Wells Fargo Bank v. Algarin et al
| New York Eastern District Court | |
| Judge: | Nusrat Jahan Choudhury |
| Referred: | Anne Y Shields |
| Case #: | 2:24-cv-08402 |
| Nature of Suit | 220 Real Property - Foreclosure |
| Cause | 28:1332 Diversity-Account Receivable |
| Case Filed: | Dec 06, 2024 |
| Last checked: Friday Dec 06, 2024 5:10 PM EST |
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Defendant
Geeta Algarin
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Defendant
Henry Algarin
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Defendant
Capital One Bank USA, N.A.
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Defendant
John Doe #1 through John Doe #12
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Plaintiff
Wells Fargo Bank
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Represented By
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| Docket last updated: 12 hours ago |
| Thursday, December 12, 2024 | ||
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order
Order to Show Cause
Thu 12/12 9:34 AM
ORDER TO SHOW CAUSE: The Court has reviewed the Complaint (Compl., ECF No.1 ) and has determined that Plaintiff Wells Fargo Bank, National Association has failed to establish whether this Court possesses diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). This Court has an independent obligation to determine whether subject matter jurisdiction exists over this case. See Joseph v. Leavitt , 465 F.3d 87, 89 (2d Cir. 2006). "[F]ailure of subject matter jurisdiction is not waivable and may be raised at any time by a party or by the court sua sponte." Lyndonville Sav. Bank & Tr. Co. v. Lussier , 211 F.3d 697, 700 (2d Cir. 2000). If a district court lacks subject matter jurisdiction, it must dismiss the action. See Do No Harm v. Pfizer Inc. , 96 F.4th 106, 120-21 (2d Cir. 2024); Fed. R. Civ. P. 12(h)(3). Diversity jurisdiction under 28 U.S.C. § 1332(a) requires complete diversity among the plaintiffs and defendants and that the amount in controversy exceeds $75,000. See Tagger v. Strauss Grp. Ltd. , 951 F.3d 124, 126 (2d Cir. 2020). "[A] national bank is a citizen only of the state listed in its articles of association as its main office." OneWest Bank, N.A. v. Melina , 827 F.3d 214, 219 (2d Cir. 2016). "An individual's citizenship, within the meaning of the diversity statute, is determined by his domicile," or in other words, "the place where a person has his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning." Van Buskirk v. United Grp. of Cos., Inc. , 935 F.3d 49, 53 (2d Cir. 2019). The second requirement of diversity jurisdiction--an amount in controversy of at least $75,000--is equally important. "[A] plaintiff invoking federal jurisdiction must demonstrate a 'reasonable probability' that the amount-in-controversy requirement is satisfied." Pyskaty v. Wide World of Cars, LLC , 856 F.3d 216, 223 (2d Cir. 2017) (citation omitted). The U.S. Court of Appeals for the Second Circuit "recognize[s] a rebuttable presumption that the face of the complaint is a good faith representation of the actual amount in controversy." Id. The amount in controversy alleged must be plausible, i.e., supported by facts in the complaint. Wood v. Maguire Automotive, LLC , 508 F. App'x. 65, 65 (2d Cir. 2013) (affirming dismissal of complaint for lack of subject matter jurisdiction where plaintiff's "allegation in her complaint of $75,000 in controversy is conclusory and not entitled to a presumption of truth"). Plaintiff has sufficiently demonstrated that there is at least $75,000 in controversy by alleging damages including an unpaid principal amount of $220,125.24 together with unpaid interest, charges, and fees. (Compl. at para. 23.a.) Plaintiff has not, however, sufficiently demonstrated diversity of citizenship. Plaintiff alleges it is "organized under the laws of the United States" and that "[i]t is a citizen of the State of South Dakota." (Compl. at para. 2.) Plaintiff fails, however, to allege the state in which the main office listed in its articles of association is located. See OneWest Bank, N.A. v. Melina , 827 F.3d 214, 219 (2d Cir. 2016). Further, Plaintiff's allegations made "upon information and belief" are insufficient to establish indicate the citizenship of both individual Defendants, Henry Alargin and Geeta Algarin, for purposes of establishing diversity. See Snyder Corp. v. Fitness Ridge Worldwide, LLC , 2018 U.S. Dist. LEXIS 47514 at *5 (W.D.N.Y. 2018) (establishment of diversity requires affirmative statements of the identity and citizenship of all parties and the members thereof: conclusory statements upon information and belief are insufficient). The Complaint's sole allegations regarding the citizenship of the individual Defendants are made "upon information and belief." (Compl. at paras. 