United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
SOROKIN United States District Judge.
reasons stated below, the Court directs Plaintiff to file a
Second Amended Complaint.
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
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.
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.
has filed a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
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).
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 ...