United States District Court, S.D. Florida
P. GAYLES, UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court on Carrington's
Motion to Dismiss Amended Complaint [ECF No. 21];
Carrington's Motion to Dismiss for Lack of Subject Matter
Jurisdiction [ECF No. 27]; Carrington's Motion for
Summary Judgment [ECF No. 53]; Plaintiff's Motion for
Partial Summary Judgment as to Liability only on Counts I,
III, and IV of the First Amended Complaint [ECF No. 55]; and
Defendant's Motion for Rule 11 Sanctions [ECF No. 65].
The Court has reviewed the Motions and the record and is
otherwise fully advised. For the reasons that follow, the
Court dismisses this action for lack of subject matter
jurisdiction as the Plaintiff has no standing to bring his
Real Estate Settlement Procedures Act (“RESPA”),
12 U.S.C. § 1601 et seq., is a remedial
“consumer protection statute that regulates the real
estate settlement process.” Hardy v. Regions
Mortg., Inc., 449 F.3d 1357, 1359 (11th Cir. 2006). The
primary issue in this case is whether an individual with no
legal interest in a property and with no financial obligation
for that property can avail himself of the remedies under
RESPA. The answer, as governed by both common sense and legal
standing principles, is no. Indeed, while RESPA was designed
to protect consumers from high settlement charges and abusive
practices, parties should not be permitted to utilize loss
mitigation procedures-from which they can never obtain
relief-simply to manufacture a cause of action. See
Landau v. Roundpoint Mortgage Servicing Corp., No.
16-cv-62795, 2017 WL 960214, at *4 (S.D. Fla. Mar. 13, 2017)
(“Although RESPA is a remedial statute, the Court need
not construe it (or its implementing regulation) so liberally
as to create a cause of action where none exists.”).
11, 2017, Plaintiff Andres Ocampo (“Plaintiff”)
and Rosario Sanchez (“Sanchez”) purchased a
property located at 9419 N.W. 54th Cir. Lane in Doral,
Florida (the “Property”), by executing a $650,
000 promissory note (the “Note”) and a mortgage
(the “Mortgage”) in favor of Suntrust Mortgage,
Inc. [ECF No. 52-1]. Approximately nine months later, on
March 3, 2008, Plaintiff transferred his ownership interest
in the Property to Sanchez via a duly recorded quit claim
deed. [ECF No. 52-2]. By September 1, 2008, the Note and
Mortgage were in default. Suntrust then initiated a
foreclosure action against Plaintiff and Sanchez in the
Circuit Court of the Eleventh Judicial Circuit in and for
Miami-Dade County, Florida (the “Foreclosure
Action”) [ECF No. 52-3]. On July 10, 2012, Suntrust
dropped Plaintiff as a party from the Foreclosure Action.
[ECF No. 52-5].
2013, Plaintiff filed a petition for bankruptcy in the
Eastern District of New York. On November 18, 2013, Plaintiff
obtained a discharge of personal indebtedness for the Note.
[ECF No. 52-5]. On December 10, 2013, after Plaintiff no
longer had a legal interest in the Property or an obligation
under the note and after Plaintiff had been dismissed from
the Foreclosure Action, the Florida Circuit Court entered a
final judgment of foreclosure on the Property. [ECF No. 52-13].
2015, Plaintiff filed a second bankruptcy petition, this time
in the Southern District of Florida, where he listed the
Property as an asset of the estate [ECF No.
52-7]. On Plaintiff's request, the Bankruptcy
Court issued an order referring Plaintiff and Shellpoint
Mortgage Servicing, the mortgage servicers at that time, to
Mortgage Modification Mediation (“MMM”). [ECF No.
52-9]. In April 2016, after Plaintiff and
Shellpoint Mortgage Servicing began the MMM process,
Defendant Carrington Mortgage Services, LLC,
(“Defendant”) became the loan servicer and
assumed all communications with Plaintiff regarding a
potential loan modification. Defendant later denied the
requested loan modification.
17, 2017, Plaintiff filed this action against Defendant
alleging that Defendant violated several provisions of RESPA.
[ECF No. 1]. On August 10, 2017, Plaintiff filed an Amended
Complaint, adding a claim for negligence per se
under Florida law. [ECF No. 14].
August 22, 2017, Defendant moved to dismiss the Amended
Complaint arguing that Plaintiff failed to state a RESPA
claim because Defendant is not a servicer and Plaintiff
suffered no damages as a matter of law. Defendant also argued
that it owed no duty to Plaintiff to support a claim for
negligence per se. On September 1, 2017, following a
status conference wherein the Court questioned whether the
Plaintiff had standing to bring his claims, Defendant filed a
motion to dismiss for lack of subject matter jurisdiction.
Before the Court resolved the motions to dis- miss, on
November 17, 2017, Defendant filed a motion for summary
judgment raising the same arguments from its motions to
dismiss and the new argument that Plaintiff's loan
modification review was governed exclusively by the
Bankruptcy Court's order and not RESPA. On November 27,
2017, Plaintiff filed a motion for summary judgment as to
liability on Counts I, III, and IV of the Amended Complaint.
On December 12, 2017, Defendant filed a Motion for Sanctions
arguing that Plaintiff should be sanctioned for filing a
Court reviews Plaintiff's claims pursuant to both Federal
Rule of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction relating to Plaintiff's Article III standing
and 12(b)(6) based on Plaintiff's lack of statutory
standing and failure to adequately state a claim for
12(b)(6) Motion for Failure to State a Claim
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, 129 S.Ct. 1937
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S.Ct. 1955 (2007)). Although this pleading
standard “does not require ‘detailed factual
allegations, ' . . . it ...