                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

 RESIDENTIAL CREDIT OPPORTUNITIES
 TRUST,

                        Plaintiff,                          Civil Action No. 16-561

                        v.                                  Chief Judge Beryl A. Howell

 LUIS IVAN POBLETE,

                        Defendant.


                                     MEMORANDUM OPINION

       The plaintiff, Residential Credit Opportunities Trust, initiated this lawsuit against Luis

Ivan Poblete, who proceeds pro se, to obtain judicial foreclosure of real property located in

Washington, D.C. (the “Property”), pursuant to D.C. Code § 42-816 and common law. Pending

before the Court is the plaintiff’s motion for summary judgment and the defendant’s motion to

cancel a non-judicial foreclosure sale. See Pl.’s Mot. Summ. J., ECF No. 6; Def.’s Pet. Cancel

Sale, ECF No. 26. For the reasons set forth below, the parties’ motions are denied, and the case

is dismissed as moot.

I.     BACKGROUND

       The defendant was the owner of residential real property at 4130 16th Street NW in

Washington, D.C. (the “Property”) and held a title deed, recorded with the Recorder of Deeds as

Document Number 2006014131. Pl.’s Restated & Suppl. SMF (“Pl.’s SMF”) ¶ 2, ECF No. 13.

On January 29, 2007, the defendant executed a Deed of Trust and Note with a lender in the

original principal amount of $898,400.00, see generally Pl.’s Reply Def.’s Opp’n Pl.’s Mot.

Summ. J. (“Pl.’s Reply”), Ex. B, Deed of Trust, ECF No 13-2; id., Ex. C, Note, ECF No. 13-3,

but the lender assigned its rights to a third-party, eventually leading to assignment to the
                                                  1
plaintiff, see id., Ex. D, Assignment of Deed of Trust, ECF No. 13-4. See Pl.’s SMF ¶¶ 3–4.

Less than two months later, on March 1, 2007, the defendant failed to make his required

payments under the Note and thus defaulted on the Note. Id. ¶ 5. On May 9, 2013, in

accordance with the procedures set out in the Deed of Trust, the plaintiff caused a demand letter,

stating the amount needed to cure the default, to be mailed to the defendant. Id. ¶ 6. The

defendant never cured the default, and “to date neither Plaintiff . . . nor any prior assignor has

ever received payment on the Note since its origination.” Id. ¶ 7. As of July 26, 2016, the

plaintiff was owed $1,811,750.64 on the Note. Id. ¶ 8.

       The long and protracted history of the present suit began on August 21, 2013, when the

plaintiff’s predecessor-in-interest filed a complaint in the Superior Court of the District of

Columbia seeking judicial foreclosure of the Property, pursuant to D.C. Code § 42-816 and

common law, or, in the alternative, a judicial sale. See Compl., Super. Ct. File, Attachment 3 at

141–48, ECF No. 2-3. On December 5, 2014, after the close of discovery, and just four days

before the date of a pre-trial conference in the Superior Court, the defendant removed the case to

this Court. See Pl.’s Mot. Summ. J. at 2–3. Concluding that the removal was untimely under 28

U.S.C. § 1446(b), the Court immediately remanded the case back to the Superior Court. See

Order, CPCA Trust I v. Poblete (Poblete I), No. 14-cv-2063 (D.D.C. 2014), ECF No. 4. The

defendant filed a motion for reconsideration, two motions to stay, and an appeal, each of which

was denied, and, in addition, after the case was closed, a motion to convene a special grand jury,

for which leave to file was denied in light of the lack of any pending case. See Def.’s Mot.

Reconsideration, Poblete I, No. 14-cv-2063, ECF No. 5; Def.’s Mot. Stay, Poblete I, No. 14-cv-

2063, ECF No. 6; Min. Order, dated Dec. 15, 2014, Poblete I, No. 14-cv-2063; Def.’s Notice of

Appeal, Poblete I, No. 14-cv-2063, ECF No. 7; Def.’s Mot. Stay, Poblete I, No. 14-cv-2063,



                                                  2
ECF No. 8; Min. Order, dated Dec. 22, 2014, Poblete I, No. 14-cv-2063; Mandate of U.S. Court

of Appeals, Poblete I, No. 14-cv-2063, ECF No. 13; Leave to File Denied, Poblete I, No. 14-cv-

2063, ECF No. 12. The case could not be remanded until after the defendant’s various post-

decision motions and appeal were decided, and, thus, was not remanded until September 4,

2015—nearly ten months after this Court’s Order of remand. See Docket Entry, dated Sept. 4,

2015, Poblete I, No. 14-cv-2063.

