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Noriega v. U.S. Bank, National Association

United States District Court, E.D. New York

July 25, 2017

HECTOR NORIEGA, Plaintiff,
v.
US BANK, NATIONAL ASSOCIATION, as Trustee for the Structured Asset Securities Corporation mortgage Pass-Through Certificates, Series 2005-ARI, and AMERICA'S SERVICING COMPANY, Defendants.

          For Plaintiff: Hector Noriega, pro se.

          For Defendants: Zalika Pierre, Esq. Reed Smith LLP.

          MEMORANDUM & ORDER

          Joanna Seybert, U.S.D.J.

         Plaintiff Hector Noriega (“Plaintiff”) commenced this action alleging violations of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601, et. seq., and Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et. seq., and seeking a declaratory judgment. Presently pending before the Court is defendants U.S. Bank, National Association (“USBNA”) and America's Servicing Company's (“ASC” and, collectively, “Defendants”) motion to dismiss. (Defs.' Mot., Docket Entry 18.) For the following reasons, Defendants' motion is GRANTED.

         BACKGROUND[1]

         On September 1, 2005, Plaintiff executed a negotiable promissory Note and Mortgage in the amount of $384, 750.00 with respect to the subject property located at 23 Bella Casa Lane, Central Islip, NY 11722 (the “Property”).[2] (Compl. ¶¶ 1, 14.) The original lender was Argent Mortgage Company, LLC (“Argent”), an entity that is now defunct. (Compl. ¶ 16.) On July 14, 2005, Plaintiff signed a Truth-in-Lending Disclosure Statement (the “TILA Statement”). (TILA Stmt., Defs.' Mot. Ex. B, Docket Entry 19-2.) On July 14, 2005, the Mortgage was assigned by Argent in favor of USBNA; this assignment was recorded on July 16, 2009. (First Assignment, Defs.' Mot. Ex. E, Docket Entry 19-5.) On November 7, 2011, the Mortgage was assigned by USBNA in favor of ASC with an effective date of November 30, 2009. (Sec. Assignment, Defs.' Mot. Ex. F, Docket Entry 19-6; see also Compl. ¶ 19 (stating that ASC is Argent's “successor in interest”).) That same day, ASC assigned the Mortgage in favor of USBNA; this assignment was recorded on December 12, 2011. (Third Assignment, Defs.' Mot. Ex. G, Docket Entry 19-7.)

         On December 5, 2011, USBNA commenced a foreclosure action against Plaintiff in state court (the “Foreclosure Action”), and on March 27, 2014, the court entered a final judgment of foreclosure and sale (the “Foreclosure Judgment”). (See, Foreclosure J., Defs.' Mot. Ex. H, Docket Entry 19-8.)

         I. The Complaint

         On March 4, 2016, Plaintiff commenced this action against USBNA and ASC. Plaintiff alleges that ASC failed to disclose certain charges on the TILA statement. (Compl. ¶ 19.) Plaintiff also alleges that Defendants violated TILA and its implementing regulation, Regulation Z, by “calculating the annual percentage rate (‘APR') based upon improperly calculated and disclosed amounts.” (Compl. ¶ 21.) Plaintiff alleges that he is entitled to “rescind the transaction, ” and asserts that he first learned of Defendants' actions in February 2016. (Compl. ¶¶ 22, 24.) Plaintiff also contends that Defendants failed to comply with changes to TILA effectuated by the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd Frank”) to the extent that Dodd Frank “requires servicers to credit payments as of the date of receipt, unless a delay will not result in a charge or negative credit report” and mandates that payoff statements be sent no more than seven days after a written request. (Compl. ¶¶ 41-42.) Plaintiff avers that ASC “disclose[d] that Defendant [USBNA] owned the Loan, however, failed to indicate when, how, and if any recorded documents exist to legitimize the lawful transfer.” (Compl. ¶ 44.)

