Weaver v. Boriskin et al

Reply Declaration in Response to Plaintiff's 54 Opposition;

E.D.N.Y.September 9, 2016

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK EVERETTE WEAVER, Plaintiffs, V. SARA BORISKIN, ESQ., et al., Defendants. Case No. 16-CV-688-CBA-ST REPLY DECLARATION I, Jordan M. Smith, declare as follows: 1. I am an attorney at law, and a partner in Akerman LLP, the attorneys of record for defendants CitiMortgage, Inc., Kim Krakoviak, Brandon Lewis, Scott B. Group, Esq., and Kathleen R. Fitzpatrick, Esq., and am duly admitted to practice law in the State of New York and the United States District Court for the Eastern District of New York. I am fully familiar with the facts, circumstances, and proceedings heretofore had herein. I submit this declaration in further support of defendants' motions, brought under Fed. R. Civ. P. 12(b)(5) and (6), to dismiss the complaint filed by plaintiff Everette Weaver. In particular, I make this declaration to present to the Court an additional document of which the Court may take judicial notice pursuant to Fed. R. Evid. 201, 2. Attached hereto as Exhibit D is a true copy of the Objection to Plaintiffs Motion for an Order of Reference dated July 10, 2014, signed by plaintiff Everette Weaver, and served and filed in the action styled CitiMortgage, Inc. v. Everette Weaver, et al., Index No. 18430/2009 in Kings County Supreme Court. This document is a matter of public record. It is also referenced in paragraph 9 of the affirmation of Thomas Hooker which Mr. Weaver attached as Exhibit N to his opposition papers to defendants' motion to dismiss. {39328030;1} 1 Case 1:16-cv-00688-CBA-ST Document 55 Filed 09/09/16 Page 1 of 2 PageID #: 2238 I declare under penalty of perjury that the foTgqing is true and correct, Dated: September 9, 2016 New York, New York Jo dan M. thith, Esq. {39328030;1} 2 Case 1:16-cv-00688-CBA-ST Document 55 Filed 09/09/16 Page 2 of 2 PageID #: 2239 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK EVERETTE WEAVER, Case No. 16-CV-688-CBA-ST Plaintiff, V. SARA BORISKIN, ESQ.; GENA GOLDBERGER, ESQ.; CITIMORTGAGE, INC.; KIM KRAKOVIAK; BRANDON LEWIS; PATRICK J. HACKETT, ESQ.; ALEXANDER KLESTOV; SCOTT B. GROUP.; KATHLEEN R. FITZPATRICK, ESQ.; and NINA KHAIMOVA, ESQ., Defendants. REPLY MEMORANDUM OF LAW FURTHER SUPPORTING MOTIONS TO DISMISS FILED BY DEFENDANTS CITIMORTGAGE, INC., KIM KRAKOVIAK, BRANDON LEWIS, SCOTT GROUP, AND KATHLEEN FITZPATRICK AKERMAN LLP 666 Fifth Avenue, 20th Floor New York, New York 10103 Telephone: 212-880-3800 Attorneys for Defendant CitiMortgage, Inc., Kim Krakoviak, Brandon Lewis, Scott B. Group, and Kathleen R. Fitzpatrick Dated: September 9, 2016 (39301203;1} Case 1:16-cv-00688-CBA-ST Document 55-1 Filed 09/09/16 Page 1 of 12 PageID #: 2240 TABLE OF CONTENTS TABLE OF CONTENTS I. Introduction 1 II. Argument 2 A. The FDCPA Claim is Not Viable 2 B. The RICO Claim Must Be Dismissed 5 C, Defendants Did Not Violate New York GEN. BUSINESS LAW § 349 6 D. Mr. Weaver Concedes Dismissal of His Civil Conspiracy Cause of Action 8 E. Defendants Krakoviak and Lewis Were Not Served 8 F. The Court Should Enjoin Weaver From Filing More Lawsuits Related to the Foreclosure 9 III. Conclusion 9 (39301203;11 Case 1:16-cv-00688-CBA-ST Document 55-1 Filed 09/09/16 Page 2 of 12 PageID #: 2241 I. INTRODUCTION In opposition to all defendants' motions to dismiss his amended complaint collaterally attacking the ongoing foreclosure proceedings in New York state court, plaintiff Everette Weaver has served a lengthy, but largely non-responsive, opposition. Among the dispositive issues raised in the moving papers by defendants CitiMortgage, Inc., Kim Krakoviak, Brandon Lewis, Scott Group, and Kathleen Fitzpatrick are (1) filing a mortgage foreclosure action is not a debt collection under the Fair Debt Collection Practices Act, (2) no actual evidence of a civil or RICO conspiracy has been alleged, and (3) the "fraudulent" assignment of mortgage is not in any way a material document, (4) RICO and FDCPA claims are time-barred, and (5) Krakoviak and Lewis have not been properly served and time to do so has run, When Mr. Weaver does engage with the arguments, his arguments fail, Defendants contend several claims are time-barred, Mr. Weaver asserts the doctrine of fraudulent concealment makes those claims timely, but he offers nothing to suggest how defendants concealed the claims or why, even if the statutes of limitations for such claims were tolled, his action would be timely. In arguing for his RICO claims, he even copies a large section of his argument from an unrelated Second Circuit case, None of the causes of action against Citi, Krakoviak, Lewis, Group, or Fitzpatrick is properly pled, and Krakoviak and Lewis have not been served. The amended complaint as to these give defendants should be dismissed, {39301203;1) 1 Case 1:16-cv-00688-CBA-ST Document 55-1 Filed 09/09/16 Page 3 of 12 PageID #: 2242 ARGUMENT A. The FDCPA Claim is Not Viable Mr. Weaver limits his opposition to the motion to dismiss the FDCPA claim to the argument that his claims are not time-baned. I He has nothing to say in response to defendants' substantive