Brown v. Bank of Am., N.A.
| Decision Date | 28 July 2016 |
| Docket Number | CIVIL NO: 3:15-CV-01820 |
| Parties | QUANDA SIMONE BROWN, Plaintiff v. BANK OF AMERICA, N.A. AS SUCCESSOR BY MERGER TO LASALLE BANK N.A. AS TRUSTEE FOR CERTIFICATE-HOLDERS OF BEAR STEARNS ASSET-BACKED SECURITIES I LLC, ASSET-BACKED CERTIFICATES, SERIES 2007-HE 2, Defendant |
| Court | U.S. District Court — Middle District of Pennsylvania |
(Judge Caputo)
(Magistrate Judge Schwab)
The plaintiff, Quanda Simone Brown, brings claims under the Truth in Lending Act (TILA), 15 U.S.C. § 1601, et seq., and the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq., as well as a claim that she titles as "identity theft." Her claims relate to her mortgage and state foreclosure proceedings. Currently pending is the defendant's motion to dismiss Brown's amended complaint. For the following reasons, we recommend that the Court grant the motion to dismiss the amended complaint, but we recommend that it grant Brown limited leave to file a second amended complaint.
Brown began this action in September of 2015. After a case management conference, Brown was granted leave to file an amended complaint, and her amended complaint was filed on December 8, 2015.
The amended complaint names one defendant: "Bank of America, N.A. as Successor by Merger to LaSalle Bank N.A. as Trustee for Certificate-Holders of Bear Stearns Asset-Backed Securities I LLC, Asset-Backed Certificates, Series 2007-HE2." Doc. 14 at 1. As the defendant contends that its proper name is "U.S Bank National Association, as Trustee, successor in interest to Bank of America, National Association, as Trustee, successor by merger to LaSalle Bank National Association, as Trustee for Bear Stearns Asset Backed Securities I Trust 2007-HE2, Asset Backed-Certificates, Series 2007-HE2" and it refers to itself as "US Bank," see doc. 15 at 1, we will refer to the defendant as "US Bank." The amended complaint contains three counts. Count I is a TILA claim. Count II is a FDCPA claim. And Count III is a claim purportedly for identity theft.
Although the amended complaint is difficult to understand, we attempt to summarize Brown's allegations and contentions.1 Because Brown breaks up her factual allegations into sections regarding each of her claims, we do the same.
Brown entered into a mortgage2 that was recorded in Monroe County, Pennsylvania, on September 18, 2006. The mortgage secured a promissory note payable to National City Mortgage Company, a subsidiary of National City Bank, in the amount of $300,000. According to Brown, US Bank3 failed to provide herwith "the appropriate form of written notice published and adopted under the provisions" of the TILA or "a comparable written notice of the rights of the plaintiff, that was properly completed by the creditor, and otherwise complied with all statutory requirements regarding the notice." Doc. 14 at 3.
US Bank attempted to foreclose on Brown's property under the mortgage. The foreclosure complaint was filed in the Court of Common Pleas of Monroe County on October 20, 2010.4 The Court of Common Pleas of Monroe County entered a judgment of foreclosure on June 7, 2013.5 Finding that Brown failed toproperly preserve any issues for appellate review, on June 10, 2014, the Superior Court of Pennsylvania affirmed the Court of Common Pleas' judgment. Bank of Am. Nat. Ass'n v. Brown, No. 1990 EDA 2013, 2014 WL 10917669, at *5 (Pa. Super. Ct. June 10, 2014).
On August 7, 2015, Brown served a "notice to rescind" on US Bank, and she attached a copy of that notice to her amended complaint. In that notice, Brown states, in pertinent part:
Doc. 14-1 at 2. US Bank did not respond to that notice. According to Brown, US Bank had a duty to, within 20 days, either sue her to re-establish the debt or returnher "money or property." Doc. 14 at 4.6 US Bank did neither, and, thus, it is Brown's contention that as of August 28, 2015, the mortgage and promissory note were void and "did not exist." Id. at 4. According to Brown, she served US Bank with a notice that US Bank was in default and that she intended to sue. See Doc. 14-1 at 4.