         Plaintiff also alleges that ASC violated Real Estate Settlement Procedures Act (“RESPA”) Section 2607 by “accept[ing] charges for the rendering of real estate services which were in fact charges for other than services actually performed.” (Compl. ¶¶ 25-26.) Plaintiff alleges that on or about January 26, 2015, he submitted a qualified written request (“QWR”) that was not acknowledged within twenty days of receipt as required by RESPA Section 2605(e)(1)(A). (Compl. ¶¶ 29-30.) Plaintiff also alleges that Defendants failed to comply with Dodd Frank's changes to RESPA's response timeline for QWRs and requirements for escrow accounts. (Compl. ¶¶ 34-36.) Plaintiff again alleges that he first learned of Defendants' actions in February 2016. (Compl. ¶ 48.)

         Finally, Plaintiff alleges that Defendants do not have standing to foreclose on the Property and seeks a “judicial determination and declaration” regarding whether: (1) “Defendant [USBNA] abandoned its interest in the Subject Property”; (2) “the unrecorded Assignment of Mortgage by [USBNA] is fraudulent and void by statute”; (3) “the Mortgage secures the Note” and (4) “the Mortgage is enforceable by [USBNA], its successor in interest or its agent.” (Compl. ¶¶ 50-53.) Plaintiff also requests that the Court enter a declaratory judgment that “determine[s] the rights and duties of the parties involved in this lawsuit for the following Declarations: [t]hat Defendant [USBNA] is the trustee of the securitized trust in the instant case and; [t]hat Defendant ASC is the servicer of Plaintiff'[s] loan.” (Compl. ¶ 70.)

         In the Prayer for Relief, Plaintiff seeks damages for TILA and RESPA violations and “a Declaration as to the roles of all parties.” (Compl. at 10.)

         II. Defendants' Motion

         On December 2, 2016, Defendants filed their motion to dismiss.[3] (See, Defs.' Mot.) Defendants argue that the Court lacks subject matter jurisdiction pursuant to the Rooker Feldman doctrine since Plaintiff seeks to reverse the state court's determination in the Foreclosure Action. (Defs.' Br., Docket Entry 20, at 4-6.) Defendants also argue that Plaintiff's claims are barred by the doctrines of res judicata and collateral estoppel. (Defs.' Br. at 6-8.)

         Defendants contend that Plaintiff's TILA claim is barred by the one-year statute of limitations and Plaintiff does not have the right to rescind the mortgage loan under TILA. (Defs.' Br. at 12-15.) Additionally, Defendants argue that Plaintiff's RESPA claim is barred by the statute of limitations and, alternatively, the RESPA claim fails on the merits because “Plaintiff simply quotes sections of the statute followed by unsupported conclusory allegations.” (Defs.' Br. at 17-18.) Finally, Defendants argue that Plaintiff's claim for a declaratory judgment or injunctive relief is defective, as it improperly seeks an advisory opinion and is premised on Defendants' alleged lack of standing to foreclose on the Property, which is “not a viable affirmative cause of action, but at best, a defense to an action.” (Defs.' Br. at 18-19.)

         Plaintiff alleges that the Rooker Feldman doctrine is inapplicable to the case at bar based on “newly discovered evidence which debunks the erroneous decision rendered at the State court- level.” (Pl.'s Br. at 2-3.)[4] Plaintiff avers that the claims in this action are “substantially different” from those in the Foreclosure Action, and discovery will reveal that Defendants falsified and concealed assignments. (Pl.'s Br. at 3.) Plaintiff alleges that he has “prima facie evidence that the loan has been securitized, ” and contends that “the chain of title has been broken, and Defendants are not the holders in due course of the note, with any rights to enforce the note.” (Pl.'s Br. at 4-5.) Plaintiff argues that as a result, Defendants do not have legal standing to pursue foreclosure. (Pl.'s Br. at 5.)

         DISCUSSION

         “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States,201 F.3d 110, 113 (2d Cir. 2000). The plaintiff bears the burden of demonstrating by a preponderance of the evidence that subject matter jurisdiction exists. Id. In resolving a motion to dismiss for lack of subject matter jurisdiction, the Court “may consider evidence outside the pleadings.” See Morrison v. ...


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