Castro v. Bank of N.Y. Mellon, for the Certificate Holders of Cwalt Inc., 17-CV-4375(JS)(GRB)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtSEYBERT, District Judge
PartiesMARIO E. CASTRO, Plaintiff, v. THE BANK OF NEW YORK MELLON, as trustee for the certificate holders of CWALT Inc., Alternative Loan Trust 2006-0A11 mortgage pass through certificates 2006-0A11, f/k/a THE BANK OF NEW YORK, ALTERNATIVE LOAN TRUST 2006-0A11 MORTGAGE PASS THROUGH CERTIFICATES 2006-0A11, SHELLPOINT MORTGAGE SERVICING, and UNKNOWN DEFENDANTS, Defendants.
Docket Number17-CV-4375(JS)(GRB)
Decision Date30 August 2018

MARIO E. CASTRO, Plaintiff,
THE BANK OF NEW YORK MELLON, as trustee for the certificate holders of CWALT Inc.,
Alternative Loan Trust 2006-0A11 mortgage pass through certificates 2006-0A11,



August 30, 2018


For Plaintiff:

Mario E. Castro, pro se
419 West Hills Road
Melville, NY 11747

For Defendants:

Joseph M. DeFazio, Esq.
Natsayi Mawere, Esq.
Akerman LLP
666 Fifth Ave, 20th Floor
New York, NY 10018

SEYBERT, District Judge:

Plaintiff Mario Castro ("Plaintiff") commenced this action against the Bank of New York Mellon, as trustee for the certificate holders of CWalt Inc., Alternative Loan Trust 2006-0A11 mortgage pass through certificates series 2006-0A11 (the "Trust") formerly known as the Bank of New York (the "Bank of New York Mellon"), Alternative Loan Trust 2006-0A11 mortgage pass

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through certificates series 2006-0A11,1 Shellpoint Mortgage Servicing ("Shellpoint"), Select Portfolio Servicing ("Select"), Bank of America, NA ("Bank of America"), and unknown defendants on July 24, 2017. (Compl., Docket Entry 1.) On August 2, 2017, Plaintiff filed an Amended Complaint naming only the Bank of New York Mellon, as trustee for the Trust, Shellpoint, and unknown defendants (collectively "Defendants"). (Am. Compl., Docket Entry 4.) Generally, Plaintiff alleges that Defendants violated the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq., the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and the Fourteenth Amendment of the Constitution during the course of servicing his mortgage loan. (Am. Compl. at ECF pp. 3-7.)

Currently pending before the Court is Defendants' motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Defs.' Mot., Docket Entry 13.) For the following reasons, Defendants' motion is GRANTED IN PART and DENIED IN PART.

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I. Factual Background2

On March 7, 2006, Plaintiff executed a mortgage in favor of Mortgage Electronic Registration System ("MERS"), as nominee for Countrywide Bank, N.A., on property located at 419 West Hills Road, Melville, New York (the "Property") as security for a loan of $448,800.00. (Mortg., Mawere Decl., Ex. A, Docket Entry 13-2, at ECF p. 4-23.) The mortgage was assigned to the Bank of New York Mellon on September 1, 2011. (Assignment, Mawere Decl., Ex. B., Docket Entry 13-3, at ECF p. 4.)3

Plaintiff alleges that he sent requests for information to both the Bank of New York Mellon, which holds the mortgage, and Shellpoint, which services the loan, but has not received the requested information. (Am. Compl. at ECF p. 4.) Specifically, he maintains that, on February 8, 2017, he mailed a Qualified Written Request (the "QWR") to Defendants and did not receive a response. (Am. Compl. at ECF p. 4; QWR, see Compl., Docket

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Entry 1, at ECF pp. 14-32.)4 He further alleges that he sent a notice of default on April 13, 2017 and a request for inspection of the original "wet ink" promissory note on June 8, 2017.5 (Am. Compl. at ECF pp. 4-5; Not. of Default, Compl. at ECF pp. 33-34; Request.) Plaintiff attached copies of the signed certified mail receipts to his original Complaint. (Compl. at ECF pp. 7-13.)

Plaintiff avers that "defendants have refused to produce all answers requested as it regards to the validation of debt, proof of original and properly validated promissory note instrument (not a copy) along with proof of proper transfers, receipts, as well as proper ledger accounting arriving at for said debt." (Am. Compl. at ECF p. 5.) He maintains that he is "requesting basic validation of debt from entities not made known to [him]" and that his "credit was used to profit and abuse." (Am. Compl. at ECF p. 6.) Plaintiff alleges that this conduct violated his Fourteenth Amendment rights to "life, liberty, and property" and "due process." (Am. Compl. at ECF p. 7.)

