Opinion
19-CV-205 (GBD) (JW)
02-24-2023
EVERTON STERLING, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR FEMIT TRUST 2006-FF6, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2006-FF6; DAVIDSON FINK LLP; LARRY TATE POWELL, ESQ., et al., Defendants.
To the Honorable Gregory B. Daniels, United States District Judge:
REPORT & RECOMMENDATION
JENNIFER E. WILLIS UNITED STATES MAGISTRATE JUDGE
Before the Court are four motions for summary judgment. The first was filed by Defendants Davidson Fink LLP and Larry Tate Powell Esq., Dkt. No. 134 (“Davidson Fink Motion” or “DF Mot.”). The second was filed by pro se Plaintiff Everton Sterling. Dkt. No. 143 (“Plaintiff's Motion” or “Pl. Mot.”). The third was filed by Defendant Pillar Processing, LLC, Dkt No. 152 (“Pillar Motion” or “Pillar Mot.”), with a supporting affidavit from Joseph G. Fortner, Jr. Dkt. No. 153 (“Fortner Affidavit” or “Fortner Aff.”). The fourth was filed by Defendants Deutsche Bank National Trust Company as Trustee for FEMIT Trust 2006-FF6, Mortgage Pass Through Certificates Series 2006-F6 and Specialized Loan Servicing LLC, Dkt. No. 161 (“Trustee Motion” or “Trustee Mot.”), with a supporting declaration from Cynthia Wallace, Dkt. No. 162 (“Wallace Declaration” or “Wallace Decl.”), as well as from Robert Brener. Dkt. No. 165 (“Brener Declaration” or “Brener Decl.”).
BACKGROUND
A. The Property and the Foreclosure Action.
On June 28, 2008, Plaintiff was conveyed the property located at 726 East 219thStreet, Bronx, NY 10469 (the “Property”). Deutsche Bank National Trust Company as Trustee for FEMIT Trust 2006-FF6, Mortgage Pass Through Certificates Series 2006-F6 and Specialized Loan Servicing LLC R. 56.1 Statement ¶ 9, Dkt. No. 163 (“Trustee SMF”). Prior to Plaintiff's receipt of the Property, it was held by non-party Howard White. In 2006, Mr. White took out a loan from First Franklin a Division of Nat City Bank of IN (“First Franklin”) in the amount of $448,000.00, secured by a mortgage on the Property. Id. at ¶¶1-2. The mortgagee was Mortgage Electronic Registration Systems, Inc. (“MERS”), as a nominee for First Franklin, and the mortgage was recorded in the Office of the City Register for Bronx County on May 8, 2006, in Control No. 2006000256278 (“First Mortgage”). Id. at ¶ 2. At the same time, Mr. White took out a second loan from First Franklin in the amount of $112,000, similarly secured by a mortgage on the property and with MERS as mortgagee (“Second Mortgage”). Id. at ¶¶ 3-4. On April 1, 2014, Specialized Loan Servicing LLC began servicing the First Loan. Id. at ¶ 7.
The Bank Defendants note that “Plaintiff's failure to submit a separate statement of material facts is grounds for denial of his motion for summary judgment.” Bank Mot. at 1, n. 1. It is the practice of this Circuit that “[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001). In light of Plaintiff's status as a pro se litigant before the Court, the Court has conducted an “assiduous review of the record” in lieu of Plaintiff s Local Rule 56.1 statement. See id.
Subsequently, Mr. While defaulted on his repayment obligations for the First Mortgage. Trustee SMF at ¶ 8. On June 24, 2008, a foreclosure action was initiated in the Supreme Court of New York, Bronx County, Docket No. 381213/2008 (“Foreclosure Action”). Id. On April 20, 2010, the Supreme Court issued a Judgment of Foreclosure and Sale, directing that the Property be sold at a foreclosure auction. Id. at ¶ 10.
Four days after the Foreclosure Action was initiated, and almost two years prior to the Judgment of Foreclosure, the Property was conveyed to Plaintiff. Trustee SMF at ¶ 9. In 2015, Plaintiff moved to vacate the Judgment of Foreclosure in the Bronx County Supreme Court; the motion was denied on September 4, 2015. Id. at ¶ 12. Plaintiff filed a Notice of Appeal, but failed to perfect it within the six-month period for doing so. Id. at ¶ 14. The Trustee received title to the Property effective January 15, 2019, and later sold it to a third party. Id. at ¶¶ 18-19.
