Khan v. Continental Home Loans Inc. et al
| Zahir Khan |
| Bank Of America, Jane "Roes", Russell Carl Burcheri, Esq, Shellpoint Mortgage Servicing, Mortgage Electronics Registration Systems, Inc., John "Does", Bayview Loan Servicing LLC and Continental Home Loans Inc. |
| 2:2019cv00525 |
| January 28, 2019 |
| US District Court for the Eastern District of New York |
| Joseph F Bianco |
| Joanna Seybert |
| Anne Y Shields |
| Other Statutory Actions |
| 18 U.S.C. § 1964 Racketeering (RICO) Act |
| None |
Docket Report
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This docket was last retrieved on February 26, 2020. A more recent docket listing may be available from PACER.
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| Filing 41 AFFIDAVIT of Service for Judgment served on Plaintiff on February 26, 2020, filed by Shellpoint Mortgage Servicing. (Geller, William) |
| Filing 40 CLERK'S JUDGMENT: ORDERED AND ADJUDGED that plaintiff Zahir Khan take nothing of defendants Continental Home Loans, Inc., Mortgage Electronic Registration, Systems, Inc., Shellpoint Mortgage Servicing, Russell Carl Bucheri, Esq., Bank of America, Bayview Loan Servicing, LLC, and John Does and Jane Does 1 through 100; that defendant Shellpoint Mortgage Servicing's motion to dismiss is granted in its entirety; that the Complaint is dismissed with prejudice and without leave to replead; that in forma pauperis status for the purpose of any appeal is denied; and that this case is closed. Ordered by Clerk of Court on 2/26/2020 (CM to pro se plaintiff with an appeal packet). (Toritto, Jim) |
| Filing 39 CERTIFICATE OF SERVICE by Shellpoint Mortgage Servicing re Order on Motion to Dismiss, of Electronic Order Entered February 21, 2020 (Geller, William) |
ELECTRONIC ORDER ADOPTING #36 REPORT AND RECOMMENDATIONS; denying #30 Motion to Strike; granting #18 Motion to Dismiss for Failure to State a Claim.On February 4, 2020, Judge Shields issued her Report and Recommendation (R&R, Docket Entry 36) recommending that the Court (1) grant defendant Shellpoint Mortgage Servicing's motion to dismiss (Docket Entry 18) and dismiss the Complaint as to all Defendants with prejudice and without leave to replead and (2) deny plaintiff Zahir Khan's motion to strike Shellpoint's motion (Docket Entry 30). Shellpoint served the R&R on the pro se Plaintiff (Docket Entry 37).The time to object has expired, and no objections to the R&R have been filed. Upon careful review and consideration, the Court finds Judge Shields' R&R to be comprehensive, well reasoned, and free of clear error, and it ADOPTS the R&R (Docket Entry 36) in its entirety. Accordingly, (1) defendant Shellpoint's motion is GRANTED in its entirety, (2) Plaintiff's motion to strike is DENIED in its entirety, and (3) the Complaint is DISMISSED as to all Defendants WITH PREJUDICE AND WITHOUT LEAVE TO REPLEAD. Although Plaintiff paid the filing fee, the Court certifies pursuant to 28 U.S.C. 1915(a)(3) that any appeal from this Electronic Adoption Order would not be taken in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962). The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED, and mail a copy of this Electronic Adoption Order to the pro se Plaintiff. Ordered by Judge Joanna Seybert on 2/24/2020. (Alessi, Samantha)
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| Filing 38 Letter MOTION to Dismiss Based on No Opposition to Report and Recommendation of Magistrate Judge Anne Y. Shields (ECF Doc. 36) Recommending Dismissal by Shellpoint Mortgage Servicing. (Geller, William) |
