     17-220-cv
     Redmond v. Bank of New York Mellon Corporation

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
     BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
     WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
     NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
     OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



 1           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   1st day of September, two thousand seventeen.
 4
 5   Present:    ROSEMARY S. POOLER,
 6               GERARD E. LYNCH,
 7                           Circuit Judges.
 8               BRIAN M. COGAN,
 9                           District Judge.1
10   _____________________________________________________
11
12   PHILIP REDMOND, BEVERLY REDMOND,
13
14                           Plaintiffs - Appellants,
15
16                           v.                                                 17-220-cv
17
18   THE BANK OF NEW YORK MELLON CORPORATION,
19   FKA THE BANK OF NEW YORK AS TRUSTEE FOR
20   FIRST HORIZON ALTERNATIVE MORTGAGE SECURITIES
21   TRUST 2005-FA 10, NATIONSTAR MORTGAGE LLC,
22
23                     Defendants - Appellees.2
24   _____________________________________________________
25
26
27
28

     1
       Judge Brian M. Cogan, United States District Court for the Eastern District of New York,
     sitting by designation.
     2
       The Clerk of Court is respectfully directed to amend the caption as above.


                                                        1
       Appearing for Appellants:          Steven Bruce Rabitz, Massapequa, NY.

       Appearing for Appellees:           Jordan M. Smith, Scott B. Group, Akerman LLP, New
                                          York, NY.
 1
 2         Appeal from the United States District Court for the Eastern District of New York
 3   (Wexler, J.).
 4
 5        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 6   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
 7
 8           Plaintiffs-appellants Philip and Beverly Redmond appeal from an order and a judgment
 9   entered by the District Court for the Eastern District of New York (Wexler, J.), dismissing their
10   claims. We assume the parties’ familiarity with the underlying facts, procedural history, and
11   specification of issues for review.
12
13           The district court dismissed plaintiffs’ claims pursuant to the Rooker-Feldman doctrine,
14   res judicata, and lack of standing, although it did not say which theory applied to which claims.
15
16      1. Rooker-Feldman Doctrine
17
18           “Under the Rooker–Feldman doctrine, federal district courts lack jurisdiction over cases
19   that essentially amount to appeals of state court judgments.” Vossbrinck v. Accredited Home
20   Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014). “There are four requirements for the application
21   of Rooker–Feldman: (1) the federal-court plaintiff lost in state court; (2) the plaintiff complains
22   of injuries caused by a state court judgment; (3) the plaintiff invites review and rejection of that
23   judgment; and (4) the state judgment was rendered before the district court proceedings
24   commenced.” Id. (internal quotation marks, ellipses, and brackets omitted).
25
26            In this case, all of the Rooker-Feldman elements are satisfied as to plaintiffs’ counts 1
27   and 4, because they seek review of the state court’s foreclosure order. The first count, for
28   declaratory relief, complains of defendants’ lack of interest in the property, on account of which
29   “all attempts to foreclose by Defendants against the subject property are void,” and asks that the
30   court “[d]eclare that the Plaintiffs own the Property free and clear.” App’x at 32, 37. Count 4, for
31   “slander of title,” asks the court to “Award Plaintiffs exclusive possession of the Property,” and
32   otherwise seeks damages based on the defendants’ foreclosure proceedings against the property.
33   App’x at 34-35, 38. Although both counts seek money damages, these damages appear to be only
34   those damages incurred as a result of the foreclosure. Thus, these counts are based on plaintiffs’
35   loss in the state foreclosure proceedings, complain of injuries arising from the foreclosure, and
36   request that the foreclosure be reviewed and rejected. Because the foreclosure occurred in 2009,
37   it was before this suit was filed. We have no jurisdiction over these claims.
38
39          Plaintiffs contend that Rooker-Feldman does not apply here because of an exception to
40   the doctrine when confronting judgments procured through fraud, deception, accident, or
41   mistake. Our Circuit has “never recognized a blanket fraud exception to Rooker–Feldman.”
42   Kropelnicki v. Siegel, 290 F.3d 118, 128 (2d Cir. 2002) (internal quotation marks omitted).



