United States District Court, S.D. New York
OPINION & ORDER
KATHERINE B. FORREST, District Judge.
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.
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. ¶¶
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.)
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.
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.
Federal Rule of Civil Procedure 12(b)(6)
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).
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).
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))).
Choice of Law
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).
Count I ...