United States District Court, N.D. New York
KELMETIS Plaintiff pro se.
SMITH LLP ANDREW B. MESSITE, ESQ. Attorneys for Defendants.
SHAPIRO, DICARO & BARAK, LLC ELLIS M. OSTER, ESQ.
Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
D'Agostino, U.S. District Judge.
March 1, 2016, Plaintiff commenced this action alleging that
Defendants violated her rights under the Truth in Lending Act
("TILA"), specifically 15 U.S.C. § 1605, and
under the Real Estate Settlement Procedures Act
("RESPA"), specifically 12 U.S.C. §§ 2605
and 2607. Plaintiff also seeks declaratory relief under the
Declaratory Judgment Act.
before the Court is Defendants' motion to dismiss the
complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. See Dkt. No. 20-6.
On September 9, 2016, Plaintiff filed an opposition to
Defendants' motion to dismiss. See Dkt. No. 21.
On September 12, 2016, Defendants filed a reply memorandum of
law in further support of Defendants' motion to dismiss.
See Dkt. No. 22.
9, 2003, Plaintiff obtained a loan in the amount of $78,
280.00 from Defendant PHH Mortgage ("PHH") which
was secured by a mortgage on a parcel of real property
commonly known as 175 Pine Tree Lane, Gilboa, New York 12076,
located in Schoharie County, New York (the
"Property"). See Dkt. No. 1 at
¶¶ 1, 2, 14, 16. That loan was subsequently sold
into a securitized trust issued by Defendant Federal National
Mortgage Association ("FNMA"). See Id. at
about March 31, 2014, Plaintiff submitted a letter concerning
her loan to Defendant PHH at 2001 Bishops Gate Boulevard, Mt.
Laurel, New Jersey 08054. See Id. at ¶ 29;
id. at 12-13. In her letter, Plaintiff identified
her loan and stated she was "in dispute as to the
identity of the true owner of this debt (if any)" and
"in dispute about the proper application of payments
from the debtors to interest, principal, escrow advances and
expenses" as well as "about legal fees" and
several other fees and charges. See Dkt. No. 20-4.
In that same letter, Plaintiff made twenty numbered requests
for various documents, including requests for a complete and
itemized statement of the loan history, the call record
history, and all advances or charges against the loan.
See Id. Plaintiff also requested that Defendant PHH
"treat this letter as a 'qualified written
request'" ("QWR") under RESPA. See
Id. By letter dated April 23, 2014, Defendant PHH stated
that it did not consider Plaintiff's letter to be a QWR
for two reasons: (1) PHH has "designated an address for
receiving QWRS and [Plaintiff's] correspondence was not
mailed to that address" and (2) Plaintiff's letter
failed "to include any specific question concerning the
servicing of [her] loan." See Dkt. No. 1 at 12.
Defendant PHH's letter indicates that PHH enclosed copies
of Plaintiff's mortgage, note, HUD-1, payment history,
and quick reference transaction codes. See Id.
Defendant PHH also identified Defendant FNMA as the owner of
Plaintiff's account. See id.
February 16, 2016, prior to the commencement of this federal
lawsuit, Defendant PHH filed a complaint in Schoharie County
Supreme Court seeking to foreclose on the Property.
See Dkt. No. 20-3. On December 2, 2016, the state
court granted PHH's motion for summary judgment, struck
and dismissed Plaintiff's answer, and appointed a referee
to oversee the foreclosure.
proceeding pro se, filed the instant complaint on
March 1, 2016. In her complaint, Plaintiff alleges that
Defendant PHH violated TILA by failing to include certain
charges on the Truth in Lending statement at the time of the
loan's origination. See Dkt. No. 1 at ¶ 19.
Plaintiff also alleges that Defendant PHH violated RESPA by
accepting certain charges for the rendering of real estate
settlement services which were other than for services
actually performed. See Id. at ¶¶ 26-27.
Furthermore, Plaintiff contends that her March 31, 2014
letter is a QWR and that Defendant PHH failed to respond to
her letter in the manner required by RESPA. See Id.
at ¶¶ 29-32. Plaintiff claims she did not become
aware of Defendant PHH's alleged TILA and RESPA
violations until February 2016 and that any applicable
statute of limitations should run from that date. See
Id. at ¶¶ 24, 48. Plaintiff also alleges that
Defendants do not have standing to attempt to foreclose on
the Property and requests that the Court declare whether (i)
Defendant FNMA abandoned its interest in the Property, (ii)
the assignment of mortgage to Defendant FNMA is fraudulent
and void, (iii) the mortgage secures the note, (iv) the
mortgage is enforceable by Defendant FNMA, (v) Defendant FNMA
is the trustee of the securitized trust referenced in the
complaint, and (vi) Defendant PHH is the servicer of
Plaintiff's loan. See Id. at ¶¶ 49,
Standard of Review
motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure tests
the legal sufficiency of the party's claim for relief.
See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir.
2007) (citation omitted). In considering the legal
sufficiency, a court must accept as true all well-pleaded
facts in the pleading and draw all reasonable inferences in
the pleader's favor. See ATSI Commc'ns, Inc. v.
Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)
(citation omitted). This presumption of truth, however, does
not extend to legal conclusions. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Although a court's review of a motion to dismiss is
generally limited to the facts presented in the pleading, the
court may consider documents that are "integral" to
that pleading, even if they are neither physically attached
to, nor incorporated by reference into, the pleading. See
Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.
2006) (quoting Chambers v. Time Warner, Inc., 282
F.3d 147, 152-53 (2d Cir. 2002)).
survive a motion to dismiss, a party need only plead "a
short and plain statement of the claim, " see
Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft
to 'sho[w] that the pleader is entitled to relief[,
]'" Bell Atl. Corp. v. Twombly, 550 U.S.
544, 557 (2007) (quotation omitted). Under this standard, the
pleading's "[f]actual allegations must be enough to
raise a right of relief above the speculative level, "
id. at 555 (citation omitted), and present claims
that are "plausible on [their] face, " id.
at 570. "The plausibility standard is not akin to a
'probability requirement, ' but it asks for more than
a sheer possibility that a defendant has acted
unlawfully." Iqbal, 556 U.S. at 678 (citation
omitted). "Where a complaint pleads facts that are
'merely consistent with' a defendant's liability,
it 'stops short of the line between possibility and
plausibility of "entitlement to relief."'"
Id. (quoting Twombly, 550 U.S. at 557).
Ultimately, "when the allegations in a complaint,
however true, could not raise a claim of ...