Castrillo v. American Home Mortg. Servicing, Inc., Civil Action No.: 09-4369.
| Decision Date | 16 November 2009 |
| Docket Number | Civil Action No.: 09-4369. |
| Parties | Michael Paul CASTRILLO v. AMERICAN HOME MORTGAGE SERVICING, INC., Wells Fargo Bank, N.A. as Trustee for Citigroup Mortgage Loan Trust Inc., Asset-Backed Pass-through Certificates, Series 2005-OPT4. |
| Court | U.S. District Court — Eastern District of Louisiana |
Michael Paul Castrillo, New Orleans, LA, pro se.
Susan Fahey Desmond, Watkins, Ludlam, Winter & Stennis, PA, Gulfport, MS, for Defendants.
ORDER AND REASONS
Before the Court are defendants' motion to dismiss (R. Doc. 18) and Castrillo's motions for leave to file repleaded complaint (R. Doc. 20) and for summary judgment (R. Doc. 26). For the following reasons, defendants' motion to dismiss is DENIED in part and GRANTED in part. Castrillo's motion to amend is DENIED in part and GRANTED in part, and his motion for summary judgment is DENIED.
Castrillo was a homeowner in Bywater, New Orleans. It appears from exhibits submitted by both parties that Castrillo refinanced his home with H & R Block on April 22, 2005 and executed an adjustable rate promissory note in the amount of $88,200.00. (See R. Doc. 20-4, "Forged Promissory Note"; see also R. Doc. 20-3 ¶ 3.) H & R Block appears to have executed an allonge making Castrillo's note payable to Option One Mortgage Corporation ("Option One"),1 which in turn executed an allonge making the note payable to bearer. (See R. Doc. 20-4, "Forged Assignments".) Both allonges appear to have been executed by a certain Charlene Campbell. (Id.) Castrillo disputes the authenticity of the note and the allonges, as well as the date on which the allonges were executed. (See R. Doc. 20-3 ¶ 10; R. Doc. 20-2 at 6.)
It appears that Castrillo fell behind on his mortgage payments at some point in early 2008. (See R. Doc. 20-4, "Reinstatement Quote".) Castrillo entered into a Loan Modification Agreement with Option One on February 20, 2008. (See R. Doc. 20-3 ¶ 4; R. Doc. 20-4, "2008 Loan Modification"; R. Doc. 25, Ex. D.) The agreement appears to have set a fixed interest rate of 6.50% and monthly mortgage payments of $674.40. (Id.) Castrillo alleges that he was wrongfully "induced" into signing the Loan Modification Agreement. (See R. Doc. 20-3 ¶ 4.)
At some point, American Home Mortgage Service, Inc. ("AHMSI") became the servicer of Castrillo's mortgage. Castrillo received a "Reinstatement Quote" from AHMSI dated December 19, 2008. (See R. Doc. 20-4, "Reinstatement Quote".) The Reinstatement Quote demands, inter alia, eleven overdue mortgage payments of $1,438.10 each, foreclosure attorneys' fees and costs and a sheriff's commission, for a total of $18,458.56. (Id.) Castrillo claims that the quote was improperly inflated because his mortgage payments were not $1,438.10, no foreclosure proceedings had been filed at that time, and no commission had been paid to the sheriff. (See R. Doc. 20-3 ¶ 5; R. Doc. 20-2 at 1.)
By letter dated January 19, 2009, Castrillo notified AHMSI that he was rescinding his April 2005 mortgage and February 2008 loan modification. (See R. Doc. 20-4, "Correspondence Between Plaintiff and Defendants".) By letter dated January 20, 2009, counsel for Wells Fargo notified Castrillo that Wells Fargo intended to institute foreclosure proceedings against his property. (Id.) It appears that Wells Fargo came into possession of the Loan Modification Agreement at some point in 2008 or 2009, but the exact date is unclear. Castrillo responded by sending counsel for Wells Fargo an undated letter disputing and requesting verification of his debt. (See R. Doc. 20-4, "Correspondence Between Plaintiff and Defendants".) Castrillo alleges that AHMSI replied on February 5, 2009 by sending him a forged copy of his promissory note. (See R. Doc. 20-3 ¶ 10; R. Doc. 20-2 at 6.)
