Estrada Vega v. Gateway Bank, F.S.B.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CARLOS MARTIN ESTRADA VEGA,
Plaintiff,
REPORT AND
RECOMMENDATION
-against-
2:24-cv-08000 (JMA) (JMW)
GATEWAY BANK F.S.B.,
Defendant.
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A P P E A R A N C E S:
Carlos Martin Estrada Vega
Pro Se Plaintiff
Timothy W. Salter, Esq.
McCarter & English LLP
250 W. 55th Street, 13th Floor
New York, New York 10019
-and-
Robert B. Kaplan, Esq.
James M. Neudecker, Esq.
Jeffer Mangles Butler & Mitchell LLP
Two Embarcadero Center, Fifth Floor
San Francisco, CA 94111
Attorneys for Defendant
WICKS, Magistrate Judge:
Plaintiff Carlos Martin Estrada Vega (“Plaintiff” or “Vega”), appearing pro se,
commenced this action against Defendant Gateway Bank F.S.B. (“Defendant” or “Gateway”)
asserting that a mortgage he obtained through Defendant for a property in Jamaica, New York is
unenforceable based upon Defendant’s alleged violation of “Section 33 of the 1863 National
12/31/2025
FILED
CLERK
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
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Bank Act” by failing to countersign the note on that mortgage and because Defendant failed to
cure this alleged violation under the doctrine of accord and satisfaction. (ECF No. 1-1 at ¶¶ 7, 9.)
Before the Court on referral from the Hon. Joan M. Azrack is Defendant’s motion to
dismiss the Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No.
26). Plaintiff opposes the motion (ECF No. 27). For the reasons stated below, it is respectfully
recommended that Defendant’s motion to dismiss (ECF No. 26) be GRANTED.
BACKGROUND
Plaintiff’s action arises out of his purchase in 2008 of property located at 145-74 226
Street, Jamaica, New York 11413, secured by a $512,000 mortgage from Defendant (the
“Property”). In connection with the mortgage, Plaintiff signed a promissory note in favor of
Gateway. (ECF No. 1-1 at ¶ 3.) Sixteen years later, on May 28, 2024, Plaintiff raised a dispute
with the mortgage by sending a letter to the CEO of Gateway Bank claiming Defendant, or its
agent, failed to countersign the note for the mortgage “as required by section 33 of the 1863
National Bank Act . . . .” (Id. at ¶¶ 4, 7.) Plaintiff avers that this letter sent to Gateway
constituted a “bona fide dispute” concerning the mortgage. (See id. at ¶ 4.) Further, Plaintiff
maintains that this “bona fide dispute” sent to Gateway “offered the [D]efendant an opportunity
to cure under the laws of Accord and Satisfaction” and that Plaintiff would “submit a draft with
the words ‘Paid in Full’ to satisfy the claim.” (Id. at ¶¶ 7, 9.) On May 30, 2024, transferred the
Property via quitclaim deed to Tania Estrada which was recorded on June 3, 2024. (See ECF No.
26-1, Ex. 2.)
On June 11, 2024, Plaintiff sent Gateway three postal money orders for $1,000 each and
one for $198.60. (See id. at ¶ 10.) Each postal money order contained a handwritten note that
payment was “in full satisfaction” of the note. (See id. at ¶¶ 9-10.) Despite Gateway allegedly
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accepting the $198.60 “in full satisfaction” of the $512,000 mortgage, Plaintiff continued to
make monthly mortgage payments to Gateway. (See id. at pp. 6-8.) Plaintiff contends that
Defendant breached the party’s mortgage agreement by continuing to accept mortgage payments
despite accepting money orders stating the payment was “in full satisfaction” of the supposed
“bona fide” dispute. (See ECF No. 1-1 at ¶ 9.)
Shortly thereafter, on July 23, 2024, Plaintiff filed for Chapter 7 bankruptcy protection in
the Eastern District of New York. (See ECF No. 26-1, Ex. 3.) Plaintiff received a discharge from
the Bankruptcy Court on October 25, 2024—just days after Plaintiff initiated this action on
October 21, 2024. (See id., Ex. 5.) Plaintiff’s action, in essence, is a breach of contract lawsuit
for money damages against Gateway premised on a supposed dispute about Gateway’s
compliance with Section 33 of the National Bank Act of 1863. Specifically, Plaintiff maintains
that Defendant’s breach of the mortgage documents renders the mortgage unenforceable and
requests “a writ of injunction for breach of contract and settlement and closure” of the Gateway
mortgage “under the laws of Accord and Satisfaction,” a $1,024,000 “penalty” against Gateway
due to “a violation of section 33 of The National Bank Act of 1863,” and the return of $15,993 in
payments “submitted under duress after the Bona fide Dispute was accepted . . . .” (Id. at ¶ 18.)
Upon removal of this action from New York State Supreme Court, Nassau County on
November 18, 2024, Defendant filed its letter motion for a pre-motion conference in anticipation
of its motion to dismiss1 Plaintiff’s Complaint on November 20, 2024 pursuant to Federal Rule
of Civil Procedure 12(b)(6). (ECF No. 7.) On February 12, 2025, the undersigned granted
1 The Hon. Joan M. Azrack set a briefing schedule for Defendant’s motion to dismiss, directing that
Defendant’s moving papers be served by February 18, 2025, Plaintiff’s opposition by February 24, 2025,
and Defendant serve its reply by March 3, 2025. (Electronic Order dated February 4, 2025.) These papers
were to be filed on ECF by March 5, 2025. (Id.)
