Brandenstein v. PennyMac Loan Servs., CIVIL ACTION FILE NO. 1:17-CV-2712-WSD-JFK

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
Writing for the CourtJANET F. KING UNITED STATES MAGISTRATE JUDGE
PartiesLORI G. BRANDENSTEIN, Plaintiff, v. PENNYMAC LOAN SERVICES, LLC, Defendant.
Decision Date06 November 2017
Docket NumberCIVIL ACTION FILE NO. 1:17-CV-2712-WSD-JFK

LORI G. BRANDENSTEIN, Plaintiff,
v.
PENNYMAC LOAN SERVICES, LLC, Defendant.

CIVIL ACTION FILE NO. 1:17-CV-2712-WSD-JFK

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

November 6, 2017


FINAL REPORT AND RECOMMENDATION

Plaintiff Lori G. Brandenstein ("Brandenstein"), proceeding Pro Se (and asserting that she is "Suis Juris in Propria Persona"), commenced this civil action in the Superior Court of Cobb County, Georgia, with the filing of her Verified Complaint. [Doc. 1-1, Exhibit A - Verified Complaint ("Compl."), State Court Civil Action No. 17-1-4682-53]. Defendant PennyMac Loan Services, LLC ("PennyMac"), removed the complaint to federal court. [Doc. 1]. Pending before the court is PennyMac's motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim for which relief can be granted as well as pursuant to Rules 4(m) and 9, and PennyMac's October 26, 2017, Supplement expressly waiving its service-related defense under Rule 12(b)(5). [Docs. 3, 6]. Plaintiff

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Brandenstein has not filed a response.1 The matter has been submitted to the undersigned for a report and recommendation to the District Judge.

I. Factual Background

As an initial matter, the Complaint includes a number of conclusory allegations and citations to legal authorities that are not appropriate for inclusion in a complaint and will not be set forth in the following statement of facts. See Moore v. McCalla Raymer, LLC, 916 F. Supp. 2d 1332, 1342 (N.D. Ga. 2013) ("The complaint contains whole paragraphs of legal argument, quotations, and citations which have no place in a complaint.") (citing Chevy Chase Bank, F.S.B. v. Carrington, 2010 WL 745771, at *4 (M.D. Fla. March 1, 2010) ("Huge swaths of the . . . Complaint are improper irrespective of their relevance, consisting of lengthy legal arguments, case citations,

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and quotations from treatises-material proper in legal memoranda, but almost never proper in a complaint.")).

The undersigned also notes that the complaint in this case is remarkably similar to the complaints filed in several other cases within this district and, in each instance, dismissal was found to be warranted. See, e.g., Winston v. 360 Mortg. Group, LLC, 2017 WL 4356918 (N.D. Ga. October 2, 2017) (dismissing complaint alleging fraudulent conversion, mortgage servicing fraud, "declaratory judgment (credit default swap)[,]" "unfair and / or deceptive business practices[,]" "fraud and/or attempted fraud[,]" and intentional infliction of emotional distress); Pessini v. Nationstar Mortg., LLC, 2017 WL 2197136 (N.D. Ga. April 25, 2017) (dismissing complaint as shotgun pleading and listing cases with "virtually identical" form complaints); Samuel v. Nationstar Mortg., LLC, 2015 WL 12227731 (N.D. Ga. July 27, 2015), report and recommendation adopted by 2015 WL 12434315 (N.D. Ga. August 13, 2015). "[P]laintiff's use of a form complaint evidences that her claims are not brought in good faith." Pessini, 2017 WL 2197136, at *4 (citing Martin v. Citimortgage, 2010 WL 3418320, at *6 n.8 (N.D. Ga. August 3, 2010), report and recommendation adopted by 2010 WL 3418322 (N.D. Ga. August 25, 2010)).

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On a motion to dismiss under Rule 12(b)(6), the complaint's factual allegations are assumed true and construed in the light most favorable to the plaintiff. Hardy v. Regions Mortg., Inc., 449 F.3d 1357, 1359 (11th Cir. 2006); M.T.V. v. DeKalb County School Dist., 446 F.3d 1153, 1156 (11th Cir. 2006). "However, conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal." Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) (citations omitted). The following factual allegations are drawn from the Complaint, certain attachments to the Complaint, and relevant public records.2

On June 19, 2017, Plaintiff Brandenstein initiated this litigation against Defendant PennyMac challenging PennyMac's conduct as it relates to the July 5, 2017, foreclosure of Plaintiff's former residence, real property located at 2244 Josephine Court, Marietta, Georgia, 30062 ("Property"). [Compl.]. PennyMac was the servicer of Plaintiff Brandenstein's mortgage loan on the Property. [Compl. ¶ 8].

