Opinion
05 Civ. 8979 (LAK)(KNF).
August 25, 2006
REPORT AND RECOMMENDATION
TO THE HONORABLE LEWIS A. KAPLAN, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Pro se plaintiff, Oliver Douce ("Douce"), brought this action against Banco Popular North America ("Banco"), alleging violations of: (a) the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq.; (b) the Fair Credit Billing Act ("FCBA"), 15 U.S.C. §§ 1666- 1666f; (c) federal civil rights laws; and (d) various provisions of Article 9 of the Uniform Commercial Code ("UCC"), as adopted by New York state. Douce alleges that the defendant: (1) repossessed his 1994 Mercedes Benz, model S500 (the "Car"), wrongfully; (2) refused to provide him with information regarding the sale of the Car; (3) conspired with others, including police personnel, to damage his credit rating because of his race; (4) converted the Car for a use other than a sale to reduce or satisfy the debt he owed to Banco; and (5) made false reports to various credit reporting agencies.
The defendant has made a motion to dismiss the plaintiff's claims, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, because it contends, inter alia, that: (1) the court lacks subject matter jurisdiction; (2) the plaintiff's claims are barred by the doctrines of res judicata and collateral estoppel; (3) the plaintiff's claims are barred by the applicable statute of limitations; (4) the plaintiff has failed to join an indispensable party; and/or (5) the plaintiff has failed to state a claim upon which relief may be granted. In addition to requesting that the court dismiss the plaintiff's complaint, the defendant has requested that the court impose sanctions on the plaintiff and award it the attorney's fees it has incurred in defending against this action. The plaintiff opposes the defendant's motion to dismiss. Banco's motion to dismiss is addressed below.
II. BACKGROUND
On July 11, 1997, the plaintiff, Jacqueline Harris ("Harris") and the defendant entered into a retail installment contract (the "Loan Agreement"), whereby Banco agreed to loan Douce and Harris $37,436 to purchase the Car. The loan agreement was secured by the Car.
In August 1999, police officers in Mercer County, New Jersey, seized the Car from Douce, in connection with a criminal investigation they were pursuing. Thereafter, police personnel notified Banco, based on its security interest in the automobile, that the Car had been seized and needed to be claimed. Banco retrieved the Car from police custody.
Under the terms of the Loan Agreement, a seizure of the Car by law enforcement officials, constituted a default. Consequently, on August 16, 1999, Banco sent Douce a Notice of Repossession and Intent to Sell (the "Repossession Notice"). The bank advised Douce that the Car had been repossessed due to his default. The Repossession Notice stated, in pertinent part, the following:
[Y]ou have the right to redeem [the Car] within ten (10) days from the date of this notice for the total amount listed . . . $25,464.60. . . . It is our intent to sell the collateral as soon after the expiration of the redemption period as possible. The sale proceeds, after deduction for repossession fees and other associated costs, will be credited to your account.
On August 20, 1999, four days after Banco sent Douce the Repossession Notice, Douce and Harris filed a summons with notice, in New York State Supreme Court, Bronx County ( "Douce I"). In that action, they alleged, inter alia, that Banco breached the parties' Loan Agreement and committed fraud by repossessing the Car. However, on December 17, 1999, Douce I was dismissed because the plaintiffs failed to attend court for a scheduled appearance.
On December 29, 1999, Banco notified Douce, in writing, that he had defaulted on the Loan Agreement in two respects: (1) by allowing the vehicle to be seized by a third party because of its involvement in criminal activity; and (2) by acknowledging that he had used and intended to continue to use the vehicle for hire or livery, in violation of the "Care of Vehicle" provision of the parties' agreement. The bank's letter explained further that:
[T]he Bank is hereby notifying you under § 9-505 of the New York Uniform Commercial Code of its intention to retain the collateral [the Car] in lieu of the debt. In that you have used the collateral either completely or substantially for hire or livery, the subject collateral cannot be deemed to be consumer goods under N.Y.U.C.C. § 9-109(1).
