Cohen v. Capital One Funding, LLC (1:19-cv-03479)

In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Davis, Kimberly) (Entered: 06/13/2019)

Summons Issued as to Bank of New York Mellon Corp., Capital One Funding, LLC, Capital One Master Trust, Capital One Multi-Asset Execution Trust, Deutsche Bank Trust Company Delaware. (Attachments: # 1 Summon, # 2 Summon, # 3 Summon, # 4 Summon) (Davis, Kimberly) (Entered: 06/13/2019)

SUMMONS Returned Executed by Christy Ogrodoski, Sue Paivanas, William Cohen. Capital One Funding, LLC served on 6/14/2019, answer due 7/5/2019. (Hudson, Christian) (Entered: 06/17/2019)

SUMMONS Returned Executed by Christy Ogrodoski, Sue Paivanas, William Cohen. Capital One Multi-Asset Execution Trust served on 6/13/2019, answer due 7/4/2019. (Hudson, Christian) (Entered: 06/17/2019)

NOTICE of Appearance by James A Murphy on behalf of Capital One Funding, LLC, Capital One Master Trust, Capital One Multi-Asset Execution Trust (aty to be noticed) (Murphy, James) (Entered: 07/02/2019)

Consent MOTION for Extension of Time to File Answer re 1 Complaint,, by Capital One Funding, LLC, Capital One Master Trust, Capital One Multi-Asset Execution Trust. (Snyder, Theodore) (Entered: 07/02/2019)

NOTICE of Appearance by Cameron Scott Matheson on behalf of Capital One Funding, LLC, Capital One Master Trust, Capital One Multi-Asset Execution Trust (aty to be noticed) (Matheson, Cameron) (Entered: 07/03/2019)

ORDER granting,on consent 12 Motion for Extension of Time to Answer Capital One Funding, LLC answer due 8/19/2019; Capital One Master Trust answer due 8/19/2019. Ordered by Chief Magistrate Judge Roanne L. Mann on 7/3/2019. (Kelson, Lise)

ORDER denying, without prejudice 15 & 16 Motion for Leave to Appear Pro Hac Vice. Due to the staleness of the certificates of Good Standing. See Local Civ. R. 1.3(c). Ordered by Chief Magistrate Judge Roanne L. Mann on 8/6/2019. (Kelson, Lise)

ORDER granting 17 Motion for Leave to Appear Pro Hac Vice. The attorney shall register for ECF, registration is available online at www.pacer.gov. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure the $150 admission fee be submitted to the Clerks Office via filing the event Pro Hac Vice Filing Fee. Ordered by Chief Magistrate Judge Roanne L. Mann on 8/12/2019. (Kelson, Lise)

ORDER granting 18 Motion for Leave to Appear Pro Hac Vice The attorney shall register for ECF, registration is available online at www.pacer.gov. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure the $150 admission fee be submitted to the Clerks Office via filing the event Pro Hac Vice Filing Fee. Ordered by Chief Magistrate Judge Roanne L. Mann on 8/13/2019. (Kelson, Lise)

NOTICE of Appearance by Matthew D. Ingber on behalf of Bank of New York Mellon Corp., Deutsche Bank Trust Company Delaware (aty to be noticed) (Ingber, Matthew) (Entered: 08/19/2019)

Letter (Pre-Motion) by Bank of New York Mellon Corp., Deutsche Bank Trust Company Delaware (Houpt, Christopher) (Entered: 08/19/2019)

Corporate Disclosure Statement by Deutsche Bank Trust Company Delaware identifying Corporate Parent Deutsche Bank AG, Corporate Parent DB USA Corporation, Corporate Parent Deutsche Bank Trust Corporation for Deutsche Bank Trust Company Delaware. (Ingber, Matthew) (Entered: 08/20/2019)

NOTICE of Appearance by Akash Mayank Toprani on behalf of Bank Policy Institute, Structured Finance Association (aty to be noticed) (Toprani, Akash) (Entered: 08/26/2019)

Letter MOTION for Leave to File Document Amicus Brief by Bank Policy Institute, Structured Finance Association. (Schwartz, Matthew) (Entered: 08/26/2019)

Letter Brief in Response to (19) Letter Brief by Defendants Capital One Funding LLC et al by William Cohen, Christy Ogrodoski, Sue Paivanas (Frick, Charles) (Entered: 08/30/2019)

ORDER. The Court has reviewed 28 the request for leave by the Bank Policy Institute ("BPI") and the Structured Finance Association ("SFA") to file an amici curiae brief in support of Defendants' forthcoming motion to dismiss Plaintiffs' complaint and 29 Plaintiffs' opposition to the foregoing request. Counsel for BPI and SFA may appear at the pre-motion conference currently scheduled for Tuesday, September 10, 2019 at 2:00 p.m. to be heard regarding their request for leave to file an amici curiae brief. Ordered by Judge Kiyo A. Matsumoto on 9/3/2019. (Ammari, Kamil)

MOTION to Appear Pro Hac Vice Filing fee $ 150, receipt number ANYEDC-11816678. by Bank of New York Mellon Corp., Deutsche Bank Trust Company Delaware. (Attachments: # 1 Affidavit, # 2 Certificate of Good Standing, # 3 Proposed Order) (Bogo-Ernst, Debra) (Entered: 09/04/2019)

