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Dins v. Nationstar Mortgage, LLC

United States District Court, S.D. New York

February 13, 2017

TATIANA DINS, Plaintiff,

          OPINION & ORDER

          KATHERINE B. FORREST, District Judge.

         Tatiana Dins, pro se, has brought this lawsuit against Nationstar Mortgage, LLC (“Nationstar”), U.S. Bank (“U.S. Bank”) as trustee for the Lehman XS Trust Series 2006-18N (“Lehman XS Trust” or the “Trust”), and Does 1-100, contesting defendants' alleged claim to her property. Defendants have moved to dismiss the Verified Amended Complaint (“VAC”) for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, defendants' motion is GRANTED.

         I. BACKGROUND[1]

         On June 29, 2006, Dins executed a $137, 300 Adjustable Rate Mortgage Note (“Note”) with First National Bank of Arizona (“First National Bank”). (Note, ECF No. 1-2; VAC ¶ 10, ECF No. 14.) On that same date, she executed a Deed of Trust with First National Bank, which was secured by plaintiff's property located at 3045 Marina Bay Drive, Unit 4103, League City, Texas (the “property”). (Deed of Trust, ECF No. 1-1.) The Deed identified Mortgage Electronic Registration Systems, Inc. (“MERS”) as a nominee for the lender, First National Bank, and the lender's successors and assigns. (Id. at 2, 3.) The Deed provides that MERS may exercise any of the rights under it, including foreclosure and sale. (Id. at 4.) It also states that the Note may transferred without notice to Dins. (Id. § 20.) On April 29, 2011, MERS assigned the Deed to Nationstar (“Assignment 1”). (VAC ¶¶ 14, 22.) It was recorded in Galveston County. (Id. ¶ 14.) Plaintiff was not notified of this assignment. (Id.) In May 2015, Nationstar assigned the Deed to the securitized Lehman XS Trust with U.S. Bank as trustee (“Assignment 2”). (Id. ¶ 19; see also Assignment 2, ECF No. 17-1.) It was recorded in Galveston County. (VAC ¶ 19.) Neither Nationstar nor U.S. Bank informed Dins of this assignment. (Id.) The Lehman XS Trust had “closed” on November 30, 2006, before Dins's loan was assigned to the Trust. (Id. ¶¶ 10, 12.)

         Dins makes several allegations of impropriety by defendants and other non-parties. The gravamen of these allegations appears to be that: (1) because the cutoff date to accept loans into the Lehman XS Trust was November 30, 2006, Assignments 1 and 2, which occurred after this date, were void under the Trust's Pooling and Servicing Agreement (“PSA”) and New York trust law, (see, e.g., id. ¶¶ 27-39); and (2) “the Mortgage and Note were split, shattering the chain of title, ” (see, e.g., id. ¶¶ 39, 41). Accordingly, Dins alleges that defendants have no claim to her property. (Id. ¶ 43.) Dins also claims that First National Bank “table funded” her loan. (Id. ¶¶ 34, 35.)

         The clear import of the VAC is that defendants have attempted or are attempting to foreclose on the property. Dins, however, has not included any specifics about any attempted foreclosures in her pleading.

         Dins brought this lawsuit on April 20, 2016. (Compl., ECF No. 1.) She filed the VAC on July 21, 2016 against Nationstar, U.S. Bank, and unnamed individuals who “aided and abetted in the civil conspiracy to deny Plaintiffs' due process. (VAC ¶ 11.) On August 11, 2016, defendants moved to dismiss the VAC for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Mot. Dismiss, ECF No. 15.) On September 7, 2016, Dins filed a “Second Amended Complaint, ” (ECF No. 21), which was construed as her opposition to the motion to dismiss, (ECF No. 26), and to which defendants replied, (ECF No. 22). This case was transferred to the undersigned from the Honorable Analisa Torres on November 22, 2016. On November 23, 2016, the Court issued an order noting that plaintiff has provided several addresses in her filings, and directing Dins to inform the Court of her current address. (ECF No. 28.) Plaintiff has not responded to the order.


         A. Federal Rule of Civil Procedure 12(b)(6)

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must provide grounds upon which his claim rests through “factual allegations sufficient ‘to raise a right to relief above the speculative level.'” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In applying this standard, the Court accepts as true all well-pled factual allegations, but does not credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Id. The Court will give “no effect to legal conclusions couched as factual allegations.” Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Twombly, 550 U.S. at 555). A plaintiff may plead facts alleged upon information and belief “where the facts are peculiarly within the possession and control of the defendant.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010). But, if the Court can infer no more than the mere possibility of misconduct from the factual averments-in other words, if the well-pled allegations of the complaint have not “nudged [plaintiff's] claims across the line from conceivable to plausible”-dismissal is appropriate. Twombly, 550 U.S. at 570; Starr, 592 F.3d at 321 (quoting Iqbal, 556 U.S. at 679).

         In deciding a motion to dismiss under Rule 12(b)(6), the Court may supplement the allegations in the complaint with facts from documents either referenced in the complaint or relied upon in framing the complaint. See DiFolco, 622 F.3d at 111 (“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.”); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (“[W]here plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint[, ] the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.” (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991))).

         B. Choice of Law

         “As a general rule, a federal court sitting in diversity or with pendent jurisdiction over state law claims applies the choice of law rules of the state in which it sits.” Shaw Family Archives, Ltd. v. CMG Worldwide, Inc., 434 F.Supp.2d 203, 207-08 (S.D.N.Y. 2006) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 497 (1941)). Therefore, this Court generally applies New York's choice of law rules because it sits in New York. “When confronted with a choice of law question, New York courts generally look to the law of the jurisdiction that has ‘the greatest interest in the litigation, ' as determined by the ‘facts or contacts which . . . relate to the particular law in conflict.'” Mendy v. JP Morgan Chase & Co., No. 12 Civ. 8252, 2014 WL 1224549, at *6 (S.D.N.Y. Mar. 24, 2014) (citations omitted). However, where the parties have agreed that a particular state's law will govern their dispute, “New York law gives full effect to the parties' choice-of-law provisions.” Krock v. Lipsay, 97 F.3d 640, 645 (2d Cir. 1996). In this case, the Deed of Trust provides that the law of the jurisdiction in which the property is located (Texas) shall govern the Deed and Note. (Deed of Trust § 16.) Furthermore, the parties agree that the Trust itself was created under and is governed by New York law, (VAC ¶ 6; Resp. Opp'n 4-6, ECF No. 17). See Cox v. Nationstar Mortg. LLC, 15 Civ. 9901, 2016 WL 3926467, at *3 n.4 (S.D.N.Y. July 18, 2016) (citing Chau v. Lewis, 771 F.3d 118, 126 (2d Cir. 2014)) (implied consent sufficient to establish choice of law).

         III. DISCUSSION[2]

         A. Count I ...

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