United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti United States District Judge.
Robert Senatore, proceeding pro se, brings this
action against defendant Ocwen Loan Servicing, LLC
(“Ocwen”), regarding Ocwen's servicing of
Senatore's home loan mortgage. Senatore claims Ocwen
violated the New York Unfair Competition Law, the
Racketeering Influenced and Corrupt Organizations Act, and
the Fair Debt Collection Practices Act, and asserts claims of
unjust enrichment, fraud, and breach of contract.
the Court is Ocwen's motion to dismiss the complaint
pursuant to Rule 12(b)(1) and 12(b)(6). (Doc. #7).
reasons set forth below, the motion to dismiss is GRANTED.
Court has subject matter jurisdiction under 28 U.S.C. §
following factual background is drawn from the amended
complaint, attached exhibits, and material subject to
to Senatore, “[t]his case concerns fraudulent practices
committed by Ocwen in connection with its home mortgage loan
servicing of [his] mortgage, ” in that “Ocwen
devised a scheme to deceive [him] into paying or believing he
had to pay, hundreds or thousands of dollars in unlawfully
marked-up fees.” (Comp. ¶ 1). Senatore alleges
that, “to force [him] to get behind on his payments,
and put him into ‘default, ' Ocwen imposed fees and
charges that were neither due nor owing, and then obtained a
number of default-related services which purportedly are
designed to protect the lender's interest in the
property.” (Compl. ¶ 3). Senatore alleges that, as
a part of this scheme, Ocwen charged him secretly marked-up
fees for services provided by “its affiliated
companies” to profit from these services and to put him
into default. (Id.). Senatore further alleges Ocwen
has a policy of misapplying borrowers' payments-for
example, by applying monthly payments to fees before due
principal and interest-to generate additional fees and force
borrowers to enter and remain in default.
5, 2013, Onewest Bank, F.S.B., filed a foreclosure action
against Robert and Staci Senatore in the Supreme Court of the
State of New York, County of Orange, and Robert Senatore
answered and asserted counterclaims. On July 29, 2015, that
court substituted Ocwen for Onewest Bank as the plaintiff and
granted summary judgment in its favor against defendants
Robert and Staci Senatore. That court also struck
Senatore's answer, including all affirmative defenses and
counterclaims. However, it appears no judgment has been
entered in that case.
Senatore seeks an order enjoining Ocwen from engaging in such
allegedly unlawful practices going forward; an order voiding
his mortgage and related note; an order setting aside all
judgments related to the mortgage, including an order
“setting aside and vacating” all actions taken in
Ocwen Loan Servicing, LLC v. Senatore, No.
004985/2013 (Sup. Ct. N.Y. Orange Cty.) (Am. Compl. ¶
131); $1, 500, 000 in damages regarding various
communications; compensatory damages for emotional distress
and trauma; treble damages or $9, 000, 000 for violating the
New York Unfair Competition Law; costs; and attorney's
is a fundamental precept that federal courts are courts of
limited jurisdiction' and lack the power to disregard
such limits as have been imposed by the Constitution or
Congress.” Durant, Nichols, Houston, Hodgson, &
Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir.
2009) (quoting Owen Equipment & Erection Co. v.
Kroger, 437 U.S. 365, 374 (1978)). “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.'” Nike, Inc. v. Already, LLC, 663 F.3d
89, 94 (2d Cir. 2011) (quoting Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000)). The party
invoking the Court's jurisdiction bears the burden of
establishing that jurisdiction exists. Conyers v.
Rossides, 558 F.3d 137, 143 (2d Cir. 2009).
deciding whether subject matter jurisdiction exists at the
pleading stage, the Court “must accept as true all
material facts alleged in the complaint and draw all
reasonable inferences in the plaintiff's favor.”
Conyers v. Rossides, 558 F.3d at 143. However,
argumentative inferences favorable to the party asserting
jurisdiction should not be drawn.” Atl. Mut. Ins.
Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196,
198 (2d Cir. 1992) (citing Norton v. Larney, 266
U.S. 511, 515 (1925)). When a factual challenge to the
Court's jurisdiction has been raised, “the court
may resolve [any] disputed jurisdictional fact issues by
referring to evidence outside of the pleadings, such as
affidavits.” Zappia Middle E. Constr. Co. v.
Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000);
accord, Makarova v. United States, 201 F.3d at 113
(“In resolving a motion to dismiss for lack of subject
matter jurisdiction . . . a district court . . . may refer to
evidence outside the pleadings.”).