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On January 30, 2010, Plaintiff Brandenstein, along with Richard W. Brandenstein ("R. Brandenstein"), who is not a complainant or party to the instant suit, obtained a mortgage loan from First Option Mortgage, LLC ("First Option" or "Lender"), in the principal amount of $213,776.00 ("Loan"). [Compl. ¶ 6]. In connection with and to secure payment on the Loan, Plaintiff and R. Brandenstein executed a Security Deed in favor of Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for First Option, the lender, and its successors and assigns. [Compl. ¶ 7; Doc. 1-3, Exhibit C - Security Deed]. The Security Deed was recorded on February 15, 2010, in Deed Book 14754, Pages 4296-4307 of the Cobb County, Georgia, records. [Security Deed].

On October 29, 2014, the Security Deed was assigned to Bank of America, N.A. ("BANA") by MERS. [Doc. 3-2, Exhibit A - Assignment; Compl. ¶ 7].3 The

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assignment was recorded on November 19, 2014, in Deed Book 15199, Pages 4869-70 of the Cobb County, Georgia, records. [Assignment].

On or about May 2, 2017, due to Plaintiff's alleged default on the Loan, Defendant PennyMac, through the law firm of Rubin Lublin, LLC, advertised its first Notice of Sale Under Power ("Notice") of Plaintiff's Property scheduled to occur on July 5, 2017. [Compl. ¶ 8]. According to Plaintiff, the Notice did not identify the holder of the Security Deed and identified PennyMac as the loan servicer. [Compl. ¶ 8].

On May 12, 2017, Plaintiff sent PennyMac a request for disclosure, rescission, and validation of debt under TILA and a "qualified written request" ("QWR") under RESPA. [Compl. ¶ 10]. According to Plaintiff, Defendant PennyMac did not respond to her QWR. [Compl. ¶¶ 11-12].

At some point following Plaintiff's default on the Loan, BANA exercised the power of sale in the Security Deed and foreclosed on the Property July 5, 2017. The Property was transferred to Arch Property Holdings, LLC, via a Deed Under Power. [Doc. 4, Exhibit 1 - Deed Under Power]. On August 20, 2017, the Deed Under Power

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was recorded in Deed Book 15472 at Pages 3016-19 in the Cobb County, Georgia, records. [Deed Under Power].

In her Complaint, Plaintiff identifies six causes of action, described as Counts I-VI.4 [Compl.]. Plaintiff Brandenstein identifies her claims as follows: Count I - Fraudulent Conversion, Count II - Mortgage Servicing Fraud, Count III - Declaratory Judgment (Credit Default Swap), Count IV - Unfair and Deceptive Trade Practices / Fair Debt Collection Practices Act, Count V - Fraud / Attempted Fraud, and Count VI - Intentional Infliction of Emotional Distress ("IIED"). [Compl.]. Within the Fact Section, Plaintiff alleges violation of the Truth in Lending Act ("TILA") and the Real Estate Settlement Procedures Act ("RESPA"). [Compl. ¶¶ 10-12]. In her prayer for

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relief, Brandenstein also requests prelitigation discovery and injunctive relief. [Compl., Prayer for Relief ¶¶ a, b, d].

On July 19, 2017, Defendant PennyMac properly and timely removed the case to this federal district court pursuant to 28 U.S.C. §§ 1331, 1332, 1441, and 1446.5 [Doc. 1 - Notice of Removal ("Notice")]. Defendant asserts that Plaintiff's Complaint is subject to dismissal on multiple grounds, including Rules 4(m), 9, and 12(b)(6) of the Federal Rules of Civil Procedure, but has since expressly waived its service-related defense pursuant to Rule 12(b)(5) in favor of a ruling on the merits pursuant to Rule 12(b)(6).6 [Docs. 3-1, 6 at 1]. Defendant further contends that the relief Plaintiff seeks is moot given that foreclosure has already occurred. [Doc. 3-1].

II. Rule 12(b)(6) Standard of Law

The Federal Rules of Civil Procedure include no requirement that a plaintiff detail the facts upon which the plaintiff bases a claim. Rule 8(a)(2) requires a complaint to contain "a short and plain statement of the claim showing that the pleader

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is entitled to relief." Fed. R. Civ. P. 8(a)(2) (as amended 2007). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted); accord Financial Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-83 (11th Cir. 2007) (recognizing that "while notice pleading may not require that the pleader allege a specific fact to cover every element or allege with precision each element of a claim, it is still necessary that a complaint contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory") (citations and internal quotation marks omitted).

"Factual allegations must be enough to raise a right to relief above the speculative level," i.e., they must do more than merely create a "'suspicion [of] a legally cognizable right of action,' on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 127 S. Ct. at 1965 (citations omitted; emphasis omitted). "Stated differently, the factual allegations in a complaint must 'possess enough heft' to set forth 'a plausible entitlement to relief[.]'" Stephens,

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500 F.3d at 1282 (quoting Twombly, 127 S. Ct. at 1966-67). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citation omitted). A plaintiff's complaint will be dismissed...

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