While the Foreclosure Action was proceeding in Bronx County Court, on December 23, 2011 Davidson Fink LLP were substituted in as attorneys for the Trustee in said Action. Davidson Fink Defendants' Local Civil R. 56. 1 Statement of Material Facts at ¶ 4 (Dkt. No. 135) (“DF SMF”). The record reflects that Larry Tate Powell is an attorney with Davidson Fink. Pillar Processing, LLC, is listed by Plaintiff as a Debt Collection Agent for the Trustee. Pillar's Statement Pursuant to Local Civil R. 56.1 at ¶ 2 (Dkt. No. 154) (“Pillar SMF”).
B. Procedural History
This action was commenced on January 8, 2019. See Compl. (Dkt. No. 1). The Complaint names several Defendants, some of which in the process of litigating this action split into various groups. Not all bear mentioning here; this summation will focus only on the Defendants who filed motions for summary judgment.
The first motion to dismiss was brought by Davidson Fink and Larry Tate Powell (“the Davidson Fink Defendants”). See Motion to Dismiss dated February 7, 2019 (Dkt. No. 8; amended in Dkt. No. 14). On August 7, 2019, the Honorable Judge Kevin N. Fox, Magistrate Judge, issued a Report and Recommendation on the Davidson Fink Defendants' motion to dismiss. See Dkt. No. 92. Judge Fox recommended that the motion to dismiss be denied, with prejudice, due to a series of filing errors on the part of the Davidson Fink Defendants which resulted in the motion not being properly filed by the deadline established by the Court. Id. at 3. On September 5, 2019, Judge Daniels adopted Judge Fox's recommendation, and the motion to dismiss was denied with prejudice. See Dkt. No. 106. The Davidson Fink Defendants filed their motion for summary judgment on July 18, 2022. Dkt. No. 133.
The second motion to dismiss was brought by MERS. See Motion to Dismiss dated February 19, 2019 (Dkt. No. 18). On August 16, 2019, Judge Fox recommended that the MERS motion to dismiss be granted. See Dkt. No. 94. Judge Fox declined to find that there was no subject-matter jurisdiction under the Rooker-Feldman Doctrine (discussed below), and also declined to find that MERS had demonstrated Plaintiff lacked standing. Id. at 11, 15. Judge Fox did, however, find that Plaintiff had failed to state a claim and recommended the motion to dismiss be granted pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(6). Id. at 15-17. Specifically, Judge Fox found as follows:
“The complaint is devoid of any allegations against MERS, and it does not even mention MERS, except once, in a section styled “PARTIES.” No allegations of the defendant's investment of racketeering income in an enterprise or any injury by reason of the defendant's investment of racketeering income in an enterprise exist in the complaint... The Court finds that the complaint fails to allege sufficient facts that, taken as true, state a plausible claim for relief.”Id. at 17. On September 26, 2019, Judge Daniels adopted Judge Fox's recommendations or the MERS motion to dismiss, granting it under FRCP 12(b)(6). See Dkt. No. 111 (the “MERS Order”).
Another motion to dismiss was brought by Pillar Processing LLC (“Pillar”). See Motion to Dismiss dated March 25, 2019 (Dkt. No. 60). On December 10, 2019, Judge Fox issued a Report and Recommendation on this motion. See Dkt. No. 121. Judge Fox recommended that Pillar's motion to dismiss be granted for failure to state a claim. Id. at 12. Plaintiff filed an objection to Judge Fox's Report and Recommendation on February 14, 2020, which also contained a request for leave to amend the complaint. See Dkt. No. 126. No further action occurred, and Judge Fox's recommendation was never adopted. The next action taken was Pillar's filing of their motion for summary judgment on October 7, 2022. See Dkt. No. 151.
The final set of defendants which warrants discussion is Defendants Deutsche Bank National Trust Company as Trustee for FEMIT Trust 2006-FF6, Mortgage Pass Through Certificates Series 2006-F6 (“Trustee”) and Specialized Loan Servicing LLC (“SLS”). Proof of Service for both these defendants was filed on the docket on March 6, 2019. See Dkt. Nos. 36, 41. Counsel for the Trustee and SLS entered an appearance on June 5, 2019. See Dkt. No. 84. It does not appear that any action was taken by these Defendants before summary judgment briefing. No responsive motion of any sort contemplated by FRCP 12 was filed. The Trustee and SLS filed their cross motion for summary judgment on October 7, 2022. See Dkt. No. 160.
