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Ocampo v. Carrington Mortgage Services, LLC

United States District Court, S.D. Florida

December 27, 2017




         THIS 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 claims.


         The 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.”).


         On June 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].

         In 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.[1] [ECF No. 52-13].

         In 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].[2] 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].[3] 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.

         On May 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].

         On 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 frivolous lawsuit.


         The 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 relief.[4]

         Rule 12(b)(6) Motion for Failure to State a Claim

         “To 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 ...

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