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Barnett v. Countrywide Bank, FSB

United States District Court, E.D. New York

November 20, 2014

TEDDY BARNETT AND CAROL BARNETT, Plaintiffs,
v.
COUNTRYWIDE BANK, FSB; FEDERAL NATIONAL MORTGAGE ASSOCIATION AS TRUSTEE FOR SECURITIZED TRUSTE FANNIE MAE REMIC TRUST 2008-14; FANNIE MAE; BANK OF AMERICA, NA; GREENTREE SERVICING; MORTGAGE ELECTRONIC REGISTRATION SYSTEM AKA " MERS" AND DOES 1 THROUGH 100 INCLUSIVE, Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For the Plaintiffs: John Ogochukwu Emefieh, Esq., Brooklyn, NY.

For the Countrywide Bank, FSB and Bank of America, NA, Defendants: Suzanne Michelle Berger, Esq., Scott Harris Kaiser, Esq., Of Counsel, Bryan Cave LLP, New York, NY.

For the Federal National Mortgage Association as Trustee for Securitized Trustee Fannie Mae Remic Trust 2008-14; Fannie Mae; Greentree Services; Mortgage Electronic Registration System, Defendants: Anthony Wayne Vaughn., Esq., John Michael Falzone, III, Esq., Of Counsel, Parker Ibrahim & Berg LLC, Somerset, NJ.

NO APPEARANCES: Does 1 through 100 inclusive.

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MEMORANDUM OF DECISION AND ORDER

ARTHUR D. SPATT, United States District Judge.

On April 1, 2014, the Plaintiff commenced this action in Supreme Court of the State of New York, County of Nassau, asserting, among other claims, violations of the Truth in Lending Act, 15 U.S.C. § 1601, et seq., (" TILA" ); the Home Ownership and Equity Protection Act, Regulation Z (" HOEPA" ); and the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601, et seq. (" RESPA" ).

On July 11, 2014, the Defendants Countrywide Bank, f/k/a Countrywide Bank, FSB (" Countywide" ) removed this action to the Federal District Court of the Eastern District of New York on the basis of federal question jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction under 28 U.S.C. § 1367(a).

On July 14, 2014, this action was assigned to this Court.

On July 18, 2014, the Defendants Federal National Mortgage Association as Trustee for Securitized Trust Fannie Mae REMIC Trust 2008-14, the Federal National Mortgage Association s/h/a Fannie Mae, Green Tree Servicing LLC s/h/a Green Tree Servicing, and Mortgage Electronic Registration Systems, Inc. s/h/a Mortgage Electronic Registration System (" MERS" ) filed a notice consenting to the removal of this action.

That same day, Countrywide moved, pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 12(b)(1) and 12(b)(6), to dismiss the complaint as against it for, respectively, lack of subject matter jurisdiction and failure to state a claim.

On July 29, 2014, the Defendants Federal National Mortgage Association as Trustee for Securitized Trust Fannie Mae REMIC Trust 2008-14, the Federal National Mortgage Association s/h/a Fannie Mae, Green Tree Servicing LLC s/h/a Green Tree Servicing, and MERS joined in Countrywide's motion to dismiss.

On September 8, 2014, after the expiration of the time for the Plaintiffs to respond to the motions to dismiss, the Court granted those motions as unopposed and closed the case.

On September 11, 2014, upon a letter request by the Plaintiffs, the Court vacated the orders dismissing this action as unopposed " in the interest of justice" and directed the Clerk of the Court to re-open the case and to reinstate the motions to dismiss. (Doc. No. 27.)

The Plaintiffs subsequently filed opposition papers to the pending motions to dismiss.

I. BACKGROUND

Unless stated otherwise, the following facts are drawn from the complaint and construed in a light most favorable to the non-moving parties, the Plaintiffs.

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On December 26, 2007, the Plaintiffs obtained a loan in the amount of $405,500 from Countywide secured by a mortgage on their residence located at 267 Moore Avenue in Freeport, New York.

The mortgage, which is attached to the complaint as Exhibit 2, indicates that MERs is the nominee for the lender and the lender's sucessors and assigns. (Mortgage, at 1.) Under the mortgage, the Plaintiffs agreed that MERS had the " the right ... to exercise any or all" rights of the lender and " to take any action required" of the lender. (Id. at 2). The mortgage was also freely transferrable and assignable. See (Compl., Ex. 4, ¶ 1)(" I understand that the Lender may transfer this Note. The Lender or anyone whom takes this Note by transfer and who is entitled to receive payments under this Note is called the 'Note Holder.'" ); (Mortgage, at ¶ 20.)(" The Note, or an interest in the Note, together with this Security Instrument, can be sold one or more times. I might not receive any prior notice of these sales." ).

At some point, the mortgage was assigned to a securitized trust known was Guaranteed REMIC Pass-Through Certificates Fannie Mae REMIC Trust 2008-14. The trustee of that trust is the Defendant Federal National Mortgage Association (" Fannie Mae" ).

According to the Plaintiffs, the assignment of the mortgage to the securitized trust violated the terms of the Pooling and Servicing Agreement (the " PSA" ) governing the trust. However, the Plaintiffs do not allege that they are either signatories or third-party beneficiaries to the PSA, intended or otherwise.

Countrywide subsequently merged into Bank of American, N.A, another named defendant.

On December 1, 2011, servicing of the loan transferred from Countrywide to the Defendant Greentree Servicing LLC.

As stated above, on April 1, 2014, this action ensued. As best as can be gleaned from the complaint, the Plaintiffs mount a challenge to the securitization process and the assignment of their mortgage to the securitized trust; assert claims for fraudulent inducement and concealment; for breach of fiduciary duty; for intentional infliction of emotional distress; and for violations of TILA, HOEPA, and RESPA. The Plaintiffs seek damages, declaratory relief, and rescission of the underlying loan and mortgage.

Presently pending before the Court are the motions by the Defendants to dismiss the complaint for lack of subject matter jurisdiction and/or for failure to state a claim upon which relief can be granted.

II. DISCUSSION

As an initial matter, the Court notes that the complaint appears to be a form complaint nearly identical to the complaint in at least three other cases that were dismissed as a matter of law. Simmons v. Bank of Am., N.A., No. CIV. 13-0733 (PJM), 2014 WL 509386, at *2 (D. Md. Feb. 6, 2014)(dismissing substantially identical complaint that " appear[ed] to be a form complaint, an amalgam of vague statements and legal conclusions, even naming what she believes are malefactor entities, none of which are sued in this action.); Somarriba v. Greenpoint Mortgage Funding, Inc., 13-CV-072 (RWT), 2013 WL 5308286, at *3 (D. Md. Sept. 19, 2013)(dismissing substantially identical complaint and noting that " [e]ven a high-powered magnifying glass equipped with the finest convex lens would not allow the Court to identify specific factual allegations sufficient to save the Plaintiffs' Complaint from dismissal." );

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see also Zbitnoff v. NationStar Mortg. LLC, No. C 13-05221 (WHA), 2014 WL 2119875, at *4 ...


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