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Uppal v. Wells Fargo Bank, NA

United States District Court, M.D. Florida, Tampa Division

November 12, 2019

NEELAM UPPAL, Plaintiff,
v.
WELLS FARGO BANK, NA, doing business in the State of Florida, and John Does 1-5 Unknown, Defendants.

          ORDER

          WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE.

         Plaintiff Neelam Uppal (“Plaintiff”) sues Defendant Wells Fargo Bank, NA (“Wells Fargo”) and unknown Defendants John Does 1-5 in connection with a mortgage loan she alleges was procured by forged documents and the subsequent foreclosure of her residential property. (Dkt. 1). In her seven-count Amended Complaint, Plaintiff seeks declaratory and injunctive relief, as well as monetary damages, against Wells Fargo and the five unknown “John Doe” Defendants. (Dkt. 16). This matter is before the Court on Defendant Wells Fargo's Motion to Dismiss Complaint (Dkt. 35) and Plaintiff's response in opposition (Dkt. 36). After careful consideration of the motion to dismiss, applicable law, and the allegations of the Amended Complaint, the Court grants the motion to dismiss and will permit Plaintiff an opportunity to amend her Fair Credit Reporting Act claim against Wells Fargo.

         I. Procedural and Factual Background[1]

         Plaintiff initiated the instant action against Wells Fargo on June 3, 2019. (Dkt. 1). Prior to Wells Fargo being served with the Complaint, Plaintiff filed an Amended Complaint on August 30, 2019, in which she sues Wells Fargo and John Does 1-5 in connection with the foreclosure of property located at 8760 46th Street, Pinellas County, Florida.[2] (Dkt. 16). Plaintiff states the property, which is her primary residence, was purchased by the Sheena Trust. Id. ¶¶ 7, 9. She attaches an “unofficial copy” of a “Trustee's Deed” dated May 16, 2003, that identifies her as the Trustee of the Sheena Trust. (Dkt. 18 at 3). Plaintiff alleges she obtained a “collateral loan” from the trust on May 16, 2003. (Dkt. 16 10). According to Plaintiff, she paid off the loan on September 7, 2005. Id. 11. She attaches a “Release of Mortgage” which appears to have been signed and notarized in California and is mostly illegible. (Dkt. 18 at 14). Plaintiff asserts the Release is evidence of satisfaction of the loan. (Dkt. 16 11).

         Plaintiff alleges that on December 1, 2005, Wells Fargo fraudulently issued a loan on the property by forging “ROBO” signatures. Id. 12. She claims that she never received any funds from the forged loan. Id. 13. In 2012, Wells Fargo filed a foreclosure action against Plaintiff in state court. Id. 14. Although Plaintiff alleges she was never served with the complaint in the foreclosure action, see id., Wells Fargo requests this Court take judicial notice of pleadings from the state court case, including Plaintiff's answer, defenses, and counterclaim to the foreclosure complaint. See Dkts. 34, 34-3-34-6.[3]

         In her initial answer to the state foreclosure complaint, Plaintiff claims the foreclosure was fraudulent because “the bank solicited the loan on false grounds.” (Dkt. 34-3 1). In additional pleadings directed to the foreclosure complaint, Plaintiff raises violation of the Florida Unfair and Deceptive Trade Practices Act, violation of the Fair Debt Collection Practices Act, TILA rescission, unclean hands by Wells Fargo, fraud and manipulation of the court because the loan documents had been altered with ROBO signatures, fraud in the inducement and predatory lending practices, violation of the Florida False Claims Act, violation of a bankruptcy stay, challenges to the authenticity of the signatures on the loan, civil theft, and civil fraud. See Dkts. 34-4, 34-5, 34-6. The counterclaim filed by Plaintiff on February 22, 2016, see Dkt. 34-6, was dismissed by the circuit court judge for failing to comply with procedural requirements and the court's order. See Dkt. 34-7. Plaintiff filed a second counterclaim in January 2019, alleging she was tricked into purchasing the home and the entirety of the loan is a fraud perpetrated by forged documents. (Dkt. 34-8). The state court dismissed the second counterclaim. (Dkt. 34-9). Notwithstanding her responsive pleadings and initial counterclaim filed in the state court case in 2013 and 2016, she asserts she did not discover the forged loan note until February 2018 during bankruptcy proceedings.[4] (Dkt. 16 20).

