SUPREME COURT OF THE STATE OF XXX COUNTY OF QUEENS
XXX,
Plaintiff
-against-
XXX, et al.,
Defendants
Index No. XXX
RESPONSE TO THE STATE
DEFENDANTS’MOTION TO DISMISS
THE COMPLAINT
COMES NOW Plaintiff XXX, pro se, and files this Response to the
State Defendants’ Motion to Dismiss the Complaint. In support thereof, the Plaintiff states as
follows:
BACKGROUND
Plaintiff commenced the instant action by filing a Complaint on or about April XXX.
On or about April XXXX, Plaintiff filed the First Amended Complaint.
On or about July XXX the State Defendants filed a Motion to Dismiss the Complaint
pursuant to C.P.L.R. Rules 3211 (a)(2), (a)(7) and (a)(8). In the said Motion, the Defendants
made several allegations. First, the Defendants alleged that the Complaint is barred by judicial
immunity, the Supreme Court lacks jurisdiction over an action against the State Defendants, the
Plaintiff failed to state a claim against the State Defendants, the Complaint must be dismissed for
lack of personal jurisdiction.
Plaintiff hereby files this Response to the said Motion.
ARGUMENT
I. THE COMPLAINT IS NOT BARRED BY JUDICIAL IMMUNITY
Judicial immunity does not extend to the actions taken by a judge in the clear absence of
jurisdiction. In determining if a judge acted in clear absence of jurisdiction, the focus is on
subject matter jurisdiction rather than personal jurisdiction. See Ashelman v. Pope, 793 F.2d
1072 (9th Cir. 1986) (en banc); Green v. Maraio, 722 F.2d 1013 (2nd Cir. 1983). However,
courts have held that if a court does not have personal jurisdiction, it lacks all jurisdiction and
thereby forfeits judicial immunity. See Rankin v. Howard, 633 F.2d 844, 848-49 (9th Cir. 1980),
cert. denied, 451 U.S. 939 (1981).
In the instant action, Defendants aver that the actions taken by the State Defendants were
judicial in nature, as they were acting in their capacity as a State Court Justices, undertaking a
function normally performed by judges within their jurisdiction and Plaintiff fails to show
otherwise. The Defendants also aver that any rulings, decisions, or orders issued during
Plaintiff’s foreclosure proceedings, were functions normally performed by judges within their
jurisdiction.
On the contrary, the Plaintiff maintains that the state courts lacked jurisdiction over the
foreclosure claims. For instance, the foreclosure case (Nationstar Mortgage, LLC. v. XXX, et al., Index No. XXXX), was filed by counsels for Bank of America, NA, who
were acting as foreign agents. Accordingly, the courts lacked jurisdiction because foreign agents
must file their claims in federal courts.
The court in Nationstar Mortgage, LLC. v. XXX et al., Index No.
XXX, also lacked jurisdiction because the Plaintiff failed to provide a copy of the
November XXX, note in favor of America’s Wholesale Lender or proof of the succession
from America’s Wholesale Lender, a New York corporation to Bank of America, N.A. Plaintiff
avers that on November 21, 2005, she was presented with closing documents with the lender
stated as America’s Wholesale Lender, a New York corporation. It was her belief on that date
that was her lender. However, on January XXX, Plaintiff was served a summons and
complaint from Bank of America, N.A., NA, Successor by merger to BAC Home Loans
Servicing, LP fka Countrywide Home Loans, LP. A copy of the original note or any evidence of
chain of possession was not attached to the complaint.
It is also crucial to note that on its face, the November XXX note states the lender is
America’s Wholesale Lender. The alleged endorsement states the “owner” is “Countrywide
Home Loans, Inc., a New York Corporation doing business as America’s Wholesale Lender”. As
stated in the facts, America’s Wholesale Lender was not registered in XXX as a DBA or
licensed in any capacity. According to XXXX Secretary of State, America’s Wholesale
Lender incorporated in New York on December XXX, three years after the note was
executed.
Besides, XXX, LLC (successor to Gross XXX
Orlans, LLC) counsel for Bank of America, NA., does not state in her Certificate of Merit dated
August XXX, that her client had possession of the note.
Therefore, the presumption is Bank of America, N.A. did not possess the note at the time
the complaint was filed. Since there was no statement made in the original foreclosure complaint
that Bank of XXX., or an officer of the corporation had possession of the note, the
Plaintiff in XXX Mortgage, LLC. v. XXX, et al., Index No. XXX
lacked standing to bring the suit, hence the Court lacked jurisdiction over the foreclosure case.