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Defendant’s motion to stay discovery pending the outcome of Defendant’s anticipated motion to
dismiss the Complaint. (ECF No. 20.) The undersigned found, in relevant part, that Plaintiff’s
claims appeared unmeritorious considering Plaintiff’s claim was eligible for disclosure in his
Chapter 7 bankruptcy proceeding thus judicially estopping Plaintiff from bringing this action,
Plaintiff’s injuries were “self-inflicted,” and no bona fide dispute existed to support a claim for
accord and satisfaction. See Vega v. Gateway Bank F.S.B., No. 24-cv-08000 (JMA) (JMW),
2025 WL 473800, at *2-5 (E.D.N.Y. Feb. 12, 2025).
Defendant’s motion was filed on ECF on March 3, 2025 (ECF Nos. 26-31.) On October
21, 2025, Judge Azrack referred Defendant’s motion to the undersigned for a Report &
Recommendation. (Electronic Order dated October 21, 2025.) The parties appeared before the
undersigned for oral argument on Defendant’s motion to dismiss on December 12, 2025. (See
ECF No. 35.)
DISCUSSION
Defendant seeks dismissal on the following grounds: (i) Plaintiff is judicially estopped
from brining these claims because he failed to list his proposed claim against Defendant as being
among his assets in Plaintiff’s Chapter 7 bankruptcy proceeding; (ii) Plaintiff transferred his
interest in the Property via quitclaim deed to Tania Estrada which divested him of standing to
challenge conduct relating to this Property and Plaintiff’s injury is “self-inflicted” considering
Plaintiff continued to make payments to Defendant after Defendant accepted a money order “in
full satisfaction” of the $512,000 mortgage; and (iii) no claim for accord and satisfaction exists
because the purported “bona fide dispute” centers around “non-existent law,” specifically
“Section 33 of the 1863 National Bank Act.” (See ECF No. 26.)
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I. 	Standing
Defendant argues that Plaintiff has “no standing” to challenge the conduct relating to the
Property that allegedly occurred after he transferred his interest in the Property via quitclaim
deed to Tania Estrada. (ECF No. 26 at p. 6.) Moreover, Defendant contends Plaintiff lacks
standing because Plaintiff continued to make payments to Defendant after Defendant accepted a
money order “in full satisfaction” of a $512,000 mortgage, thus making his own injury “self-
inflicted” by “making payments [Plaintiff] contends he did not have to make.” (Id.)
When a party moves to dismiss for lack of standing, the party is moving for lack of the
Court’s subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed. R. Civ. P. 12(b)(1)) (“A case is
properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district
court lacks the statutory or constitutional power to adjudicate it.”). To prevail against a motion to
dismiss for lack of subject matter jurisdiction under 12(b)(1), the “plaintiff bears the burden of
proving the Court’s jurisdiction by a preponderance of the evidence.” Id. A plaintiff bears the
burden of “alleging facts that affirmatively and plausibly suggest that they have standing to sue.”
Liberian Cmty. Ass’n of Conn. v. Lamont, 970 F.3d 174, 184 (2d Cir. 2020) (cleaned up)
(citation omitted). Where a plaintiff fails to satisfy this burden, a court may dismiss the action
against the party the court lacks standing over pursuant to Rule 12(b)(1). Conn. Citizens Def.,
League, Inc. v. Thody, 2024 WL 177707, at *2 (2d Cir. Jan. 17, 2024). While a pro se complaint
is to be read liberally, courts still will “not credit allegations where . . . the threadbare assertions
are conclusory and do not raise a reasonable inference of injury.” Hibbert v. Cap. One. Auto Fin.,
No. 1:23-cv-07538 (OEM)(TAM), 2024 WL 3498536, at *3 (E.D.N.Y. July 22, 2024).
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The essence or “core component of standing is an essential and unchanging part of the
case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). 	That is, standing is precisely “what it takes to make a justiciable case.” 	Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 102 (1998). The judicial power derived from Article III
“exists only to redress or otherwise to protect against injury to the complaining party.” Warth v.
Seldin, 422 U.S. 490, 499 (1975). The “irreducible constitutional minimum of standing” has three
elements. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). A plaintiff “must show (i) that [the
plaintiff] suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that
the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by
judicial relief.” TransUnion, 594 U.S. at 423 (citing Lujan, 504 U.S. at 560–61). “To establish
injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected
interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’” Spokeo, 578 U.S. at 339 (quoting Lujan, 504 U.S. at 560).
To be concrete, the injury must actually exist and not be abstract, and to be particularized,
the injury must affect plaintiff in a personal and individual way. Spokeo, 578 U.S. at 340.
Regarding the causal connection element, a plaintiff must show that the injury is “fairly traceable
to the challenged conduct of the defendant, and not the result of the independent action of some
third party not before the court.” Atares Bais Yaakov Academy of Rockland v. Town of Clarkstown,
88 F.4th 344, 352–53 (2d Cir. 2023). Finally, for the redressability requirement, the plaintiff must
show “that it is likely and not merely speculative that the plaintiff’s injury will be remedied by the
relief plaintiff seeks in bringing suit.” Oliver v. American Express Co., No. 19-CV-566 (NGG)
(SMG), 2020 WL 2079510, at *7 (E.D.N.Y. Apr. 30, 2020) (citations omitted).
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“To be sure, a plaintiff may not establish injury for standing based on a ‘self-inflicted’
injury.” Natural Resources Defense Council, Inc. v. U.S. Food and Drug Administration, 710
F.3d 71, 85 (2d Cir. 2013) (citing St. Pierre v, Dyer, 208 F.3d 394, 403 (2d Cir. 2000)); see
Capogrosso v. Gelbstein, No. 18-CV-2710 (MKB) (LB), 2019 WL 4686448, at *6 (E.D.N.Y.
