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Rodriguez v. Ocwen Financial Corp.

United States District Court, S.D. Florida

August 21, 2017




         THIS CAUSE is before the Court upon the Motion to Dismiss Amended Complaint with Prejudice, ECF No. [22] (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.

         I. BACKGROUND

         On 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.[1] 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 No. [7].

         Plaintiff 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.[2] 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.

         The 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 . . . .”[3] ECF No. [7] 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.

         Plaintiff's 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.

         Defendants 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. [22].


         Rule 8 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.”

         When 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)).

         The 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)).


         A. ...

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