In March 2001, after Douce failed to contest Banco's assertion of default, Banco caused the Car to be sold through a commercial auction company. At the auction, the Car was sold for $4,300. Banco determined not to pursue Douce and Harris for the loan's deficiency. However, Banco, in accordance with its usual and customary internal accounting procedures, decided to charge-off the unpaid balance of the loan remaining on the account, and to report the charge-off to various credit reporting agencies.
On July 11, 2002, after three attempts to restore Douce I to the court's calendar, all of which failed, Douce commenced a second action in New York State Supreme Court, Bronx County, (" Douce II"). In Douce II, the plaintiff iterated the claims he made in Douce I, and added allegations that the defendant had discriminated against him and made false reports to various credit reporting agencies. While that action was pending, Harris submitted an affidavit to the court. Through that affidavit, Harris sought permission from the court to withdraw from the action and, apparently, assigned any claim(s) she had against Banco, related to the Loan Agreement, to Douce. Harris stated in the affidavit that "[a]s the co-signer of the vehicle" I am asking your permission to be omited (sic) from this case alltogether. I want to have nothing to do with this matter which involves Mr. Oliver Douce. I give permission for him to be the primary person representing this case. I hope you will grant my request in eliminating my name all together (sic). As the case should stand it should be on record that Mr. Oliver Douce is the sole representor (sic) involved." It appears, based on the record before the Court, that the application was granted, since the caption of Douce II shows Douce to be the sole plaintiff.
Banco made a motion in the Bronx County Supreme Court that Douce II be dismissed. On October 4, 2002, the motion was granted, with prejudice. Douce appealed from the dismissal of Douce II to the New York State Supreme Court, Appellate Division, First Department. The Appellate Division affirmed the dismissal. In its decision, the court explained that:
[The] [p]laintiff's claim for fraud was not pleaded with the requisite particularity . . . and his claims for civil rights violations were devoid of supporting factual allegations. His remaining claim, for breach of contract, was not viable in light of the admissions contained in his pleading and the terms of the subject car loan agreement, which together establish conclusively that plaintiff was in default under the agreement and that defendant bank was entitled to retain the collateral, i.e., the car, in lieu of the debt. Douce v. Banco Popular North America, 8 A.D.3d 34, 777 N.Y.S.2d 635 (App.Div. 1st Dep't 2004).
On October 21, 2005, Douce filed the instant action (" Douce III"), alleging violations of his rights under TILA, FCBA and Article 9 of the UCC. In addition to these claims, Douce appears to be asserting a civil rights claim based upon: (a) his reliance on 28 U.S.C. § 1343(3) as a basis for the court's subject matter jurisdiction; and (b) two conclusory allegations in the pleadings that the defendant (a) "wrongfully and racially discriminated against and [c]onspired with other[s] to damage the plaintiff's credit," and (b) "conspired with police to damage the plaintiff's credit."
Although the defendant's submissions in connection with the instant motion address a tort claim for conversion, it appears that the plaintiff's "conversion claim" is brought pursuant to UCC § 9-507 and, as such, it is not a separate claim from the plaintiff's other UCC-related claims.
As noted above, the defendant has made a motion to dismiss the plaintiff's complaint, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), because, it contends: (1) the court lacks subject matter jurisdiction; (2) the plaintiff's claims are barred by the doctrines of res judicata and/or collateral estoppel; (3) the plaintiff's claims are barred by the applicable statute of limitations; (4) the plaintiff has failed to join an indispensable party; and (5) the plaintiff has failed to state a claim upon which relief may be granted.
III. DISCUSSION
The pleadings of a pro se litigant are to be construed liberally by a court. Those pleadings are to be read "to raise the strongest arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). Accordingly, the Court has applied this standard in reviewing the plaintiff's complaint and the submissions he has made in opposition to the defendant's motion to dismiss.