Sept. 25, 2019) (collecting cases where a plaintiff fails to establish injury for standing where the
injuries are self-inflicted). A self-inflicted injury is an “injury that results from a plaintiff's
personal choices, rather than a defendant's conduct . . . .” Taylor v. Bernanke, No. 13-CV-1013,
2013 WL 4811222, at *10 n.5 (E.D.N.Y. Sept. 9, 2013). Indeed, “[f]or an injury to be self-
inflicted, it must be ‘so completely due to the plaintiff’s own fault as to break the causal chain.’”
Walker v. New York State Department of Health, 788 F. Supp. 3d 427, 474 (E.D.N.Y. 2025)
(quoting St. Pierre, 208 F.3d at 402); Union Cosmetic Castle, Inc. v. Amorepacific Cosmetics
USA, Inc., 454 F. Supp. 2d 62, 71 (E.D.N.Y. 2006) (“A plaintiff cannot establish Article III
standing to pursue a cause of action where that plaintiff is the primary cause of its own alleged
injury.”).
In Castro, the court concluded that pro se plaintiff lacked standing where his own actions
relating to his outstanding mortgage loan balance was the primary cause of the alleged injury and
not the challenged conduct of defendants. Castro v. NewRez LLC, No. 22-CV-06340 (PKC)
(JMW), 2024 WL 4242138, at *5 (E.D.N.Y. Sept. 19, 2024). There, pro se plaintiff brought
claims for violations of the Fair Credit Reporting Act, namely that that his credit reports were
inaccurate because they should have been “deemed fully repaid” instead of showing an
outstanding balance on his mortgage account—a balance that “should not exist because [he]
allegedly had ‘already tendered payment ... for the full amount of the credit loaned ... in the form
of a “promissory note” which was accepted as collateral for the loan.’” Id. at *1, *5. The Court
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determined that the “only plausible inference” in plaintiff’s Amended Complaint was that the
injury was caused by “his own decision” to try and satisfy his outstanding mortgage loan balance
with a promissory note, rather than the challenged conduct of defendants. Id. at *5. Accordingly,
the court granted defendants’ motion to dismiss under Rule 12(b)(1) because “Plaintiff [was] the
primary source of his own alleged injury . . . .” Id. at *6.
Similarly, here, Plaintiff admits he made continued payments to Defendant after
tendering “payment in full.” Indeed, and like the argument raised in Castro, Plaintiff states that
Defendant accepted a money order in “full satisfaction of the debt,” thereby “discharging the
debt and precluding further collection efforts.” (ECF No. 27 at p. 9.) After this payment in full,
Plaintiff’s “decision to continue payments was made in good faith to avoid default and maintain
contractual integrity while resolving the legal dispute.” (Id.) This conscious decision to continue
payment, like plaintiff’s decision in Castro, was Plaintiff’s to make—rather than any act or
demand by Defendant—and was the precise conduct that forms the basis of Plaintiff’s
complained of injury now. Plaintiff’s continued payments made after Defendant accepted a
money order “in full satisfaction” of the mortgage constitutes self-inflicted injury which is
insufficient to confer standing upon Plaintiff.
Accordingly, the undersigned respectfully recommends dismissing Plaintiff’s Complaint
for lack of standing pursuant to Fed. R. Civ. P. 12(b)(1). Should the District Judge disagree with
this recommendation, the undersigned analyzes Defendant’s arguments for dismissal for failure
to state a claim under Fed. R. Civ. P. 12(b)(6).
II. 	Failure to State a Claim
To survive a motion to dismiss under Rule 12(b)(6), a 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.
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544, 570 (2007). A claim is facially plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is properly dismissed where,
as a matter of law, “the allegations in a complaint, however true, could not raise a claim of
entitlement to relief.” Twombly, 550 U.S. at 558. When considering a motion to dismiss under
12(b)(6), the Court must assume all well-pleaded facts to be true, “drawing all reasonable
inferences in favor of the plaintiff.” Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir.
2012). However, this tenet does not apply to mere legal conclusions, and a pleading that offers
only “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555. More is required. Indeed, “[f]actual allegations must be
enough to raise a right to relief above the speculative level.” Id. (“[T]he pleading must contain
something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally
cognizable right of action.”) (citation omitted).
The standards apply equally to pro se complaints, but in a less rigid manner. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally
construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.”) (internal quotes & citations omitted).
When considering a pro se complaint, the Court must interpret the pleading to raise the strongest
claim plausibly suggested by the allegations. Rosen v. N. Shore Towers Apartments, Inc., No.
11-CV-00752 RRM LB, 2011 WL 2550733, at *3 (E.D.N.Y. June 27, 2011); Burgos v. Hopkins,
14 F.3d 787, 790 (2d Cir. 1994) (citations omitted) (“The submissions of a pro se litigant should
be interpreted to raise the strongest arguments that they suggest.”) “However, mere conclusions
of law or unwarranted deductions need not be accepted.” Id. (internal quotation marks omitted.)
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Notably, with pro se complaints, “‘threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice,’ and district courts ‘cannot invent
factual allegations’ that the plaintiff has not pleaded.” Vidurek v. Pollen, No. 20-CV-6714 (CS),
2021 WL 4066503, at *7 (S.D.N.Y. Sept. 7, 2021) (citing Chavis v. Chappius, 618 F.3d 162, 170
(2d Cir. 2010)).
On a motion to dismiss, a “court is generally limited to the ‘facts stated on the face of the
complaint,’ as well as ‘documents appended to the complaint or incorporated in the complaint by
reference,’ ‘matters of which judicial notice may be taken,’ and documents ‘integral’ to the
complaint. Press v. Primavera, 685 F. Supp. 3d 216, 223 (S.D.N.Y. 2023) (quoting Goel v.
Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016)) (internal citations omitted); see also Chambers v.
Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (“[A] court may consider documents
attached to the complaint as an exhibit or incorporated in it by reference, matters of which
judicial notice may be taken, or ... documents either in plaintiffs’ possession or of which
plaintiffs had knowledge and relied on in bringing suit.” (internal citation and quotation marks
omitted)).
In addition, considering Plaintiff’s pro se status, the Court may consider “new facts
raised in opposition papers to the extent they are consistent with the complaint, treating the new
factual allegations as amending the original complaint.” Davila v. Lang, 343 F. Supp. 3d 254,
267 (S.D.N.Y. 2018); Falso v. Gates Chili Central School Dist., 680 F. Supp. 2d 465, 466
(W.D.N.Y. 2010) (“Although a court should generally refrain from considering matters outside
the pleadings when reviewing a 12(b)(6) motion to dismiss, the mandate to liberally construe pro
se pleadings makes it appropriate to consider the facts set forth in plaintiff's opposition papers.”)
(citation omitted).
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a. 	Judicial Notice
Both parties make applications for the Court to take judicial notice of certain exhibits
enumerated below. Judicial notice is limited to two instances, where a court can make notice of a
fact, namely, “a fact that is not subject to reasonable dispute because it: (1) is generally known
within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). “In the
motion to dismiss context [] a court should generally take judicial notice ‘to determine what
statements [the documents] contain[] . . . not for the truth of the matters asserted.’” Mosdos
Chofetz Chaim, Inc. v. Village of Wesley Hills, 815 F. Supp. 2d 679, 691 (S.D.N.Y. 2011)
(quoting Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991)).
“The court may . . . consider matters of which judicial notice may be taken, even if the
corresponding documents are not attached to or incorporated by reference in the complaint.”
Mosdos Chofetz Chaim, Inc., 815 F. Supp. 2d at 691 (quoting Munno v. Town of Orangetown,
391 F. Supp. 2d 263, 268 (S.D.N.Y. 2005)). Indeed, “matters of which the court takes judicial
notice are not considered matters outside the pleadings; the Court may consider them when
adjudicating a motion to dismiss without converting the motion to dismiss into a motion for
summary judgment.”2 Sharette v. Credit Suisse Int'l, 127 F. Supp. 3d 60, 75 (S.D.N.Y. 2015);
see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must
consider the complaint in its entirety, as well as other sources courts ordinarily examine when
ruling on Rule 12(b)(6) motions to dismiss, in particular, . . . matters of which a court may take
judicial notice.”); Lichtenstein v. Cader, No. 13 Civ. 2690 (LAK) (JLC), 2013 WL 4774717, at
2 The prospect of converting the motion to dismiss to a motion for summary judgment was discussed
during oral argument however, as Defendant raised, this is not necessary in light of the threshold standing
issues in this case that do not require additional materials at this juncture. (See ECF No. 35, Tr. at pp. 2-
4.)
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*2 (S.D.N.Y. Sept. 6, 2013) (collecting cases where courts considered documents subject to
judicial notice and matters of public record without converting the motion to dismiss into one for
summary judgment). It follows, therefore, that “‘the Court's consideration of documents attached
to, or incorporated by reference in the [c]omplaint, and matters of which judicial notice may be
taken, would not convert the motion to dismiss into one for summary judgment.’” Maroney v.
Woodstream Corp., 695 F. Supp. 3d 448, 453 (S.D.N.Y. 2023) (quoting Thomas v. Westchester
Cnty. Health Care Corp., 232 F. Supp. 2d 273, 275 (S.D.N.Y. 2002)).
i. 	Defendant’s Request for Judicial Notice
Defendant asks the Court take judicial notice of: (i) a mortgage agreement dated
September 5, 2008, signed by Plaintiff and Tanta E. Arichabala and recorded in the Office of the
City Register of the City of New York; (ii) a quitclaim deed dated May 30, 2024, executed by
Plaintiff to Tania Estrada and recorded in the Office of the City Register of the City of New
York; (iii) the notice of Chapter 7 Bankruptcy Proceeding filed in the United States Bankruptcy
Court for the Eastern District of New York, Case No. 1-24-43023-nhl (“Bankruptcy
Proceeding”); (iv) bankruptcy filings as part in the Bankruptcy Proceeding, specifically
Schedules A–J including, inter alia, property Plaintiff claimed as exempt, creditors of Plaintiff
with secured claims, and his expenses; (v) the Order of Discharge of Final Decree filed as part of
the Bankruptcy Proceeding; and (vi) Plaintiff’s Notice of Constitutional Challenge filed in the
New York Supreme Court Docket No. 618513/2024 (“Exhibit 6”). (See ECF No. 26-1.)
The first two documents—those filed and duly recorded in the Office of the City Register
of the City of New York—are public records of which the Court may take judicial notice. See
Maroney v. Woodstream Corp., 695 F. Supp. 3d 448, 453–54 (S.D.N.Y. 2023); see also Riley v.
Rivers, No. 15-CV-5022 (DLI), 2016 WL 11263672, at *3 (E.D.N.Y. Sept. 19, 2016), report and
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recommendation adopted, 2017 WL 1093193 (E.D.N.Y. Mar. 23, 2017), aff'd, 710 F. App'x 503
(2d Cir. 2018) (taking judicial notice of a quitclaim deed and stating “courts may take judicial
notice of . . . properly recorded deeds, on a motion to dismiss”).
Additionally, prior litigation documents are routinely offered and accepted under Fed. R.