       On the same day the remand took effect, September 4, 2015, the Superior Court reopened

the case. The plaintiff filed a motion for summary judgment on November 10, 2015, see Pl.’s

Mot. Summ. J. at 1, which the defendant opposed, see Def.’s Obj. Pl.’s Mot. Summ. J. at 1, ECF

No. 7. The Superior Court scheduled a hearing for March 25, 2016, but before the hearing took

place, on March 24, 2016, the defendant for the second time filed a notice of removal to federal

court. Docket Sheet, Super. Ct. File, Attachment 1 at 1–4, ECF No. 2-1. Upon review of the

removed case, this Court issued an Order to Show Cause why the case should not be remanded

for lack of subject matter jurisdiction, see Min. Order, dated July 7, 2016, to which the plaintiff

responded explaining that the Court possessed diversity jurisdiction over the action and that,

while it could have objected to the removal under the applicable statutory framework, the

plaintiff “would be extremely prejudiced by the delay associated with a [s]econd remand order

and likelihood of yet another appeal.” Pl.’s Reply Show Cause Order at 2–3, ECF No. 10.

Conscious of the jurisdictional merry-go-round on which the plaintiff found itself, the Court

discharged the Order to Show Cause and exercised jurisdiction over the matter, in which the

plaintiff’s motion for summary judgment was pending. See Min. Order, dated July 19, 2016.

       The defendant then proceeded to make a series of filings in this matter seemingly

intended to further delay its resolution. First, on August 19, 2016, the defendant filed a notice



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providing that he “filed for involuntary Chapter 7 bankruptcy” and “all activity in this court

should be on stay,” Def.’s Judicial Notice to Court, ECF No. 14, which the Court construed as an

invocation of the automatic stay requirement of 11 U.S.C. § 362(a) and, after receiving briefing

from the plaintiff on the issue, denied in view of the bankruptcy court’s dismissal of the action as

nonmeritorious, see Min. Order, dated Sept. 6, 2016; see also Pl.’s Resp. Aug. 24, 2016 Min.

Order, Ex. 1, ECF No. 16-1 (copy of Order from bankruptcy court dismissing action). Also on

August 19, 2016, the defendant filed a notice indicating that he had filed a case in Superior Court

against counsel for the plaintiff in this case, this Court, the United States Marshal for the District

of Columbia, and the United States Attorney for the District of Columbia. See Def.’s Mandatory

Judicial Notice, ECF No. 15. Then, on September 1, 2016, the defendant gave “notice of

Indigenous Standing” and asserting that “[t]his court is the incorrect venue, because [he is] now

protected by International Law.” Def.’s Judicial Notice, ECF No. 17. Due to this so-called

“status change,” the defendant sought a hearing to “be held in camera,” Def.’s Mot. Status

Change Hr’g, ECF No. 19, and filed a further motion for an in camera hearing, to “rebut[] the

presumption of death under Maritime Law, which is the foundation of the judicial system,”

Def.’s Request In Camera Hr’g, ECF No. 20, which motions the Court denied in view of their

failure to articulate a cognizable ground for a hearing, see Min. Order, dated Dec. 14, 2016.

       On November 29, 2016, the defendant filed a motion requesting a stay of a foreclosure

sale of the Property and a motion to sequester the Note until the resolution of the instant case, see

Def.’s Mot. Stay Foreclosure Sale, ECF No. 22; Def.’s Mot. Sequester Genuine Original Note,

ECF No. 23, both of which motions were denied, like the defendant’s motions for a hearing, in

light of their failure to articulate cognizable grounds for the requested relief, see Min. Order,

dated Dec. 14, 2016. As a result of the defendant’s motion to stay the foreclosure sale of the



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Property, however, and the plaintiff’s response thereto, see Pl.’s Opp’n Def.’s Mot. Stay

Foreclosure Sale, ECF No. 25, the Court became aware that the plaintiff was seeking to foreclose

on the Property under a “power of sale” provision in the Deed of Trust that permits foreclosure

by way of the non-judicial process outlined in D.C. Code § 42-815, and that a non-judicial

foreclosure sale of the Property was set to occur on December 15, 2016. Given the plaintiff’s

sole requested relief in the instant suit of foreclosure, the plaintiff was directed to advise the

Court of “the status of the December 15, 2016, nonjudicial foreclosure sale” as well as “the

relief, if any, still requested by the plaintiff in this action following said sale.” Min. Order, dated

Dec. 14, 2016.