Nevertheless, according to Brown, US Bank continued with the foreclosure proceedings and subsequently foreclosed on her property.7 Brown alleges that in the state foreclosure action, US Bank "never produced evidence or proved any debt was owed." Id. According to Brown, although US Bank has recorded a judgment lien, it has not sold the property.
In connection with the TILA claim, Brown seeks damages in the amount of the fair market value of her property, which she contends is $211,000; "the money deposited with the lender identified on the mortgage or trust deed lien in the amount of $300,000," and the costs and attorney's fees "associated with this action and defending against the foreclosure process in the amount of $15,000." Doc. 14 at 5.
Brown alleges that after the mortgage, which did not name or confer any power on US Bank, was recorded, US Bank began attempting to foreclose under the terms of the mortgage, as if it was the holder or in control of the note and mortgage. According to Brown, US Bank "somehow acquired" her "personal andbanking information" and used that information for its own personal gain without any permissible purpose. Doc. 14 at 7.
Brown allges that "[w]ithin the previous twelve months, the defendant began sending written communication to the plaintiff stating that it was representing various parties having rights under the same trust deed, or at least plaintiff understood that it was representing parties, including the other defendants, the trustee, a bank, a law firm, etc. who were all claiming some rights in the plaintiff's property." Id. Brown asked US Bank to verify "that these parties [it] was supposed to have been representing, whose names [it] was using, were aware of [its] actions." Id. US Bank did not respond. Brown explained that she made such request because none of the parties referenced by US Bank were named in the mortgage. Brown also asked US Bank to explain how it had obtained her personal and private banking, financial, and identifying information. US Bank did not respond to Brown's request. According to Brown, the purported debt that US Bank was attempting to collect was "not a debt held or collected under the name of the defendant." Id.
Brown alleges that US Bank made false representations (1) that it was the holder of the note; (2) that it had the right to foreclose against her property under the mortgage; (3) that it had certain legal rights under the mortgage; (4) that it had the right to foreclose if Brown failed or refused to provide additional "credit,banking, financial, personal and other identifying information" or she failed or refused to agree to make regular payments; (5) that if she failed to provide further information and money, it would sell her property at a public auction; and (6) that her "credit accounts were sold to innocent purchase[rs] for value." Id. at 7-10.
According to Brown, US Bank did not have her "typical credit information," such as her social security number, her date of birth, or "other banking information that a creditor would normally be expected" to have. Id. at 8-9. Brown alleges that US Bank "requested certain financial disclosures" from her "claiming that the disclosures would persuade [it] to cease its foreclosure actions provided that money was paid by the plaintiff to the defendant or its privies." Id. at 8.
Brown also alleges that US Bank used the foreclosure process "for the purpose of engaging in a scheme that aims to conceal the identity, source, and destination of illicitly-obtained money, specifically, the plaintiff's promissory note." Id. at 8. According to Brown, US Bank acquired a forged or counterfeit copy of the promissory note, and it employed "a complex scheme, including what has become known recently as 'securitization, and then assignments, trusteeships and other counter parties or affiliates such as 'serving agents' to obscure who initially received the money." Id. at 8. The parties involved in this scheme, Brown alleges, have been compensated in a number of different ways, such as by "removing the liability from accounting records and obtaining tax benefits from theUnited States, sustaining the illusion of solvency for pension funds of those government officers who participate in the scheme, including judges and attorneys and clerks of the court." Id. Actions were taken under this scheme "so as to conceal who did what and when." Id.
According to Brown, US Bank used a "false or fictitious name" or a "name other than" its "true name" in its collection efforts; it falsely represented the name of the creditor to whom the alleged debt is owed. Id. at 9. Brown alleges that despite several written requests by her, US Bank refused to identify its owners, principals, or the interest it had in her property. Brown further alleges that US Bank failed to provide an...
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