Weaver v. Schiavo et al

ORDER re: 26 MOTION to Dismiss the Complaint. filed by Caryn Edwards, Patrick Overturf, Salvatore Farruto, Onewest Bank, FSB, 17 MOTION to Dismiss Plaintiff's Complaint. filed by McCabe, Weisberg & Conway, P.C., 20 MOTION to Dismiss. filed by Maria G. Rosa, 10 MOTION to Dismiss the Complaint. filed by Nicole E. Schiavo, Hogan Lovells US L.L.P. For the foregoing reasons, Defendants motions to dismiss (Weaver v. Schiavo, No. 17 Ci v. 1406, dkt. nos. 10,17, 20, 26; Weaver v. Hanley, No. 18 Civ. 9955, dkt. no. 35) are GRATED. Sciavo's motion for sanctions (Weaver v. Schiavo, No. 17 Civ. 1406, dkt. no. 24) is DENIED. Weaver may not file any further actions arising out of the state foreclosure judgment that is the subject of the above-noted actions without Court permission. The Clerk of the Court shall mark these actions closed and all pending motions denied as moot. SO ORDERED. (Signed by Judge Loretta A. Preska on 1/30/2020)

Southern District of New York, nysd-1:2017-cv-01406

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6 United States District Court Southern District of New York EVERETTE WEAVER, Plaintiff, 17 Civ. 1406 (LAP) - V. - NICOLE E. SCHIAVO, ESQ., et al., Defendants. EVERETTE WEAVER, Plaintiff, 18 Civ. 9955 (LAP) - v. - DIANNE BRAUN HANLEY, ESQ., et al. Defendants. EVERETTE WEAVER, Plaintiff, 09 Civ. 5091 (LAP) - V. - INDYMAC FEDERAL BANK, FSB, et al. Defendants. MEMORANDUM AND ORDER LORETTA A. PRESKA, Senior United States District Judge: This order marks the latest installment in prose plaintiff Everette Weaver's scorched-earth campaign to undo a foreclosure judgment entered against him in New York State court. This 1 6 Court has already dismissed two actions Weaver brought arising out of the foreclosure judgment and, in its most recent dismissal decision, the Court directed Weaver to show cause why he should not be barred from filing further foreclosure-related lawsuits without prior permission from the Court. Weaver v. IndyMac Fed. Bank, FSB, No. 09 Civ. 5091 (LAP (LMS), 2019 WL 4563893, at *13 (S.D.N.Y. Sept. 9, 2019). The instant order addresses two other complaints Weaver filed in 2017 and 2018 before the Court issued the show cause order (see Complaint, dated Feb. 24, 2017, Weaver v. Schiavo, No. 17 Civ. 1406 (LAP) (the "2017 Action") [dkt. no. 1]; Complaint, dated Oct. 29, 2018, Weaver v. Hanley, No. 18 Civ. 9955 (LAP) (the "2018 Action") [dkt. no. 1]), along with the open question of whether Weaver should be permitted to continue filing duplicative lawsuits regarding the foreclosure. The defendants in the 2017 and 2018 Actions encompass virtually everyone who touched the state court foreclosure litigation, including the presiding judge, the county clerk, the referee who oversaw the foreclosure sale, and the attorneys, law firms, banks, and other entities involved in the foreclosure proceedings. They have moved to dismiss the 2017 and 2018 Actions under Federal Rule of Civil Procedure 12(b) (1) and 12 (b) (6). (See 2017 Action dkt. nos. 10, 17, 20, 26; 2018 Action dkt. no. 35.) Defendant Nicole E. Schiavo, who was also 2 6 sued in one of Weaver's previously-dismissed federal actions, has moved for sanctions against Weaver under Federal Rule of Civil Procedure 11. (See 2018 Action dkt. no. 24.) For the following reasons, Defendants' motions to dismiss are GRANTED, and Weaver is enjoined from initiating any further litigation regarding the foreclosure judgment without first obtaining leave of Court. Schiavo's motion for sanctions is DENIED. I. Background a. The Parties Plaintiff Everette Weaver is a resident of Hopewell Junction, New York, in Dutchess County. (2017 Action Compl. 'II 3.) Defendants McCabe, Weisberg & Conway, P.C., Hogan Lovells US LLP, Nicole E. Schiavo, Stuart L. Druckman, Maria Sideris, and Melissa Dicerbo are counsel who participated in the foreclosure litigation. (See id. '!I'll 4-6; 2018 Action Compl. '!I'll 8-11.) The Honorable Maria G. Rosa is a Justice of the Supreme Court of the State of New York, Dutchess County, and presided over the foreclosure action. (2017 Compl. 'II 13.) Bradford Kendall is the Clerk of Dutchess County. (Id. 'II 12.) OneWest Bank, FSB ("OneWestn)--now known as CIT Bank, N.A. ("CITn)--serviced and held the mortgage loan on the foreclosed property. (Id. 