Subject Matter Jurisdiction
The plaintiff contends that the court has subject matter jurisdiction in the instant case by virtue of: 28 U.S.C. § 1332(a)(2); 28 U.S.C. § 1348; 28 U.S.C. § 1343(3); and 28 U.S.C. § 1331. The defendant disagrees.
28 U.S.C. § 1332(a)(2) grants a federal district court jurisdiction over all civil actions between citizens of a state and citizens or subjects of a foreign state, where the matter in controversy exceeds the sum or value of $75,000. In the case at bar, it is undisputed that Banco is incorporated under the laws of New York and as a result, is a citizen of New York. It is also undisputed that the plaintiff is and, at all times relevant to this action, has been domiciled in New York state. Since both parties are citizens of the same state, the court does not have jurisdiction over the action pursuant to 28 U.S.C. § 1332(a)(2).
28 U.S.C. § 1348 grants a federal district court jurisdiction over any civil action commenced by the United States, or at the direction of any officer thereof, against any national banking association. The statute also places within a district court's jurisdiction any civil action to wind up the affairs of any such banking association, and any action for injunction relief brought against the Comptroller of the Currency by a banking association established in the district for which the court is held. Douce is not the United States. Furthermore, he did not commence this action while acting under the direction of an officer of the United States. Moreover, nothing in the record before the Court indicates that Douce brought this action to wind up the affairs of a national banking association. Consequently, 28 U.S.C. § 1348 is not relevant to this action.
28 U.S.C. § 1343(3) grants a federal district court jurisdiction over claims involving the deprivation of rights secured by the Constitution "or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States." In this case, Douce alleges, in a conclusory manner, that the defendant and police personnel conspired to damage his credit rating because of his race. Such race-based conduct would appear to be violative of, inter alia, the antidiscrimination provisions of the Equal Credit Opportunity Act, 15 U.S.C. § 1691, et seq. Therefore, the instant action is within the court's subject matter jurisdiction, pursuant to 28 U.S.C. § 1343(3).
28 U.S.C. § 1331 grants a federal district court jurisdiction over all civil actions "arising under the Constitution, law or treaties of the United States." In this case, Douce has alleged that the defendant violated applicable provisions of TILA and/or FCBA. Since TILA and FCBA are laws of the United States, the court has subject matter jurisdiction over this action based on the express language in 28 U.S.C. § 1331.
Furthermore, in a circumstance such as this, where a plaintiff has presented both federal claims, over which a district court has original jurisdiction, and state-law claims for adjudication, the court may, in the exercise of its discretion, entertain the state-law claims under its supplemental jurisdiction authority.See 28 U.S.C. § 1367.
Failure to State a Claim
A court may dismiss an action pursuant to Fed.R.Civ.P. 12(b)(6) only if "it appears beyond doubt that [a] plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Woodford v. Cmty. Action Agency of Greene County, Inc., 239 F.3d 517, 526 (2d Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102). In considering the motion, the court must take "as true the facts alleged in the complaint and [draw] all reasonable inferences in the plaintiffs favor." Jackson Nat'l Life Ins. v. Merrill Lynch Co., 32 F.3d 697, 700 (2d Cir. 1994). The court may consider all papers and exhibits appended to the complaint as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). However, where "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b).
In this case, the parties have submitted materials outside the pleadings for the court to consider. They consist of affidavits and various documents pertinent to the prior state-court litigation. Therefore, the Court must determine whether it is appropriate, in this case, to convert the defendant's motion to dismiss to a summary judgment motion.
"The Second Circuit has stated that conversion of a Rule 12(b)(6) motion into one for summary judgment is governed by principles of substance rather than form." Marvin Inc. v. Albstein, 386 F. Supp. 2d 247, 251 (S.D.N.Y. 2005) (quoting In re G. A. Books, Inc., 770 F.2d 288, 295 [2d Cir. 1985]) (internal quotation marks omitted). "The essential inquiry in a conversion to a summary judgment motion is whether the [opposing party] should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the proceedings." Id.