       Thereafter, the plaintiff made two filings addressing the Court’s concerns regarding the

effect of the non-judicial foreclosure on the justiciability of the present action, see Pl.’s Resp.

Court Order (“Pl.’s 1st Resp.”), ECF No. 27; Pl.’s Resp. Court Order (“Pl’s 2d Resp.”), ECF No.

35, attaching exhibits related to the sale and asserting that the case is not moot notwithstanding

the completed sale. The defendant filed a motion to cancel the non-judicial foreclosure sale,

contending that cancellation “is needed so Defendant can gather required documents and choose

appropriate Bankruptcy Chapter.” Def.’s Pet. Cancel Sale. The defendant also made or

attempted to make multiple further filings, including an appeal of an order of the Court denying

leave to file an unintelligible document. See ECF Nos. 29–33, 36–38.

       The defendant is no stranger to lawsuits against him involving real property. For

example, in U.S. Bank National Association v. Poblete, No. 15-cv-312 (BAH), 2017 WL 598471

(D.D.C. 2017), the plaintiff, which had foreclosed upon commercial real estate of which the

defendant was the record owner, brought an action against the defendant alleging he “unlawfully

trespassed upon, converted, and interfered with the legal title of the foreclosed property, id. at *1.



                                                   5
In the course of the litigation, the defendant failed to comply with discovery orders and, as in the

instant action, filed or attempted to file multiple “unintelligible, repetitive, or irrelevant”

documents with the Court. Id. at *2–*4. As a consequence, sanctions were imposed on the

defendant in the form of a default judgment. Id. at *6. In addition, upon consideration of the

defendant’s filings in that case, as well as his history of vexatious filings in various lawsuits in

both federal and local courts, a pre-filing injunction was issued requiring the defendant to obtain

leave of court, pursuant to certain specified procedures, for any further filing. Id. at *9 & n.4.

        Pending before the Court are the plaintiff’s motion for summary judgment and the

defendant’s motion to cancel the non-judicial foreclosure sale.

II.     DISCUSSION

        Under Article III of the Constitution, federal-court jurisdiction is limited to “Cases” and

“Controversies.” U.S. CONST. art. III, § 2, cl. 1. The Supreme Court has interpreted this

limitation to require that “an actual controversy be extant at all stages of review, not merely at

the time the complaint is filed.” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016)

(quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)). Accordingly, “[i]f

an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the

lawsuit,’ at any point during litigation, the action can no longer proceed and must be dismissed

as moot.” Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013) (quoting Lewis v.

Cont’l Bank Corp., 494 U.S. 472, 477–78 (1990)). If, for example, “the court can provide no

effective remedy because a party has already ‘obtained all the relief that it has sought,’” a case

has become moot and, thus, the federal courts lack jurisdiction to decide the matter.

Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013).




                                                   6
       In light of the non-judicial foreclosure of the Property, the question whether this case has

become moot must be addressed before the merits of the plaintiff’s claim for judicial foreclosure

may be considered. Even where, as here, “neither party has urged that [a] case is moot,

resolution of the question is essential if federal courts are to function with their constitutional

sphere of authority.” North Carolina v. Rice, 404 U.S. 244, 246 (1971); see Wis. Pub. Power,

Inc. v. FERC, 493 F.3d 239, 263 (D.C. Cir. 2007) (“A federal court must satisfy itself that the

party invoking federal jurisdiction has presented a justiciable case or controversy.”).

       Under District of Columbia law, aggrieved lenders may choose to recover on a deed of

trust by way of judicial foreclosure, pursuant to D.C. Code § 42-816 and common law, or, if

expressly permitted by the applicable deed of trust, non-judicial foreclosure pursuant to D.C.

Code § 42-815, et seq. While in a judicial foreclosure, “the court’s involvement in the process . .

