UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
……………………………………………………………………..X
In re:
Chapter 7
ASHMEEN MODIKHAN, Case No.: 19-46591-jmm
Debtor.
……………………………………………………………………..X
ASHMEEN MODIKHAN,
Plaintiff,
v.
DARROW ARONOW, ESQ., HANIN R. SHADOOD, Adv. Pro. No: 21-01009-jmm
COURTNEY R. WILLIAMS, ESQ., FAY SERVICING
LLC, RUSHMORE LOAN MANAGEMENT SERVICES,
INC., MARIANNE DEROSA, THE UNITED STATES
OF AMERICA, DOES 1-100 INCLUSIVE
Defendants.
……………………………………………………………………..X
MOTION FOR RECONSIDERATION
COMES NOW, Plaintiff ASHMEEN MODIKHAN pursuant to Local Rule 9023, and
files this Motion for Reconsideration seeking this Court’s Reconsideration of its Orders granting
Defendants’ Motions to Dismiss Plaintiff’s adversary complaints. In support of this Motion,
Plaintiff states as follows:
BACKGROUND
On or about January 29, 2021, the Plaintiff commenced the adversary proceedings by
filing a Complaint.
On August 20, 2021, the Plaintiff filed an Amended Complaint asserting causes of action
for fraud, misrepresentation, wire fraud, and replevin and seeking a temporary restraining order
and $86,500.00, representing the amounts expended by the Plaintiff in this bankruptcy case.
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On November 15, 2021, the Court issued a memorandum decision on various filings
namely Fay Servicing LLC’s Lift-Stay Motion to terminate the automatic stay as to the
Investment Property for cause under Bankruptcy Code section §362(d)(1) allegedly based on the
Plaintiff’s failure to remit two post-petition mortgage payments; Plaintiff’s Motion to strike
Exhibits by Rushmore Loan Management Services, LLC relating to transfers of proof of claim 6-
1; Plaintiff’s Objection to Proof Of Claim #6-1 Tiki Series IV; Objection to Motion for
Termination of Automatic Stay and Allowance of Proof of Claim; and the Motion for relief from
stay as to the property located at 8710 149th avenue, Howard Beach, N.Y. 11414. The Court
held that the Plaintiff’s claim objections are not wholly barred; the Plaintiff’s objections to the
proof of claim are overruled; and that the Plaintiff’s objections to the transfer of proof of claims
are overruled.
Between February 22, 2021 and September 22, 2022, the Defendants filed motions to
dismiss all claims for alleged failure to state a claim upon which relief can be granted.
On February 18, 2022, the Court issued a Memorandum decision on Defendant’s Motion
to Dismiss.
On February 21, 2022, the Plaintiff filed a Motion for an Extension of time to respond to
the motion to dismiss. A status conference was then held on February 22, 2022 to consider the
Plaintiff’s request. On February 23, 2022, the Defendant filed a Notice scheduling the hearing of
the motion to April 5, 2022. On March 7, 2022, the Court extended the deadline for Plaintiff to
file and serve a response to Defendant’s Motion to April 22, 2022.
On March 14, 2022, the Plaintiff sent a letter to the presiding Judge, Hon. Jil Mazer-
Marino, raising concerns that the extended date conflicted with Plaintiff’s mandatory jury duty
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on March 23 rd and the religious holiday of Ramada possibly from April 2 nd to May 2 nd . Plaintiff
therefore requested the Court to reschedule the date to later in May.
On March 6, 2022, the Court issued Orders granting Defendants’ Motions to Dismiss
Plaintiff’s adversary complaints, to wit:
i. The Court granted Defendant Darren Aronow’s Motion to Dismiss with prejudice
claims of fraud, negligent misrepresentation, wire fraud, breach of fiduciary duty,
replevin, and injunctive relief.
ii. The Court also dismissed with prejudice, all of the Plaintiff’s claims against
Defendant Courtney R. Williams Esq.
iii. The Court also dismissed Plaintiff’s First Amended adversary complaint as to
Secured Creditor Rushmore Loan Management Servicer, LLC as servicer for
U.S. Bank Trust National Association, as Trustee of Dwelling Series IV Trust,
with prejudice.
iv. The Court dismissed the adversary complaint against Marianne DeRosa and
Krista M. Preuss with prejudice.
v. The Court dismissed the adversary complaint against Defendant Fay Servicing
LLC with prejudice.
On March 7, 2022, the Court further issued Orders dismissing Plaintiff’s Complaint
against more Defendants to wit:
i. The Court dismissed the adversary complaint against Hanin R. Shadood, Esq.
with prejudice.
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ii. The Court dismissed the adversary complaint against Defendant Rushmore Loan
Management Services, Inc. as a servicer for US Bank National Association as
legal title trustee for Truman 2016 SC6 Title Trust, with prejudice.
On March 14, 2022, Plaintiff filed an Objection to the Defendant’s Motion to Dismiss
Debtors Adversary Complaint against all Defendants. In the said filing, the Plaintiff raising
concerns over the dismissal of the case with prejudice and lack of due process.
On May 11, 2022, Plaintiff filed a Motion for Extension of Time to Cure Deficiencies
with New Legal Counsel to Address Motion to Dismiss. In the said motion, the Plaintiff sought
an extension of sixty days to cure the deficiencies that prompted the Defendant’s Motion to
Dismiss.
ARGUMENTS
A. Plaintiff’s Complaint contains sufficient factual matter to state a claim of relief
that is plausible on its face.
“A complaint need not contain detailed factual allegations . . . it must plead enough facts
to state a claim to relief that is plausible on its face.” Cousins v. Lockyer, 568 F.3d 1063, 1067
(9th Cir. 2009). Further, "[a] court's task in ruling on a Rule 12(b)(6) motion is merely to assess
the legal feasibility of the complaint, not to assay the weight of the evidence which might be
offered in support thereof." AmBase Corp. v. City Investing Co. Liquidating Trust, 326 F.3d 63,
72 (2d Cir. 2003).
