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De Leon v. Ocwen Loan Servicing

United States District Court, D. Massachusetts

September 1, 2016

JANURIS HERNANDEZ DE LEON, Plaintiff,
v.
OCWEN LOAN SERVICING, Defendant.

          MEMORANDUM AND ORDER

          LEO T. SOROKIN United States District Judge.

         For the reasons stated below, the Court directs Plaintiff to file a Second Amended Complaint.

         I. BACKGROUND

         In an Order dated August 1, 2016, Doc. 24, the Court granted the motion to dismiss of Defendant Ocwen Loan Servicing, LLC (“OLS”). The Court held that Plaintiff had failed to state a claim upon which relief can be granted because her claims regarding OLS's alleged failure to enter into a loan modification with her were impermissibly vague and therefore did not meet the notice pleading requirement of Rule 8(a) of the Federal Rules of Civil Procedure (“Rule 8(a)”):

Plaintiff alleges no facts to support her claim that Defendant has discriminated against her. She notes that she is a minority and the mother of a child with a disability, see Doc. 1 at 2-3, but she alleges no facts to support her claim that Defendant refused a loan modification because she is a minority or the mother of a child with a disability. In addition, Plaintiff does not allege any facts - let alone sufficient facts to state a plausible claim to relief - to support any of her other legal claims. Thus, the Complaint is merely “an unadorned, the-defendant-unlawfully-harmed-me accusation, ” and does not allow the Court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678-79.

Doc. 24 at 3 (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)). Nonetheless, the Court did not dismiss the case but instead afforded Plaintiff twenty-one days to file an amended complaint to cure the pleading deficiencies identified by the Court.

         Plaintiff timely filed her Amended Complaint on August 22, 2016. Doc. 26. She names Citibank Mortgage (“Citibank”), whom OLS had represented was the mortgagee of record, as the sole defendant. All of the factual allegations are set forth within the two counts of the Amended Complaint. In Count I, which is labeled “Discrimination and civil right violation, ” Plaintiff alleges:

The Defendant discriminate in violation of the Plaintiff civil rights has refused in good faith to stop the foreclosure Action since the Defendant Agent Servicing company (OCWEN LOAN SERVICE) and THE ORLAN MORAN LAW OFFICE continue foreclosure activities despite the fact that the plaintiff has started her trial loan Modification payments., as the result the plaintiff has suffered emotional distress.

Amend. Compl. ¶ 5 (as in original). Count II is entitled “Violation of Federal Loan Modifiaction [sic] 38 CFR 36.4315.” Plaintiff asserts therein: “The Defendant by their agent despite the on going loan modification process continue sending auction notice by his agent ORLAN MORAN LAW OFFICE, the Plaintiff suffered emotional distress with the Defendant negligent conduct.” Id. ¶ 6 (as in original). In terms of relief, Plaintiff asks that the Court order CitiBank to “stop all the foreclosure activities and enter judgment for the plaintiff.” Id. at 3.

         Citibank has filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

         II. DISCUSSION

         The Amended Complaint fails to state a claim upon which relief may be granted. As the Court previously explained, Rule 8(a) requires that a complaint “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678. This means that the pleading needs to provide a defendant “enough detail to provide a defendant with ‘fair notice of what the . . . claim is and the grounds upon which it rests, '” Silverstrand Invs. v. AMAG Pharm., Inc., 707 F.3d 95, 101 (1st Cir. 2013) (quoting Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011)) (alteration in original), or, in other words, the statement of the claim “must ‘at least set forth minimal facts as to who did what to whom, when, where, and why, '” Calvi v. Knox County, 470 F.3d 422, 430 (1st Cir. 2006) (quoting Educadores Puertorriqueños en Acción v. Hernandez, 367 F.3d 61, 68 (1st Cir. 2004)). Plaintiff's obligation to provide the grounds of her claims “requires more than labels and conclusions.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         A. Count I

         Notwithstanding Plaintiff's invocation of the words “discrimination” and “discriminate, ” Count I of the Amended Complaint fails to state a claim upon which relief may be granted. Plaintiff's assertion of unlawful discrimination is entirely conclusory and therefore cannot be credited by the Court. To be sure, the law prohibits certain types of discrimination in residential real-estate financial transactions. For example, under the Fair Housing Act, a bank or other entity “engage[ed] in engaging in residential real estate-related transactions” is prohibited from discriminating against borrowers or potential borrowers based on their membership in a protected class-race, color religion, sex, handicap, familial status, or national origin. 42 U.S.C. § 3605(a). However, Plaintiff has failed to allege any specific facts which would permit the Court to reasonably infer that Citibank's foreclosure activities against her are motivated by an unlawful discriminatory animus. She does not even identify the basis on which she was allegedly discriminated against (e.g., race, disability), much less any basis for concluding that, because of her membership in a protected class, Citibank treated her any differently than others who have payment records and financial situations similar to hers. See, e.g., Molina v. Aurora Loan Servs., LLC, 635 Fed.Appx. 618, 624-626 (11th Cir. 2015) (derogatory questions and comments made by loan servicer about plaintiff's age did ...


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