ROSLYNN R. MAUSKOPF, District Judge.
Plaintiff Teves Realty, Inc. ("Teves") brings this action seeking to foreclose on a mortgage that encumbers two properties located in Queens owned by defendant Zadie Bartley.
On December 13, 2005, Zadie and Enos Bartley (the "Bartleys") obtained a $140,000 loan from Nechadim Corp. ("Nechadim"), secured by a mortgage (the "Mortgage") encumbering the Properties. (See Mortgage Contract (Doc. No. 42-1) at 2-3.) Under the terms of the Mortgage, the Bartleys were to make monthly interest payments at an annual rate of sixteen percent, starting on January 13, 2006. (Id. at 1.) They were to return the unpaid balance, as well as any interest owed, on June 13 of the same year. (Id.) Alternatively, the principal would become due "on the happening of any default." (Id.)
On August 27, 2009, Nechadim filed a foreclosure action against the Bartleys
Bartley argues, inter alia, that the Court should dismiss the case pursuant the Colorado River doctrine, which allows federal courts to abstain from exercising jurisdiction over certain parallel state court proceedings. (See Colorado River, 424 U.S. at 818; see Opp'n to Mot. Summ. J. (Doc. No. 46) at 3-4.)
Abstention is an "extraordinary and narrow" exception to a federal court's duty to exercise its jurisdiction. Colorado River, 424 U.S. at 813. The court's task "is not to find some substantial reason for the exercise of federal jurisdiction . . .; rather, the task is to ascertain whether there exist exceptional circumstances . . . to justify the surrender of [federal court] jurisdiction." Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25-26 (1983) (internal quotation marks omitted). "[A] district court's discretion to abstain must be exercised within the narrow and specific limits prescribed by the particular abstention doctrine involved." Village of Westfield v. Welch's, 170 F.1d 116, 125 (2d Cir. 1999) (internal citations omitted).
The test for determining whether abstention is appropriate under Colorado River requires examination of six factors: "(1) assumption of jurisdiction over a res; (2) inconvenience of the forum; (3) avoidance of piecemeal litigation; (4) order in which the actions were filed; (5) the law that provides the rule of decision; and (6) protection of the federal plaintiff's rights." De Cisneros v. Younger, 871 F.2d 305, 307 (2d Cir.1989). The test "does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction." Id. The factors should "be applied in a pragmatic, flexible manner with a view to the realities of the case at hand." Moses H. Cone Memorial Hosp., 460 U.S. at 21. "The weight to be given to any one factor may vary greatly from case to case, depending on the particular setting of the case." Id. at 16.
The Second Circuit has held that jurisdiction over the res can be dispositive when assessing the Colorado River factors. See FDIC v. Four Star Holding Co., 178 F.3d 97, 102 (2d Cir. 1999) (citing 40235 Washington St. Corp. v. Lusardi, 976 F.2d 587, 589 (9
The Supreme Court has recognized that "in cases where a court has custody of property, that is, proceedings in rem and quasi in rem . . . the state or federal court having custody of such property has exclusive jurisdiction to proceed." Donovan v. City of Dallas, 377 U.S. 408, 412 (1964) (emphasis added); see also Colorado River, 424 U.S. at 818 ("It has been held . . . that the court first assuming jurisdiction over property may exercise that jurisdiction to the exclusion of other courts.") Accordingly, the Second Circuit has held that because "[a] foreclosure action is an in rem proceeding," a court has "exclusive jurisdiction to proceed" where a foreclosure action was first filed in that court, and a parallel proceeding subsequently was filed in another court. FDIC, 178 F.3d at 102; see also Credit-Based Asset Servicing & Securitization, LLC v. Lichtenfels, 658 F.Supp.2d 355 at 361, 365 (D. Conn. 2009) (dismissing a federal foreclosure action on Colorado River grounds where a state court foreclosure action was commenced one and one-half years before the federal complaint was filed); E. Chemerinsky Federal Jurisdiction § 14.2 (5th ed. 2007) (noting that while the traditional rule is that "the existence of a case in one court does not defeat jurisdiction in another . . . . [t]here is one firmly entrenched exception to this rule: in actions concerning real property, whichever court has jurisdiction first is entitled to exclusive jurisdiction over the matter . . . ."). Under New York law, a foreclosure action is an in rem proceeding. See FDIC, 178 F.3d at 102, citing Bowery Sav. Bank v. Meadowdale Co., 64 N.Y.S.2d 22, 23 (Sup.Ct.1942); cf. Chapin v. Posner, 299 N.Y. 31, 38, 85 N.E.2d 172 (1949) (referring to mortgage foreclosure action as "one in rem"). See also N.Y.C.P.L.R. 314, comment 314:3 (McKinney 1990) ("[a]n action to define title or other interest in property is in rem"); 55 Am.Jur.2d Mortgages § 630 (1996) ("[a]n action to foreclose a mortgage has been characterized as an action strictly in rem and quasi in rem") (footnotes omitted).
In this case, the state court exercised jurisdiction over the res long before Teves filed the instant action on May 23, 2014. It is undisputed that both the state court action and the instant action are garden variety foreclosure proceedings involving the very same properties, the very same mortgage, and the very same borrowers. (See Opp'n to Mot. Summ. J. at 3; Reply to Mot. Summ. J. at 3-4.) An order granting summary judgment without opposition in favor of Nechadim and against the Bartleys and appointing a referee was filed on July 16, 2015. (See 7/16/15 Order (Doc. No. 43-1) at 5-8.) Even today, the Queens court docket indicates that the "Case Status" is "Active," and it appears that in a recent filing,, the borrowers seek to have the summary judgment order foreclosing on the property set aside. See Nechadim Corp. v. Bartley, No. 23283/2009 (N.Y. Sup. Ct.).
These principles are particularly compelling in this case as Teves, the plaintiff in this action, claims to be the successor in interest to Nechadim, the plaintiff in the state court action.
Moreover, further analysis of the Colorado River factors strongly favor abstention.
Thus, considering all of these factors together, and notwithstanding the heavy presumption in favor of retaining jurisdiction, the Court finds that abstention under the Colorado River doctrine is warranted.
For the reasons stated in this Memorandum and Order, the Court dismisses this action under the Colorado River doctrine, and as such, denies Teves's motion for summary judgment (Doc. No. 47). The Clerk of Court is respectfully directed to enter judgment accordingly and close this case.
SO ORDERED.