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Kelmetis v. Federal National Mortgage Association

United States District Court, N.D. New York

January 27, 2017


          JANET KELMETIS Plaintiff pro se.

          REED SMITH LLP ANDREW B. MESSITE, ESQ. Attorneys for Defendants.

          SHAPIRO, DICARO & BARAK, LLC ELLIS M. OSTER, ESQ. Attorneys for Defendants.


          Mae A. D'Agostino, U.S. District Judge.


         On 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.

         Currently 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.


         On July 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 ¶ 17.

         On or 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.

         On 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.

         Plaintiff, 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, 50-53, 70.


         A. Standard of Review

         A 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)).

         To 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 ...

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