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ELECTRONIC ORDER terminating #38 Motion to Dismiss. The Court directs Defendant to review 28 U.S.C. 636(b)(1)(C) and Federal Rules of Civil Procedure 72(b)(2), 6(a)(1), and 6(d) regarding the deadline for a party to object to a Report and Recommendation after mailing. Defendant shall serve a copy of this Electronic Order upon Plaintiff and file proof of service on ECF on or before February 24, 2020. Ordered by Judge Joanna Seybert on 2/21/2020. (Alessi, Samantha)
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| Filing 37 AFFIDAVIT of Service for Report and Recommendation (ECF 36) served on Plaintiff on February 4, 2020, filed by Shellpoint Mortgage Servicing. (Geller, William) |
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Filing 36
REPORT AND RECOMMENDATIONS re #30 MOTION to Strike #18 MOTION to Dismiss for Failure to State a Claim and for Absence of Jurisdiction filed by Zahir Khan, #18 MOTION to Dismiss for Failure to State a Claim and for Absence of Jurisdiction filed by Shellpoint Mortgage Servicing: For the reasons contained in the attached Report and Recommendation, this Court respectfully recommends that Defendant Shellpoint's motion to dismiss be granted in its entirety, and that Plaintiff's motion to strike be denied. The Court further recommends that the Complaint be dismissed as to all Defendants, with prejudice and without leave to replead. Defendant Shellpoint's counsel is directed to serve a copy of this Report and Recommendation on the Pro Se Plaintiff, and to file proof of service on the docket sheet, within three (3) days. Objections to R&R due by 2/18/2020. So Ordered by Magistrate Judge Anne Y. Shields on 2/4/2020. (Minerva, Deanna)
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| Filing 35 NOTICE of Appearance by Carol Ann DiPrinzio on behalf of Bayview Loan Servicing LLC (aty to be noticed) (DiPrinzio, Carol) |
| Filing 34 CERTIFICATE OF SERVICE by Shellpoint Mortgage Servicing (Pashman, Scott) |
| Filing 33 NOTICE by Shellpoint Mortgage Servicing of Change of Law Firm Name (Pashman, Scott) |
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ELECTRONIC ORDER REFERRING MOTIONS: #18 MOTION to Dismiss for Failure to State a Claim and for Absence of Jurisdiction filed by Shellpoint Mortgage Servicing; #30 MOTION to Strike #18 MOTION to Dismiss for Failure to State a Claim and for Absence of Jurisdiction filed by Zahir Khan. The Court REFERS the motions to Magistrate Judge Anne Y. Shields for a REPORT AND RECOMMENDATION on whether the pending motions should be granted. All future filings related to these motions should be addressed to Judge Shields in the first instance. Defendants are directed to mail a copy of this Electronic Order to the pro se Plaintiff and file proof of service on ECF on or before October 10, 2019. Ordered by Judge Joanna Seybert on 10/8/2019. Motions referred to Anne Y. Shields. (Alessi, Samantha)
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| Filing 32 REPLY in Support re #30 MOTION to Strike #18 MOTION to Dismiss for Failure to State a Claim and for Absence of Jurisdiction , #18 MOTION to Dismiss for Failure to State a Claim and for Absence of Jurisdiction filed by Shellpoint Mortgage Servicing. (Attachments: #1 Certificate of Service) (Geller, William) |
| Filing 29 REPLY in Support re #18 MOTION to Dismiss for Failure to State a Claim and for Absence of Jurisdiction advising Court of Plaintiff's failure to file opposition and requesting decision based on Shellpoint's moving papers filed by Shellpoint Mortgage Servicing. (Geller, William) |
| Filing 31 RESPONSE in Opposition re #18 MOTION to Dismiss for Failure to State a Claim and for Absence of Jurisdiction filed by Zahir Khan. (Attachments: #1 Memorandum in Support) (Cubano, Jazmin) |
| Filing 30 MOTION to Strike #18 MOTION to Dismiss for Failure to State a Claim and for Absence of Jurisdiction by Zahir Khan. (Attachments: #1 Memorandum in Support, #2 Exhibit) (Cubano, Jazmin) |
