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Taveras v. Ocwen Loan Servicing LLC

United States District Court, S.D. Florida

December 3, 2019

ELIEZER TAVERAS, Plaintiff,
v.
OCWEN LOAN SERVICING LLC, and U.S. BANK NATIONAL ASSOCIATION, Defendants.

          Eliezer Taveras, pro se

          ORDER ON MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT

          BETH BLOOM UNITED STATES DISTRICT JUDGE.

         THIS CAUSE is before the Court upon Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint, ECF No. [49] (“Motion”). Plaintiff filed a Response, ECF No. [54] (“Response”)[1], to which Defendant filed a Reply, ECF No. [55] (“Reply”), The Court has carefully considered the Motion, the Response and Reply, the record in this case and the applicable law, and is otherwise fully advised. For the reasons that follow, the Motion is granted.

         I. BACKGROUND

         This case arises as a result of an allegedly fraudulent assignment of mortgage, which Plaintiff contends induced him into entering a consent to final judgment in an underlying state court foreclosure proceeding. As alleged in the Second Amended Complaint, ECF No. [40], Maria Sanchez purchased the subject property in May, 2006, and mortgage encumbering the subject property was recorded on July 14, 2006. In August, 2009, an assignment of mortgage was recorded, in which the mortgage on the subject property was transferred to Defendant U.S. Bank National Association (“U.S. Bank”). In late 2012, an assignment of mortgage was recorded assigning the mortgage to Defendant Ocwen Loan Servicing LLC (“Ocwen”). In May, 2014, Sanchez quitclaimed the property to Plaintiff as trustee for the Taveras Family Irrevocable Trust. In August, 2017, Ocwen, on behalf of U.S. Bank, filed a mortgage foreclosure proceeding in Miami-Dade County Circuit Court with respect to the subject property. In November, 2017, Defendants sent Plaintiff documentation, including the Ocwen assignment of mortgage, asserting that they possessed the authority to pursue foreclosure of the subject property. In September, 2018, in reliance upon the Ocwen assignment of mortgage, the Plaintiff entered into a settlement agreement by which he agreed to the entry of consent final judgment in the foreclosure proceeding. The consent final judgment was entered by the state court in October, 2018, and the subject property was sold in a foreclosure sale. Plaintiff thereafter quit-claimed the property to himself in May, 2019. The state court nevertheless ordered the issuance of title to U.S. Bank Trust at the end of June, 2019. Plaintiff contends that the Ocwen assignment of mortgage contains false, fictitious or fraudulent statements and representations, which he only discovered after signing the settlement agreement and consent judgment. As a result, Plaintiff lost ownership of the property.

         In the Second Amended Complaint, Plaintiff asserts four claims against Defendants for fraud under the Civil Remedies for Criminal Practices Act and Florida Statutes, sections 817.535 and 817.034 (Counts 1-2), fraud (Count 3), and intentional infliction of emotional distress (Count 4).

         In the Motion, Defendants seek dismissal of Plaintiffs' claims in their entirety.

         II. LEGAL STANDARD

         A pleading in a civil action must 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”). Nor can a complaint 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)). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570).

         When reviewing a motion to dismiss, 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 Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); 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) (“On a motion to dismiss, the complaint is construed in the light most favorable to the non-moving party, and all facts alleged by the non-moving party are accepted as true.”); Iqbal, 556 U.S. at 678. 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. Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); see Maxcess, Inc. v. Lucent Techs., 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)). Although the court is required to accept as true all allegations contained in the complaint, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678.

         In addition, courts must liberally construe pleadings submitted by a pro se litigant. Jarzynka v. St. Thomas Univ. of Law, 310 F.Supp.2d 1256, 1264 (S.D. Fla. 2004). Notwithstanding such leniency, courts cannot serve as de facto counsel for a party and cannot rewrite a deficient pleading for the sake of sustaining an action. Id. (quoting GJR Invs., Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled in part on other grounds by Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010)). That is, “[t]he Court cannot simply ‘fill in the blanks' to infer a claim.” Grady v. Ga. Dep't of Corr., No. CV409-103, 2010 WL 322881, at *2 (S.D. Ga. Jan. 27, 2010). In determining whether a pro se litigant has stated a claim, “the court ought not penalize the litigant for linguistic imprecision in the more plausible allegations” while keeping in mind that “wildly implausible allegations in the complaint should not be taken to be true.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008).

         III. DISCUSSION

         In the Motion, Defendants seek dismissal of the Second Amended Complaint. The Defendants contend that the Second Amended Complaint is an impermissible shotgun pleading, the claims are barred by res judicata, Plaintiff released all claims against Defendants, Plaintiff fails to plead fraud with the requisite particularity, the claim under Florida Statutes section 817.535 is barred by the statute of limitations, Plaintiff lacks standing to challenge the assignment of mortgage under Florida Statutes section 817.535, and Plaintiff fails to state a claim for intentional infliction of emotional distress. The Court notes at the outset that in his Response, Plaintiff concedes that Counts 1 and 2 of the Second Amended Complaint should be dismissed. Accordingly, the Court considers the merits of Defendants' remaining applicable arguments.

         A. ...


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