arguments for dismissal. Even if he did, he has no basis to toll the statute of limitations based on fraudulent concealment. First, defendants argued the only substantive provision the complaint cites is 15 U.S.C. §1692e, which lists 16 types of false, deceptive, or misleading representations that would constitute actionable violations. Although defendants' motion in effect challenges him to identify a specific violation, Mr. Weaver says nothing in opposition. There is simply no allegation of fact concerning the conduct of Citi, Group, or Fitzpatrick that fits any of the prohibited activity under the FDCPA. Second, defendants argued the conduct alleged-filing a mortgage foreclosure action is not debt collection, as several courts in this district have recently held. Williams v. Bayview Loan Servicing, No. 14-cv-7427 (KAM), at 20-21 (E.D.N.Y. Jan. 22, 2016); Carlin v. Davidson Fink, LLP, No. 13-CV-6062 (JS)(GRB), 2015 WL 5794250, at *3 (E.D.N.Y. Sept. 30, 2015) (including debt collection notice with summons and complaint was not debt collection under FDCPA); see also Dirisme v. Hunt Leibert Jacobson P.C., 880 F. Supp. 2d 311, 325 (D. Conn. 2012) (collecting cases). Mr. Weaver offers no discussion of these cases or the principle for which they stand. Because all that Citi has done is initiate a mortgage foreclosure action, in which Fitzpatrick and Group have appeared as its counsel at times, the complaint does not allege a violation of the FDCPA. I Of the moving defendants serving this reply, the FDCPA claim is only alleged against Citi, Fitzpatrick and Group. (39301203;1} 2 Case 1:16-cv-00688-CBA-ST Document 55-1 Filed 09/09/16 Page 4 of 12 PageID #: 2243 Third, as to Group and Fitzpatrick, Mr. Weaver's opposition makes no effort to show they are debt collectors under the meaning of the FDCPA, (Opp. at 32.) The FDCPA argument section of the opposition, which takes up four pages, only mentions each of these two attorney defendants once, in a recitation that they "acted in violation of various provisions of the FDCPA." Even if filing a foreclosure were debt collection-in general-that would not necessarily make these defendants debt collectors, Mr. Weaver pleads no facts to show any of the moving defendants is a debt collector as defined in 15 U.S.C. § 1692a(6), The complaint and opposition assume Citi, a mortgage servicing company, is a debt collector, but he does not plead, or even argue, Citi was not the servicer before his default. Absent such an allegation, Citi is not a debt collector for FDCPA purposes. E.g., Gabriele v. Am. Home Mortgage Servicing, Inc., 503 Fed. App'x 89, 96 (2d Cir. 2012) ("As the district court held, the complaint does not allege that [defendant] acquired [plaintiffs] debt before it was in default and so fails plausibly to allege that [defendant] qualifies as a debt collector under the FDCPA,"). Fourth, because the foreclosure complaint was filed on July 22, 2009, the FDCPA cause of action is time-barred. Mr. Weaver argues the doctrine of fraudulent concealment extends the statute of limitations and makes the claim timely. It is true that the one-year statute of limitations for FDCPA claims can be equitably tolled. Somin v. Total Community Itdgmt Corp., 494 F, Supp, 2d 153, 158-159 (E.D.N.Y. 2007), But equitable tolling is only appropriate in "rare and exceptional" circumstances. Id. at 158 (citing Bertin v. United States, 478 F.3d 489, 494 n.3 (2d Cir. 2007)). Generally, this means the wrongdoing was actively concealed by the defendant preventing plaintiff from discovering the facts giving rise to the claim. Id. at 158-159. Mr. Weaver does not plead specific facts as to how CitiMortgage fraudulently concealed the foreclosure action from him. He claims he was not served with process, but CitiMortgage (39301203;1} 3 Case 1:16-cv-00688-CBA-ST Document 55-1 Filed 09/09/16 Page 5 of 12 PageID #: 2244 merely hired counsel to have the action filed and then to arrange for service, It did not itself claim to serve Mr. Weaver; in fact, it legally could not have made such service as a party to the action. See N.Y.C.P.L,R. § 2103(a). That the foreclosure action was filed was a matter of public record. The case for equitable tolling based on fraudulent concealment is weakened when the information alleged to have been hidden was publicly available, a point noted in Ruth v. Unifund CCR Partners, 604 F.3d 908, 912 (6th Cir. 2010), a case Mr. Weaver cites. (Opp. at 34.) Even if the statute of limitations were equitably tolled in this case, Mr. Weaver's FDCPA claim based on the filing of a foreclosure action is still untimely. When a statute of limitations is equitably tolled, it does not eliminate the statute of limitations; rather, it moves the start date for the statute of limitations to such time as plaintiff discovered, or should have discovered, the facts needed to be aware of the claim. The action might still be out of time. E.g., Smith v. New Falls Corp., 13-cv-1127, 2014 WL 4455051, at *3 (N.D.N.Y. Sept. 10, 2014) (analyzing start date for FDCPA statute of limitations if it were equitably tolled); Deaville v. Capital One Bank, 425 F. Supp. 2d 744, 752 (W.D. La, 2006) (FDCPA claim time-barred even if statute of limitations equitably tolled to start at time of discovery). Mr. Weaver does not specify exactly when he learned of the foreclosure action. The opposition says only that it happened when he received mail from real estate brokers and investors advising him the property was in foreclosure. (Opp. at 35.) Mr. Weaver filed papers in the foreclosure action on July 10, 2014, specifically an opposition to Citi's motion for an order of reference. (See Reply Declaration of Jordan M. Smith submitted herewith, Exh. D; Opp., Exh. N, IT 9 [referring to the July 10, 2014 papers].) Assuming Mr. Weaver learned of the foreclosure the very day he filed his July 10, 2014 papers, the one-year statute of limitations would have run on July 10, 2015-eight months before he filed this federal complaint, (39301203;1) 4 Case 1:16-cv-00688-CBA-ST Document 55-1 Filed 09/09/16 Page 6 of 12 PageID #: 2245 Mr. Weaver's amended complaint sets out no viable claim under the FDCPA against Citi, Group, or Fitzpatrick. B. The RICO Claim Must Be Dismissed The RICO cause of action is alleged against all defendants, but Mr. Weaver makes minimal effort to argue for it in his opposition. The entire "RICO" argument section of the opposition consists of a single page with general recitations of statutes and legal principles applicable to RICO. This does not address any of the grounds of defendants' motions to dismiss. As pled, Mr, Weaver's RICO claim contends defendants had some involvement in preparing an assignment of mortgage and litigating the foreclosure action. Mr. Weaver cites no case holding that any such activity by anyone-has ever sufficed to state a federal RICO cause of action. He ignores the law holding that a collateral attack on a state court foreclosure is not a federal racketeering claim, Nials v. Bank of Am., No. 13-civ-5720 (AJN), 2014 WL 1174504, at *8 (S.D.N.Y. March 21, 2014). Mr. Weaver also offers no further clarification of which defendants took which improper acts. The opposition argues "defendants [, ..] engaged in acts of wire and mail fraud in violation of 18 U.S.C. §§ 1341, 1344, which can serve as predicate acts for violation of 18 U.S.C. § 1962(c)." (Opp, at 36.) Which defendants committed mail fraud? Which committed wire fraud? Neither the amended complaint nor opposition says anything about such crimes. This allegation does not even meet Rule 8 notice pleading requirements, let alone the heightened pleading requirements of Rule 9(b), which apply to RICO claims. See In re Sumitomo Copper Litig.., 995 F. Supp. 451 (S.D,N.Y. 1998) (noting Rule 9(b) has "great urgency" in RICO cases). The opposition does not make a direct argument that the complaint pleads a pattern of racketeering activity, an essential element of a RICO claim. Mr. Weaver recounts his version of the facts of several other cases, which he labels the "Meade Case", the "Beale Case," and the (39301203;1) 5 Case 1:16-cv-00688-CBA-ST Document 55-1 Filed 09/09/16 Page 7 of 12 PageID #: 2246 "Cudjoe Case." (Opp. at 3-7.) Even if he is correct about what happened in those cases, it is irrelevant to the motion by defendants Citi, Krakoviak, Lewis, Group, and Fitzpatrick. The facts of those cases are not pled in the complaint and, even as described in the opposition, none of these moving defendants (Citi, Krakoviak, Lewis, Group, or Fitzpatrick) is alleged to have had any involvement in Meade, Beale, and Cudjoe cases, The amended complaint bases its RICO theory on the alleged backdating of the assignment of mortgage. While there was nothing improper in the creation and recording of the assignment, even if there were, such conduct did not-and could not have involved defendants Group and Fitzpatrick, neither of whom had anything to do with Mr. Weaver before 2015. (See Compl., 'If 73-82.) Because all of the conduct related to the assignment of mortgage occurred in 2009, a RICO cause of action based upon it should have been filed no later than 2013. 18 U.S.C. § 1961 (RICO claims subject to four-year statute of limitations); Rotella v. Wood, 528 U.S. 549, 553 (2000), This action was filed in 2016-years late. Mr. Weaver does not address the argument that the RICO cause of action is time-barred. C. Defendants Did Not Violate New York GEN. BUSINESS LAW § 349 Mr. Weaver's opposition recounts the basic elements of a claim under N.Y. GENERAL BUSINESS LAW §349, and cites several cases, but he does not connect that discussion to his nominal third cause of action against Fitzpatrick and Group. The opposition's argument does not mention either of those defendants. (Opp. at 36-39.) The opposition acknowledges the first element of a GBL § 349 claim is a showing that the conduct at issue affects other customers. (Opp. at 37 (citing Oswego Laborers Local 214 Pension Fund v. Marine Midland Bank, NA., 623 N.Y.S,2d 529, 85 N.Y,2d 20 (1995).) It does not explain how anything Fitzpatrick or Group did as counsel in the foreclosure action affected (39301203;1) 6 Case 1:16-cv-00688-CBA-ST Document 55-1 Filed 09/09/16 Page 8 of 12 PageID #: 2247 anyone but Mr. Weaver. Of course it did not. He does not distinguish, or even acknowledge, the cases holding that disputes over individual home loans do not affect the general public and so are not actionable under GBL § 349. E.g.