Evid. 201(b) and “the Court can take judicial notice of the transcript and exhibits from these state
proceedings” to establish the fact of the litigation, not for the truth of the matters asserted
therein. Cabrera v. Schafer, 178 F. Supp. 3d 69, 72-73 (E.D.N.Y. 2016) (citing Pelosi v. Spota,
607 F.Supp.2d 366, 371 (E.D.N.Y. 2009)). Accordingly, the Court may take judicial notice as to
the Notice of Plaintiff’s Bankruptcy Proceeding, the filings as part of that Proceeding, and the
Order of Discharge of Final Decree as part of that Proceeding. See Twentieth Century Fox Film
Corp. v. Marvel Enters., 220 F. Supp. 2d 289, 293 n.4 (S.D.N.Y. 2002) (taking judicial notice of
defendant’s filings in the bankruptcy proceeding under Rule 201); see also Cohain v. Klimley,
No. 08 Civ. 5047(PGG), 2010 WL 3701362, at *12 n.8 (S.D.N.Y. Sept. 20, 2010) (“This Court
may take judicial notice of VWE’s bankruptcy proceeding and consider the existence of those
proceedings on a motion to dismiss.”). Similarly, as to Plaintiff’s Notice of Constitutional
Challenge, the Court may also take judicial notice of this document—a prior litigation document
that can be admitted “to establish the fact of such litigation or related findings.” Cabrera, 178 F.
Supp. 3d at 72. Accordingly, the Court may take judicial notice of all six exhibits Defendant
offers pursuant to Fed. R. Evid. 201(b).
ii. 	Plaintiff’s Request for Judicial Notice
Plaintiff requests that the Court take judicial notice of eleven exhibits which, according to
Plaintiff, are comprised of “public records, loan securitization data, MERS records, and financial
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documents that are not subject to reasonable dispute and are central to the claims at issue.” (ECF
No. 27 at p. 31.) Indeed, Plaintiff avers the exhibits:
[P]rovide irrefutable evidence that Gateway Bank F.S.B. has no legal standing to
collect on the alleged debt, as the loan was securitized, traded as an asset, and is no
longer enforceable. Judicial notice of these documents is essential to establish the
true nature of the debt, expose fraudulent collection practices, and prevent
Defendant from misleading the Court.
(Id. at p. 33.)
The eleven exhibits are comprised of: (i) a loan statement from Defendant detailing the
mortgage balance and payments; (ii) an exhibit purporting to establish the “bonafide dispute to
[Defendant]”; (iii) Defendant’s response letter; (iv) the 341 Meeting link recorded where
Plaintiff disclosed the Property; (v) the SEC Filing Analysis confirming that Defendant no longer
held the debt, establishing securitization and lacks standing; (vi) an exhibit “demonstrating
fraudulent loan practices and unjust enrichment”; (vii) an exhibit “supporting the argument for
accord and satisfaction under UCC § 3-311; (viii) a document challenging the chain of title and
mortgage electronic registration system issues; (ix) an exhibit “proving financial
misrepresentation and stock manipulation”; (x) a document “strengthening the demand for full
discovery & loan audit”; and (xi) cashed money orders. (Id. at pp. 32-33.)
Judicial notice is an improper mechanism for, as Plaintiff attempts to do here,
establishing legal claims because doing so would require the Court to establish the truth of the
contents within the documents rather than merely take notice of “what statements the documents
contain[].” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (citation omitted). Similarly, the
remainder of the documentary exhibits contain legal arguments. For instance, Exhibit 8 includes
a “legal argument” section preceding the document and the document is heavily annotated and
labelled with Plaintiff’s own arguments in an attempt to establish Plaintiff’s claims. Because
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judicial notice is not a means of propounding legal arguments to establish claims, the Court does
not take judicial notice of Exhibits 1, 8, 10, and 11. See Williams v. Silliman, No. 9:11-CV-1477,
2014 WL 991876, at *4 (N.D.N.Y. Mar. 13, 2014) (denying pro se plaintiff’s motion for judicial
notice because the motion contained “both factual and legal assertions” pertaining to plaintiff’s
causes of action). Moreover, the Court cannot judicially notice the 341 Meeting link as the
contents therein that Plaintiff attempts to cite to—especially that Plaintiff disclosed the
Property—cannot reasonably be questioned considering only Plaintiff and the Trustee were
present for the 341 Meeting and no opportunity for additional questioning was permitted. See
Shuman v. Visa U.S.A., Inc., 788 F. Supp. 3d 563, 578-79 (S.D.N.Y. 2025) (denying motion to
take judicial notice of statements from a website where only links were provided to support the
contention that the website’s authenticity was not in dispute).
Because Plaintiff is proceeding pro se, however, the Court may consider these exhibits
attached to Plaintiff’s opposition. See Evans v. Atkins, No. 24-CV-927 (CS), 2025 WL 2444309,
at *5 (S.D.N.Y. Aug. 25, 2025) (“Court may consider exhibits submitted by a pro se Plaintiff as
part of his opposition to a motion to dismiss”) (collecting cases). This concept expands upon the
general rule that “[a] district court deciding a motion to dismiss may consider factual allegations
made by a pro se party in [her] papers opposing the motion.” Walker v. Schult, 717 F.3d 119, 122
n.1 (2d Cir. 2013); Arroyo-Home v. City of New York, No. 16-CV-3857 (MKB), 2019 WL
3428577, at *1 n.1 (E.D.N.Y. July 30, 2019) (“Because Plaintiff is proceeding pro se, the Court
also considers and assumes the truth of the factual allegations in Plaintiff's papers filed in
opposition to Defendant's motion.”); see Palmer v. Shchegol, 406 F. Supp. 3d 224, 228 n.1
(E.D.N.Y. 2016) (collecting cases) (noting “the facts of this case and the sufficiency of Plaintiff's
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pleadings are determined by reference to both Plaintiff's amended complaint and her opposition
to the instant motion”).
Even when considering these exhibits, in addition to the allegations in the Complaint, the
documents referenced and attached thereto, and arguments raised in Plaintiff’s opposition,
Plaintiff cannot survive a motion to dismiss under Rule 12(b)(6).
b. 	Judicial Estoppel
Judicial estoppel is an affirmative defense that a defendant may raise on a motion to
dismiss pursuant to 12(b)(6) where the basis for the defense is established by the materials
properly before the Court. Thomas v. JP Morgan Chase, N.A., No. 11-cv-3656 (JG) (RML) 2012
WL 2872164, at *8 (E.D.N.Y. July 11, 2012); Evercrete Corp. v. H-Cap Ltd., 429 F. Supp. 2d
612, 620 (S.D.N.Y. Apr. 27, 2006) (“A party may raise a defense of . . . judicial estoppel on a
motion to dismiss pursuant to Rule 12(b)(6).”); Avila v. Reliant Cap. Solutions, LLC, No. 2:18-
cv-2718 (ADS) (ARL), 2018 WL 5982488, at *5 (E.D.N.Y. Nov. 14, 2018) (“Judicial Estoppel
is an affirmative defense properly raised on a motion to dismiss pursuant to Rule 12(b)(6).”).
Indeed, “several courts have noted that Rule 12(b)(6) is the more appropriate vehicle for [judicial
estoppel].” Romeo v. FMA Alliance, Ltd., No. 15-cv-6524 (ADS) (ARL), 2016 WL 3647868, at
*12 (E.D.N.Y. June 30, 2016) (collecting cases).
“‘The doctrine of judicial estoppel prevents a party from asserting a factual position in
one legal proceeding that is contrary to a position that is successfully advanced in another
proceeding.’” BPP Illinois, LLC v. Royal Bank of Scotland Group PLC, 859 F.3d 188, 192 (2d
Cir. 2017) (quoting Rodal v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir.
2004)); see Wight v. BankAmerica Corp., 219 F.3d 79, 89 (2d Cir. 2000) (“Judicial estoppel is
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designed to prevent a party who plays fast and loose with the courts from gaining unfair
advantage through the deliberate adoption of inconsistent positions in successive suits.”).
The doctrine will “prevent a party who failed to disclose a claim in bankruptcy
proceedings from asserting that claim after emerging from bankruptcy.” BPP Illinois, 859 F.3d at
192 (quoting Coffaro v. Crespo, 721 F. Supp. 2d 141, 145 (E.D.N.Y. 2010)); Thomas v. JP
Morgan Chase, N.A., No. 11-cv-3656 (JG) (RML), 2012 WL 2872164, at *7 (E.D.N.Y. July 11,
2012) (“Courts frequently invoke judicial estoppel to prevent a party who failed to disclose a
claim in bankruptcy proceedings from asserting that claim in a subsequent action”); Negron v.
Weiss, No. 06-CV-1288 (CBA), 2006 WL 2792769, at *3 (E.D.N.Y. Sept. 27, 2006) (“Thus, a
number of courts have invoked judicial estoppel to prevent a party who failed to disclose a claim
in bankruptcy proceedings from asserting that claim after emerging from bankruptcy”)
(collecting cases). Indeed, “[i]n the bankruptcy context, the rationale for these [estoppel]
decisions is that the integrity of the bankruptcy system depends on full and honest disclosure by
debtors of all of their assets.” Negron, 2006 WL 2792769, at *3 (quoting Kunica v. St. Jean Fin.,
Inc., 233 B.R. 46, 58 (S.D.N.Y. 1999)) (internal marks omitted).
Typically, “judicial estoppel will apply if: [A] a party's later position is ‘clearly
inconsistent’ with its earlier position; [B] the party's former position has been adopted in some
way by the court in the earlier proceeding; and [C] the party asserting the two positions would
derive an unfair advantage against the party seeking estoppel.” In re Adelphia Recovery Trust,
643 F.3d 678, 695-96 (2d Cir. 2011) (quoting DeRosa v. Nat’l Envelope Corp., 595 F.3d 99, 103
(2d Cir. 2010)). When considering these elements, the “‘proper focus is on the objective conduct
of a party or its counsel,’ rather than the party’s or attorney’s ‘subjective intent.’” Thomas, 2012
WL 2872164, at *7 (quoting In re Adelphia Recovery Trust, 643 F.3d at 696).
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In Thomas, the court granted defendant’s motion to dismiss pro se plaintiff’s claims on
grounds of judicial estoppel. 2012 WL 2872164, at *1. There, pro se plaintiff filed two adversary
proceedings several days before receiving a discharge in Chapter 7 bankruptcy case wherein she
asserted she had “no nonexempt assets that could be used to repay her debts” and did not list any
legal claims. Id. at *2. The Honorable John Gleeson applied the three factors enumerated in In re
Adelphia Trust and determined pro se plaintiff’s claims were judicially estopped. See id. at *7.
First, pro se plaintiff’s position was “clearly inconsistent” because “[i]n her bankruptcy
proceeding, she did not list the legal claims she now asserts among her assets” despite
commencing the adversary proceedings “just days before the bankruptcy court granted her a
discharge.” Id. Second, pro se plaintiff’s position in the adversary proceedings was adopted by
the bankruptcy court in granting her a discharge. See id. at *8. Lastly, pro se plaintiff obtained an
“unfair advantage since she [] received the benefit of a discharge of her debts while still
possessing the ability to recover on her claims in full.” Id. Indeed, the court found that pro se
plaintiff was “aware of her claims” against defendant before the bankruptcy court granted the
discharge and the bankruptcy court “could have taken those assets into account in addressing her
petition.” Id. at *8-9. Accordingly, because “[pro se plaintiff] failed to amend her schedule of
assets prior to the bankruptcy court’s discharge,” the court dismissed plaintiff’s claim against
defendants on grounds of judicial estoppel for her failure to disclose the current claims as assets
in the prior bankruptcy proceeding. See id. at *9-10.