LEGAL STANDARD
To prevail on a motion for summary judgment, the movant must “show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the burden of demonstrating the absence of a question of material fact. In making this determination, the Court must view all facts “in the light most favorable” to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007); see also Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008). To survive a summary judgment motion, the opposing party must establish a genuine issue of fact by “citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment,” because “conclusory allegations or denials . . . cannot by themselves create a genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted). “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may... grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it.” Fed.R.Civ.P. 56(e).
Only disputes over “facts that might affect the outcome of the suit under the governing law” will preclude a grant of summary judgment. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). In determining whether there are genuine issues of material fact, the Court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (citing Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)).
Finally, “[i]t is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quotations omitted).
DISCUSSION
Plaintiff alleges three causes of action against all Defendants. Count I makes reference to 18 U.S.C. § 1964(c). Compl. at 45-46. This is the statutory provision which provides a civil right of action for “[a]ny person injured in his business or property by reason of a violation of section 1962.” 18 U.S.C. § 1964(c). “[A] plaintiff may sue under § 1964(c) only if the alleged RICO violation was the proximate cause of the plaintiff's injury.” Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 453 (2006). “When a court evaluates a RICO claim for proximate causation, the central question it must ask is whether the alleged violation led directly to the plaintiff's injuries.” Id. at 461. Plaintiff alleges that the Defendants misrepresented the appraisal value of the Property and “have perpetuated the misrepresentation through an enterprise which is prohibited under 18 U.S.C. § 1964(c).” Compl. at ¶ 113.
Count II alleges violations of 18 U.S.C. 1962(a). Compl. at ¶ 115-116. This specific subsection provides, in pertinent part, that “[i]t shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity... to use or invest, directly or indirectly, any part of such income or the proceeds of such income, in. the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.” 18 U.S.C. § 1962(a). “Thus, the plaintiff asserting a civil RICO claim based on a violation of subsection (a) must show injury caused not by the pattern of racketeering activity itself, but rather by the use or investment of the proceeds of that activity.” Ideal Steel Supply Corp. v. Anza, 652 F.3d 310, 321 (2d Cir. 2011) (citation omitted).
Count III is for Deceit in the Fulfillment of Contractual Obligations, or Fraud in the Factum. Compl. at ¶¶ 117-118. The Court will assume most favorably to the Plaintiff that two causes of action are asserted here; one contractual, and the other fraud in the factum. For any contractual claim, Defendants must have been in contractual privity with Plaintiff. As for fraud in the factum, “[f]raud in the factum occurs when the maker of the note is tricked into believing that which he is signing is something other than a promissory or obligatory note.” Revak v. SEC Realty Corp., 18 F.3d 81, 91 (2d Cir. 1994) (internal quotations omitted).
Neither the docket nor the motion practice at hand reflect that any discovery was conducted in this matter, or that any evidence has been proffered to support or refute the allegations in the Complaint, beyond what the Complaint itself contains.
As there are four summary judgment motions currently before the Court, each will be addressed in turn.
A. The Pillar Motion for Summary Judgment.
Defendant Pillar Processing, LLC's (“Pillar”) motion for summary judgment is short and to the point, largely relying on their papers from their motion to dismiss, dated March 25, 2019. See Pillar Mot. at 2. In that motion, Pillar raised several arguments, including failure to state a claim. That motion to dismiss was referred to then-Magistrate Judge Kevin N. Fox, who on December 10, 2019 recommended that it be granted based on the failure to state a claim argument. Pillar SMF at ¶ 9. While Plaintiff filed an objection to Judge Fox's Report and Recommendation on February 14, 2020, those objections were never ruled upon, and the Report was never adopted. Id. at ¶¶ 13-14.
Judge Fox's Report and Recommendation, recommended dismissal of the claims against Pillar because “the complaint is devoid of any allegations against Pillar.” Report and Recommendations dated December 10, 2019 at 12, (“Pillar R&R”) (Dkt. No. 121). Judge Fox found that “the complaint fails to allege sufficient facts that, taken as true, state a plausible claim for relief against Pillar.” Id. Judge Fox concluded that dismissal pursuant to Federal Rule of Procedure 12(b)(6) was appropriate. Id.
In his objections to Judge Fox's Report, Plaintiff included a request for leave to amend the complaint, specifically to address any deficiencies with respect to his claims against Pillar. See Dkt. Nos. 126, 127. Judge Fox found that leave to amend the complaint was not warranted because a “liberal reading of the complaint [d]id not give any indication that a valid claim might be stated.” Pillar R&R at 12. As noted, Plaintiff's request for leave to amend, filed as part of his objections to the Report and Recommendation, were never addressed. The Court will briefly address Plaintiff's proposed amended complaint.
