20

- 3642

- cv Walker v. Pitnell



## 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 NO TATION “ SUMMARY ORDER ” ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on th e 7 th da y of July , two thousand twenty

- one . 3 4 PRESENT: 5 SUSAN L. CARNEY , 6 RI CHARD J. SULLIVAN , 7 JOSEPH F. BIANCO , 8 Circuit Judges. 9

_____________________________________ 10 11 Conrad Walker , 12 13 Plaintiff

- Appellant , 14 15

v. 20

- 3642

- cv 16 17 Anthony L. Pitnell, Esq., Gross Polowy Law 18 Firm, HSBC Bank USA, National Association, as 19 Trustee for SG Mortgage Securities Trust 20 2006

- FRE1, Elpiniki Bechakas , 21 22 Defendants

- Appellees

. 23 24

_____________________________________ 25 26 27 FOR PLAINTIFF

- APPELLANT: Conrad Walker
, pro se , Houston, TX 28 29 FOR DEFENDANTS

- APPELLEES: Allison J. Schoenthal, Allison M. Funk, 30 Robin Muir, Goodwin Proct e r LLP , New 31 York, NY ( for HSBC Bank USA, National 322 Association ) 33 34 Stephen J. Vargas, Gross Polowy, LLC, 35 Wes t bury, NY ( for Gross Polowy Law Firm 36 and Anthony L. Pitnell , Esq. ) 37 38 Ronald A. Giller, Kasey T. Mahoney, Gordon 39 Reese Scully Mansukhani, LLP , New York, 40 NY ( for Elpiniki Bechakas ) 41
Appeal from a judgment of the United States District Court for the Eastern District of 42

New York ( Chen
, J .). 43

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 44

DECREED that the judgment of the district court is AFFIRMED

. 45

Appellant Conrad Walker
, proceeding pro se , sued HSBC Bank USA, National Association 46

(“HSBC”) ; its attorneys
, the Gross Polowy Law Firm (“Gross Polowy”) ; Anthony Pitnell ; and 47
Elpiniki Bechakas under the Fair Debt Collection Practices Act (“FDCPA”) , 15 U.S.C. § 1692, 48

et seq

. , and state law, alleging that defendants pursued foreclosure against him after fraudulently 49

assigning his mortgage to HSBC. The district court dismissed the FDCPA claims
, citing three 50
independent grounds: that Walker failed to state an FDCPA claim again st any defendant; that the 51

claim s were untimely ; and that the claims were also barred by collateral estoppel. It declined to 52

exercise supplemental jurisdiction over the state law claims. We assume the parties ’ familiarity 53
with the underlying facts, the p rocedural history of the case, and the issues on appeal. 54

“ We review the grant of a motion to dismiss de novo , accepting as true all factual claims 55
in the complaint and drawing all reasonable inferences in the plaintiff’s favor.” Fink v. Time 56

Warner Cable
, 714 F.3d 739, 740

– 41 (2d Cir. 2013). 57

The district court properly dismissed Walker’s FDCPA claim against the defendants. 583 A plaintiff must bring an FDCPA action “within one year from the date on which the violation 1

occurs.” 15 U.S.C. § 1692k(d). Walker filed his lawsuit on July 26, 2019. Accordingly, any 2

claim based on a violation that occurred before July 26, 2018
, is time

- barred. Walker asserts that 3

HSBC violated the FDCPA because it failed to indicate it was a debt collector, fraud ulently 4

obtained possession of his mortgage note through a backdated assignment of that note , and 5
threatened to take his property away in April 2008 by filing the foreclosure action. His claim 6

against Bechakas i s based on her alleged execution of the mort gage note assignment in April 2008. 7

His allegations against Gross Polowy and Pitnell involve court filings made in 2014, 2017, and 8

November 2018. E xcept for those involving an affirmation

- in

- opposition filed by Pitnell and 9

Gross Polowy in November 2018
, a ll of these allegations concern acts that occurred before 10

July 2018

. These claims are thus time

- barred. 11

The district court concluded that a claim based on the November 2018 affirmation was also 12

untimely because it contained the same alleged misrepresenta tion

— that HSBC validly transferred 13

the mortgage note in April 2008

— as earlier filings that were the basis for the time

- barred claims

. 14
Although we have acknowledged that a state court foreclosure proceeding may constitute a debt 15

collection under the FDCPA, Cohen v. Rosicki, Rosicki & Assocs.
, P.C. , 897 F.3d 75 , 83