| Case Reassigned to Judge Joanna Seybert. Judge Joseph F. Bianco no longer assigned to the case. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Kramer, Michael) |
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Filing 28
ORDER : Court denies plaintiff's re #25 request for a TRO and preliminary injunctionOrdered by Judge Joseph F. Bianco on 5/14/2019. (Bollbach, Jean)
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| Filing 27 MEMORANDUM in Opposition re #25 Unsigned Order to Show Cause filed by Shellpoint Mortgage Servicing. (Attachments: #1 Certificate of Service) (Geller, William) |
| Filing 26 NOTICE of Change of Law Firm Name (Geller, William) |
| Filing 25 Proposed Order to Show Cause by Zahir Khan for preliminary injunction/tro (Bollbach, Jean) |
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Filing 24
ORDER granting #22 Motion for Extension of Time to File Response/Reply. Plaintiff shall file an opposition to the motion to dismiss on or before May 31,2019. IT IS FURTHER ORDERED that Shellpoint shall file a reply, if any, on or before June 21, 2019. Ordered by Judge Joseph F. Bianco on 5/1/2019. (Bollbach, Jean)cm by chambers
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| Filing 23 RESPONSE to Motion re #22 MOTION for Extension of Time to File Response/Reply as to #18 MOTION to Dismiss for Failure to State a Claim and for Absence of Jurisdiction to 5/31/2019 filed by Shellpoint Mortgage Servicing. (Geller, William) |
| Filing 22 MOTION for Extension of Time to File Response/Reply as to #18 MOTION to Dismiss for Failure to State a Claim and for Absence of Jurisdiction to 5/31/2019 by Zahir Khan. (Coleman, Laurie) |
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Filing 21
ORDER: Accordingly (PLEASE SEE ORDER FOR FURTHER DETAILS), if service is not made upon the defendants by April 29, 2019, or plaintiff fails to show good cause why such service has not been effected, the complaint will be dismissed without prejudice as against any defendant who has not been served. Plaintiff is to provide a copy of this Order to the defendants along with the summonses and complaint, and shall file proof of service with the Court. Plaintiff is required to advise the Clerk of Court of any change of address. Failure to keep the Court informed of plaintiff's current address may result in dismissal of the case. So Ordered by Judge Joseph F. Bianco on 4/2/2019. (Ortiz, Grisel)(c/m by chambers)
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| Filing 20 DECLARATION re #19 Request for Certificate of Default in Opposition to Motion for Default Judgment and Request for Certificate of Default by Shellpoint Mortgage Servicing (Attachments: #1 Certificate of Service) (Geller, William) |
| Filing 19 Request for Certificate of Default by Zahir Khan (Cubano, Jazmin) (Additional attachment(s) added on 4/1/2019: #1 motion for default judgment) (Bollbach, Jean). |
| Filing 18 MOTION to Dismiss for Failure to State a Claim and for Absence of Jurisdiction by Continental Home Loans Inc.. (Attachments: #1 Memorandum in Support, #2 Declaration in Support, #3 Exhibit A - Complaint, #4 Exhibit B - April 18, 2008 Deed to Property, #5 Exhibit C - April 18, 2008 Mortgage, #6 Exhibit D - March 25, 2009 Mortgage, #7 Exhibit E - Satisfaction of April 18, 2008 Mortgage, #8 Exhibit F - 2011 Bankruptcy Petition, #9 Exhibit G - 2011 Bankruptcy Docket, #10 Exhibit H - 2011 Bankruptcy Schedules, #11 Exhibit I - 2011 Bankruptcy Discharge, #12 Exhibit J - Foreclosure Complaint, #13 Exhibit K - Foreclosure Short Form Order and Order of Reference, #14 Exhibit L - Foreclosure Short Form Order and Judgment of Foreclosure and Sale, #15 Exhibit M - 2018 Bankruptcy Petition, #16 Exhibit N - 2018 Bankruptcy Trustees Motion to Dismiss, #17 Exhibit O -2018 Bankruptcy Order of Dismissal, #18 Certificate of Service) (Geller, William) |