Plaintiff's proposed amended complaint did refer to Pillar with more specificity in several places. See generally, Dkt. No. 126 Ex. A. However, these amendments only make the allegations more particular. They do not constitute facts and evidence that would support Plaintiff's claims. While the proposed amended complaint may have allowed Plaintiff's claims against Pillar to survive a 12(b)(6) motion to dismiss, they would not allow Plaintiff's claims to survive past this summary judgment motion. See Wali v. One Source Co., 678 F.Supp.2d 170, 177 (S.D.N.Y. 2009) (“Nonetheless, even a pro se Plaintiff cannot defeat a motion for summary judgment by relying merely on the allegations of a complaint.”); see also Jermosen v. Coughlin, 877 F.Supp. 864, 867 (S.D.N.Y. 1995) (“Although pro se plaintiffs are entitled to special latitude, when defending against summary judgment motions, absent a showing of concrete evidence from which a reasonable juror could return a verdict in the non-moving party's favor, summary judgment must be granted to the moving party.” (internal quotations and citations omitted)). Thus, Plaintiff's amended complaint would have been futile. See Stoner v. N.Y. City Ballet Co., No. 99-cv-0196 (BSJ), 2002 WL 523270, at *14 (S.D.N.Y. Apr. 8, 2002) (denying a motion to amend where a claim would “immediately be subject to dismissal on a motion for summary judgment”).
Plaintiff filed an opposition to Pillar's motion for summary judgment. Dkt. No. 173. There, Plaintiff argues that Pillar's motion is deficient because of its reliance on the Fortner Affidavit. Id. at 1-2. Plaintiff's case law in support of this contention is inapposite. Plaintiff first cites to Trinsey v. Pagliaro, 229 F.Supp., 647 (E.D. Pa. 1964); this case does not concern reliance upon an affidavit in resolving a motion for summary judgment. Plaintiff further cites to United States v. Lovasco, 431 U.S. 783 (1977); this case concerns a criminal matter and the quote Plaintiff refers to is from the dissent, not the majority opinion. Contrary to Plaintiff's argument, an affirmation, often by an attorney, is part and parcel of a motion for summary judgment. See Fed.R.Civ.P. 56(c)(4). Thus, the Court does not find Pillar's motion deficient in this respect.
“[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial ” Montessi v. American Airlines, Inc., 935 F.Supp. 482, 485 (S.D.N.Y. 1996) (emphasis in original) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). “Initially the movant's burden may be discharged by showing... that there is an absence of evidence to support the nonmoving party's case.” Id. A party cannot defeat a motion for summary judgment by relying “simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible.” L&L Started Pullets, Inc. v. Gourdine, 762 F.2d 1, 3-4 (2d Cir. 1985), See also Gates v. Goord, No. 99-cv-1378 (PKC), 2004 WL 1488405, *3 (S.D.N.Y. July 1, 2004) (“[W]hen the moving party has asserted facts to demonstrate that the non-moving party's claim cannot be sustained, the opposing party must ‘set forth specific facts showing that there is a genuine issue for trial,' and cannot rest on ‘mere allegations or denials' of the facts asserted by the movant.” (citing F.R.C.P. 56(e)).
Because there is a complete lack of proof for the allegations against Pillar, the Court finds Pillar's motion for summary judgment properly supports their assertion that there is no genuine dispute of material fact. Pillar's motion for summary judgment should be granted.
B. The Davidson Fink Defendants' Motion for Summary Judgment.
The Davidson Fink Defendants alleges that the Complaint “does not allege any specific facts with regard to Davidson Fink or Powell which would establish a cause of action for fraud or any RICO violations.” DF Mot. at 2. The Davidson Fink Defendants note that the Complaint raises three causes of action. The first two require Plaintiff to “allege sufficient facts to show that Davidson Fink and Powell engaged in (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” DF Mot. at 3 (citing Unnaro v. Desert Place, 732 F.Supp. 1522, 1526 (Nev. Dist. Ct. 1989). The third cause of action, for contractual fraud, would require a showing that Davidson Fink and Plaintiff were in privity of contract. Davidson Fink alleges that the Complaint does not make out any of the elements for any of these claims.