In the instant case, the Court is mindful that Douce is a pro se litigant and that "'[n]otice is particularly important when a party is proceeding pro se and may be unaware of the consequences of his failure to offer evidence bearing on triable issues.'" Corcoran v. New York Power Auth., 935 F. Supp. 376, 383 (S.D.N.Y. 1996) (quoting Beacon Enters. Inc. v. Menzies, 715 F.2d 757, 767 [2d Cir. 1983]). "However, a 'party cannot complain of lack of reasonable opportunity to present all material relevant to a motion for summary judgment when both parties have filed exhibits, affidavits, counter-affidavits, depositions, etc. in support of and in opposition to a motion to dismiss.'" Smith v. Redound Indus., Inc., No. 96 Civ. 631, 1997 WL 103939, at *1 (E.D.N.Y. Feb. 26, 1997) (quoting Books, 770 F.2d at 295).
In support of its motion to dismiss, the defendant submitted the Appendix from the state-court appeal of Douce II, affidavits, various correspondence sent by Banco to the plaintiff and documentation establishing the sale of the Car by a commercial auction company. The defendant also served the plaintiff with a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment/To Dismiss." Through this document, the defendant informed the plaintiff of its submission to the court of material outside the pleadings that it wanted the court to consider in resolving its motion. The notice also explained that the plaintiff's complaint could be dismissed by the court if he did not submit evidence countering the facts asserted by the defendant and contained in various documents it provided to the court for consideration. Furthermore, the defendant attached a copy of Fed.R.Civ.P. 56 to the notice it provided to the plaintiff.
In response to the defendant's motion to dismiss, the plaintiff submitted two affirmations, his credit report and a photograph of the Car for the court's consideration. Moreover, in his submissions, in opposition to the defendant's motion, Douce makes reference to the material outside the pleadings that the defendant submitted to the court.
Based on the notice provided to the plaintiff and the parties' respective submissions to the court of material outside the pleadings that they determined should be considered in connection with the Court's analysis of the defendant's motion to dismiss, it is fair to conclude that the plaintiff had sufficient notice that the Court might consider material outside the pleadings to resolve the motion. Moreover, it is evident that Douce had a reasonable opportunity to submit, and did submit, material outside the pleadings to substantiate his claims and to convince the Court that the defendant's motion should be denied. See Books, 770 F.2d at 295; Smith, 1997 WL 103939, at *1. Therefore, it is appropriate to convert the defendant's motion to dismiss into a motion for summary judgment.
Standard of Review for Summary Judgment
Summary judgment may be granted in favor of the moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998), cert. denied, 524 U.S. 911, 118 S. Ct. 2075 (1998). When considering a motion for summary judgment, "the court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor."L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356). This applies particularly where, as here, the parties had not engaged in discovery at the time the instant motion was filed and discovery might further substantiate the plaintiff's claims. See New York Jets LLC v. Cablevision Sys. Corp., No. 05 Civ. 2875, 2005 WL 2649330, at *4 (S.D.N.Y Oct. 17, 2005).
TILA and FCBA Claims
TILA's purpose is "to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices." 15 U.S.C. § 1601(a); see also Diaz v. Paragon Motors of Woodside Inc., 424 F. Supp. 2d 519, 528-529 (E.D.N.Y. 2006). FCBA, which is part of TILA, see Gipson v. Cross Country Bank, 354 F. Supp. 2d 1278, 1280 n. 1 (M.D. Ala. 2005), protects consumers against unfair billing and credit card practices. "The adjective 'consumer' used with reference to a credit transaction [under TILA], characterizes the transaction as one in which the party to whom credit is offered or extended is a natural person, and the money, property, or services which are the subject of the transaction are primarily for personal, family, or household purposes." 15 U.S.C. § 1602(h). Since TILA and FCBA are designed to protect consumers, extensions of credit for business and commercial transactions are expressly exempted from their protections. See 15 U.S.C. 1603(1).
