15-3184 

McCarty v. The Bank of New York 

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 NOTATION ASUMMARY 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, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 21st day of September, two thousand sixteen. 

PRESENT: 

ROBERT A. KATZMANN, 

Chief Judge,

ROBERT D. SACK, 

PETER W. HALL,

Circuit Judges.

_______________________________________________ 

Janice McCarty,* 

Plaintiff-Appellant, 

v. 15-3184 

The Bank of New York Mellon, FKA The Bank of 

New York as trustee for CWMBS, Inc., CHL 

Mortgage PassThrough Trust 2006OA5, Mortgage 

PassThrough Certificates, Series 2006OA5, 

Recontrust Company N.A., Mortgage Electronic 

Registration Systems, Inc.,

Defendants-Appellees, 

CWMBS, Inc., CHL Mortgage Pass-Through Trust 2006-OA5, Mortgage Pass-Through 

 

* The Clerk of Court is respectfully directed to amend the official caption to reflect the caption indicated here. 
Certificates, Series 2006-OA5, The Certificateholders of CWMBS, Inc., CHL Mortgage 

Pass-Through Trust 2006-OA5, Mortgage Pass-Through Certificates, Series 2006-OA5, Roes, 

1-10, Does, 1-10 inclusive, representing a class of unknown persons who claim or have the right to 

claim an interest in certain real property located in Venice, California, 

 Defendants. 

_______________________________________________ 

FOR APPELLANT: Janice McCarty, pro se, Venice, CA 

FOR APPELLEES: Scott Harris Kaiser, Esq., Suzanne M. Berger, Esq., Bryan 

Cave LLP, New York, NY 

Appeal from a judgment of the United States District Court for the Southern District of 

New York (Torres, J.). 

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

DECREED that the judgment of the district court is AFFIRMED. 

Appellant Janice McCarty, proceeding pro se, appeals from the district court’s dismissal of 

her complaint against various financial institutions. Her complaint sought, among other remedies, 

damages and a declaratory judgment invalidating an assignment that transferred ownership of her 

residential mortgage loan to defendant Bank of New York Mellon as trustee for a securitized trust 

(the “Trust”). The district court granted defendants’ motion to dismiss McCarty’s amended 

complaint, reasoning primarily that McCarty lacked standing to challenge the assignment.1

 We 

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the 

 

1 The district court, in granting defendants’ motion to dismiss McCarty’s amended complaint, 

referred to Fed. R. Civ. P. 12(b)(6) (failure to state a claim upon which relief can be granted). At 

the same time, much of the district court’s reasoning concerned McCarty’s lack of standing to sue, 

which, at least as it relates to Article III standing, is properly adjudicated under Fed. R. Civ. P. 

12(b)(1) (lack of subject-matter jurisdiction). See All. For Envtl. Renewal, Inc. v. Pyramid 

Crossgates Co., 436 F.3d 82, 88 n.6 (2d Cir. 2006). However, the issue of how the district court’s 

dismissal is best characterized is not material to this Court’s decision to affirm. 
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issues on appeal. 

We review de novo a district court’s determination that a plaintiff lacked standing to sue. See

Rajamin v. Deutsche Bank Nat’l Trust Co., 757 F.3d 79, 84-85 (2d Cir. 2014). “The question of 

standing is whether the litigant is entitled to have the court decide the merits of the dispute or of 

particular issues[,]” and it implicates both constitutional and prudential limits on the court’s 

jurisdiction. Id. at 84 (internal quotation marks and alteration omitted). Here, McCarty lacked 

both constitutional and prudential standing to challenge either the validity of the assignment of her 

mortgage loan or the assignment’s compliance with laws, regulations, and the Trust’s prospectus. 

To have standing under Article III of the Constitution, a plaintiff must have suffered “an injury 

in fact . . . which is (a) concrete and particularized, . . . and (b) actual or imminent, not conjectural 

or hypothetical.” Id. at 85 (citation omitted). Upon review, we agree with the district court that 

McCarty alleged only injuries that are “highly implausible” and “entirely hypothetical,” id., and 

therefore fail to meet the constitutional standing requirements. For example, McCarty’s claim 

that the improper transfer of her debt prevented her from “explor[ing] options with the true debt 

owner,” McCarty Br. at 4, relies on too speculative an injury to serve as a basis for Article III 

standing. Consequently, we find that McCarty lacked constitutional standing to bring a challenge 

to Bank of New York Mellon’s ownership of her debt based on the alleged invalidity of the 

assignment. 

Moreover, even if McCarty had constitutional standing to challenge the validity of the 

assignment, she would have lacked prudential standing. The “prudential standing rule . . . 

normally bars litigants from asserting the rights or legal interests of others in order to obtain relief 

from injury to themselves.” Rajamin, 757 F.3d at 86 (citation omitted). To satisfy the prudential 
4 

standing requirement, “the plaintiff generally must assert his own legal rights and interests, and 

cannot rest his claim to relief on the legal rights or interests of third parties.” Id. (citation 

omitted). McCarty lacks prudential standing to assert her claims against defendants because her 

theories are largely premised on injuries to third parties, such as intended beneficiaries of the 

Trust. 

McCarty also challenges the district court’s denial, with respect to the majority of her claims, 

of leave to file a Second Amended Complaint. We review such a denial for abuse of discretion. 

See In re Lehman Bros. Mortgage-Backed Sec. Litig., 650 F.3d 167, 188 (2d Cir. 2011). Here, in 

light of the issues discussed above, the district court did not abuse its discretion in finding that 

repleading would have been futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). On 

appeal, McCarty adduces no arguments to the contrary. 

We have considered McCarty’s remaining arguments and find them to be without merit. 

Accordingly, we AFFIRM the judgment of the district court. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk