Foley v. Capital One, N.A.

Background

Joseph W. Foley, proceeding without a lawyer, filed a verified complaint in New York State Supreme Court on January 14, 2025. He alleged that Capital One, N.A. improperly closed accounts for businesses of which he was President and attributed the businesses’ debts to him personally, even though he had not personally guaranteed them. Foley alleged that his credit score fell 150 points and that he was denied a mortgage, among other consequences. His claims included violations of the Fair Credit Reporting Act, breach of contract, negligence, and deceptive and bad-faith business practices. He sought compensatory and punitive damages.

Capital One removed the case to federal court on February 24, 2025, under the federal removal statutes. Foley moved to remand, meaning he asked the federal court to return the case to state court. He argued that Capital One’s removal was filed more than 30 days after service of the summons and complaint. Foley also moved for sanctions based on allegedly wrongful removal.

Service and Removal Deadline

The court explained that the 30-day removal period begins after formal service of the summons and complaint. A corporation may be served by delivering the papers to an officer, managing or general agent, or another agent authorized to accept service under federal or applicable state law.

Foley relied on several affidavits of service. The January 14 affidavit stated that the papers were delivered to CT Corporation System, but it did not identify CT Corporation as Capital One’s service agent, and Foley conceded that CT Corporation rejected service. A February 4 affidavit stated that the papers were delivered personally to Capital One but did not identify the delivery address, the date of delivery, or whether the person served was authorized to accept service. A later affidavit attempting to clarify the February 4 service gave the year as 2024, which the court treated as inconsistent with the record; the court held that even if the year were a typographical error, the affidavit still did not identify the person served or explain that person’s authority.

The court also rejected Foley’s argument that service was proper because Capital One did not publicly list a registered agent in New York. The court explained that New York law provides a specific procedure for serving an unauthorized foreign corporation, and no affidavit showed compliance with that procedure.

The February 5 affidavit stated that Foley personally served Corporate Service Company, which Capital One admitted was its agent for service of process. The court treated February 5 as the earliest potentially valid service date. Capital One removed the case 19 days later, so the notice of removal was within the 30-day period.

Ruling

The court held that the record did not establish proper service on January 14. Because the February 5 service was the earliest potentially valid service, Capital One’s February 24 removal was timely. The court therefore denied Foley’s motion to remand. It also denied Foley’s motion for sanctions for wrongful removal. The case was not remanded to state court, and the court directed the Clerk to terminate the listed motions.