'II 7.) Caryn Edwards, Patrick Overturf, and Salvatore Farrauto are employees of CIT who either submitted evidence in connection with the foreclosure action or executed 3 6 mortgage-related documents on behalf of the bank. (Id. 'll'll 8- 10.) Defendant U.S. Bank Trust National Association, CVI LCF Mortgage Loan Trust I, and Sheafe Woods Realty, LLC allegedly acquired Weaver's mortgage loan or property in connection with the foreclosure proceedings. (Id. 'II 11; 2018 Compl. 'll'll 12-13.) b. The Foreclosure Action In October 2007, Weaver borrowed $200,000 as a mortgage loan from IndyMac Bank, FSB ("IndyMac") to buy property located at 19 Eagle Ridge in Hopewell Junction, New York. (Declaration of Jonathan B. Nelson, dated Apr. 26, 2019 ("Nelson Deel."), 2018 Action [dkt. no. 36], Ex. 9 at 63-94, 96.) In 2008, Weaver defaulted on his loan payments, and in 2014, CIT, which held the loan on behalf of IndyMac, initiated a foreclosure action against Weaver in the Supreme Court of the State of New York. (Nelson Deel. Ex. 9 at 56, 95.) Weaver filed an answer in the foreclosure action containing fifteen affirmative defenses, alleging, among other things, that CIT lacked standing to enforce the note and mortgage and that its claim to standing was based on fraudulent documents. (Nelson Deel. Ex. 5.) In 2016, Justice Rosa presided over a trial in the state foreclosure action and issued a decision holding that CIT had standing to foreclose, Weaver's defenses lacked merit, and permitting CIT to proceed with appointing a referee to calculate the amount due to CIT on the mortgage loan. (Nelson Deel. Exs. 4 6 6, 7.) In January 2017, CIT was granted a judgment of foreclosure and sale. (Nelson Deel. Ex. 8.) Following entry of the judgment, Weaver filed multiple appeals from orders entered in the foreclosure action. (See Nelson Deel. Ex. 12.) CIT moved to dismiss Weaver's appeals, and the Appellate Division granted that motion in August 2018. (Nelson Deel. Exs. 12, 13.) Weaver did not file any further appeals before his time to do so had expired. (Nelson Deel. ~ 17.) c. The 2016 Action In February 2016, Weaver filed a lawsuit in this Court against OneWest and others, alleging, among other things, that they had improperly pursued foreclosure against him based on fraudulent documents, including a falsified mortgage assignment. (See Complaint, dated Feb. 29, 2016, Weaver v. Golab, No. 16 Civ. 1535 (LAP) (the "2016 Action") [dkt. no. 1].) Weaver alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), the Racketeer Influenced and Corrupt Organizations Act ("RICO"), and New York General Business Law ("GBL") § 349(a), as well as a civil conspiracy claim. (Id., ~~ 44-113) The defendants moved to dismiss the 2016 Action, and the Court granted their motions, finding that Weaver's claims were all barred by collateral estoppel: The premise underlying [Weaver's] claims in this case all rely, as a logical matter, upon OneWest's not having standing to bring the original 5 6 foreclosure action. If OneWest had standing, as the Supreme Court in Dutchess County decided, all of Weaver's claims before this Court evaporate. Because the issue of standing and the validity of the mortgage assignment was fully-litigated in state court, issue preclusion/collateral estoppel attaches here. (Order, dated Mar. 28, 2017, 2016 Action [dkt. no. 38) at 10.) d. The 2009 SDNY Action In June 2009, Weaver initiated an action against IndyMac and others in this Court. (See Complaint, dated June 1, 2009, Weaver v. IndyMac Fed. Bank, FSB, No. 09 Civ. 5091 (LAP) ("2009 Action") [dkt. no. 1).) Weaver filed the operative complaint in the 2009 Action in 2016, alleging that OneWest's foreclosure action was unlawful and based on fraudulent documents and asserting claims for violations of the FDCPA, the Real Estate Settlement Procedures Act, New York GBL § 349(a), and for common law fraud. (See Third Amended Complaint, dated Mar. 17, 2016, 2009 Action [dkt. no. 124) 11 94-129.) Defendants moved to dismiss the 2009 Action, and on September 9, 2019, the Court issued an order granting their motions. Weaver, 2019 WL 4563893, at *1. The Court concluded that the 2009 Action, like the 2016 Action, was barred by the doctrine of collateral estoppel because Weaver's claims all hinged on factual issues--including standing and the invalidity of the mortgage assignment--that