MINUTE ENTRY & ORDER for Pre-Motion Conference held before Judge Kiyo A. Matsumoto on September 10, 2019. Appearances: Charles William Frick, Esq., Daniel Cohen, Esq., Christian Edward Hudson, Esq., and Glen L. Abramson, Esq. for Plaintiffs; James A. Murphy, Esq., for Defendants Capital One Funding, LLC, Capital One Master Trust, and Capital One Multi-Asset Execution Trust; Christopher James Houpt, Esq., and Debra Bogo-Ernst, Esq., for Defendants Bank of New York Mellon Corp. and Deutsche Bank Trust Company Delaware; Adrienne K. Eason-Wheatley, Esq., from Bank of New York Mellon; and Matthew A. Schwartz, Esq., and Akash Mayank Toprani, Esq., for amici curiae Bank Policy Institute and Structured Finance Association. The parties discussed (1) Plaintiff's proposal to amend its complaint; (2) amici's motion to file an amicus brief, which the Court granted; and (3) Defendants' proposed motions to dismiss Plaintiff's complaint.The Court ordered that Plaintiffs file their amended complaint by September 11, 2019. The Court then set the following briefing schedule for Defendants' motions to dismiss: (1) Defendants shall serve, but not file, their motions to dismiss on Plaintiffs by September 27, 2019; (2) amici shall serve, but not file, their amicus brief on Plaintiffs by October 4, 2019; (3) Plaintiffs shall serve, but not file, their oppositions to the motions to dismiss on Defendants by October 18, 2019; (4) Plaintiffs shall serve, but not file, their opposition to the amicus brief by October 25, 2019; (5) Defendants shall serve, but not file, their replies on Plaintiffs by November 1, 2019. Once the motion is fully briefed, and no later than November 1, 2019, the parties shall coordinate to upload all motion papers via ECF in chronological order and shall provide two hard courtesy copies of all motion papers to chambers. All counsel are reminded to file a notice of appearance for any attorneys appearing on behalf of the parties. (Court Reporter Charleane Heading.) (Ammari, Kamil)

Proposed Summons. Re 34 Amended Complaint by William Cohen, Christy Ogrodoski, Sue Paivanas (Frick, Charles) (Entered: 09/12/2019)

Proposed Summons. by William Cohen, Christy Ogrodoski, Sue Paivanas (Frick, Charles) (Entered: 09/17/2019)

MOTION to Appear Pro Hac Vice Filing fee $ 150, receipt number ANYEDC-11922155. by William Cohen, Christy Ogrodoski, Sue Paivanas. (Attachments: # 1 Affidavit, # 2 Certificate of Good Standing) (Carson, Shanon) (Entered: 10/08/2019)

ORDER granting 39 Motion for Leave to Appear Pro Hac Vice The attorney shall register for ECF, registration is available online at www.pacer.gov. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure the $150 admission fee be submitted to the Clerks Office via filing the event Pro Hac Vice Filing Fee. Ordered by Chief Magistrate Judge Roanne L. Mann on 10/8/2019. (Kelson, Lise)

ORDER granting 40 Motion for Leave to Appear Pro Hac Vice The attorney shall register for ECF, registration is available online at www.pacer.gov. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure the $150 admission fee be submitted to the Clerks Office via filing the event Pro Hac Vice Filing Fee. Ordered by Chief Magistrate Judge Roanne L. Mann on 10/8/2019. (Kelson, Lise)

NOTICE of Appearance by Glen L Abramson on behalf of William Cohen, Christy Ogrodoski, Sue Paivanas (notification declined or already on case) (Abramson, Glen) (Entered: 10/10/2019)

NOTICE of Appearance by H. Rodgin Cohen on behalf of Bank Policy Institute, Structured Finance Association (aty to be noticed) (Cohen, H.) (Entered: 11/01/2019)

MEMORANDUM in Support re 43 MOTION to Dismiss for Failure to State a Claim filed by Bank Policy Institute, Structured Finance Association. (Schwartz, Matthew) (Entered: 11/01/2019)

MEMORANDUM in Opposition re 46 Memorandum in Support filed by All Plaintiffs. (Frick, Charles) (Entered: 11/01/2019)

Letter on behalf of Defendants to provide supplemental legal authority to the Court with respect to Defendants' pending Motion to Dismiss the First Amended Complaint by Capital One Funding, LLC, Capital One Master Trust, Capital One Multi-Asset Execution Trust, The Bank of New York Mellon (Attachments: # 1 Exhibit Report And Recommendation dckt. 57_0) (Matheson, Cameron) (Entered: 01/23/2020)

TRIAL BRIEF (Amicus Brief) by National Consumer Law Center & Center for Responsible Lending (Pizor, Andrew) (Entered: 04/29/2020)

Letter Regarding Supplemental Authority by Capital One Funding, LLC, Capital One Multi-Asset Execution Trust, The Bank of New York Mellon (Matheson, Cameron) (Entered: 06/11/2020)

ORDER granting 43 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, Defendants motion to dismiss is GRANTED. Plaintiffs' Amended Complaint is DISMISSED in its entirety. Plaintiffs fail to state a claim under New York's usury statute, which is preempted by the National Bank Act. The court declines to consider the applicability of the "valid when made" doctrine because the issue is moot. Moreover, Plaintiffs' unjust enrichment claim is dismissed as duplicative of their preempted usury claim. Finally, the court finds that any pleading amendment would be futile, and therefore dismisses the Amended Complaint with prejudice. The Clerk of the Court is respectfully directed to enter judgment and to close the case. Ordered by Judge Kiyo A. Matsumoto on 9/28/2020. (Brasky, Michael) (Entered: 09/28/2020)

NOTICE OF APPEAL as to 56 Order on Motion to Dismiss for Failure to State a Claim,,, by William Cohen, Christy Ogrodoski, Sue Paivanas. Filing fee $ 505, receipt number ANYEDC-13598774. Appeal Record due by 11/11/2020. (Frick, Charles) (Entered: 10/28/2020)