Harris and Douce sought and obtained a loan from Banco to acquire the Car, ostensibly, for personal use. Unbeknownst to Banco, and contrary to the terms of the parties' Loan Agreement, Douce intended to use, and did use the Car for his livery business. Douce admits this in his complaint and in the submissions he made in opposition to the bank's motion to dismiss. Inasmuch as Douce has acknowledged that the loan was obtained from Banco to further a commercial enterprise, and not to obtain a vehicle for personal use, the Court finds that, in the circumstance of the instant case, the protections afforded to consumers by the provisions of TILA and FCBA, are not available to the plaintiff.
The plaintiff admits throughout his submissions that the Car was purchased for his work as a professional driver.
In any event, even if Douce could avail himself of the protections of TILA and FCBA, his TILA/FCBA claims would be barred by the applicable statute of limitations. 15 U.S.C. § 1640(e) makes clear that a TILA claim must be brought within one year from the date of an occurrence of the violation. The phrase "occurrence of the violation" means different things depending on whether the violation occurs in the context of a "closed-end" credit plan or that of an "open-end" credit plan. 15 U.S.C. § 1602(i) defines the term "open-end credit plan" as follows:
The term "open-end credit plan" means a plan under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides a finance charge which may be computed from time to time on the outstanding unpaid balance.15 U.S.C. § 1602(i)
Although the term "closed-end credit" is not defined in 15 U.S.C. § 1602, a one-time loan transaction, such as the one at issue in the instant action, is considered a "closed-end credit" transaction. See Cardiello v. Money Store, Inc., No. 00 Civ. 7332, 2001 WL 604007, at *3 n. 8 (S.D.N.Y. June 1, 2001). An occurrence of a violation, in the context of a "closed-end credit" transaction, is the point "no later than the date the plaintiff enters the loan agreement or, possibly, when defendant performs by transmitting the funds to [the plaintiff]." Id. at 3. In the case at bar, the plaintiff's complaint was filed nearly eight years after the parties entered into their Loan Agreement and the defendant performed by advancing Douce and Harris the funds to purchase the Car. Accordingly, Douce's TILA claim is barred by the applicable statute of limitations.
To the extent the plaintiff is making a separate FCBA claim, it too is barred by the applicable statute of limitations. FCBA "requires written-notice of [a] billing error to be given to [a] creditor within sixty days of receipt of the error . . . After notice is given, a claim for relief must be brought within one-year of the creditor's failure to correct the error." See Davis v. Maryland Bank, No. 00 Civ. 4191, 2002 WL 32713429, at *6 (N.D. Cal. June 19, 2002); see also 15 U.S.C. § 1640(e). Although, Douce does not allege that he notified the defendant, in writing, that a billing error had occurred — which itself bars the plaintiff from asserting a FCBA claim — even if he had placed Banco on notice of a billing error, the one-year statute of limitations would bar any FCBA claim asserted by the plaintiff in this action, since Douce would have been aware that Banco had not corrected the error in, or before, March 2001, when the repossessed vehicle was sold.
In addition to the impediments to Douce's bringing his TILA and FCBA claim(s) that are addressed above, the plaintiff has failed to allege, and thus has not substantiated, that Banco made any unlawful disclosures or engaged in any billing practices that violated TILA or FCBA. Based on the above, the defendant is entitled to summary judgment on the TILA and FCBA claims Douce has made in this action. Section 1983 Claim 42 U.S.C. § 1983 provides a vehicle for an aggrieved person to seek redress for the actions of one, "who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. . . ." 42 U.S.C. § 1983. To state a claim under 42 U.S.C. § 1983, based on conspiratorial conduct, the following elements must be pleaded: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury or to deprive a plaintiff of a right secured by the laws of the United States; and (3) an overt act done in furtherance of that goal causing damages. See Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999); Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002); Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993).
