 F.Supp.2d 444, 451 (S.D.N.Y. 2007) (finding that “an allegation that the perpetrator of a series of independent fraudulent transactions used a different accomplice to aid each transaction is insufficient”). “A complaint which simply groups together the individuals and entities involved in an alleged racketeering act and calls them an enterprise is not a RICO enterprise.” Edmond, 2019 WL 8111919, at *4 (citing Cedar Swamp, 487 F.Supp.2d at 451).

Plaintiff's RICO claim fails on multiple accounts. Plaintiff states generally that LS and ECM “follow directions of [prior] defendant [Chase] which sold zombie debts to third party debt collectors that included accounts that were inaccurate, settled, discharged in [b]ankruptcy, not owed, or otherwise not collectable for an average of five cents on the dollar.” Compl. ¶ 150. He adds that Van De Mark, as President and CEO of LS, directed Giove, Steward, and Stein “to file fraudulent debt collection actions, false letters, and other false documents . . . to promote their scheme,” and that Singler and Crandall in turn followed the directions of Steward and Giove to engage in “sewer service.” (Id. ¶¶ 151-53). This is followed by conclusory allegations that Moving Defendants collectively constitute an “enterprise” as defined by RICO, that they 32 engaged in interstate or foreign commerce and activities that affect interstate and foreign commerce, that the acts lasted a substantial period of time, “do last indefinitely and are pervasive,” that they “engaged in a fraudulent scheme and common plan which included using or causing the interstate wires to transfer and obtain funds from the fraudulent debt collections actions” and thus committed wire fraud, and that they “invested income derived from this pattern of [r]acketeering activity in the [e]nterprise.” (Id. ¶¶ 156-160). In Plaintiff's opposition to Moving Defendants' motion, Plaintiff adds that the “Racket” by the Moving Defendants was their conduct in initiating and effecting service in the 2005 default judgment action and assigning the default judgment to RM to circumvent Judge Drury's order. (ECF 89 at 20).

These allegations do not sufficiently allege a pattern of mail or wire fraud or any other racketeering activity. Plaintiff fails to challenge specific mailings or phone conversations to support his claim and his accusation of a conspiracy to steal his property is speculative, unsupported by factual particulars. Further, as already noted in previous sections, Plaintiff has failed to allege facts indicating that Moving Defendants knowingly and intentionally committed any deception. See supra Sections IV.c.ii; IV.e.ii.2. Moreover, Plaintiff's allegations, particularly as to Moving Defendants, center on litigation-related conduct, which cannot amount to RICO predicate acts. Singh v. NYCTL 2009-A Tr., No. 14-CV-2558, 2016 WL 3962009, at *8 (S.D.N.Y. July 20, 2016), aff'd, 683 Fed.Appx. 76 (2d Cir. 2017) (collecting cases); see, e.g., Snyder v. U.S. Equities Corp., No. 12-CV-6092 CJS, 2014 WL 317189, at *7 (W.D.N.Y. Jan. 28, 2014) (collecting cases after noting “[t]here are, in fact, a significant number of decisions, in this Circuit and in other Circuits, which hold, in the context of Civil RICO claims based on fraudulent litigation, that 33 a defendant's use of mail and wire to conduct allegedly fraudulent ‘litigation activities' is insufficient to establish predicate acts of racketeering”).

Additionally, Plaintiff has not plausibly alleged a RICO enterprise. As stated in the undersigned's Report and Recommendation recommending dismissal of Plaintiff's claims against Chase, Plaintiff's “conclusory naming of a string of entities does not adequately allege an enterprise.” (ECF 68 at 10) (quoting First Cap. Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 175 (2d Cir. 2004)). See Nasik Breeding & Research Farm Ltd. v. Merck & Co., 165 F.Supp.2d 514, 539 (S.D.N.Y. 2001) (dismissing RICO claim where plaintiff “failed to present specific details of any hierarchy, organization, or unity among the various alleged conspirators”). As to Moving Defendants specifically, Plaintiff fails to make any non-conclusory allegations “detail[ing] any course of fraudulent or illegal conduct separate and distinct from the alleged predicate racketeering acts themselves-a requirement in this Circuit” First Cap. Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 174 (2d Cir. 2004); cf. Compl. ¶ 152 (speculating that Defendant De Mark directed Giove, Steward, and Stein to file unspecified fraudulent debt collection actions, letters, and documents).

Additionally, Plaintiff fails to allege injury to property, as the property at issue in the 2017 Action has not yet been sold and the 2017 Action is stayed pending the resolution of an adverse possession action involving that property. Moreover, even if the 2017 Action is unstayed and the property is eventually sold, Plaintiff has not alleged how such a sale would constitute a RICO injury. Hatem, No. 19-CV-6446 (GBD) (KHP), 2019 WL 12339640, at *5; see Gross v. Waywell, 628 F.Supp.2d 475, 498 (S.D.N.Y. 2009) (“[D]efendants who allegedly constitute an illegal enterprise and engage in predicate offenses in furtherance of the 34 defendants' own affairs or purposes, as opposed to the affairs or purposes of their common ‘enterprise,' would fail to satisfy the requirements of RICO.”). Accordingly, I recommend that Plaintiff's RICO claim against Moving Defendants be dismissed.

V. Leave to Amend

Under Federal Rule of Civil Procedure 15(a)(2), “[l]eave to amend is to be freely given when justice requires.” Freidus v. Barclays Bank PLC, 734 F.3d 132, 140 (2d Cir. 2013). It is within the Court's discretion to grant or deny leave to amend. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). Pro se plaintiffs are generally afforded leave to amend “at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Courts will deny leave to amend, even as to a pro se plaintiff, in cases of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and/or] futility of amendment.” Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (internal citations omitted). If the problems with a plaintiff's claim are “substantive,” rather than the result of an “inadequately or inartfully pleaded” complaint, an opportunity to replead would be “futile” and “should be denied.” Cuoco, 222 F.3d at 112; see Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002) (“Where it appears that granting leave to amend is unlikely to be productive, however, it is not an abuse of discretion to deny leave to amend.”) (quoting Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993)).

The Court should deny leave to amend as futile. For example, two of Plaintiff's claims are fully barred by statute of limitations, and thus granting leave to amend those claims would be 35 futile. See Klein v. Zugabie, No. 15-cv-9093 (NSR), 2017 WL 374733, at *10 (S.D.N.Y. Jan. 24, 2017) (“[A]s most of Plaintiff's claims are ‘untimely as a matter of law, repleading [those claims] would be futile.'”) (quoting Twersky v. Yeshiva Univ., 993 F.Supp.2d 429, 452 (S.D.N.Y. 2014)). Moreover, a liberal reading of the Complaint and the additional factual allegations made in Plaintiff's opposition to Moving Defendants' motion and his numerous other filings in this action and in the 2017 Action do not indicate that Plaintiff can remedy the numerous substantive deficiencies his claims.

VI. Conclusion

For the foregoing reasons, I recommend that Moving Defendants' motion for judgment on the pleadings (ECF 76) be GRANTED and Plaintiff be DENIED leave to file an amended complaint.

VII. Objections

In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See Fed. R. Civ. P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Objections, and any responses to objections, shall be addressed to the Honorable Paul A. Engelmayer. Any requests for an extension of time for filing objections must be directed to Judge Engelmayer. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW.See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); 36 McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). If Plaintiff wishes to review, but does not have access to, cases cited herein that are reported on Westlaw, he should request copies from Defendants. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).

The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the pro se Plaintiff. 37