Here, like in Thomas, Plaintiff’s claim against Gateway precedes the discharge he
received from his Chapter 7 bankruptcy case on October 25, 2024. (See ECF No. 26-1, Ex. 5
(Order of Discharge)). Additionally, the “bona fide dispute” Plaintiff cites to occurred on May
28, 2024 and Gateway accepted the first payment marked “paid in full” on June 17, 2024. (See
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ECF No. 1-1 at ¶¶ 4, 9, 10.) Both of these events occurred before Plaintiff filed for bankruptcy
on July 23, 2024. (See ECF No. 26-1, Ex. 3 (Voluntary Petition)). Moreover, in his bankruptcy
proceeding, Plaintiff did not list the legal claim he now asserts among his assets. (See ECF No.
26-1, Ex. 4 at p. 20.)
Indeed, Plaintiff admitted during oral argument that his claim against Gateway preceded
the discharge received (ECF No. 35, Tr. at p. 15:22-25; 16:1-2) and that he did not have it listed
as one of his assets during the bankruptcy (ECF No. 35, Tr. at p. 16:4-12). The relevant inquiry
underlying the judicial estoppel is whether assets, like Plaintiff’s claim against Gateway, were
disclosed during the pendency of the bankruptcy proceedings. See Azuike v. Mellon, 962 F. Supp.
2d 591, 599 (S.D.N.Y. 2013) (noting judicial estoppel is “necessary to protect judicial integrity”
which “depends on full and honest disclosure by debtors of all of their assets”) (citation omitted).
Notably, Plaintiff had the opportunity and obligation to amend his bankruptcy schedule,
statements, and documents to include his potential assets before receiving the discharge but did
not do so. See Neely v. RMS Residential Mortg. Solution, L.L.C., No. 12-cv-1523 (JS) (AKT),
2013 WL 752636, at *6 (E.D.N.Y. Feb. 26, 2013) (concluding plaintiff lacked standing to bring
the current claims under judicial estoppel because the claims regarding the relevant assignment,
“even if speculative at the time of commencement, should have been disclosed”); Thomas, 2012
WL 2872164, at *8 (“While the bankruptcy case remained open, [plaintiff] had both the ability
and the obligation to amend her filings to disclose any assets she had previously omitted.”).
Further, like in Thomas, the bankruptcy court adopted Plaintiff’s position by discharging
Plaintiff’s debts and closing the bankruptcy case on October 25, 2024.3 See Ibok v. Siac–Sector,
3 During oral argument, Plaintiff raised, for the first time, that there had not been a discharge. (ECF No.
35, Tr. at p. 19:15-17.) This statement, however, plainly contradicts the Order of Discharge and Final
Decree—which this Court takes judicial notice of—demonstrating that Plaintiff received a discharge on
October 25, 2024. (See ECF No. 26-1.) This statement also contradicts statements made in Plaintiff’s
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Inc., No. 05–CV–6584, 2011 WL 293757, at *7 (S.D.N.Y. Jan. 31, 2011) (“The bankruptcy
court, in discharging Ibok and closing his case, adopted Ibok's stated position that he did not
have any outstanding legal claims”); Rosenshein v. Kleban, 918 F. Supp. 98, 104-05 (S.D.N.Y.
1996) (“The bankruptcy court approved their plans of reorganization and discharged their debts
on the basis of their incomplete disclosure of assets, thereby adopting their position.”). Like the
bankruptcy court in Thomas, the bankruptcy court here could have taken these facts, in addition
to the current claim against Gateway, into consideration before discharging Plaintiff’s claim.
Lastly, Plaintiff’s inconsistent positions provided him with an unfair advantage by “still
possessing the ability to recover on [his] claims in full” while still receiving “the benefit of a
discharge . . . .” Thomas, 2012 WL 2872164, at *8.
Accordingly, the undersigned respectfully recommends dismissing Plaintiff’s Complaint
under a claim of judicial estoppel. See In re Adelphia, 634 F.3d at 699 (“We cannot say how the
[potential] claims would have been resolved if appropriately addressed in the [ ] bankruptcy
court, but we can say that the . . . failure to make that court aware of them judicially estops the
[plaintiff] from pursuing them now.”) Should the District Judge disagree, and find that Plaintiff’s
claims are not barred by the doctrine of judicial estoppel, the undersigned proceeds to analyze
whether there has been a valid accord and satisfaction.
c. 	Accord and Satisfaction
Plaintiff’s Complaint requests that the Court “issue a writ of injunction for breach of
contract and settlement and closure of [Defendant’s Bank Account] under the laws of Accord
and Satisfaction . . . due to a violation of section 33 of The National Bank Act of 1863.” (ECF
Opposition papers. (See ECF No. 27 at p. 1 (“The core issue in this case is Gateway’s . . . continued
enforcement of a loan that has been legally discharged . . . .”); p. 20 (“The debt was discharged . . .
barring further collection”).
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No. 1-1 at p. 11.) In Plaintiff’s Opposition papers, he maintains that his “submission of a money
order labeled ‘payment in full satisfaction’ aligns with UCC § 3-311, which provides that a claim
is discharged when a creditor knowingly accepts an instrument explicitly stating it satisfies the
obligation.” (Id. at p. 4.) Further, Plaintiff contends that once payment in full is accepted, “the
creditor cannot continue to demand further payments or enforcement,” yet Defendant “accepted
the accord and satisfaction but continued collection efforts.” (Id. at pp. 13, 15.)
