United States District Court, S.D. Florida
ORDER ON MOTION TO DISMISS
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon the Motion to Dismiss
Amended Complaint with Prejudice, ECF No.  (the
“Motion”), filed by Defendant Ocwen Financial
Corporation (“Ocwen”) and Defendant Homeward
Residential, Inc. (“Homeward, ” formerly American
Home Mortgage Servicing, Inc.) and joined by Defendant Ark
Loan Solutions (“Ark”) (collectively,
“Defendants”). The Court has reviewed the Motion,
all supporting and opposing submissions, the record and
applicable law, and is otherwise fully advised. For the
reasons that follow, Defendants' Motion is granted in
part and denied in part.
April 6, 2017, Plaintiff Martha Rodriguez (“Plaintiff),
proceeding pro se, filed an Amended Complaint
against Defendants, the various loan servicers of her
foreclosed mortgage, based on a series of loan modification
applications she submitted after a final judgment of
foreclosure was entered against her. The Amended Complaint
alleges the following claims for relief against all
Defendants: violations of the Real Estate Settlement
Procedures Act, 12 U.S.C. § 2601, et.
seq. (“RESPA”), and its implementing
regulation 12 C.F.R. § 1024, et. seq.
(“Regulation X”) (Count I); violations of the
Florida Deceptive and Unfair Trade Practices Act, Fla. Stat.
§ 501.201, et seq. (“FDUTPA”)
(Count II); and judicial review of Plaintiff's loan
modification applications pursuant to RESPA (Count III). ECF
is a citizen of Florida who, along with her husband, owned a
home in Pembroke Pines, Florida beginning in May of 2005.
See Id. at ¶¶ 9, 15. At some point,
Plaintiff and her husband apparently failed to make their
mortgage payments, and Homeward and Ark-the servicers of the
mortgage-filed a foreclosure lawsuit against them in state
court on September 23, 2008. See Id. at ¶¶
4, 9, 11. On October 15, 2012, the state court entered a
final judgment of foreclosure against Plaintiff and her
husband. Id. at ¶ 15. A foreclosure sale was
ultimately scheduled for January 28, 2015. See Id.
at ¶ 28.
Amended Complaint alleges that on December 12, 2014, before
the scheduled sale, Plaintiff “submitted her first
package for a loan modification.” Id. at
¶ 16. The Amended Complaint also alleges that Plaintiff
submitted additional loan modification applications in 2015
and 2016, with the last having been submitted on March 24,
2016. Id. at ¶¶ 16, 22(g). Regarding these
loan modification applications, Plaintiff attached to her
initial Complaint exhibits that include copies of two loan
modification applications that are signed by her and that
identify Ark as the loan servicer-one dated July 2, 2014 and
the other dated November 11, 2014. See ECF No. [1-2]
at 1-3, 8-9. Regarding receipt, the exhibits reflect that Ark
received a delivery from Plaintiff via certified mail on
December 12, 2014. See Id. at 7. Plaintiff
“did not receive from the loan servicer any
notification indicating her [sic] that her loss mitigation
packages were denied and that she had the right to appeal the
decisions . . . .” ECF No.  at ¶ 29. As reflected
in the Amended Complaint, “Defendants” never
submitted a loss mitigation offer to Plaintiff and the
foreclosure sale proceeded. Id. at ¶ 38.
RESPA claim in Count I asserts that Defendants violated their
obligations under 12 C.F.R. § 1024.41 by (1) not
evaluating her for all loss mitigation options available
“despite the fact that she [was] qualified for a loan
modification”; (2) failing to provide her a notice
indicating that her loan modification applications were
denied and that she had the right to appeal the denials; and
(3) “intentionally postpon[ing] the evaluation of her
loan modification packages for more than 2 years”
despite having 30 days from receipt to conduct the
evaluation. Id. at ¶¶ 26-30.
Plaintiff's FDUTPA claim in Count II, in essence, asserts
that the above mentioned conduct by Defendants also
constitutes unfair competition or deceptive practices in
violation of FDUTPA. See Id. at ¶¶ 33, 35.
Finally, Plaintiff's “judicial review” claim
in Count III requests a “review of  Plaintiff's
loan modification case[, ]” asserting that Defendants
have “without explanation  refus[ed] to give the
Plaintiff a chance to save her home” despite
Plaintiff's qualification for a loan modification and
that Plaintiff “deserves to know the grounds in which
Defendants based their decision to deny her loan modification
packages and decided to sell her home.” Id. at
¶¶ 37-38, 40. In addition to the injunctive relief
requested in Count III, Plaintiff seeks statutory damages
under RESPA and FDUTPA, as well as punitive damages.
move to dismiss the Amended Complaint in its entirety and
advance three supporting arguments: (1) Plaintiff now lacks
standing because since filing this lawsuit she has filed for
bankruptcy, and thus, her claims are now the property of the
bankruptcy estate; (2) each of Plaintiff's claims fails
to state a claim under which relief can be granted; and (3)
the Amended Complaint is a shotgun pleading that fails to
delineate the facts and counts against each party.
See ECF No. .
of the Federal Rules requires that a pleading contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Although a complaint “does not need detailed
factual allegations, ” it must provide “more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining
that Rule 8(a)(2)'s pleading standard “demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation”). In the same vein, a complaint may not
rest on “‘naked assertion[s]' devoid of
‘further factual enhancement.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557 (alteration in original)). “Factual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555. These elements are required to survive a motion brought
under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
which requests dismissal for “failure to state a claim
upon which relief can be granted.”
reviewing a motion under Rule 12(b)(6), a court, as a general
rule, must accept the plaintiff's allegations as true and
evaluate all plausible inferences derived from those facts in
favor of the plaintiff. See Miccosukee Tribe of Indians
of Fla. v. S. Everglades Restoration Alliance, 304 F.3d
1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co.
v. Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349, 1353
(S.D. Fla. 2009). However, this tenet does not apply to legal
conclusions, and courts “are not bound to accept as
true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555; see
Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cnty.
Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir.
2006). Moreover, “courts may infer from the factual
allegations in the complaint ‘obvious alternative
explanations, ' which suggest lawful conduct rather than
the unlawful conduct the plaintiff would ask the court to
infer.” Am. Dental Ass'n v. Cigna Corp.,
605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal,
556 U.S. at 682). A court considering a Rule 12(b) motion is
generally limited to the facts contained in the complaint and
attached exhibits, including documents referred to in the
complaint that are central to the claim. See Wilchombe v.
TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009);
Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d
1337, 1340 (11th Cir. 2005) (“[A] document outside the
four corners of the complaint may still be considered if it
is central to the plaintiff's claims and is undisputed in
terms of authenticity.”) (citing Horsley v.
Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)).
Court employs “less stringent standards” in
assessing pro se pleadings, such as Plaintiff's
Amended Complaint in this case. See Lampkin-Asam v.
Volusia Cty. Sch. Bd., 261 F. App'x 274, 276-77
(11th Cir. 2008) (quoting Hepperle v. Johnston, 544
F.2d 201, 202 (5th Cir. 1976)). However, the Court may not
act as counsel for a party or rewrite deficient pleadings,
and pro se litigants must still adhere to
well-established pleading standards. See Id. (citing
McNeil v. United States, 508 U.S. 106, 113 (1993)
and GJR Invs., Inc. v. County of Escambia, Fla., 132
F.3d 1359, 1369 (11th Cir. 1998)).