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The Amended Complaint alleges that Plaintiff and his family have "suffered extensive stress and harassment," including numerous phone calls.6 (Am. Compl. at ECF p. 4.) The Amended Complaint also refers to "confusing" statements made by Shellpoint but does not identify any specific statements. (Am. Compl. at ECF p. 8.)

Plaintiff alleges that the threats of displacement have caused fear, depression, nightmares, and "continuous sleep deprivation," have negatively affected his children's schoolwork, and have made it difficult for him to "work[ ] productively and effectively." (Am. Compl. at pp. 6-7.) He alleges that his credit and his "future of trying to recoup a fair life for [his] family has been destroyed." (Am. Compl. at ECF p. 6.) Plaintiff specifically avers that he has suffered "economic loss" due to reports made to credit agencies. (Am. Compl. at ECF p. 4.) He is seeking compensation of three times the "unproven alleged loan debt through profiting" of $445,000 and punitive damages for a total of $2,335,000. (Am. Compl. at ECF pp. 4, 8.)

II. Procedural History

The Court construes the Amended Complaint as asserting the following claims: (1) a violation of RESPA, 12 U.S.C. § 605(e), for failing to respond to the QWR; (2) violations of the FDCPA,

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including 15 U.S.C. §§ 1692d, 1692e, 1692f, and 1692g; and (3) a violation of Plaintiff's constitutional rights pursuant to 42 U.S.C. § 1983.

On October 24, 2017, Defendants filed their motion to dismiss. (See Defs.' Mot.) Plaintiff filed his opposition on November 27, 2017, and Defendants filed their reply on December 11, 2017. (Pl.'s Opp., Docket Entry 15; Defs.' Reply, Docket Entry 16.)


I. Legal Standard

Federal Rule of Civil Procedure 8 requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). Rule 12(b)(6) provides that dismissal is appropriate if the complaint fails "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). To survive a motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). Although the Court must accept all allegations in the Amended Complaint as true,

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this tenet is "inapplicable to legal conclusions." Id. Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted). Ultimately, the Court's plausibility determination is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S. Ct. at 1950.

A complaint filed by a pro se litigant is to be construed liberally and "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007); see also Hiller v. Farmington Police Dep't, No. 12-CV-1139, 2015 WL 4619624, at *7 (D. Conn. July 31, 2015) (noting that the dismissal of a pro se complaint pursuant to Rule 12(b)(6) is not appropriate "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief") (internal quotation marks and citation omitted). Nevertheless, a pro se complaint must state a plausible claim for relief and comply with the minimal pleading standards set forth in Federal Rule of Civil Procedure 8. Hiller, 2015 WL 4619624, at *7.

In deciding a motion to dismiss, the Court is generally confined to "the allegations contained within the four corners of [the] complaint." Pani v. Empire Blue Cross Blue Shield, 152 F.3d

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67, 71 (2d Cir. 1998). However, the Court may consider "any written instrument attached to [the complaint] as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are integral to the complaint." Sira, 380 F.3d at 67; see also Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (observing that a document is "integral" if the complaint "relies heavily upon its terms and effect") (internal quotation marks and citation omitted).


The Amended Complaint alleges that Defendants violated RESPA by failing to respond to the QWR and related correspondence. (Am. Compl. at ECF pp. 4-5.) Congress enacted RESPA to "'insure that consumers throughout the Nation are provided with greater and more timely information on the nature and costs of the settlement process and are protected from unnecessarily high settlement charges caused by [ ] abusive practices that have developed in some areas of the country.'" Yanes v. Ocwen Loan Servicing, LLC, No. 13-CV-2343, 2015 WL 631962, at *7 (E.D.N.Y. Feb. 12, 2015) (alteration in original) (quoting 12 U.S.C. § 2601). Section 2605(e) outlines the duty of loan servicers when they receive an inquiry from a borrower. 12 U.S.C. § 2605(e). Specifically, this section "'permits a borrower to submit to a servicer of her loan(s) a qualified written request (QWR) for information related to

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servicing of the loan and requires the servicer to respond accordingly.'" Noriega v. US Bank, Nat'l Ass'n, No. 16-CV-1058, 2017 WL 3172998, at *7 (E.D.N.Y. July 25, 2017) (quoting Gorbaty v. Wells Fargo Bank, N.A., No. 10-CV-3291, 2014 WL 4742509, at *4 (E.D.N.Y. Sept. 23, 2014) (internal quotation marks omitted). A QWR is "correspondence that identifies a borrower's account and includes a...

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