„IP Morgan Chase Bank, NA, v, Ha11,996 N.Y.S.2d 309 (N.Y. App, Div, 2d Dep't 2014). Mr. Weaver is also silent as to the second element-that the defendant have made a materially misleading statement to the plaintiff. As the extensive transcripts and papers he provides in his opposition show, the statements by Fitzpatrick and Group were directed to the Court. (Opp. at 13-27, Exhs, R-X.) Mr. Weaver has no direct response to the defendants' arguments that Fitzpatrick and Group's statements in their capacity as counsel for Citi in the foreclosure action are privileged. Everything Mr. Weaver alleges those two attorney defendants stated, orally or in writing, was privileged as "pertinent to the litigation." Tagliaferri v. Szulik, No, 15-cv-2685, 2015 WL 5918204, at *3 (S.D,N,Y. Oct. 9, 2015). The argument section of the opposition consists of an unacknowledged cut-and-paste of a passage from the Second Circuit's decision in Sykes v. Mel S. Harris & Associates LLC, 780 F.3d 70 (2d Cir. 2015). Compare Opp. at 36-37 with 780 F.3d at 83-84. Unfortunately for Mr. Weaver, the Sykes case concerned the propriety of certifying a damages class based on a fraudulent scheme by a debt-buying company, law firm, and process server to obtain default judgments, en masse, in New York City Civil Court based on faulty affidavits. The issue before the Second Circuit was whether a class could be certified, and the Court was not passing on the viability of any particular claims. Cutting and pasting from Sykes does nothing to support Mr. Weaver's GBL § 349 claims against Fitzpatrick and Group. The opposition's reference to Moskal v. United States, 498 U.S, 103 (1990) is even more baffling. That case held a criminal defendant who received genuine vehicle titles which he knew {39301203;1) 7 Case 1:16-cv-00688-CBA-ST Document 55-1 Filed 09/09/16 Page 9 of 12 PageID #: 2248 to contain false information could be held criminally liable under a federal statute barring transportation of fraudulent documents. Id, at 103-104. What this has to do with the matter before this Court is a mystery. Mr. Weaver also offers no argument on the question of damages. In his 44-page opposition, he never discusses whether he made all of his mortgage payments (because of course he has not) or how, as a result, he was damaged by the efforts of Fitzpatrick or Group to prosecute a foreclosure action in accordance with the terms of the mortgage. D. Mr. Weaver Concedes Dismissal of His Civil Conspiracy Cause of Action The opposition seems to concede the fourth cause of action, alleging civil conspiracy under New York law, cannot survive the motions to dismiss. Mr. Weaver provides no argument in support of the claim, and on page 36 of the opposition he claims to have brought state law claims under only GBL § 349 and N.Y. JUDICIARY LAW § 487,2 Even if he had not conceded dismissal, the law is clear that there is no independent conspiracy cause of action under New York state law. Vasile v. Dean Witter Reynolds Inc., 20 F. Supp. 2d 465, 481 (E.D.N.Y. 1998), affd, 205 F.3d 1327 (2d Cir. 2000). The last cause of action should be dismissed. E. Defendants Krakoviak and Lewis Were Not Served The evidence shows Krakoviak and Lewis were not properly served by any method allowable by the Federal Rules of Civil Procedure within 90 days of issuance of the amended summons. This does not meet the requirements of Fed. R. Civ. P. 4(m). Mr. Weaver does not address this part of the motion to dismiss by those two defendants. Because there is no provision 2 This is part of the opposition's cut-and-paste from the Sykes case. While plaintiffs in Sykes pled a claim under N.Y. RID. L § 487, Mr. Weaver's amended complaint never mentions that law. {39301203;1} 8 Case 1:16-cv-00688-CBA-ST Document 55-1 Filed 09/09/16 Page 10 of 12 PageID #: 2249 of law for substituted service at defendant's place of business, the Court should dismiss this action as to both defendants challenging service of process. F. The Court Should Enjoin Weaver From Filing More Lawsuits Related to the Foreclosure Mr. Weaver also ignores the final part of Citi, Fitzpatrick, and Group's motion, which seeks an injunction to prevent him from filing yet more lawsuits. This Court has previously entered such an injunction against Mr. Weaver, and his conduct in this case, where he amended his complaint to sue an additional lawyer actively working on the foreclosure case (Fitzpatrick), shows he will continue filing actions unless some check is placed upon him. A narrowly tailored filing injunction requiring permission before initiating additional lawsuits is appropriate. Cf. In re Martin-Trigona, 737 F.2d 1254, 1261-62 (2d Cir. 1984), Mr. Weaver should be required to obtain leave of court before bringing any further lawsuit related in any way to the foreclosure of his mortgage on the property at 489 Classon Avenue in Brooklyn. III. CONCLUSION Mr, Weaver's opposition rarely addresses any of the grounds on which defendants Citi, Krakoviak, Lewis, Group, and