In the Complaint, Davidson Fink as well as individual defendant Powell are mentioned by name only as part of the general identification of Parties to the action. Compl. at 6-7. For both, Plaintiff alleges that they are debt collector agents claiming that they are alleged attorneys for Defendant Deutsche Bank. Id. No further specific mention is made of these Defendants in the Complaint. Plaintiff did not file an opposition to the Davidson Fink Defendants' motion for summary judgment.
The Davidson Fink Defendants failed to file an affidavit to support their motion. While three of their filings are labeled on ECF as “Declarations,” upon review, all three are Rule 56.1 Statements of Material Facts. See Dkt. Nos. 135, 136, 138. The document at Docket Number 136 does make reference to a “Declaration of Heather C.M. Rogers, Esq. Dated July 6, 2022” and purports that said declaration is attached as exhibit A to the document. Dkt. No. 136 at 1. It is not. However, when, as in this case, a moving party is “negating the opponent's claim,” an affidavit is not required. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Here, the Davidson Fink Defendants' argument is that Plaintiff has not sufficiently supported his allegation. As such, the lack of any affidavit is not fatal to this motion.
The Davidson Fink Defendants are largely in the same situation as Pillar; they are only mentioned in the Complaint as “debt processing agents,” with no more particular facts alleged against them. Thus, for the reasons given above on the Pillar motion for summary judgment, the Davidson Fink Defendant's motion should also be granted.
C. The Trustee's Motion for Summary Judgment.
To begin with, the Court will note briefly that the Trustee and SLS did not file an answer to the Complaint. This is remarked upon by Plaintiff in his briefing on his motion for summary judgment. See Pl. Aff. at ¶ 5 (“An answer in the form of a responsive pleading that disproved the facts and corroborating evidence to the complaint from a Party with firsthand personal knowledge under penalty of perjury was never submitted to the Court from the Defendant[s'] attorneys.”). Only one answer was filed in this case. That was filed by the Davidson Fink Defendants. Dkt. No. 107. In the case of Pillar, their responsive motion seeking dismissal stood in place of an answer. It is unclear why the Trustee and SLS never filed an answer or other responsive pleading.
However, this is not fatal to the instant motion. In another case where a party failed to serve an answer within the time prescribed, this Court has found that there are two responses to the contention that failure to serve an answer precludes summary judgment. “First, plaintiff never took, and thus waived, a default against [Defendant]. Second, Rule 56(b) provides that a motion for summary judgment may be made ‘at any time.'” Cygielman v. Cunard Line Ltd., 890 F.Supp. 305, 308 (S.D.N.Y. 1995). Thus, the Court will consider the Trustee's motion.
The Trustee and SLS make three arguments for why their motion for summary judgment should be granted. First, the Trustee argues that the Court lacks subject matter jurisdiction per the Rooker-Feldman doctrine. Trustee Mot. at 5. The Rooker-Feldman doctrine takes effect when four factors are satisfied: First, the federal-court plaintiff must have lost in state court. Second, the plaintiff must complain of injuries caused by a state-court judgment. Third, the plaintiff must invite district court review and rejection of that judgment. Fourth, the state court judgment must have been rendered before the district court proceedings commenced. See Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005). As noted in the Trustee's motion, Judge Daniels rejected the application of this doctrine earlier in this case. Trustee Mot. at 5 n. 3. On September 26, 2019, Judge Daniels stated that doctrine did not apply “because the state suit at issue [was] not yet unequivocally terminated.” MERS Order at 5 (citing Hoblock, 422 F.3d at 89). Judge Daniels noted that the state court proceedings had not yet ended, and “no final state-court judgment existed at the time that this action commenced,” because Plaintiff had an appeal pending. Id.
In the intervening time since Judge Daniels issued that opinion, Plaintiff failed to perfect his appeal. The Trustee and SLS argue, therefore, that as Plaintiff has no more avenues of review of the state-court judgment available to him, there is now a final state-court judgment. Trustee Mot. at 6-7. However, this does not change the fact that there was not a final state-court judgment at the time that this action commenced. See Hoblock, 422 F.3d at 89 (“More commonly, however, the federal suit will come after the state suit has unequivocally terminated.”). Judge Daniels found the lack of this factor fatal; this Court does not find that the state-court
judgment becoming final after the commencement of this action changes the analysis.