On March 3, 2009, Castrillo filed a pro se lawsuit against AHMSI and Wells Fargo in the Orleans Parish Civil District Court. On April 8, 2009, Wells Fargo filed a separate executory foreclosure action against Castrillo before the same court. (See R. Doc. 25, Ex. E.) On June 24, 2009, Sand Canyon Corporation (successor to Option One) formally assigned Castrillo's mortgage to Wells Fargo. (See R. Doc. 25, Ex. F.)
On July 10, 2009, defendants removed Castrillo's pro se lawsuit to this Court, invoking its federal question jurisdiction. (See R. Doc. 1-1.) Castrillo filed a "Motion to Complete File" on July 30, 2009. (See R. Doc. 12.) The Court treated this as a motion to amend, and granted the motion on August 31, 2009. (R. Doc. 23.) On August 10, 2009, defendants moved to dismiss Castrillo's complaint for failure to comply with Rule 8 of the Federal Rules of Civil Procedure. (R. Doc. 18.) Castrillo then filed a "Motion for Leave to File Repleaded Complaint." (See R. Doc. 20.) The Court treats this motion as a second motion to amend. The proposed repleaded complaint and supporting memorandum include the following legal claims:
1. Violation of the Fair Debt Collection Practices by making false representations, failing to verify a disputed debt, and initiating foreclosure proceedings;
2. Violation of the National Housing Act by failing to provide notice of the availability of counseling and failing to mitigate losses;
3. Violation of the Truth in Lending Act by failing to follow certain procedures after Catrillo allegedly rescinded his mortgage;
4. Violation of the Real Estate Settlement Procedures Act by failing to adequately respond to inquiries;
5. Violation of the Racketeer Influenced and Corrupt Organizations Act by forging a promissory note;
6. Fraud in the inducement of the 2008 Loan Modification Agreement, and attempt to collect on a fraudulent mortgage note.
(See R. Doc. 20-2.) Defendants oppose Castrillo's proposed repleaded complaint on grounds that it does not satisfy Rule 8, and that the claims raised are futile. Castrillo moved for summary judgment on September 14, 2009. (R. Doc. 26.) Defendants oppose the summary judgment motion both as premature and on the merits. (R. Doc. 27.)
Leave to amend a complaint is freely given "when justice so requires." Fed.R.Civ.P. 15(a); see also High Tech Comm's v. Panasonic Co., Civ. A. No. 94-1477, 1995 WL 65133, at *1 (E.D.La.1995) (Vance, J.). In exercising its discretion in granting or denying leave to amend, the Court may consider whether the party seeking leave is doing so after undue delay, in bad faith, or for a dilatory motive. See Jamieson By and Through Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir. 1985). "It is within the district court's discretion to deny a motion to amend if it is futile." Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872-73 (5th Cir.2000). Futility means "that the amended complaint would fail to state a claim upon which relief could be granted." Id. Thus, to determine futility, the court "appl[ies] the same standard of legal sufficiency as applies under Rule 12(b)(6)." Id.
Under the Federal Rules of Civil Procedure, a complaint 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). The complaint must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005). The allegations "must be simple, concise, and direct." Fed.R.Civ.P. 8(d)(1). Furthermore, to survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts "to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible when the plaintiff pleads facts that allow the court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. The factual allegations must "raise a reasonable expectation that discovery will reveal evidence" of liability. Twombly, 550 U.S. at 556, 127 S.Ct. 1955. "A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir.2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996). The court is not, however, bound to accept as true legal conclusions couched as factual allegations. Iqbal, 129 S.Ct. at 1949-50. Although pro se plaintiffs are held to less stringent standards than those drafted by lawyers, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.2002).
In determining whether to grant a motion to dismiss, a district court generally may not "go outside the complaint." Scanlan v. Tex. A & M Univ., 343 F.3d 533, 536 (5th Cir.2003). When ruling on a motion to dismiss a pro se complaint, however, a district court is "required to look beyond the [plaintiff's] formal complaint and to consider as amendments to the complaint those materials subsequently filed." Howard v. King, 707 F.2d 215, 220 (5th Cir.1983); Clark v. Huntleigh Corp., 119 Fed.Appx. 666, 667 (5th Cir.2005) (); cf. Fed. R. Civ. P. 8(d) (). Furthermore, a district court may consider documents attached to a motion to dismiss if they are referred to in the plaintiff's complaint and are central to the plaintiff's claim. Scanlan, 343 F.3d at 536.
According to defendants, Castrillo's proposed repleaded complaint does not contain "a short and plain statement of the claim showing that the pleader is...
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