Fitzpatrick moved to dismiss the amended complaint. The FDCPA and RICO claims are time-barred and all claims fail to meet basic pleading standards. Weaver does not even argue he properly served Krakoviak and Lewis. The amended complaint should be dismissed without further leave to amend, and a limited filing injunction should be imposed. {39301203;1) 9 Case 1:16-cv-00688-CBA-ST Document 55-1 Filed 09/09/16 Page 11 of 12 PageID #: 2250 AKE • AN LLP By: Dated: September 9, 2016 New York, New York Respectfully submitted, J rdan IV/ Smith 66 Fifty Avenue, 20th Floor ew,y/Ork, NY 10103 (2 ) 880-3800 Attorneys for Defendants CitiMortgage, Inc,, Kim Krakoviak, Brandon Lewis, Kathleen R. Fitzpatrick, and Scott B. Group, {39301203;1} 10 Case 1:16-cv-00688-CBA-ST Document 55-1 Filed 09/09/16 Page 12 of 12 PageID #: 2251 APPENDIX Case 1:16-cv-00688-CBA-ST Document 55-2 Filed 09/09/16 Page 1 of 5 PageID #: 2252 Smith v. New Falls Corp., Not Reported in F.Supp.3d (2014) 2014 WL 4455051 2014 WE 4455051 Only the Westlaw citation is currently available, United States District Court, N.D. New York. Michael R. SMITH, Plaintiff, V. NEW FALLS CORPORATION, et al., Defendants. No. 8:13-CV-1127 (LEK/RFT). Signed Sept. 10, 2014. Attorneys and Law Firms Michael R. Smith, Lake Clear, NY, pro se. Stephen Vlock, Vlock & Associates, P.C., New York, NY, for Defendants. MEMORANDUM-DECISION and ORDER LAWRENCE E. KAHN, District Judge. I. INTRODUCTION *1 Pro se Plaintiff Michael R. Smith ("Plaintiff') alleges violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 §§ 1692 et seq., by Defendants New Falls Corporation ("New Falls"); Vlock and Associates P.C. ("Vlock and Associates"); and Stephen Vlock ("Vlock") (collectively, "Defendants"). Dkt, No. 1 ("Complaint"). Defendants filed a Motion to dismiss under Federal Rule of Procedure 12(b)(6), asserting, inter al/a, that Plaintiffs claims are time-barred under the applicable statute of limitations, Dkt. No, 7 ("Motion to dismiss"). Plaintiff filed a Response, which also included a Cross-Motion to disqualify Defendants' counsel. Dkt. No. 8 ("Response"). For the following reasons, Defendants' Motion to dismiss is granted, and Plaintiffs Cross-Motion to disqualify counsel is denied. Plaintiff argues that Vlock, who represents all Defendants in this action, should be disqualified for acting as both counsel and witness, and due to a conflict of interest. See Resp. at 23-24. II. BACKGROUND 2 2 In deciding a motion to dismiss for failure to state a claim, the allegations of the Complaint are accepted as true. See Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406, 408 (2d Cir.2000); see also Matson v. Bd. of Educ., 631 F.3d 57, 72 (2d Cir.2011) (noting that, in addressing a motion to dismiss, a court must view a plaintiff's factual allegations "in a light most favorable to the plaintiff and draw[ J all reasonable inferences in her favor"). Plaintiff is a resident of' Franklin County, New York. Compl, ¶ 1 New Falls is an Ohio corporation that functions as a debt collection agency, Id. ¶ 6. New Falls hired Vlock and Associates, a New York city law firm, to collect a debt allegedly owed to New Falls by Plaintiff, Id, In April 2008, Plaintiff had $53,000 withdrawn from three of his mutual fund accounts, Id. ¶ 20. Plaintiff discovered that the funds were taken in connection with a default judgment obtained in state court by Defendants in 2007. Id. ¶¶ 17, 19. Plaintiff was not aware that he had been sued, and asserts that he was a victim of identity theft. Id. 111 16, 18. "On October 16, 2012 „, upon viewing the [state] court record for the first time since his funds were taken in 2008, ... Plaintiff discovered false and misleading documents used by [D]efendants to obtain the state court judgment." Id. IN 22-23. On December 31, 2012, Plaintiff filed a motion to vacate the state court judgment. Id. ¶ 31. Plaintiff did not seek recourse earlier because "Plaintiff wasn't aware previous to [his] state court action of his right to dispute the alleged debt„,." Id. ¶ 32. Defendants filed a response to Plaintiffs motion in March 2013. Id. 1( 37. Defendants have not reimbursed Plaintiff for the funds withdrawn from his mutual fund accounts, nor have they ceased efforts to collect the remaining balance of the debt. Id. ¶[ 41-42. Plaintiff filed his Complaint on September 9, 2013, alleging numerous violations of the FDCPA. See id, 1111 48-71. For a complete statement of Plaintiffs claims, reference is made to the Complaint. III. LEGAL STANDARD To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face,' " Ashcroft AW 2i16 ho .';Zetiterzi • x; origins vernt,i9ni. Works. 1 Case 1:16-cv-00688-CBA-ST Document 55-2 Filed 09/09/16 Page 2 of 5 PageID #: 2253 Smith v. New Falls Corp., Not Reported in F.Supp.3d (2014) 2014 WL 4455051 kbal, 556 U.S. 662, 663, 129 S.C't. 1937, 173 L.Ed..2d 868 (2009) (quoting Bell All. Corp. v. Tivonibly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 I.,,Ed.2d 929 (2007)); see also FED. R. CIV. P. 12(b)(6). A court must accept as true the factual allegations contained in a complaint and draw all inferences in favor of a plaintiff. See AIlake Corp. v, Okumus„ 433 F.3d 248, 249-50 (2d Cir.2006), A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears that there are not "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, Plausibility requires "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct]," Id. at 556. The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Jabal, 556 U.S. at 678 (citing Twombly, 550 U .S. at 556). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed- me accusation," Id. (citing Twombly, 550 U.S. at 555). Where a court is unable to infer more than the mere possibility of the alleged misconduct based on the pleaded facts, the pleader has not demonstrated that she is entitled to relief and the action is subject to dismissal. See id at 678-79. IV. DISCUSSION *2 The FDCPA provides, inter cilia, 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. Claims for liability under the FDCPA must be brought "within one year from the date on which the violation occurs." Id. § 1692k. In determining the date on which the "violation" occurs, "there is no question that the latest date upon which the one year period begins to run is the date when a plaintiff receives an allegedly unlawful communication," S'ornin v. Total Ginty. Mort. Corp., 494 F.Supp.2d 153, 158 (E.D.N.A7.2007) (citing Bates v. C & S Adjusters, Inc., 980 F.2d 865, 868 n. 2 (2d C'ir.1992)). An "unlawful communication" includes either (1) a debt collection letter/notice, or (2) service of a summons and complaint by a debt collector, See, e.g., Ellis v. Gen. Revenue Corp., 274 F.R.D. 53, 57 (D,Conn,2011) (listing cases); see also Kropelnicki v, Siegel, 290 F.3c1 118, 126 (2d Cir.2002) (noting that the statute of limitations for FDCPA violations begins to run either upon serving a summons and complaint or the mailing of a debt collection notice). Defendants argue that Plaintiffs claims are time-barred under the FDCPA's one-year statute of limitations. Dkt. No, 7-9 ("Defendant's Memorandum") at 3-6. First, Plaintiff received a summons and complaint from Defendants in August 2007, and, thus, Plaintiff was required to file his claim by August 2008; however, Plaintiff did not commence this action until September 2013. Def.'s Mem. at 5 (citing Cal/ca v. Krucker, Kraus Bruh, LLP, No, 98 Civ. 0990, 1998 WI, 437151, at *3 (S.D.N.Y. Aug.3, 1998) (holding statute of limitations for FDCPA claim began to run from filing of state complaint)). Alternatively, although Plaintiff disputes that he received the summons and complaint in August 2007, Plaintiff does not contest that he received a debt collection letter from New Falls in May 2007. Def.'s Mem. at 4-5; Resp. at 13; see also Dkt. No. 11 ("Reply") 17. Under that scenario, even if Plaintiff did not receive the summons and complaint, Plaintiff was nonetheless required to file his claim by May 2008. Reply 11 17. Finally, Plaintiff admits that he became aware of the debt collection when his funds were executed upon in April 2008. See id. 1119. Therefore, at the very latest, Plaintiffs claims were barred after April 2009. See id. Thus, because Plaintiff did not commence this action until September 2013, his claims are barred by the one-year statute of limitations. Plaintiff responds that the statute of limitations did not begin to run until March 2013, when Defendants failed to validate the alleged debt and cease debt collection activities, Resp, 13, In support, Plaintiff cites two out- of-circuit cases for the proposition that the statute of limitations does not begin to run until the debt collector fails to validate a debt because that is the "debt collector's last opportunity to comply with the Act," Id. However, Plaintiffs reliance on these decisions is misguided. *3 In Naas v, Stolman, 130 17.3d. 892, 893 (9th Cir.1997), the Ninth Circuit explicitly held that "the statute of limitations began to run on the filing of the complaint." 3 Furthermore, in Maloy v. Phillips, 64 F.3d 607, 608 (11th Cir.1995), the Eleventh Circuit addressed only the narrow issue of whether the statute of limitations begins to run on the day the debt collection letter is mailed or received; however, the court did not challenge the long-standing principle that the statute of limitations commences upon the mailing of the debt collection letter, Therefore, these decisions do not disturb the well-established rule that the (f.) 2,0'6 orkjin81(.1.5 Government Works. Case 1:16-cv-00688-CBA-ST Document 55-2 Filed 09/09/16 Page 3 of 5 PageID #: 2254 Smith v. New Falls Corp., Not Reported in F.Supp.3d (2014) 2014 WL 4455051 "violation," which commences the running of the statute of limitations, occurs either when the debt collection notice is mailed or the complaint against the debtor is served. Accordingly, Plaintiff's argument that the statute of limitations did not begin to run until 2013, when Defendants failed to validate the debt and cease collection activities, is without merit, The Naas court was addressing an entirely different issue than that raised by Plaintiff-namely, whether the "debt collector's last opportunity to comply with the Act" occurs upon filing of the complaint or the date of the court's judgment, 