The only factual allegations made by the plaintiff to support the TILA/FCBA claims are the following: (1) the defendant did not disclose information regarding the sale of the Car; (2) the defendant refused to return the plaintiff's telephone calls; (3) the defendant made false reports to credit agencies; and (4) the defendant refused to disclose information regarding "the release of the lien."
Douce's complaint does not identify the legal basis for his civil rights claim. However, based on the allegations contained in his complaint, and his reliance on 28 U.S.C. § 1343(3) as a basis for the court's subject matter jurisdiction, it appears that his conspiracy claim against the bank and New Jersey police personnel, is brought under 42 U.S.C. § 1983.
Douce's complaint fails to state a conspiracy claim under 42 U.S.C. § 1983 for two reasons: (i) no facts have been alleged, with the requisite specificity, that indicate that the defendant acted in concert with police personnel to inflict an unconstitutional injury on him or to deprive him a right secured to him by the laws of the United States; and (ii) no facts have been alleged, with the requisite specificity, that indicate that an overt act was committed in furtherance of the conspiracy's goal. The vague and conclusory allegations contained in the complaint, which lack citation to specific instances of misconduct, are insufficient to survive this dispositive motion. See Dwares, 985 F.2d at 99-100.
Alternative Grounds for Dismissal
The defendant has alleged that the doctrines of res judicata and collateral estoppel are applicable here and provide additional bases for granting its motion. However, since the Court finds that the defendant is entitled to summary judgment in its favor on the federal claims that have been asserted by the plaintiff in this action, and, as discussed below, finds further that the Court should not entertain Douce's state-law claims, no analysis of these alternative grounds for dismissal is necessary.
The defendant has also alleged that this action should be stayed or dismissed because Douce failed to join Harris, whom the defendant maintains is an indispensable party. The record before the Court indicates that Harris previously assigned any right she may have had to make a claim(s) against the defendant to Douce. It appears, based on the record before the Court, that it was on the strength of that assignment of rights that the parties litigated Douce II, since Harris' name is absent from the case's caption. Consequently, no basis for dismissing the action or staying the proceedings for want of an indispensable party exists.
Supplemental Jurisdiction
The remaining claims in this case are based on alleged violations, by the defendant, of New York law. The court may, in its discretion, exercise supplemental jurisdiction over the state-law claims made by Douce in this action. See 28 U.S.C. § 1367(a). A court has broad discretion to decide whether to exercise its supplemental jurisdiction over state-law claims.See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726-28, 86 S. Ct. 1130, 1139-40 (1966); Seabrook v. Jacobson, 153 F.3d 70, 73 (2d Cir. 1998). A court may decline to exercise supplemental jurisdiction over state-law claims if the court "has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). Since all the federal claims asserted in this action should be dismissed, it would be reasonable and appropriate for the court to decline to exercise it supplemental jurisdiction authority and, thereby, decline to entertain the plaintiff's state-law claims.
Attorney's Fees
The defendant has requested that the Court award it the attorney's fees it has incurred in defending this action. However, it has failed to provide any legal authority to the Court that would support granting its request. Therefore, the defendant's application for an award of attorney's fees should be denied.
Sanctions
The defendant has also requested that the court sanction the plaintiff. However, the bank has not provided any legal or factual basis upon which the court might rely in granting the defendant's request. In such a circumstance, granting the request that sanctions be imposed on the plaintiff does not appear to be warranted.
IV. RECOMMENDATION
For the reasons set forth above, defendant's motion to dismiss, should be converted to a motion for summary judgment and ought to be granted with respect to the plaintiff's TILA, FCBA and civil rights claims. In addition, the court should decline to exercise its supplemental jurisdiction and, thereby, refrain from entertaining the plaintiff's state-law claims. Furthermore, the defendant's requests, that the court sanction the plaintiff and award it the attorney's fees it has incurred defending against this action, should be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, United States District Judge, 500 Pearl St., Room 1310, New York, New York 10007, and to the chambers of the undersigned, 40 Centre St., Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993);Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).