United States District Court, M.D. Florida, Tampa Division
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE.
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.
Procedural and Factual Background
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. (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 ¶
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,
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. (Dkt. 16
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.
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.
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. ¶¶
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
IV sues Defendants for violations of the Truth-in-Lending Act
¶¶ 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.
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.
Plaintiff s final two counts, labeled VII and VIII,
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.
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