It follows; the court lacked jurisdiction over the foreclosure cases, and that all orders and
rulings issuing from the court should be declared null and void.
II. THE SUPREME COURT HAS JURISDICTION OVER THE STATE
DEFENDANTS
According to the Supreme Court in Stump v. Sparkman, 435 U.S. 349 (1978), a clear lack
of subject-matter jurisdiction will subject a judge to liability.
Plaintiff maintains that the state court lacked jurisdiction over the foreclosure claims. For
instance, the foreclosure case (Nationstar Mortgage, LLC. v. XXX, et al., Index
No. XXX), was filed by counsels for Bank of America, NA, who were acting as foreign
agents. Accordingly, the courts lacked jurisdiction because foreign agents must file their claims
in federal courts.
Plaintiff further avers that clothing a judge with immunity simply because he has
performed a “judicial act” overlooks the real-world probability that even judicial acts can be
utterly inconsistent with due process. Judges should not be privileged to violate the rights of
citizens unfortunate enough to find themselves in a biased, corrupt, or irresponsible court. When
unjust injuries are inflicted by improper judicial acts, the state should be forced to bear the cost
of the wrongful act, not the individual.
III. THE PLAINTIFF HAS STATED A CLAIM AGAINST THE STATE
DEFENDANTS
In the instant action, the State Defendants argue that the Amended Complaint fails to
allege the requisite elements of any cause of action against the State Defendants and fails to
allege any facts which taken together fit into any cognizable legal theory against the State
Defendants. Further, the State Defendants argue that the Amended Complaint fails to give any
notice of the transactions and occurrences intended to be proved against the State Defendants.
On the contrary, Plaintiff avers that her case has outlined the fact pattern of how the
foreclosure actions were unduly filed, and that the Defendants (including the State Defendants),
“obstructed the administration of justice and violated Plaintiff’s due process rights”. For
instance, the Plaintiff has cited a violation of 22 U.S.C. 611 and the 11 th Amendment. In this
cause of action, the Plaintiff has alleged impliedly, that the State Defendants failed to consider
that no admissible evidence was presented in court to verify that the lender had signed a contract
to provide a loan.
Besides, the Complaint stated clearly that the courts had no jurisdiction over the Plaintiff
since no injured party had filed the Complaint. According to 15 U.S.C. 1692g, only an injured
party can claim that a debt is owned. The State Departments at the courts failed to consider the
said fact, and went ahead to entertain the foreclosure claims.
IV. PLAINTIFF DULY SERVED THE DEFENDANTS
What constitutes due diligence is determined on a case-by-case basis, focusing not on the
quantity of the attempts at personal delivery, but on their quality. See Coley v. Gonzalez, 170
A.D.3d 1107, 1108, 2019 N.Y. Slip Op. 2311 (N.Y. App. Div. 2019); citing, McSorley v. Spear ,
50 AD3d 652 [2nd Dept 2008].
It is almost universally recognized in both New York State and Federal Court that pro se
pleadings are construed more liberally than those prepared by attorneys. Pezhman v. City of New
York, 29 A.D.3d 164, 168, 812 N.Y.S.2d 14, 18 (1st Dep’t 2006) (a “pro se complaint should be
construed liberally in favor of the pleader).
The Defendants allege that failed to personally serve the State Defendants in compliance
with statutory requirements, warranting dismissal of the Complaint for lack of personal
jurisdiction. Defendants further allege that Plaintiff failed to include the legend “URGENT
LEGAL MAIL” in capital letters on the front of the envelope.
On the contrary, Plaintiff avers that, as a pro se litigant, she made due effort in her
capacity to serve the State Defendants. For instance, Plaintiff sent the State Defendants Certified
Mails.
It follows; as pro se, Plaintiff diligently served the Summons and the Complaints to the
Defendants. Plaintiff further avers that she, as a pro se litigant, lacked the specific intricacies
regarding serving state officials. For that reason, Plaintiff prays that this Court accepts the
Plaintiff’s service of Summons and Complaints on the State Defendants, and accept personal
jurisdiction of this case.
CONCLUSION
WHEREFORE, the foregoing considered, Plaintiff prays for an order of dismissing the
allegations in the Defendants’ Motion to Dismiss. Plaintiff further prays for any other order this
court deems just.
Respectfully submitted,
Dated: _______________ By:
___________________________
XXX.
CERTIFICATE OF MAILING
I, XXX, certified on this ______day of ________ XXX, I deposited a
true copy of the above to the Defendants, by placing the documents with prepaid postage in the
United States mailbox address(es):
[ENTER ADDRESSES]
By:
___________________________
XXXX
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