– 84 16

(2d Cir. 2018), w e have not decided whether a repeated but otherwise identical misrepresentation 17
in a court filing count s as a separate FDCPA violation for statute of limitations purposes

. W e 18

need not decide this issue today , however, because Walker failed to allege sufficient facts to state 19

an FDCPA claim
, even assuming that he could bring a timely claim based on the November 2018 20

affirmation

. 21

The FDCPA prohibits the use of “fals e, deceptive, or misleading representation[s] or means 224 in connection with the collection of any debt. ” 15 U.S.C. § 1692e. To be actionable under the 1

FDCPA , h owever, the misrepresentation at issue in the debt collection activity must be material, 2

i.e. , it must “ha [ve] the potential to affect the decision

- making process of the least sophisticated 3

consumer.” Cohen
, 897 F.3d at 85 (internal alteration and quotation marks omitted). 4

Walker did not allege sufficient facts to support a conclusion that Pitn ell’s statements were 5
material. A misrepresentation concerning a creditor ’ s identity is not material if it has no effect on 6

the debtor’s “ability to respond to the debt.” Id. at 87. In Cohen
, we determined that a statement 7
in a court filing that misiden tified a loan servicer as the creditor or owner of the mortgage was not 8
a material misrepresentation for FDCPA purposes because that statement was “not deceptive as to 9

the nature or legal status of Cohen’s debt, ” and it would not have “ prevented the least sophisticated 10

consumer from responding to or disputing the action.” Id. at 87. Similarly h ere , Pitnell’s 11

November 2018 affirmation attesting that HSBC was the creditor and that HSBC had been 12

assigned Walker’s mortgage was not materially misleading. It did not prevent Walker from filing 13

a reply affirmation or from continuing to challenge the foreclosure judgment in appellate 14
proceedings

. N or did it misrepresent the nature of Walker’s debt or somehow prevent him from 15

responding to it. Therefore, the alleged misrepresentation was not material
, and neither Pitnell 16

nor Gross Polowy violate d the FDPCA by making it

. 17

In addition , any claim against HSBC based on the November 2018 affirmation was 18

properly dismissed because Walker failed to allege that HSBC was a debt collector within the 19

meaning of the FDCPA. A debt collector “means any person who uses any instrumentality of 20
interstate commerce or the mails in any business the principal purpo se of which is the collection 21

of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or 225 due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). But Walker alleged only that 1

HSBC “was a debt collector, and not a creditor
, ” and that the 2008 mortgage note assignment was 2
fraudulently backdated at the time the foreclosure action began

. T h ese conclusory allegation s are 3

insufficien t to state a claim under the FDCPA

. See Kirch v. Liberty Media Corp. , 449 F.3d 388, 4

398 (2d Cir. 2006). Therefore, the district court properly dismissed the FDCPA claim against all 5

defendants

. 1 6

Ordinarily, a district court should not dismiss a pro se plaintiff’s complaint without 7
granting leave to amend

. Walker’s FDCPA claim against Bechakas was untimely , however, and 8
he cannot state an FDCPA claim against HSBC, Pitnell, or Gross Polowy based on the November 9

2018 affirmation. B ecause the district court properly dismissed the FDCPA claim s

— the only 10

claim s over which it had orig inal jurisdiction

— it did not abuse its discretion by declining to 11
exercise supplemental jurisdiction over Walker’s state law claims. See Kolari v. 12

N.Y.

- Presbyterian Hosp. , 455 F.3d 118, 122 (2d Cir. 2006). 13

We have considered all of Walker ’s remaining arguments and find in them no basis for 14

reversal . Accordingly, we AFFIRM the judgmen t of the district court

. All motions pending 15

before this Court are DENIED

. 16

17 FOR THE COURT: 18 Catherine O ’ Hagan Wolfe, Clerk of Court 19 20

1 Because we affirm the judgment of the district court for the foregoing reasons, we decline to address the d istrict

c ourt’s dismissal on collateral estoppel grounds.