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Gorham-Dimaggio v. Countrywide Home Loans

December 16, 2008



On April 7, 2008, Defendant Countrywide Financial Corp., along with its affiliates, Countrywide Home Loans, Inc.; Countrywide Home Loans, Inc., LP; Countrywide Home Loans Servicing, LP, (collectively, "Defendants") and Investor Number 1688597323*fn2 , filed a motion pursuant to FED. R. CIV. P. 12(b)(6) to dismiss all claims asserted by the Plaintiff, Kim Gorham-DiMaggio, in her Amended Complaint. Motion (Dkt. No. 17); Am. Compl. (Dkt. No. 15). Plaintiff's Amended Complaint alleges that the Defendants engaged in discriminatory conduct by manipulating and misrepresenting escrow payment information, causing her to default on her mortgage. See Am. Compl. Plaintiff is seeking $8,000,000 in connection with various federal and state law claims.

I. Background*fn3

On June 13, 2003, Plaintiff, a resident of New York, obtained a mortgage loan on her home from the Defendants in the amount of $145,350. Mortgage Contract (Dkt. No. 17, Attach. 9). Under the terms of the mortgage contract ("the Note"), Plaintiff became responsible for making all monthly payments in principle and escrow to the Defendants, including Defendants' projections of escrow, "unless Lender t[old] [Plaintiff], in writing, that [Plaintiff] d[id] not have to do so." Am. Compl. ¶ 19; Note §3(a). The Note further specifies, "[i]f [Plaintiff] do[es] not pay the full amount of each monthly payment on the date it is due, [Plaintiff] will be in default." Am. Compl. ¶ 19.

A previous default was settled by the parties in September 29, 2005, and a subsequent dispute was settled in October 2006 ("Gorham I"). Aff. of David L. Permut at ¶5 (Dkt. No. 17, Attach. 3); Am. Compl. ¶ 29. The current interest owed under the mortgage is a fixed rate reached as a result of the settlement from Gorham I. Id.

In March 2007, Plaintiff received a bill from the Defendants for $1,506. Am. Compl. ¶ 53. The amount of the March bill was an unexpected increase for the Plaintiff, as her combined monthly principal and escrow payment had been $1,411 since November 2006. Id. ¶ 52. Plaintiff paid the full amount of the March bill. Id. ¶ 53. In April 2007, Plaintiff received a bill in the amount of $1,528, but paid only $1,411. Id. ¶ 59. The check was not cashed, but was returned to the Plaintiff on May 5, 2007 because it was $117 dollars less than the amount owed under the April bill. Id. ¶ 8, 13. Plaintiff claims the Defendants then prevented her from accessing her online account on May 5, and defaulted her on the mortgage loan shortly thereafter (no date given). Id. ¶ 8.

Subsequently, Plaintiff's attorney contacted Defendants' attorney from Gorham I, David L. Permut, via email on June 13, 2007 requesting an explanation for the escrow increase. Am. Compl. ¶¶ 67, 68. An email response from Permut explained that the increased amount was established following an escrow re-analysis that was performed by the Defendants on February 16, 2007. Id. ¶ 68. The email further stated that notice of the increase was included in Plaintiff's February 2007 billing statement. Id. ¶ 68. Plaintiff maintains she never received a statement of the escrow increase in February, and that her billing statements represented that the escrow re-analysis would not be performed until April 2007. Id. ¶¶ 70, 71. Plaintiff does not allege that she attempted to call Countrywide for an explanation, but instead claims that several*fn4 Countrywide representatives called her around this time in an unrelated attempt to convince her to refinance her home, during which calls they assured her that the escrow amount had not increased, and would not increase until September 2007. Am. Compl. ¶¶ 71, 75, 97. These representatives sent Plaintiff screen shots of her account information on February 28, 2007 and July 18, 2007 to verify this information. Id. ¶ 84. On both occasions, the screen shot showed that the total monthly payment was still $1,411, and that the escrow amount had not changed. Id. ¶ 84. Plaintiff does not provide the names or titles of any of the representatives who provided this information. Even after the March and April increase, Plaintiff claims her monthly billing statements contained information that an escrow re-analysis would not be performed until April 2007. Based on this, she believed that the amount she was being charged was incorrect. Id. ¶ 71.

Unsatisfied with the earlier response from Mr. Permut, Plaintiff sent Defendants a written request for information regarding the escrow increase "on or about June 15, 2007." Am. Compl. ¶ 86. Plaintiff claims she never received a response to her request. Id. ¶ 86.

Without stating when it happened, Plaintiff claims that the Defendants sent her account to a foreclosure attorney. Am. Compl. ¶ 94. Plaintiff further argues that Defendant's numerous call-centers or help-lines established to assist defaulted borrowers were never specifically offered to assist her. Id. ¶ 95-96.

Plaintiff filed the present action on January 7, 2008, seeking redress for the alleged discriminatory and retaliatory practices of the Defendants in servicing her escrow account. Plaintiff claims that the Defendants discriminated against her in the manner prescribed above, in an effort to recoup concessions arising out of the Gorham I settlement. Amend. Compl. ¶ 26, 28 (Dkt. No. 15). She seeks relief under several federal and state law claims.

II. Discussion

A. Standard of Review

Under a FED. R. CIV. P. 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, a district court is required to "accept all allegations in the complaint as true and draw all inferences in the light most favorable to the non-moving party[ ]." Ruggles v. Wellpoint Inc., 253 F.R.D. 61, 65 (N.D.N.Y. 2008) (citing FED. R. CIV. P. 12(b)(6)); Charles W. v. Maul, 214 F.3d 350, 356 (2d Cir. 2000) (noting that Rule 12(b)(6) requires that the court "read the complaint liberally, drawing all reasonable inferences in plaintiff's favor.").