3-4.) Specifically, the Complaint alleges "upon information and belief" that both individual Defendants are "resident[s] and citizen[s] of the State of New York, having an address at 515 Riverside Boulevard, Long Beach, New York 11561." ( Id. ) Accordingly, by December 27, 2024 , Plaintiff must to show cause in writing why this Court should not dismiss this action without prejudice for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(h)(3). See Do No Harm v. Pfizer Inc. , 96 F.4th 106, 120-21 (2d Cir. 2024). Facts showing diversity jurisdiction must be established by sworn affidavit. Ordered by Judge Nusrat J. Choudhury on 12/12/2024. (RDP) |
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| Tuesday, December 10, 2024 | ||
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order
Scheduling Order
Tue 12/10 10:57 AM
ORDER: An IN-PERSON Initial Conference is set for 4/8/2025 at 11:00 AM in Courtroom 840 before Magistrate Judge Anne Y. Shields. See order and attachment. Ordered by Magistrate Judge Anne Y. Shields on 12/10/2024. (JT) |
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Att: 1
AYS RULES
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| Monday, December 09, 2024 | ||
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service
Summons Issued
Mon 12/09 9:47 AM
Summons Issued as to Geeta Algarin, Henry Algarin, Capital One Bank USA, N.A. (LJ) |
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misc
Clerks Notice of Rule 73
Mon 12/09 9:15 AM
Clerk's Notice Re: Consent. A United States Magistrate Judge has been assigned to this case and is available to conduct all proceedings. In accordance with Rule 73 of the Federal Rules of Civil Procedure, Local Rule 73.1, the parties are notified that if all parties consent, the assigned Magistrate Judge is available to conduct all proceedings in this action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to this 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. Any party may withhold its consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent.The form may also be accessed at the following link:[LINK:https://img.nyed.uscourts.gov/files/forms/MJConsentForm.pdf] (LJ) |
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misc
Quality Control Check - Attorney Case Opening
Mon 12/09 9:09 AM
This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made. (LJ) |
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utility
Case Assigned/Reassigned
Mon 12/09 9:12 AM
Case Assigned to Judge Nusrat Jahan Choudhury and Magistrate Judge Anne Y. Shields. Please download and review the Individual Practices of the assigned Judges, located on our[LINK:website] . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (LJ) |
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| Friday, December 06, 2024 | ||
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notice
Notice of Appearance
Fri 12/06 4:49 PM
NOTICE of Appearance by Sara Zahava Boriskin on behalf of Wells Fargo Bank (aty to be noticed) (Boriskin, Sara) |
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misc
Proposed Summons/Civil Cover Sheet
Fri 12/06 4:48 PM
Proposed Summons. by Wells Fargo Bank (Cellucci, Anthony) |
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misc
Proposed Summons/Civil Cover Sheet
Fri 12/06 4:39 PM
Civil Cover Sheet.. by Wells Fargo Bank (Cellucci, Anthony) |
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cmp
Complaint
Fri 12/06 4:37 PM
COMPLAINT against Geeta Algarin, Henry Algarin, Capital One Bank USA, N.A., John Doe #1 through John Doe #12 filing fee $ 405, receipt number ANYEDC-18559814 Was the Disclosure Statement on Civil Cover Sheet completed -NO,, filed by Wells Fargo Bank. (Cellucci, Anthony) |
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Att: 1
Exhibit Exhibit A,
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Att: 2
Exhibit Exhibit B,
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Att: 3
Exhibit Exhibit C,
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Att: 4
Exhibit Exhibit D,
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Att: 5
Exhibit Exhibit E,
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Att: 6
Exhibit Exhibit F
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