                                                      2
 1   Instead, we have said that a “litigant may not rely on the deception of her opponents to
 2   demonstrate that she was not afforded a reasonable opportunity to raise her claims.” Id. (internal
 3   quotation marks omitted). That is what the plaintiffs wish to do here. Our precedent bars this
 4   argument.
 5
 6           Plaintiffs argue that Delaware law did not permit the arguments made here to be brought
 7   in the foreclosure proceedings because of the unusual summary procedure Delaware uses for
 8   foreclosures. For that reason, plaintiffs contend, the claims here should not be barred by Rooker-
 9   Feldman because they “had [no] opportunity to raise th[ese] claim[s]” in state court. Kropelnicki,
10   290 F.3d at 128.
11
12           Delaware law provides a summary foreclosure procedure called an action of scire facias
13   sur, which evidently was employed in this case. Del. Code Ann. tit. 10, § 5061. Generally,
14   “counterclaims not related to the mortgage transaction may not be asserted in an action of scire
15   facias sur mortgage.” Quillen v. Sayers, 482 A.2d 744, 748 (Del. 1984). “A defendant may only
16   plead payment, satisfaction, or a plea in avoidance against a scire facias action.” Wells Fargo
17   Bank, N.A. v. Williford, C.A. No. 09L-07-295MJB, 2011 WL 5822630, at *3 (Del. Super. Ct.
18   Nov. 17, 2011). Although “[n]o authority has been found which extend[s] the plea [in avoidance]
19   to matters other than those relating in some degree to the transaction sued upon,” homeowners
20   may assert some defenses and counterclaims: “[e]xamples of matters which could be asserted
21   under a plea in confession and avoidance are: act of God, assignment of cause of action,
22   conditional liability, discharge, duress, exception or proviso of statute, forfeiture, fraud, illegality
23   of transaction, justification, nonperformance of condition precedent, ratification, unjust
24   enrichment and waiver.” Gordy v. Preform Bldg. Components, Inc., 310 A.2d 893, 895-96 (Del.
25   Super. Ct. 1973).
26
27           Because a “plea in avoidance” to the foreclosure allows claims of “assignment of cause
28   of action,” “fraud,” “illegality of transaction,” and “nonperformance of a condition precedent,” it
29   would permit the types of claims that plaintiffs made in counts 1 and 4. See Shrewsbury v. The
30   Bank of New York Mellon, 160 A.3d 471 (Del. 2017). Rooker-Feldman thus applies.
31
32       2. Statutes of Limitations
33
34           Defendants contend that plaintiffs’ federal statutory claims are time-barred. Plaintiffs’
35   claim in count 3 appears to arise under 15 U.S.C. § 1640(g), which states that “failure to disclose
36   to any person any information required under this part . . . shall entitle the person to a single
37   recovery under this section.” Pursuant to Section 1640(e), “any action under this section”—
38   which would include one under Section 1640(g)—“may be brought in any United States district
39   court, or in any other court of competent jurisdiction, within one year from the date of the
40   occurrence of the violation.” 15 U.S.C. § 1640(e) (emphasis added). The statute does not provide
41   a discovery-based limitation rule, but instead looks to when the violation occurred. Because the
42   most recent assignment of which plaintiffs complain took place on December 2, 2014, and the
43   complaint in this case was filed January 14, 2016, count 3 is time-barred.
44
45           Plaintiffs also raise a claim under 15 U.S.C. § 1641(g). That claim falls under the same
46   statute of limitations. See 15 U.S.C. § 1640(a) (stating that Section 1640 creates civil liability for



                                                        3
 1   claims under “subsection (f) or (g) of section 1641”); § 1640(e) (stating that “any action under
 2   this section,” i.e., § 1640, must be “within one year from the date of the occurrence of the
 3   violation”). Thus, count 5, which arises under Section 1641(g), is time-barred as well, because it
 4   relies on events occurring before January 14, 2015.
 5
 6      3. Standing
 7
 8          Finally, plaintiffs lack standing to bring their claim in count 2 for “constructive fraud.”
 9
10           “The irreducible constitutional minimum of standing under Article III of the Constitution
11   includes the requirement that the plaintiff must have suffered an injury in fact which is
12   (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.”
13   Rajamin v. Deutsche Bank Nat’l Tr. Co., 757 F.3d 79, 85 (2d Cir. 2014) (internal quotation
14   marks and ellipses omitted). In Rajamin, we considered claims similar to those pressed here—
15   that financial institutions did not have the right to foreclose on the plaintiffs’ homes because of
16   legal violations that occurred during the securitization and transfer of mortgages among different
17   banks. Id. at 82-83. We held that plaintiffs did not have constitutional standing, reasoning as
18   follows:
19
20          Plaintiffs asserted that they “were suffering damages with each and every
21          payment to Defendants,” on the theory that defendants “were not proper parties to
22          receive and collect such payments.” But plaintiffs acknowledge that they took out
23          the loans . . . and were obligated to repay them, with interest; and they have not
24          pleaded or otherwise suggested that they ever paid defendants more than the
25          amounts due, or that they ever received a bill or demand from any entity other
26          than defendants. Thus, there is no allegation that plaintiffs have paid more than
27          they owed or have been asked to do so.
28
29          ...
30
31          [T]he Complaint’s assertion that “[d]efendants have commenced or authorized the
32          commencement of foreclosure proceedings where payments have not been made
33          or received” does not indicate an actual or imminent, rather than a conjectural or
34          hypothetical, injury. Plaintiffs have acknowledged on this appeal that they were
35          declared in default on their mortgages, and that foreclosure proceedings were
36          instituted by Deutsche Bank, claiming to own those mortgages. . . . [T]here was
37          no allegation of any threat or institution of foreclosure proceedings against any
38          plaintiff by any entity other than defendants.
39
40   Id. at 85 (internal citations and brackets omitted). Rajamin states that a plaintiff seeking to allege
41   an injury from a foreclosure should assert at least one of the following: (1) that foreclosure was
42   not warranted under the terms of the loan (i.e., because the borrower made payments
43   appropriately), or (2) that more than one company attempted to foreclose or demanded payment.
44   Absent either assertion, or the assertion of some other cognizable injury, the borrower does not
45   suffer any injury because of paperwork irregularities.
46



                                                       4
 1           Plaintiffs here suggest that their case differs from Rajamin because their claims derive
 2   from the terms of their agreements or from state law, and not from agreements between lenders
 3   as did many of the claims in Rajamin. But that does not affect Rajamin’s holding that it is
 4   insufficient, for constitutional standing purposes, for a plaintiff to allege merely that the wrong
 5   party foreclosed on him or her. Because plaintiffs here have raised no plausible allegation that
 6   the foreclosure and attendant harm would not have occurred absent the violations they allege,
 7   they lack standing.
 8
 9          We have considered the remainder of plaintiffs’ arguments and find them to be without
10   merit. Accordingly, the order of the district court hereby is AFFIRMED.
11
12                                                         FOR THE COURT:
13                                                         Catherine O’Hagan Wolfe, Clerk
14




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