United States District Court, S.D. New York
DONALD R. ALEXANDER, EARLEEN W. ALEXANDER, Plaintiffs,
NATIONSTAR MORTGAGE, LLC; DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR GS HOME EQUITY TRUST 2007-5. et al.; and DOES 1 THROUGH 100 INCLUSIVE, Defendants.
LAURATAYLORSWAIN UNITED STATES DISTRICT JUDGE.
R. Alexander and Earleen W. Alexander (together,
“Plaintiffs”), proceeding pro se, bring
this lawsuit against Nationstar Mortgage, LLC
(“Nationstar”), Deutsche Bank National Trust
Company (“Deutsche Bank”) as trustee for GS Home
Equity Trust 2007-5, et al., and Does 1 through 100
Inclusive (collectively, “Defendants”), seeking
declaratory relief invalidating encumbrances upon and the
foreclosure sale of a home, and damages. Plaintiffs assert
federal claims, for violation of the Truth in Lending Act, 15
U.S.C. § 1601 et seq. (“TILA”), the
Consumer Credit Protection Act, 15 U.S.C. § 1601 et
seq. (“CCPA”), and the Real Estate
Settlement Procedures Act, 12 U.S.C. §§ 2601-17
(“RESPA”), in addition to eight state law claims.
This Court has subject matter jurisdiction of this action
pursuant to 28 U.S.C. § 1331.
move, pursuant to Federal Rule of Civil Procedure 12(b)(6),
to dismiss the Third Amended Complaint (Docket Entry No. 28)
(“Complaint”) with prejudice for failure to state
a claim. (Docket Entry No. 30.) The Court has considered the
parties' submissions in connection with the instant
motion carefully and, for the reasons below, grants
Defendants' motion to dismiss.
following recitation of facts is drawn from the Complaint,
the factual content of which is taken as true for purposes of
this motion, and a Deed of Trust securing Plaintiffs'
mortgage which is referred to in the Complaint as
“Assignment No. 1.” The Deed of Trust is
explicitly referred to in the Complaint, is integral to
Plaintiffs' claims and, furthermore, is a publicly
recorded document of which the Court may take judicial
notice. Staehr v. Hartford Fin. Servs. Grp., Inc.,
547 F.3d 406, 425 (2d Cir. 2008) (in deciding a Rule 12(b)(6)
motion, a court may consider matters of which judicial notice
may be taken); DiFolco v. MSNBC Cable L.L.C., 622
F.3d 104, 111 (2d Cir. 2010) (in considering a 12(b)(6)
motion, a court may consider documents incorporated by
reference in the complaint); L-7 Designs, Inc. v. Old
Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (when
deciding a motion to dismiss, courts may consider documents
integral to a complaint).
December 15, 2006, Plaintiffs executed “a mortgage loan
in the sum of $600, 000 originated by Ryland Mortgage
Company.” (Compl. ¶ 10.) Plaintiffs assert that
“[t]he original beneficiary and nominee of the
[p]romissory [n]ote and [m]ortgage was MERS [(Mortgage
Electronic Registration Systems, Inc.)].”
(Id.) The Deed of Trust identifies MERS as
beneficiary “(solely as nominee for Lender [(defined as
Ryland Mortgage Company)] and Lender's successors and
assigns).” (Document No, 2006-270887, recorded December
29, 2016, filed in this action as Docket Entry No. 19-1, at
4.) Plaintiffs nonetheless characterize the Deed of Trust as
an “assignment” to MERS (“Assignment No.
1.”). (See Complaint ¶ 11.) Three notices of
default were recorded against Plaintiffs' property, in
2009, 2012 and 2014, respectively. (Id. ¶¶
12, 17, 18.) On February 15, 2015, Nationstar Mortgage, LLC,
foreclosed on Plaintiffs' home. (Id. ¶ 19.)
make several allegations of wrongdoing by Defendants. Many of
the allegations appear to rely on the theory that a defect in
what Plaintiffs characterize as “Assignment No.
1” of the Deed of Trust has rendered “all of the
actions that occurred as a result of the void assignment,
including the foreclosure of the subject Mortgage . . . also
void.” (Id. ¶¶ 20-24, 26.) According
to Plaintiffs, “Assignment 1 was from MERS as [n]ominee
to Ryland Mortgage Company. Assignment 2, whereby MERS
attempted to assign its interest, . . . was invalid since
MERS had already assigned any and all of its interest in
Assignment 1.” (Id. ¶ 21.) Plaintiffs
further allege that “Assignment 1 was to a non-existent
entity which rendered Assignment 2 void.” (Id.
¶22.) Plaintiffs allege that Assignment 1 occurred in
2006, and that Assignment 2 occurred in 2011. (Id.
¶¶ 11, 16.) Plaintiffs allege that legal notice
requirements were violated in connection with both alleged
assignments such that both assignments were concealed until
October 24, 2014, the date on which Plaintiffs obtained a
Securitization Analysis Report,  a loan audit, from
“expert Michael Carrigan.” (Id. ¶
addition to the claims based on their allegations of improper
assignments, Plaintiffs allege violations of federal law,
California State law, and of their Pooling and Servicing
Agreement under New York law, during the foreclosure process.
filed their Initial Complaint on April 7, 2016 (Docket Entry
No. 1.), followed by three subsequent amended complaints
(Docket Entry Nos. 22, 27, 28) in response to Defendants'
motions to dismiss (Docket Entry Nos. 18, 23).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A proper complaint cannot simply recite legal
conclusions or bare elements of a cause of action; there must
be factual content plead that “allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
and CCPA Claims
seek dismissal of Plaintiffs' third and fifth causes of
action as time barred. In Plaintiffs' third and fifth
causes of action, they allege Defendants violated TILA when
they failed to disclose the assignments of their Deed of
Trust and Promissory Note to the Plaintiffs. “TILA
provides that, ‘not later than 30 days after the date
on which a mortgage loan is sold or otherwise transferred or
assigned to a third party, the creditor that is the new owner
or assignee of the debt shall notify the borrower in writing
of such transfer.' The ‘statute of limitations for
causes of action brought under TILA . . . is one year from
the date of the alleged violation.'” Nationstar
Mortgage, No. 16-cv-2943(KBF), 2017 WL 570941, at *5
(S.D.N.Y. Feb. 13, 2017) (quoting 15 U.S.C. §
1641(g)(1)) (internal citations omitted). The alleged
assignments of the Deed of Trust occurred in 2006 and 2011.
(Compl. ¶¶ 11, 16.) Plaintiffs filed their Initial
Complaint in 2016, almost five years after the most recent
purported assignment. (Docket Entry No. 1.) Thus,
Plaintiffs' claims are time barred on their face.
nonetheless assert that they are entitled to invoke equitable
tolling and the claims should be treated as timely, alleging
that Defendants did not record, and concealed, the 2006
assignment. (Compl. ¶ 58.) Plaintiffs allege their
October 24, 2014, loan audit outlined the chain of title and
made each assignment “reasonably ascertainable.”
(Compl. ¶¶ 13, 59.) Therefore, even if the statute
of limitations had been tolled by reason of Defendants'
conduct, Plaintiffs' discovery of the alleged TILA
violations in 2014 eliminated any continuing basis for such
tolling. This suit was not filed until 2016, more than one
year after Plaintiffs were apprised of the assignments, and
thus is still time barred. Accordingly, the Court dismisses
counts three and five of the Complaint as barred by the
statute of limitations. See ...