“[A]n accord and satisfaction consists of a bona fide dispute, an agreement to settle that
dispute, and performance of that agreement.” Avocent Redmond Corp. v. Raritan Americas, Inc.,
No. 10 Civ. 6100 (PKC), 2012 WL 3114855, at *11 (S.D.N.Y. July 31, 2012) (citation omitted);
One Stop 34, LLC v. Stimdel Props. (FL), Inc., No. 19-CV-4011, 2021 WL 8344133, at *13
(E.D.N.Y. Sept. 4, 2021) (“An accord and satisfaction, as its name implies, has two components.
An accord is an agreement that a stipulated performance will be accepted, in the future, in lieu of
an existing claim. Execution of the agreement is a satisfaction.”). The doctrine of accord and
satisfaction provides that acceptance of a sum less than the full amount owed “in full
satisfaction” of an obligation may extinguish the original obligation. See id.
An accord and satisfaction will only be found where there is a “clear manifestation of
intent by the parties that the payment was made, and accepted, in full satisfaction of the claim.”
Williams v. Million, No. 22-CV-6554-FPG, 2023 WL 5846721, at *3 (W.D.N.Y. Sept. 11, 2023)
(citing TIAA Global Invs., LLC v. One Astoria Square LLC, 7 N.Y.S.3d 1, 11 (1st Dep't 2015));
see also Lamb v. Emhart Corp., 47 F.3d 551, 561 (2d Cir. 1995) (“In order to prove an accord
and satisfaction, the defendant must show at the time of the agreement a good faith dispute
existed over the existence of a debt or over an amount owed, and that the debtor and creditor
negotiated a contract of accord to settle the claim.”).
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Here, Plaintiff fails to allege the existence of a prior agreement wherein Defendant
contracted that its acceptance of Plaintiff’s money orders sent on June 17, 2024 served to satisfy
or settle any bona fide dispute between the parties. Absent such a showing, Plaintiff’s claim for
accord and satisfaction fails. See Williams, 2023 WL 5846721, at *3 (noting that because pro se
plaintiff failed to clearly allege what claim, dispute, or obligation existed between her and
defendant prior to the alleged accord and satisfaction, her accord and satisfaction claim failed
and was dismissed).
Nor does the statute allegedly violated by Defendant provide the basis for a bona fide
dispute among the parties. Plaintiff maintains that Defendant’s conduct violated Section 33 of the
1863 National Bank Act (see ECF No. 1-1 at ¶ 18), yet this statute was repealed in 1864 and is
no longer in effect. Bank of Am. Nat'l Ass'n v. Derisme, 743 F. Supp. 2d 93, 99 (D. Conn. 2010).
Notwithstanding, Plaintiff avers that this statute is “codified as 12 U.S.C. § 411 and 31 U.S.C. §
3113” and “governs the issuance and redemption of obligations, establishing that only lawful
money has the power to discharge debt obligations. Courts have long held that obligations must
be discharged in accordance with lawful tender laws.” (ECF No. 27 at pp. 3-4.)
These statutes, however, do not alter the fact that no bona fide dispute exists. Section 411
authorizes and addresses the issuance of federal reserve notes at the discretion of the Federal
Reserve Board. See 12 U.S.C. § 411; see also Isaac v. Shiff, No. 21-CV-11078 (PMH), 2023 WL
2058623, at *4 (S.D.N.Y. Feb. 16, 2023) (Section 411 authorizes the printing of federal reserve
notes). Similarly, § 3113 relates to gifts made to the United States Treasury Department to be
used to reduce the public debt. See 31 U.S.C. § 3113; see also Harrington v. Sterling (In re
Sterling), 558 B.R. 671, 683 (S.D.N.Y. Bankr. 2016). Plaintiff’s Complaint, Opposition papers,
documents that the Court takes judicial notice of, and exhibits attached to these filings are silent
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as to any federal reserve notes or gifts to reduce public debt. These statutes, therefore, do not
provide the basis for Plaintiff to maintain his assertion that a bona fide dispute exists against
Defendant, striking a fatal blow to any accord and satisfaction. Accordingly, Plaintiff’s
Complaint fails to state a claim upon which relief may be granted.
CONCLUSION
For the foregoing reasons, the undersigned respectfully recommends that Defendant’s
motion to dismiss Plaintiff’s Complaint (ECF No. 26) be granted with prejudice.
OBJECTIONS
A copy of this Report and Recommendation is being electronically served through ECF
on all counsel and pro se Plaintiff. Any written objections to this Report and Recommendation
must be filed within fourteen (14) days of service of this Report. 28 U.S.C. § 636(b)(1) (2006 &
Supp. 2011); Fed. R. Civ. P. 6(a), 72(b); see also Nambiar v. The Central Orthopedic Group
LLP, No. 24-1103 (2d Cir. Oct. 28, 2025) (addressing timing and scope of objections to Reports
and Recommendations). Any requests for an extension of time for filing objections must be
directed to the District Judge assigned to this action prior to the expiration of the fourteen (14)
day period for filing objections. Failure to file objections within fourteen (14) days precludes
further review of this Report and Recommendation either by the District Court or the Court of
Appeals. Thomas v. Arn, 474 U.S. 140, 145 (1985) (“a party shall file objections with the district
court or else waive right to appeal”); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir.
2008) (“failure to object timely to a magistrate's report operates as a waiver of any further
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judicial review of the magistrate’s decision”); see Monroe v. Hyundai of Manhattan &
Westchester, 372 F. App’x 147, 147–48 (2d Cir. 2010) (summary order) (same).
Dated: 	Central Islip, New York
December 31, 2025
RESPECTFULLY RECOMMENDED,
/S/James M. Wicks
JAMES M. WICKS
United States Magistrate Judge
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