United States District Court, S.D. New York
OPINION AND ORDER
PAUL OETKEN, UNITED STATES DISTRICT JUDGE
Johnny Im brings this action against Defendants Bayview Loan
Servicing LLC (“Bayview”), Harmon Law Offices PC,
Federal Home Loan Mortgage Corporation as Trustee for Freddie
Mac Multiclass Certificates Series 3370 (“Freddie
Mac”), and Does 1 through 100, for relief relating to
Im's mortgage and security interests therein. (Dkt. No.
26 (“Compl.”).) Defendants moved to dismiss
Im's original complaint on April 20, 2016 (Dkt. No. 20);
Im then filed an Amended Complaint on June 7, 2016 (Compl.),
which Defendants again moved to dismiss (Dkt. No. 31). Im now
seeks leave to file a Second Amended Complaint. (Dkt. No.
34.) For the reasons that follow, Im's motion to file a
Second Amended Complaint is granted and Defendants'
motions to dismiss are denied as moot.
September 2007, Im purchased property in Lowell,
Massachusetts, with a mortgage loan originated by Washington
Mutual in the sum of $276, 500. (Compl. ¶ 10.) Im claims
that he did not receive proper notice of the sale or transfer
of his loan from Washington Mutual to JPMorgan, Bayview, or
Freddie Mac within thirty days, as required by Section 130(a)
of the Truth in Lending Act (“TILA”), 15 U.S.C.
§ 1640. (Id. ¶ 11.) Im also alleges that
the note and mortgage were not assigned or transferred to
Defendants in accordance with the note and the mortgage, the
operative Pooling and Servicing Agreement
(“PSA”), or applicable state law. (Id.
¶ 20.) Im further alleges that these and other defects
render invalid Defendants' claimed security interest in
the mortgage. (Id. ¶ 21.) Im also obtained a
securitization audit from Certified Forensic Loan Officers
(attached to the Amended Complaint as “Exhibit
A”), which shows no recorded assignments for the
mortgage. (Id. ¶ 23.) Im's operative
amended complaint alleges five counts: (1) for declaratory relief
involving the status of the mortgage; (2) for constructive
fraud relating to Defendants' alleged misrepresentation
of their status vis-à-vis the mortgage; (3) for
violation of the TILA; (4) for violations of the Consumer
Credit Protection Act (“CCPA”), 15 U.S.C. §
1641; and (5) for violation of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. §
1692(a)(3). (Id. ¶¶ 25-57.)
8, 2016, Defendants moved to dismiss Im's amended
complaint pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). (Dkt. No. 31.) Im did not oppose the
motion, but instead filed a letter motion for leave to file a
second amended complaint, attaching his proposed second
amended complaint. (Dkt. No. 34.) In the proposed second
amended complaint, Im no longer asserts claims for
declaratory relief or constructive fraud, and instead he adds
a claim for violation of Massachusetts law, in addition to
reasserting his claims under the TILA, the CCPA, and the
FDCPA. (Id.) Defendants oppose Im's motion for
leave to amend, arguing that any further amendment would be
futile. (Dkt. No. 35.)
the Federal Rules of Civil Procedure, courts “should
freely give leave [to amend] when justice so requires.”
Fed.R.Civ.P. 15(a)(2). “A district court has broad
discretion in determining whether to grant leave to amend . .
. .” Gurary v. Winehouse, 235 F.3d 792, 801
(2d Cir. 2000). A motion to amend “should not be denied
unless there is evidence of undue delay, bad faith, undue
prejudice to the non-movant, or futility.” Milanese
v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001)
(citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
argue that Im's request for leave to amend should be
denied because such amendment would be futile, relying
largely on the arguments made in their motion to dismiss.
(Dkt. No. 35.) However, Im did not oppose Defendants'
motion to dismiss, instead seeking leave to file an amended
complaint. Moreover, Im has not filed any response to
Defendants' letter opposing his letter motion seeking
leave to amend. Thus the Court does not have a full set of
briefs upon which to decide either the issue of the futility
of Im's amendment or the motion to dismiss as to the
first amended complaint.
the futility of Im's proposed second amended complaint
would effectively require consideration of Defendants'
still unopposed motion to dismiss. Lucente v. Int'l
Bus. Mach. Corp., 310 F.3d 243, 258 (2d Cir. 2010).
Thus, in light of the generous standard for granting leave to
amend, Fed.R.Civ.P. 15(a)(2), the Court grants Im leave to
file the second amended complaint and denies Defendants'
motion to dismiss without prejudice to renewal or filing a
new motion to dismiss the second amended complaint.
foregoing reasons, Plaintiff's letter motion for leave to
amend is GRANTED. The Second Amended Complaint is hereby
deemed the operative complaint.
shall answer or otherwise respond to the Second Amended
Complaint by March 1, 2017. Defendants' two motions to
dismiss are hereby DENIED as moot without prejudice to
renewal or refiling.
Clerk of Court is directed to close the motions at Docket
Number 20, ...