To withstand this Motion, the Plaintiff must plead facts sufficient to establish that her claim for relief is more than just conceivable, and is in fact "plausible on its face." Bell Atlantic Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1974 (2007). In determining whether the complaint is sufficiently plausible, a district court is typically required to look only at "the allegations on the face of the complaint." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). Thus, matters outside the pleadings are normally excluded from review unless the court decides to treat the motion as one for summary judgment under FED. R. CIV. P. 56. FED. R. CIV. P. 12(b)(6). However, "[i]n certain circumstances, the court [may] permissibly consider documents other than the complaint [when] . . . [d]ocuments that are attached to the complaint or incorporated in it by reference are deemed part of the pleading." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007).

B. Claims I and II: FHA

Plaintiff raises two claims of discrimination under the Fair Housing Act (FHA), 42 U.S.C. § 3601 et seq. Plaintiff's first claim arises under § 3605, "Discrimination in Residential Real Estate Related Transactions," which states in pertinent part:

"(a) In general

It shall be unlawful for any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin."

42 U.S.C. § 3605(a).

The statute defines a "real estate-related transaction" as "[t]he making or purchasing of loans or providing other financial assistance (A) for purchasing, constructing, improving, repairing, or maintaining a dwelling; or (B) secured by residential real estate." 42 U.S.C. § 3605(b)(1)(A)(B); 24 C.F.R. § 100.120.

Plaintiff's second claim under the FHA arises under 42 U.S.C. § 3604, "Discrimination in the Sale or Renting of Houses or other Prohibited Practices," which makes it unlawful to "refus[e] to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B). Construing Plaintiff's claims together, Plaintiff is alleging that the Defendants discriminated against her on the basis of her disability by not providing her with financial assistance afforded to similarly situated individuals, and by not making reasonable accommodations on behalf of her disability.

1. FHA Section 3605 Claim

In order to state a claim under § 3605, the plaintiff must plead "(1) that [s]he is a member of a protected class; (2) that [s]he attempted to engage in a 'real estate-related transaction' and met all relevant qualifications for doing so; (3) that the defendant refused to transact business with [her] despite h[er] qualifications; and (4) that the defendants continued to engage in the type of transaction in question with other parties with similar qualifications." Johnson v. Citibank, 234 F.3d 1262 (2d Cir. 2000).

Plaintiff is legally blind (90% and 100% vision loss in each eye) and accordingly is a member of a protected class. Pl.'s Aff. ¶3 (Dkt. No. 18, Attach. 2). However, Plaintiff fails to sufficiently plead the other required elements for a prima facie claim of discrimination under the statute. Plaintiff does not allege that she ever attempted to procure new financing, or even information regarding such financing from the Defendants. Therefore, any claim that the Defendants refused to provide her with financing options must fail. Plaintiff's complaint draws significant attention to Defendants' call centers and hotlines that assist defaulted borrowers, erroneously suggesting that their failure to assist the Plaintiff in this manner is tantamount to discrimination. This line of reasoning is fundamentally flawed, as it incorrectly characterizes what "financial assistance" means under the statute. Under a plain language of the statute, "financial assistance" means providing prospective purchasers with financing information to help them purchase or rent a home, and does not include assistance for borrowers who have defaulted on their loans. 42 U.S.C. § 3605(b)(1); 24 C.F.R. § 100.120; see also NAACP v. American Family Mut. Ins. Co., 978 F.2d 287 (7th Cir. 1992) (noting that "it would strain language past the breaking point to treat property or casualty insurance as 'financial assistance'--let alone as assistance for 'purchasing . . . a dwelling.'").

Moreover, Plaintiff has offered only conclusory allegations to demonstrate that discriminatory measures were implemented because of her disability, and that "able-bodied" persons were not affected. See Wiltshire v. Danraj, 421 F. Supp. 2d 544, 555 (E.D.N.Y. 2005) ("a conclusory allegation that the Plaintiffs discriminated against the Defendants because they were 'minority buyers' is insufficient to state a cause of action under the FHA."); Powell v. American General Finance, 310 F. Supp. 2d 481 (N.D.N.Y. 2004). Plaintiff's conclusory allegations are actually contradicted by numerous other allegations by Plaintiff that the Defendants' motive in the conduct alleged was retaliatory; made in an effort to recoup concessions arising from Gorham I, and not motivated by any animus towards her status as a disabled person. See, e.g., Wiltshire v. Danraj, 421 F. Supp. 2d 544, 555 (E.D.N.Y. 2005). Accordingly, Plaintiff has failed to plead the elements required for a claim under this section.

2. FHA Section 3604 Claim

Plaintiff's claim under the FHA that Defendants failed to make a reasonable accommodation is similarly without merit. Plaintiff has not established the elements for a discrimination claim because Plaintiff has not alleged that any request for an accommodation was ever made, or how any accommodation from the Defendants would have prevented her from defaulting on the loan. Instead, Plaintiff stated in her own affidavit that she is fully capable of reading the monthly account statements despite her visual disability, and did not require any specialized treatment from the Defendants. ("[A]nd yes, with special glasses, I can read, and do read"). Pl.'s Aff. ¶ 15 (Dkt. No. 18, Attach. 2). Therefore, Plaintiff has failed to demonstrate the existence of a plausible claim for failure to make a reasonable accommodation, and both FHA claims must be dismissed.

C. Claims III and IV: ECOA

Plaintiff brings two causes of action pursuant to the Equal Credit ...

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