. reduces the risk of error and predatory foreclosure practices,” the non-judicial alternative may

be more expedient and cost efficient for the parties. Rogers v. Advance Bank, 111 A.3d 25, 29

(D.C. 2015). Given the “lack of oversight during the non-judicial foreclosure process,” D.C.

Code § 42-815 requires lenders to provide notice to, as well as engage in mediation with, the

party being foreclosed upon. Id.; see D.C. Code § 42-815(b). Notwithstanding these procedural

differences, the judicial and non-judicial processes result in the same relief, i.e., foreclosure. See

Szego v. Kingsley Anyanwutaku, 651 A.2d 315, 318 n.5 (D.C. 1994) (declining to distinguish

between judicial and non-judicial foreclosure in describing the remedies available to an

aggrieved lender). Consequently, absent a request for relief other than foreclosure, the obtaining

of one type of foreclosure moots a claim for the other variety. Accord Vettrus v. Bank of Am.,

N.A., No. 6:12–cv–00074–AA, 2012 WL 5462914, at *4 (D. Or. Nov. 6, 2012) (dismissing as

moot claims related to non-judicial foreclosure “because defendants are now pursuing judicial



                                                   7
foreclosure”); Fisher v. Mortg. Elec. Registration Sys., Inc., No. 11–3093–CL, 2011 WL

7024965, at *2 (D. Or. Oct. 26, 2011) (finding plaintiff’s foreclosure-related claims moot “where

the nonjudicial foreclosure sale has been rescinded” and “defendants have elected to pursue

judicial foreclosure”); C.J.A. Corp. v. Berkeley Conference Ctr., No. A096846, 2003 WL

1735671, at *2 (Cal. Ct. App. Apr. 2, 2003) (“The fundamental problem with [the plaintiff’s]

position is that [the] nonjudicial foreclosure sale mooted the judicial foreclosure proceeding.”).

       In light of the plaintiff’s apparent receipt, by way of the non-judicial sale, of all the relief

requested in the instant action, the plaintiff was directed to detail the “relief remain[ing] to be

granted in this action notwithstanding the non-judicial foreclosure sale” and “why such relief is

not moot.” Min. Order, dated Feb. 16, 2017. In response, the plaintiff asserts that resolution of

its pending claim would offer relief in two respects. First, it suggests that judicial foreclosure

would prevent the defendant from exercising his statutory rights under D.C. Code § 42-815 to

“challenge [the] propriety of notice of the default of notice of intention to foreclose” or “assert a

claim for fraud or monetary damages associated with [the] loan transaction or the sale process.”

Pl.’s 2d Resp. at 3. Second, the plaintiff posits that judicial foreclosure would “render title to the

Subject Property . . . good and marketable, thus eliminating the need for a subsequent quiet title

action to satisfy title underwriting guidelines and protect [the plaintiff] from collateral attack

under local law” by the defendant. Id. Apparently to reflect this relief, in its revised proposed

order submitted in response to the Court’s Minute Order regarding mootness, the plaintiff

included language requiring the trustee to “file an Amended Report of Sale and a Motion to

Ratify the Sale within thirty (30) days of the date of this Order,” “[a]s required by local law,” and

ordering that “[u]pon this Court’s ratification of the sale the substitute Trustee of Plaintiff may




                                                  8
record the substitute Trustee’s Deed.” Proposed Order Granting Summ. J. Pl. (“Revised

Proposed Order”) ¶¶ 6–7, ECF No. 35-2. Neither of the plaintiff’s arguments is availing.

         The plaintiff’s first argument fails to save the case from mootness because the

contemplated relief cannot be granted in the instant action. The plaintiff’s sole cause of action in

this matter is one for judicial foreclosure. See Compl.; Pl.’s Mot. Summ. J. While a ruling in the

plaintiff’s favor would establish its entitlement to foreclose on the Deed of Trust, it would have

no bearing on the whole separate questions of whether the non-judicial foreclosure sale in this

matter complied with the statutory requirements for non-judicial foreclosure and was completed

without fraud. The plaintiff has also noted that that the defendant “has pending a ‘Petition to

Cancel Sale’ . . . which purports to put into play the non-judicial foreclosure process triggered by

and completed by Plaintiff.” Pl.’s 1st Resp. at 2. 1 Yet, any claim the defendant has regarding

the non-judicial foreclosure sale can only be brought pursuant to Federal Rule of Civil Procedure

