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United States Court of Appeals, Second Circuit.

Marvin ODUMS, Plaintiff-Appellant, v. GREENPOINT MORTGAGE FUNDING, INC., Jeffrey M. Jiliane, dba Ceo of Greenpoint Mortgage Funding, Inc./Capital One Bank, N.A., Richard D. Fairbank, dba CEO of Capital One Bank N.A., Edward Estrada, Assistant To President of Financial Services of Capital One Bank, Charlmonique Dunn, Capital One Service Representative, Defendants-Appellees.


Decided: December 18, 2020

Present: ROSEMARY S. POOLER, BARRINGTON D. PARKER, GERARD E. LYNCH, Circuit Judges. Appearing for Appellant: Marvin Odums, pro se. Appearing for Appellee: Clement J. Farley, McCarter & English, LLP, Newark, N.J.


Appellant Marvin Odums, pro se, appeals from a final judgment entered January 7, 2020 (Mauskopf, J.) dismissing his claims alleging fraud and violations of various federal statutes against Greenpoint Mortgage Funding, Inc. (“Greenpoint”), Capital One, N.A. (“Capital One”), and former and current employees of Greenpoint and Capital One in relation to a mortgage foreclosure. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

“We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The complaint must plead “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A complaint is “deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.” Chambers, 282 F.3d at 152 (quoting Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)). We may also take judicial notice “of documents filed in other courts ․ to establish the fact of such litigation and related filings.” Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991).

Under the Full Faith and Credit Act, 28 U.S.C. § 1738, a federal court must apply New York preclusion law to New York state court judgments. See Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 93 (2d Cir. 2005). In New York, “[c]laim preclusion prevents relitigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions that either were raised or could have been raised in the prior proceeding.” Rojas v. Romanoff, 186 A.D.3d 103, 128 N.Y.S.3d 189, 194 (2020). Under New York's transactional approach, “if claims arise out of the same factual grouping they are deemed to be part of the same cause of action and the later claim will be barred without regard to whether it is based upon different legal theories or seeks different or additional relief.” Davidson v. Capuano, 792 F.2d 275, 278 (2d Cir. 1986) (internal quotation marks omitted). However, “a claim is not barred by [claim preclusion] if the court in which the first action was brought lacked subject matter jurisdiction to adjudicate that claim.” Cullen v. Margiotta, 811 F.2d 698, 732 (2d Cir. 1987) abrogated on other grounds by Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987).

The district court did not err in concluding that claim preclusion bars Odums's fraud claim. The Supreme Court, Kings County, granted summary judgment to Greenpoint and to W & H Equities, LLC (“W & H”) in the foreclosure action and entered a judgment of foreclosure and sale, and the Appellate Division affirmed. See Greenpoint Mortg. Funding, Inc. v. Odums, 113 A.D.3d 818, 978 N.Y.S.2d 910 (2014); W & H Equities LLC v. Odums, 113 A.D.3d 840, 978 N.Y.S.2d 910 (2014). The grant of summary judgment constitutes a final judgment on the merits. See Methal v. City of New York, 50 A.D.3d 654, 855 N.Y.S.2d 588, 590 (2008). Odums was a party to the foreclosure action and is a party here. Odums's fraud claims were raised in the state court action, where Odums claimed that Greenpoint fraudulently induced him to enter into an invalid contract and that the mortgage and note were unenforceable. Further, the Kings County Supreme Court had subject-matter jurisdiction over the foreclosure action. See N.Y. Const. art. VI, § 7(a) (providing that “[t]he supreme court shall have general original jurisdiction in law and equity”).

Odums also argues that the district court erred in dismissing his Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, claim. FOIA requires federal “agencies to make available to the public all of their information except for that covered by the specific exceptions enumerated in § 552(b).” New York Times Co. v. U.S. Dep't of Justice, 939 F.3d 479, 488 (2d Cir. 2019) (internal quotation marks omitted). The statute defines an “agency” subject to its requirements as “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(f)(1). “Where, as here, there is a dispute as to whether the requested entity is an agency, the burden on that preliminary legal question rests with the party seeking production.” Main St. Legal Servs., Inc. v. Nat'l Sec. Council, 811 F.3d 542, 544 (2d Cir. 2016).

Odums argues that Capital One is an agency subject to FOIA because it is a Government-chartered national bank, a member and “franchisee” of the Federal Reserve System, and a “[f]iscal agent[ ]” of the U.S. Department of the Treasury. Appellant's Br. 12-13, 23-24. In support of these assertions, he cites 12 U.S.C. § 391, which directs that the Secretary of Treasury has discretion to deposit certain funds in Federal Reserve Banks, which “shall act as fiscal agents of the United States.” 12 U.S.C. § 391. However, Capital One is not a Federal Reserve Bank. See Fox News Network, LLC v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 158, 159 (2d Cir. 2010) (“The Federal Reserve System—the central bank of the United States—is composed of twelve regional Federal Reserve Banks and the ․ Board of Governors of the Federal Reserve System[.]”). Because the defendants are not “agencies” within the meaning of FOIA, the district court properly dismissed Odums's FOIA claims.

Although Odums's complaint included claims under the Truth in Lending Act, 15 U.S.C. § 1601 et seq., the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., and various federal criminal statutes, he does not mention these claims in his appellate brief. He has thus abandoned them. See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995) (pro se litigant abandons an issue by failing to address it in his appellate brief). Moreover, while Odums mentions the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et. seq., he fails to articulate arguments challenging the district court's dismissal of that claim, and has waived the issue. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”).

To the extent that Odums raises a new claim that Greenpoint, Capital One, and their current or former employees violated a duty to protect him from fraud arising under the National Banking Act, we decline to consider this claim for the first time on appeal. See Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994) (“[I]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.”).

We have considered the remainder of Odums's arguments and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED and Odums's motion for summary judgment is DENIED.

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