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Dins v. Bank of America, N.A.

United States District Court, S.D. New York

February 13, 2017

TATIANA DINS, Plaintiff,
v.
BANK OF AMERICA, N.A.; WILMINGTON TRUST COMPANY, as trustee for CWHEQ Revolving Home Equity Trust, Series 2006A; DOES 1 THROUGH 100, inclusive, Defendants.

          OPINION & ORDER

          KATHERINE B. FORREST United States District Judge

         Tatiana Dins, pro se, has brought this lawsuit against Bank of America, N.A. (“BANA”), Wilmington Trust Company (“Wilmington”) as trustee for CWHEQ Revolving Home Equity Trust, Series 2006A (“CWHEQ Trust” or the “Trust”), and Does 1 through 100, contesting defendants' alleged claims to her property. Defendants have moved to dismiss the complaint for improper venue under Federal Rule of Civil Procedure 12(b)(3) or for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). They also have asked the Court to strike Dins's untimely amended complaint. Given Dins's pro se status, the Court will consider the late filing. Even under the amended pleading, however, Dins has failed to state a claim and defendants' motion to dismiss is GRANTED.

         I. BACKGROUND

         Dins brought this lawsuit on July 19, 2016. (Verified Compl., ECF No. 1.) On September 13, 2016, defendants filed a motion to dismiss. (Mot. Dismiss, ECF No. 12.) On September 20, 2016, Dins moved for leave to amend her complaint. (ECF No. 15.) The Court granted plaintiff's request, and ordered Dins to file an amended complaint by October 1, 2016. (ECF No. 16.) Six weeks after the deadline, on November 14, 2016, Dins filed her amended complaint (“AC”) against Wilmington, BANA, and unnamed individuals who or corporations that “aided and abetted in the civil conspiracy to deny Plaintiffs' due process.” (AC ¶ 8, ECF No. 17.) The AC's factual allegations are, almost to a word, the same as those in the original complaint, but its causes of action are different. The AC includes two federal causes of action-for violations of the Truth in Lending Act (“TILA”) and Regulation X of the Real Estate Settlement Procedures Act (“RESPA”)-in addition to several state law claims. Defendants opposed plaintiff's untimely amended pleading and requested that the Court decline to consider it. (ECF No. 18.) The Court informed the parties that it would consider the AC solely as a proposed amendment, and that it deemed defendants' motion to dismiss the original complaint as sufficiently responsive to the AC's allegations. (ECF No. 19.) 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. (Order, ECF No. 21.) Plaintiff has not responded to the order.

         Mindful that “a court is ordinarily obligated to afford a special solicitude to pro se litigants, ” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010), the Court will accept plaintiff's untimely AC. Accordingly, the following facts are taken from the AC. The Court also will consider the exhibits attached to defendants' motion to dismiss, as they are referenced in and integral to the AC. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).

         On January 20, 2006, Dins entered into a Home Equity Credit Line Agreement (the “Note”) with Countrywide Home Loans, Inc. (“Countrywide”), a non-party. (Saydah Affirm. Ex. A (“Note”), ECF No. 14.) The Note was secured by a Deed of Trust (“Deed”) on Dins's property at 2709 Jackson Street, San Francisco, California, which also was dated January 20, 2006. (Saydah Affirm. Ex. B (“Deed”), ECF No. 14.) The Deed was recorded on January 31, 2006 in San Francisco. (Id.; see also AC ¶ 49(b).) Mortgage Electronic Registration Systems, Inc. (“MERS”) was the beneficiary under the Deed and Countrywide's nominee. (Deed at 1, 2.) The Deed provides that MERS could exercise any of the rights under it, including foreclosure and sale. (Id. at 2.) On February 8, 2013, MERS, as nominee for Countrywide, assigned the Deed to BANA. (Saydah Affirm. Ex. C (“Assignment”), ECF No. 14.) The Assignment was recorded on April 17, 2013 in San Francisco. (Id.)

         Dins alleges that her Note ended up in the securitized CWHEQ Trust, [1] which was created pursuant to a Pooling and Servicing Agreement (“PSA”), after its closing date of February 27, 2006. (AC ¶ 45.)[2] Dins provides no information on when the Note or Deed was transferred to the Trust and by whom. Neither is Wilmington's alleged role in any scheme clear: Dins alleges that Wilmington is the successor in interest to Countrywide, that it is responsible for BANA's actions, and that it is the trustee of the CWHEQ Trust. (Id. ¶¶ 6, 48.)

         Dins makes several allegations of impropriety by defendants and other non-parties. The gravamen of these allegations appears to be that: (1) the assignment of her loan to the Trust was void and contrary to the PSA because it occurred after the Trust's closing date, (id. ¶¶ 45, 54, 57); and (2) because only Countrywide had “standing to assign the mortgage deed, ” any later assignments are void, (id. ¶ 45). Accordingly, Dins alleges that defendants have no claim to her property. (Id. ¶¶ 52, 58.) Dins also claims that Countrywide “table funded” her loan. (Id. ¶¶ 59-61.)

         The clear import of the VAC is that defendants have attempted or are attempting to foreclose on the property. Other than an undecipherable claim that “the current foreclosure process is the second lien holder of [BANA] Mortgage which is foreclosing in Nov., 2016 which affects the first mortgage, ” (id. ¶ 66), and conclusory allegations that the property “is currently in the non-judicial foreclosure process” (id. ¶ 69; see also Id. ¶¶ 65, 71, 85(a), 105, 110), Dins has not alleged any specifics about the foreclosure. Dins also contends that defendants illegally failed to review her August 2016 loan modification application. (Id. ¶¶ 92, 104, 109.)

         II. LEGAL STANDARDS

         A. Federal Rule of Civil Procedure 12(b)(6)[3]

         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 ...


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