Fisher v. Rosicki, Rosicki and Associates
2:17-cv-00127
| E.D.N.Y | May 2, 2017Background
- Pro se plaintiff Stacey Fisher filed suit on Jan 10, 2017 against Rosicki, Rosicki & Associates, Shellpoint Mortgage Servicing, CitiMortgage, Christiana Trust, and Wilmington Savings Fund Society seeking to challenge a state-court foreclosure and asserting claims under New York Banking Law, New York RPAPL, and the Due Process Clause.
- Fisher submitted an application to proceed in forma pauperis (IFP) with a financial affidavit attached.
- Her affidavit showed net bi-weekly employment income of $2,185, unspecified additional self-employment income, approximately $7,000 in cash/checking/savings, and monthly expenses of about $1,600.
- The Court found the affidavit demonstrated sufficient financial means to pay the $400 filing fee and therefore denied IFP status under 28 U.S.C. § 1915(a)(1).
- The Court directed Fisher to pay the $400 filing fee within two weeks or the action would be dismissed without prejudice.
- The Court cautioned that (1) Rooker–Feldman may bar challenges to the related state foreclosure order, (2) § 1983 claims likely fail because defendants appear to be private parties not acting under color of state law, and (3) federal jurisdiction for state-law claims is doubtful because complete diversity appears lacking.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff qualifies for in forma pauperis | Fisher submitted an affidavit asserting inability to pay costs | Defendants argued (implicitly) that Fisher has sufficient resources; Court evaluated affidavit | Court denied IFP: Fisher’s reported income, assets, and expenses show she can pay the $400 filing fee |
| Whether federal court should hear foreclosure challenge (Rooker–Feldman) | Fisher seeks to challenge state foreclosure order in federal court | Defendants rely on finality of state-court judgments and Rooker–Feldman bar | Court warned Rooker–Feldman may bar those claims; did not reach merits due to IFP denial |
| Viability of § 1983 due process claims | Fisher contends defendants deprived her of due process | Defendants are private actors; § 1983 requires action under color of state law | Court indicated § 1983 claims likely implausible because defendants appear to be private parties not acting under color of state law |
| Subject-matter jurisdiction over state-law claims | Fisher alleges complete diversity to invoke § 1332 | Defendants challenge or factual record shows lack of complete diversity | Court observed complete diversity likely does not exist, so federal jurisdiction over state-law claims is doubtful |
Key Cases Cited
- Adkins v. E.I. Du Pont De Nemours & Co., 335 U.S. 331 (1948) (standards for IFP affidavits and inability to pay litigation costs)
- Cornejo v. Bell, 592 F.3d 121 (2d Cir. 2010) (§ 1983 requires conduct under color of state law)
- Coppedge v. United States, 369 U.S. 438 (1962) (standard for certifying appeals not taken in good faith for IFP purposes)