Second, the Trustee and SLS argue that Plaintiff lacks standing to bring this action. Judge Daniels has also weighed in on this argument, in the same opinion noted above. Judge Daniels found that dismissal for lack of standing was not warranted, because the defendant had not discussed with specificity the factors that endow a party with Article III standing, and instead relied on cursory statements. See MERS Order at 7. In this motion, the Trustee and SLS have not done better. The Trustee and SLS's argument for standing states only that Plaintiff was not a party to the mortgages or notes at the root of this action, and that therefore he has no standing. Trustee Mot. at 8. The Trustee and SLS have not laid out the elements of standing, and provide only a one-sentence conclusion on the issue. Id. (“As such, Plaintiff's claims regarding mortgage fraud must fail because he has no standing to bring them.”). This is as insufficient as it was when Judge Daniels considered this argument in September 2019.
Third, the Trustee and SLS argue that Plaintiff has not stated a claim. The Trustee and SLS cite to the conclusion reached by Magistrate Judge Fox and adopted in the MERS Order that “Plaintiff's Complaint fails to adequately allege a plausible RICO violation or fraud claim.” Trustee Mot. at 8 (citing MERS Order at 9-10); see also Report and Recommendation dated August 16, 2019 at 17-18 (Dkt. No. 94). While those conclusions were with respect to a motion to dismiss filed by another defendant, they are applicable here as well. As stated in the MERS Order, Plaintiff “fail[ed] to sufficiently allege any claim of RICO violation or fraud.” MERS Order at 8. If there is no conspiracy alleged, as found in the MERS Order, then none of the Defendants can be conspirators in violation of the statute. Repeating what is stated above, “even a pro se Plaintiff cannot defeat a motion for summary judgment by relying merely on the allegations of a complaint.” Wali, 678 F.Supp.2d at 177. Plaintiff's opposition to this motion and accompanying affidavit do not provide sufficient evidence to sustain the claims against the Trustee and SLS moving forward. The Court does not find that there is a genuine dispute of material fact. The Trustee and SLS's motion for summary judgment should be granted.
D. Plaintiff's Motion for Summary Judgment.
Plaintiff's motion for summary judgment asserts that “no affirmative defense or dispositive Motion that disproved the facts, pleadings and evidence proffered to the Court by Plaintiff was ever filed by the Defendants, and each of them, from a Party with firsthand personal knowledge or by way of Affidavit under penalty of perjury, to rebut or controvert the prima facie evidence and verified causes of action that gave rise to the Plaintiff's grievance was ever submitted to the Court on behalf of the Defendants, and each of them, by their Attorneys, so there are no genuine issues of material fact in dispute.” Pl. Mot. at 1-2.
Plaintiff's motion is not entirely accurate. As noted throughout this decision, several motions to dismiss have been filed throughout the pendency of this action, These constitute dispositive motions, filed by several Defendants, that rebut and controvert Plaintiff's Complaint. Furthermore, as discussed above, the MERS motion to dismiss was granted for failure to state a claim. Now, three motions for summary judgment filed by Defendants are before the Court, further constituting dispositive motions that rebut Plaintiff's claim.
Finally, as discussed above, Plaintiff effectively failed to state a claim in the Complaint. No further evidence has been proffered by Plaintiff to support those claims. With all inferences taken in the non-movant's favor, Plaintiff has not made a showing that there are no material facts or conclusions of law that are in dispute. Rather, the Court has found that the other motions for summary judgment did meet that standard; namely, by concluding that there is a failure of proof on Plaintiff's part establishing the essential elements of the case. See Montessi, 935 F.Supp. at 485 (“[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.”). As Plaintiff's argument in his motion is not supported by the record, his motion for summary judgment should be denied.
RECOMMENDATION
I recommend that the motions for summary judgment be resolved as follows:
• The motion for summary judgment filed by Pillar Processing, LLC, Dkt. No. 152, should be GRANTED.
• The motion for summary judgment filed by Davidson Fink LLP and Larry Tate Powell, Esq., Dkt. No. 134, should be GRANTED.
• The motion for summary judgment filed by Defendants Deutsche Bank National Trust Company as Trustee for FEMIT Trust 2006-FF6, Mortgage Pass Through Certificates Series 2006-F6 and Specialized Loan Servicing LLC, Dkt. No. 161, should be GRANTED.
• The motion for summary judgment filed by Plaintiff, Dkt. No. 143, should be DENIED.
FILING OF OBJECTIONS TO THE REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections shall be filed with the Clerk of Court and on ECF. Any requests for an extension of time for filing objections must be directed to Judge Daniels. Failure to file objections within fourteen days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).