were already litigated and ruled on in the state foreclosure action. Id. at *8-10. The 6 6 Court denied Weaver leave to amend and ordered him to show cause why he should not be barred from filing more actions arising from the state foreclosure action without leave of Court. Id. at *13. On October 7, 2019, Weaver submitted a response to the Court's order to show cause. (Request for Pre-Motion Conference & Response to Order to Show Cause, dated Oct. 7, 2019, 2009 Action [dkt. no. 159] .) In his response, Weaver again avers that the parties to the state foreclosure action had submitted fake and deceptive documents and that the foreclosure action did not give rise to collateral estoppel because it was a "sham trial in a Kangaroo Court." (See, e.g., id. at 7, 25.) Weaver also requested a pre-motion conference for a motion seeking my recusal because, among other reasons, the order to show cause purportedly constituted obstruction of justice. (See id. at 1, 27-29.) Weaver submitted a motion to that effect on November 8, 2019, and the Court denied it by order dated November 20, 2019. (See 2009 Action, dkt. nos. 162, 163.) e. 2017 and 2018 Actions This order concerns two more suits Weaver filed concerning the state foreclosure proceedings. These complaints essentially retread the same ground as those the Court previously dismissed, alleging that Defendants engaged in a wide range of misconduct in prosecuting the foreclosure action and carrying out the 7 6 foreclosure sale. Weaver asserts claims for violations of the FDCPA, RICO, GBL § 349(a), and 42 U.S.C. § 1983, a claim for negligence per se, an assortment of conspiracy-based claims, a claim for unjust enrichment, and a claim for a declaration that the mortgage was discharged and satisfied. (See 2017 Compl. ~~ 195-277; 2018 Compl. ~~ 237-361.) Defendants moved to dismiss the 2017 and 2018 Actions under Rule 12 (b) (1) and 12 (b) (6). In general, they contend that these actions are impermissible appeals from the state court foreclosure judgment over which this Court has no subject matter jurisdiction, are barred by the doctrines of res judicata and collateral estoppel, and fail to state a claim. (See Hogan Lovells US LLP and Nicole E. Schiavo's Memorandum of Law in Support of Defendants' Motion to Dismiss, dated Mar. 24, 2017, 2017 Action [dkt. no. 11]; CIT Bank, N.A., Caryn Edwards, Patrick Overturf, and Salvatore Farrauto's Memorandum of Law in Support of Defendants' Motion to Dismiss, dated May 16, 2017, 2017 Action [dkt. no. 27]; McCabe Weisberg & Conway, P.C.'s Memorandum of Law in Support of Defendants' Motion to Dismiss, dated Apr. 6, 2017, 2017 Action [dkt. no. 18]; Joint Memorandum of Law in Support of Joint Motion to Dismiss ("Joint Memo"), dated Apr. 26, 2019, 2018 Action [dkt. no. 37] .) Justice Rosa further argues that the Eleventh Amendment and the doctrine of absolute immunity bar Weaver's claims against her. (Memorandum 8 6 of Law in Support of the Hon. Maria G. Rosa's Motion to Dismiss, dated Apr. 21, 2017, 2017 Action [dkt. no. 22].) Dianne Braun Hanley, who acted as a referee in the state court foreclosure action, also contends that she is protected by absolute immunity. (Joint Memo at 18.) 1 In the 2018 Action, Nicole Schiavo also moved for Rule 11 sanctions against Weaver. Schiavo contends that Weaver's lawsuit has no merit and that sanctions are needed to prevent him from filing additional frivolous and harassing actions against her. (See Memorandum of Law in Support of Nicole E. Schiavo's Motion for Fed. R. Civ. P. 11 Sanctions, dated Apr. 5, 2019, 2018 Action [dkt. no. 25] .) Schiavo requests monetary sanctions in an amount equaling her costs and fees incurred in connection with the 2018 Action and an order enjoining Weaver from initiating any new litigation in this Court against Schiavo arising from the foreclosure action. (Id.at13.) II. Discussion a. Legal Standard i. Federal Rule of Civil Procedure 12 (b) (1) A claim is ftproperly dismissed for lack of subject matter jurisdiction under Rule 12(b) (1) when the district court lacks 1 On Weaver's consent, the Court previously dismissed Defendant Bradford Kendall from the 2017 Action. (Order dated Mar. 9, 2017, 2017 Action [dkt. no. 8].) 9 6 the statutory or constitutional power to adjudicate it." Sasson v. Hachette Filipacchi Presse, No. 15 Civ. 00194