13(e), which applies to counterclaims that matured after serving an earlier pleading. That rule

requires a party to obtain leave of court to file such a counterclaim. See FED. R. CIV. P. 13(e)

(“The court may permit a party to file a supplemental pleading asserting a counterclaim that

matured or was acquired by the party after serving an earlier pleading.”). In making the

discretionary decision whether to permit a Rule 13(e) counterclaim, “a court typically considers

whether the case has proceeded to the point that allowing the counterclaim would cause

confusion, delay, complication, or hardship.” U.S. ex rel. Westrick v. Second Chance Body

Armor, Inc., 893 F. Supp. 2d 258, 266 (D.D.C. 2012) (citing 6 CHARLES ALAN WRIGHT et al.,




1
         While the defendant’s Petition to Cancel Sale lacks clarity as to the grounds for the requested relief,
construing that pleading liberally and in conjunction with the defendant’s other filings, and for the purposes of the
mootness analysis, the motion is interpreted to challenge generally the propriety of the non-judicial foreclosure sale.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is ‘to be liberally construed . . . .’”
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))).

                                                           9
FEDERAL PRACTICE AND PROCEDURE § 1428 (3d ed. 2012)). Given that this case is otherwise

moot, consideration of the counterclaim would only delay the resolution of this matter.

Moreover, even were the case not moot, any challenge by the defendant to the non-judicial

foreclosure sale involves facts and questions of state law unrelated to the plaintiff’s claim for

judicial foreclosure, raising additional concerns as to the appropriateness of permitting the

counterclaim. WRIGHT et al., supra, § 1428 (“[U]nrelated claims, particularly if they are asserted

relatively late in the proceedings, may be more properly left to an independent suit.”). For these

reasons, pursuant to Federal Rule of Civil Procedure 13(e), the defendant’s counterclaim is not

permitted and, thus, the defendant’s motion to cancel the foreclosure sale is denied without

prejudice. Accordingly, that motion does not resurrect this otherwise moot case.

       The plaintiff’s second argument also fails to keep the case alive. While the plaintiff avers

that a judgment of foreclosure by this Court would “satisfy title underwriting guidelines and

protect [the plaintiff] from collateral attack under local law,” Pl.’s 2d Resp. at 3, these indirect

effects of a judgment in this matter do not suffice. As the D.C. Circuit has explained, “[t]here

are cases where a legal status has an automatic effect in other jurisdictions (or even in the same

one)” and that effect “is found to preserve . . . from mootness” a case concerning that legal

status. Gordon v. Lynch, 817 F.3d 804, 807–08 (D.C. Cir. 2016) (per curiam). A common

example of this type of legal status is a criminal conviction, which “exposes the defendant to a

range of direct consequences, most obviously the effect of recidivism statutes.” Id. at 808. Here,

however, the plaintiff has not pointed to any legal authority supporting the existence of

automatic legal effects of a judgment of this Court. Rather, the plaintiff appears to describe the

benefits of obtaining the requested judgment, namely, the respect afforded judicial

pronouncements by title insurance companies and potential litigants, but the indirect benefits of



                                                  10
obtaining judicial imprimatur on relief already granted through a non-judicial process fail to save

this case from mootness. See United States v. Juvenile Male, 564 U.S. 932, 937 (2011) (“True, a

favorable decision in this case might serve as a useful precedent for respondent in a hypothetical

lawsuit . . . . But this possible, indirect benefit in a future lawsuit cannot save this case from

mootness.” (emphasis in original)).

       The situation would be different were the Court’s approval of the non-judicial foreclosure

required before title could pass to the plaintiff. The plaintiff suggests as much by including in its

revised proposed order language requiring the trustee to “file an Amended Report of Sale and a

Motion to Ratify the Sale within thirty (30) days of the date of this Order,” “[a]s required by

local law,” and ordering that “[u]pon this Court’s ratification of the sale the substitute Trustee of

Plaintiff may record the substitute Trustee’s Deed.” Revised Proposed Order ¶¶ 6–7. In some

jurisdictions, such as Maryland, following non-judicial foreclosure, title only passes to the new

owner upon ratification of the sale by a court. See In re Cooper, 273 B.R. 297, 302 (Bankr.