The United States Supreme Court recently stated that, “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007). The Court went forward to state that Dismissal of a complaint pursuant to
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Federal Rule of Civil Procedure 12(b)(6) is appropriate only when the complaint does not give a
defendant fair notice of a legally cognizable claim and the basis on which it rests. Bell Atl. Corp.
v. Twombly supra at 555.
In Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), the U.S. Supreme Court stated: "[t]he
issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer
evidence in support of the claims. Indeed it may appear on the face of the pleadings that a
recovery is very remote and unlikely, but that is not the test."
Further, "a complaint should not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
In the instant action, Plaintiff asserts that the Amended Complaint contains enough
factual allegations sufficient to raise claims of action under the law. For instance, the Complaint
identifies circumstances constituting fraud so that the defendants can prepare adequate answer
from the allegations. Deutsch v. Flannery, (9th Cir.1987), 823 F.2d 1361, 1365. Besides, the
Court failed to consider the fact that plaintiff can offer evidence and prove any set of facts in
support of the claims.
B. Courts have ruled that a motion to dismiss under rule 12(b) is disfavored and is
rarely granted
Motions to Dismiss under Rule 12(b) ARE disfavored and ARE rarely granted. Hall v.
City of Santa Barbara, 833 F.2d 1270, 1274 (9th Cir. 1986); Harris v. Am. Postal Workers
Union, 198 F.3d 245 (6th Cir. 1999) (unpublished); see also S. Christian Leadership Conference
v. Supreme Court, 252 F.3d 781, 786 (5th Cir. 2001) (stating that dismissals for failure to state a
claim under Rule 12(b)(6) are disfavored); Lone Star Indus., Inc. v. Horman Family Trust, 960
6
F.2d 917, 920 (10th Cir. 1992) ("A motion to dismiss for failure to state a claim is viewed with
disfavor, and is rarely granted.") ("It is axiomatic that '[the motion to dismiss for failure to state a
claim is viewed with disfavor and is rarely granted.'") (quoting Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure 1357, at 598).
In the instant action, the Plaintiff avers that this Court’s decision to grant the Defendants’
motions to dismiss went against the practice of the 2 nd circuit courts to only grant motions to
dismiss on rare circumstances. Plaintiff therefore maintains that the Defendants have not met the
high threshold to justify this court’s decision to grant the motion to dismiss.
C. Dismissal of a complaint without leave to amend is improper unless it is clear
that the complaint cannot be saved by any amendment
The Courts have previously held that Dismissal of a complaint without leave to amend is
improper unless it is clear that the complaint could not be saved by any amendment. Tylicki v.
Schwartz, 401 Fed. Appx. 603, 604 (2d Cir. 2010) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000)); see also Schneider v. California DOC, 151 F.3d 1194, 1196 (9th Cir. 1998).
It follows, "[a]mendment should be refused only if it appears to a certainty that plaintiff
cannot state a claim." Wright and Miller, Federal Practice and Procedure, vol 5A, 1357.
It is also worth noting that when a pro se complaint fails to state a cause of action, the
court generally "should not dismiss without granting leave to amend at least once when a liberal
reading of the complaint gives any indication that a valid claim might be stated." Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Plaintiff avers that this court erred in dismissing Plaintiff’s Complaint with prejudice.
First, as already alleged above, Plaintiff’s Complaint sufficiently states facts that raise genuine
causes of action. Next, it is neither clear that any impropriety in Plaintiff’s Complaint cannot be
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corrected by amendment nor has any evidence been adduced to that effect. For that reason, it is
against the interest of justice to dismiss Plaintiff’s Complaint with prejudice.
CONCLUSION
In light of the foregoing, Plaintiff prays that this Court should reconsider its Order dated
March 14, 2022, and issue a re-hearing of the case. Plaintiff further prays that this Court issues
any other order it deems just.
Date: _________________
Ashmeen Modikhan
94-22 Magnolia Court, Unit 1B
Ozone Park, NY 11753
Pro Se Debtor
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CERTIFICATE OF SERVICE
I certify that a copy of this Memorandum of Points and Authorities in Support of Motion for
Summary Judgment was served on [ENTER DATE] to the Defendant in this action at the
following address:
Courtney R. Williams
Gross Polowy, LLC
1775 Wehrle Drive, Ste 100
Williamsville, NY 14221
Pro Se Defendant
Marianne DeRosa
Office of the Chapter 13 Trustee
100 Jericho Quadrangle, Ste 127
Jericho, NY 11753
Pro Se Defendant
Darren Aronow
Aronow Law Firm P.C.
7600 Jericho Turnpike, Ste 115
Woodbury, NY 11797
Pro Se Defendant
Steven Amshen
Petroff Amshen, LLP
1795 Coney Island Ave, 3rd Floor
Brooklyn, NY 11230
Counsel for Hanin Shadood
Andrea M Roberts
Blank Rome LLP
1271 Avenue of Americas
New York, NY 10174
Counsel for Fay Servicing, LLC
Krista M Preuss
Krista M. Preuss, Chapter 13 Trustee
100 Jericho Quadrangle, Ste 127
Jericho, NY 11753
Pro Se Defendant
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Jonathan M. Robbin
J. Robbin Law PLLC
200 Business Park Drive, Ste 103
Armonk, NY 10504
Counsel for Rushmore Loan Management Services, Inc.
DATE:
Ashmeen Modikhan
94-22 Magnolia Court, Unit 1B
Ozone Park, NY 11753
Pro Se Debtor
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