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Senatore v. Ocwen Loan Servicing, LLC

United States District Court, S.D. New York

August 30, 2017



          Vincent L. Briccetti United States District Judge.

         Plaintiff 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.

         Before the Court is Ocwen's motion to dismiss the complaint pursuant to Rule 12(b)(1) and 12(b)(6). (Doc. #7).

         For the reasons set forth below, the motion to dismiss is GRANTED.

         The Court has subject matter jurisdiction under 28 U.S.C. § 1331.


         The following factual background is drawn from the amended complaint, attached exhibits, and material subject to judicial notice.[1]

         According 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.

         On July 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.

         Here, 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 fees.


         I. Legal Standards

         A. Rule 12(b)(1)

         “‘It 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).

         When 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.”).

         B. R ...

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