D.D.C. 2002) (“In Maryland, legal title does not pass at a foreclosure until ratified by the equity

court.” (citing Plaza Corp. v. Alban Tractor Co., 151 A.2d 170, 174 (Md. 1959)). In the District

of Columbia, however, title passes upon the completion of a non-judicial foreclosure sale and

does not depend upon ratification by a Court. See id. (“[T]he District of Columbia and Virginia

do not require ratification of foreclosure sales. . . . These two jurisdictions allow the use of the

deed of trust, which gives the trustee a power of sale to foreclose upon default of the terms in the

deed of trust. With such a tool, foreclosure and the passing of title depend upon a valid sale

rather than a court of equity’s determination that a sale is final.”); cf. D.C. SUPER. CT. R. CIV. P.

308 (requiring ratification by the court of sales conducted pursuant to a court order of judicial

foreclosure). Consequently, any purported “ratification” of the non-judicial foreclosure sale by



                                                  11
this Court would have no automatic legal effects and, therefore, is not relief rendering this matter

justiciable. 2

         Under District of Columbia law and the Deed of Trust, the plaintiff was entitled to pursue

either judicial or non-judicial foreclosure of the Property. Having pursued to completion a non-

judicial foreclosure, however, the plaintiff has rendered its sole claim for foreclosure no longer

live. As a result, the instant action is now moot, and the parties’ invitation to resolve the merits

of their dispute regarding the plaintiff’s entitlement to judicial foreclosure must be declined.

III.     CONCLUSION

         For the foregoing reasons, the instant action is moot. Accordingly, the plaintiff’s motion

for summary judgment is denied as moot, the defendant’s motion to cancel the foreclosure sale is

denied without prejudice, and the case is dismissed as moot. The Clerk of the United States

District Court for the District of Columbia is directed to close this case.

         An appropriate Order accompanies this Memorandum Opinion.
                                                                                      Digitally signed by Hon. Beryl A.
         Date: March 29, 2017                                                         Howell
                                                                                      DN: cn=Hon. Beryl A. Howell, o=U.S.
                                                                                      District Court for the District of
                                                                                      Columbia, ou=Chief Judge,
                                                                                      email=Howell_Chambers@dcd.usco
                                                                                      urts.gov, c=US
                                                                                      Date: 2017.03.29 15:49:48 -04'00'
                                                                 __________________________
                                                                 BERYL A. HOWELL
                                                                 Chief Judge

2
          The mootness analysis also might differ had the plaintiff included in its complaint a cause of action for
personal liability on the Note. See Szego, 651 A.2d at 318 (holding lenders “may seek both a judgment against a
maker or guarantor of the deed of trust note and a foreclosure (judicial or nonjudicial) pursuant to the deed of trust,
and may do so in any sequence”). No such claim was asserted. Assuming compliance with the applicable statutes
of limitations, however, the plaintiff remains entitled to pursue any deficiency between the proceeds of the
foreclosure sale and the defendant’s liability under the Note. See Jefferson Fed. Sav. & Loan Ass’n v. Berks Title
Ins. Co., 472 A.2d 893, 894 n.2 (D.C. 1984) (“When a foreclosure sale results from the power of sale conferred by
the deed of trust, a civil action may be brought by the creditor for the amount of the deficiency.” (citing Finley v.
Friedman, 159 A.2d 668 (D.C. 1960); Hoffman v. Sheahin, 121 F.2d 861 (D.C. Cir. 1941))). While the plaintiff’s
original complaint requests a deficiency judgment pursuant to D.C. Code § 42-816, see Compl. at 146, the plaintiff’s
response to the Court’s order directing the plaintiff to detail the remaining relief sought in this lawsuit, including its
Revised Proposed Order, makes no reference to recoupment of any deficiency whatsoever. At this late date, having
failed to press a claim for a deficiency, the plaintiff must file a separate action to pursue any such relief. Accord Fox
v. Bd. of Trustees, 42 F.3d 135, 142 (2d Cir. 1994) (noting, in affirming district court’s denial of leave to amend
complaint to add live damages claim to otherwise moot case, “we perceive no basis to allow a belated claim for
damages to breathe life into a moribund dispute” (internal quotation marks omitted)).

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