         Trial was held in the state court foreclosure action in January 2019, and following same, final judgment was entered in Wells Fargo's favor in the amount of $303, 069.04. (Dkt. 34-10). Sale of the property was scheduled for April 2, 2019. Id. at 3. Plaintiff filed an appeal of the judgment which is still pending. See Uppal v. Wells Fargo, No. 2D19-0676 (Fla. 2d DCA 2019). Plaintiff filed multiple motions seeking to delay the property sale claiming fraud. See, e.g., Dkt. 34-1 at 5, referencing Docs. # 44, 67, 73, 76, 80, 92. In denying these motions, the court noted in response to one, “This case has been litigated for over six years with [Uppal] claiming ‘fraud' throughout since her initial answer filed January 1, 2013. Any issue of ‘fraud' was resolved or must have been raised previously.” Dkt. 34-11. The sale of the property ultimately proceeded on October 8, 2019. See Dkt. 34-1 at 2, referencing Doc. #188.

         In Count I of the Amended Complaint, Plaintiff sues Wells Fargo for alleged civil RICO violations under 18 U.S.C. § 1964. Dkt. 16 ¶¶ 23-34. Plaintiff alleges that Defendants engaged in a pattern of corrupt activity to collect an unlawful debt and acquire an interest in her primary residence. Id. 25. She alleges Defendants' conduct in defrauding Plaintiff through the use of forged loan documents constitutes an “enterprise.” Id. 27. Plaintiff seeks to have this Court divest Defendants of any interest in the real property, order injunctive relief, and award treble damages, attorney's fees and costs. Id. ¶¶ 30-34.

         Count II of the Amended Complaint alleges mail fraud in violation of the RICO statute. Id. ¶¶ 35-39. Plaintiff states that Defendants committed mail fraud in violation of 18 U.S.C. § 1343 by transmitting the forged loan documents by wire or mail to defraud Plaintiff or obtain money or property by fraudulent means. Id. ¶¶ 38-39.

         In Count III of the Amended Complaint, Plaintiff attempts to state a claim for violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601, et seq. Dkt. 16 ¶¶ 40-43. She pleads that Defendants accepted charges for the rendering of real estate services that were not performed. Id. 42. She seeks three times the amount of charges paid for “settlement services” pursuant to 12 U.S.C. § 2607(d)(2). Dkt. 16 43.

         Count IV sues Defendants for violations of the Truth-in-Lending Act (“TILA”). Id. ¶¶ 44-47. Plaintiff alleges that Defendants failed to include and disclose certain charges on the truth-in-lending statement in connection with the extension of credit. Id. She asserts that Defendants' failure to provide her with the required disclosures permits her the right to rescind the transaction. Id.

         Count V alleges that Defendants violated the Fair Credit Reporting Act (“FCRA”) by wrongfully and improperly reporting negative information regarding Plaintiff to one or more credit reporting agencies. Id. ¶¶ 48-53. She alleges that Defendants qualify as providers of information under the FCRA and that she is entitled to recover damages pursuant to 15 U.S.C. § 1681o for Defendants' negligent non-compliance with the Act. Id. ¶¶ 49, 52. She further claims entitlement to punitive damages pursuant to 15 U.S.C. § 1681n(a)(2) due to Defendants' willful noncompliance with the FCRA. Dkt. 16 53.

         In Plaintiff s final two counts, labeled VII and VIII, [5] Plaintiff sues Defendants for state law claims of fraudulent misrepresentation and civil conspiracy. Id. ¶¶ 54- 60, 61-66. Plaintiff alleges Defendants made material misrepresentations and omissions in connection with the mortgage, that she relied upon the material misrepresentations, and as a result, she suffered damages. Id. ¶¶ 55-60. In the civil conspiracy count, she alleges that Defendants committed one or more overt acts in furtherance of the conspiracy to defraud her. Id. 62. The conspiracy was allegedly committed for the common purpose of accruing economic gain at Plaintiffs expense. Id. 63.

         In each of Plaintiff s counts, she incorporates the general allegations related to Defendants' alleged forging of loan documents and foreclosure of her primary residence. Id.¶¶ 23, 35, 40, 44, 48, 54, 61. Additionally, in each count, she seeks the same types of damages, including a preliminary injunction or restraining order precluding the foreclosure sale of her property, final judgment entered against Defendants, an award of ...


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