| Filing 17 CERTIFICATE OF SERVICE by Shellpoint Mortgage Servicing (Pashman, Scott) |
| Filing 16 NOTICE of Appearance by Scott Jason Pashman on behalf of Shellpoint Mortgage Servicing (aty to be noticed) (Pashman, Scott) |
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ELECTRONIC ORDER granting #15 Motion to Substitute Attorney. Attorney Joseph M. DeFazio terminated. So Ordered by Magistrate Judge Anne Y. Shields on 3/13/2019. (Mucciaccio, Dina)
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| Filing 15 Consent MOTION to Substitute Attorney William J. Geller in place of Joseph DeFazio by Shellpoint Mortgage Servicing. (Geller, William) |
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ELECTRONIC ORDER granting #14 Motion to Withdraw as Attorney. Attorney Alexander Peter Kommatas terminated. So Ordered by Magistrate Judge Anne Y. Shields on 3/7/2019. (Mucciaccio, Dina)
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| Filing 14 Notice of MOTION to Withdraw as Attorney Alex P. Kommatas, by Bayview Loan Servicing LLC. (Kommatas, Alexander) |
| Filing 13 NOTICE of Appearance by James Kim on behalf of Bayview Loan Servicing LLC (aty to be noticed) (Kim, James) |
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Filing 12
ORDER re #7 Motion for Pre-Motion Conference. IT IS HEREBY ORDERED that the pre-motion conference requirement is waived. The parties shall abide by the following briefing schedule: Defendant Shellpoint shall submit its motion by March 27, 2019; Pro se plaintiff shall submit his response by April 24, 2019; and Defendant Shell point shall submit its reply by May 8, 2019. Ordered by Judge Joseph F. Bianco on 2/28/19. (Coleman, Laurie)
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| Filing 11 Defendant Bayview Loan Servicing LLC's ANSWER to #1 Complaint and Affirmative Defenses, by Bayview Loan Servicing LLC. (Kommatas, Alexander) |
| Filing 10 Corporate Disclosure Statement by Bayview Loan Servicing LLC identifying Corporate Parent Bayview Asset Management, LLC for Bayview Loan Servicing LLC. (Kommatas, Alexander) |
| Filing 9 NOTICE of Appearance by Alexander Peter Kommatas on behalf of Bayview Loan Servicing LLC (aty to be noticed) (Kommatas, Alexander) |
| Filing 8 AFFIDAVIT of Service for Notice of Appearance, Rule 7.1 Statement, Pre-Motion Conference Request served on Zahir Khan on 2/26/2019, filed by Shellpoint Mortgage Servicing. (DeFazio, Joseph) |
| Filing 7 MOTION for pre motion conference by Shellpoint Mortgage Servicing. (DeFazio, Joseph) |
| Filing 6 Corporate Disclosure Statement by Shellpoint Mortgage Servicing identifying Corporate Parent Shellpoint Partners, LLC for Shellpoint Mortgage Servicing. (DeFazio, Joseph) |
| Filing 5 NOTICE of Appearance by Joseph M. DeFazio on behalf of Shellpoint Mortgage Servicing (aty to be noticed) (DeFazio, Joseph) |
| Filing 4 Letter from Pro Se Dept. to Zahir Khan dated January 31, 2019 acknowledging receipt to the civil action. (Cubano, Jazmin) |
| Filing 3 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. (Cox, Dwayne) |
| Case Entry Information. During case opening, one of the defendants was not entered. The error has been corrected and the complaint was deleted and re-entered as to all defendants. (Cox, Dwayne) |
| Filing 2 Summons Issued as to All Defendants. (Cox, Dwayne) |
| Filing 1 COMPLAINT against All Defendants Was the Disclosure Statement on Civil Cover Sheet completed -No,, filed by Zahir Khan. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Civil Cover Sheet) (Cox, Dwayne) |
| FILING FEE: $ 400.00, receipt number 4653136559 (Cox, Dwayne) |
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