130 F.3d at 893. The court held that the definitive act is the filing of the complaint because "the purpose of the Act is to regulate the actions of debt collectors." Id. The Naas court did not consider whether any act other than filing a complaint or mailing a collection notice may commence the running of the statute of limitations for an FDCPA violation. See generally id. Finally, although not argued by Plaintiff, mindful of his status as a pro se litigant, see Sealed Plaintiff v. Sealed Ddendant, 537 F.3d 185, 191 (2d Cir.2008), the Court considers whether equitable tolling is appropriate in this case. "A statute of limitations may be tolled in extraordinary circumstances, if a plaintiff establishes that: (1) the defendant concealed from him the existence of his cause of action; (2) he remained in ignorance of that cause of action until some length of time within the statutory period before commencement of his action; and (3) his continuing ignorance was not attributable to lack of diligence on his part." Sykes v. Mel .Harris &.As,soc,, 1,14 757 F.Supp.2(1 413, 422 (S.D.N.Y,2010) (citing State of New York v. Hendrickson Bros,, Inc., 840 F.1:I 1065, 1083 (2d Cir.] 988)). Here, Plaintiff does not allege that Defendants concealed the existence of the state court action against him. Moreover, Plaintiff admits that he received a debt collection notice from Defendants in May 2007, and that he became aware of the underlying state action when his funds were executed upon in 2008, Resp, at 11, Thus, Plaintiff was undeniably aware of Defendants' debt collection efforts by 2008, and on that basis alone is not entitled to equitable tolling beyond 2008. See Shetiwy v. Midland Credit Mgint., 980 F.Supp,2d 461, 474 (S.D.N.Y.2013) (finding equitable tolling unwarranted where plaintiff denied receiving service of state complaint but acknowledged receipt of phone calls and mailings from defendants). Furthermore, that Plaintiff waited until 2012 to seek legal redress because he "was not aware of his consumer rights at the time" is unavailing, See Resp. at 11. It is well established that "[e]quitable tolling is not warranted merely because the plaintiff was unaware of his cause of action." Henry v. Wyeth Pharm,, Inc., No, 05 Civ, 8106, 2007 WL., 2230096, at *28 (S.D,N,Y. July 30, 2007); see also Mark v. Park Ave. Synagogue, No, 10 Civ .7578, 2011 WL 3611322, at *3 (1.3:DN.-Y. Aug,11, 2011) (finding equitable tolling inapplicable where only reason for delay was that plaintiff did not know of his rights because "ignorance of the law does not constitute a rare and extraordinary circumstance that would merit equitable tolling"), Thus, Plaintiff has provided no basis for equitable tolling in this case. *4 In sum, the statute of limitations began to run in May 2007 when Plaintiff received the debt collection notice. Alternatively, at the very latest, the one-year limitation commenced in 2008 when Plaintiff learned of the underlying state action. Under either scenario, Plaintiff's filing of the Complaint in September 2013 occurred well beyond the one-year statute of limitations for FDCPA liability. See 15 U.S.C. § 1692k, Therefore, Plaintiff's claims for violations of the FDCPA are time- barred. 4 4 Because the Court finds that Plaintiffs claims are time barred, it need not reach Defendants' remaining arguments that Plaintiff has failed to state a claim upon which relief may be granted, and that Plaintiffs claims are barred by the doctrines of res judicata and collateral estoppel, See Def,'s Mem. at 16-18. Furthermore, because Plaintiffs claims are dismissed, Plaintiffs Cross-Motion to disqualify Defendants' counsel is moot. See Dkt. No. 8. V. CONCLUSION Accordingly, it is hereby; ORDERED, that Defendant's Motion (Dkt. No. 7) to dismiss is GRANTED; and it is further ORDERED, that Plaintiffs Cross-Motion (Dkt, No. 8) to disqualify Defendants' counsel is DENIED as moot; and it is further 21. 6 homsoo Reut o deli • to origin :melt Works. Case 1:16-cv-00688-CBA-ST Document 55-2 Filed 09/09/16 Page 4 of 5 PageID #: 2255 Smith v. New Falls Corp., Not Reported in F.Supp.3d (2014) 2014 WL 4455051 ORDERED, that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED without leave to amend; 5 and it is further 5 When dismissing a complaint filed by a pro se plaintiff, courts must be generous in granting leave to amend deficiencies in the complaint. See °loco v. Aftwitsugu, 222 F.3d 99, 112 (2d Cir.2000). However, when leave to amend would be futile, it is not necessary. See id Here, leave to amend would be futile, as Plaintiff cannot remedy the untimeliness of his claims. ORDERED, that the Clerk of the Court close this case; and it is further ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules, IT IS SO ORDERED. All Citations Not Reported in F.Supp.3d, 2014 WL 4455051 End of Document 2016 Thomson Reuters. No claim to original U.S, Government Works. (i 20 • -Juter No clat.',", to Govemmo 1AforK.s.. Case 1:16-cv-00688-CBA-ST Document 55-2 Filed 09/09/16 Page 5 of 5 PageID #: 2256 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK EVERETTE WEAVER, Case No. 16-CV-688-CBA-ST Plaintiff, V. SARA Z. BORISKIN, et al., Defendants. AFFIDAVIT OF SERVICE I, Noreen Donovan, being duly sworn, hereby certify that I am over eighteen years of age, a resident of the County of Putnam, State of New York, employed as a Legal Administrative Assistant with Akerman LLP, 666 Fifth Avenue, 20th Floor, New York, NY 10103, and that I am not a party to this action. I hereby certify that on the 9th day of September, 2016, I caused a true and correct copy of the annexed: REPLY DECLARATION and EXHIBIT to be served, by depositing said documents in a securely sealed, fully postage paid First Class Mail Envelope, in an official depository of, under the exclusive care and custody of the United States Postal Service, properly addressed, to the following: Mr. Everette Weaver 827 Route 82 Hopewell Junction, NY 12533 Jonathan Cohen, Esq. David A. Gallo & Associates, LLP 95-25 Queens Boulevard, 1 l th Floor Rego Park, NY 11374 Counsel for Defendant Khaimova (38782659;1} Case 1:16-cv-00688-CBA-ST Document 55-3 Filed 09/09/16 Page 1 of 2 PageID #: 2257 h day of September, 2016. Notary Public Daniel J. Evers, Esq. Berkman Henoch Peterson, Peddy & Finchel, P.C. 100 Garden City Plaza Garden City, NY 11530 Counsel for Defendants Goldberger and Boriskin Carlo J. Sciara, Esq. Hackett Law, P.C. 585 Stewart Avenue, Suite 546 Garden City, NY 11530 Counsel for Defendant Hackett Noreen Donovan Sworn to before me this GINA McKENNA Notary Public State of New York No. 01MC4914833 Qualified in Dutchess County Term Expires December 21, i {38782659;1)2 Case 1:16-cv-00688-CBA-ST Document 55-3 Filed 09/09/16 Page 2 of 2 PageID #: 2258 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK EVERETTE WEAVER, Case No. 16-CV-688-CBA-ST Plaintiff, V. SARA Z. BORISKIN, et al., Defendants. AFFIDAVIT OF SERVICE I, Noreen Donovan, being duly sworn, hereby certify that I am over eighteen years of age, a resident of the County of Putnam, State of New York, employed as a Legal Administrative Assistant with Akerman LLP, 666 Fifth Avenue, 20th Floor, New York, NY 10103, and that I am not a party to this action. I hereby certify that on the 9th day of September, 2016, I caused a true and correct copy of the annexed: REPLY MEMORANDUM OF LAW FURTHER SUPPORTING MOTIONS TO DISMISS FILED BY DEFENDANTS CITIMORTGAGE, INC., KIM KRAKOVIAK, BRANDON LEWIS, SCOTT GROUP, AND KATHLEEN FITZPATRICK to be served, by depositing said documents in a securely sealed, fully postage paid First Class Mail Envelope, in an official depository of, under the exclusive care and custody of the United States Postal Service, properly addressed, to the following: Mr, Everette Weaver 827 Route 82 Hopewell Junction, NY 12533 Jonathan Cohen, Esq. David A. Gallo & Associates, LLP 95-25 Queens Boulevard, 1 l th Floor Rego Park, NY 11374 Counsel for Defendant Khainlova (38782659;1) Case 1:16-cv-00688-CBA-ST Document 55-4 Filed 09/09/16 Page 1 of 2 PageID #: 2259 Daniel J. Evers, Esq. Berkman Henoch Peterson, Peddy & Finchel, P.C. 100 Garden City Plaza Garden City, NY 11530 Counsel for Defendants Goldberger and Boriskin Carlo J. Sciara, Esq. Hackett Law, P.C. 585 Stewart Avenue, Suite 546 Garden City, NY 11530 Counsel for Defendant Hackett Noreen Donovan Sworn to before me this th ay of September, 2016. • Notary Public GINA McKENNA Notary Public State of New York No. 01MC4914833 Qualified in Dutchess County Term Expires December21, {38782659;1)2 Case 1:16-cv-00688-CBA-ST Document 55-4 Filed 09/09/16 Page 2 of 2 PageID #: 2260 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK EVERETTE WEAVER, Case No, 16-CV-688-CBA-ST Plaintiff, V. SARA Z. BORISKIN, et al., Defendants. AFFIDAVIT OF SERVICE I, Noreen Donovan, being duly sworn, hereby certify that I am over eighteen years of age, a resident of the County of Putnam, State of New York, employed as a Legal Administrative Assistant with Akerman LLP, 666 Fifth Avenue, 20th Floor, New York, NY 10103, and that I am not a party to this action. I hereby certify that on the 9th day of September, 2016, I caused a true and correct copy of an APPENDIX to be served, by depositing said documents in a securely sealed, fully postage paid First Class Mail Envelope, in an official depository of, under the exclusive care and custody of the United States Postal Service, properly addressed, to the following: Mr. Everette Weaver 827 Route 82 Hopewell Junction, NY 12533 Jonathan Cohen, Esq. David A. Gallo & Associates, LLP 95-25 Queens Boulevard, 11th Floor Rego Park, NY 11374 Counsel for Defendant Khaimova Daniel J. Evers, Esq. Berkman Henoch Peterson, Peddy & Finchel, P.C. 100 Garden City Plaza Garden City, NY 11530 Counsel for Defendants Goldberger and Boriskin {39482657;1) Case 1:16-cv-00688-CBA-ST Document 55-5 Filed 09/09/16 Page 1 of 2 PageID #: 2261 Carlo J. Sciara, Esq. Hackett Law, P.C. 585 Stewart Avenue, Suite 546 Garden City, NY 11530 Counsel for Defendant Hackett Noreen Donovan Sworn to before me this h 51 ay of September 2016. Notary Public GINA McKENNA Notary Public State of New York No. 01MC4914833 Qualified in Dutchess County, Term Expires December 21, / {39482657;1}2 Case 1:16-cv-00688-CBA-ST Document 55-5 Filed 09/09/16 Page 2 of 2 PageID #: 2262