Gonzalez-Camacho v. Banco Popular De P.R.

• Decision Date: 28 March 2018
• Docket Number: Civil No. 17-1448 (DRD)
• Parties: Lilliam GONZALEZ-CAMACHO, et al., Plaintiff(s), v. BANCO POPULAR DE PUERTO RICO, et al., Defendant(s).
• Court: U.S. District Court — District of Puerto Rico

318 F.Supp.3d 461

Lilliam GONZALEZ-CAMACHO, et al., Plaintiff(s),

v.BANCO POPULAR DE PUERTO RICO, et al., Defendant(s).

Civil No. 17-1448 (DRD)

United States District Court, D. Puerto Rico.

Signed March 28, 2018

Opinion Denying Reconsideration Aug. 17, 2018

Gwendolyn Moyer-Alma, Moyer Law Offices, Bayamon, PR, John A. Stewart-Sotomayor, Arecibo, PR, Joseph Gierbolini, Juris Zone Law Offices P.S.C., Vanessa Saxton-Arroyo, San Juan, PR, for Plaintiff(s).

Graciano Velez-Albaladejo, pro se.

Maria Dolores Trelles-Hernandez, Nestor Mendez-Gomez, Christian A. Munoz-Lugo, Pietrantoni Mendez & Alvarez, Monica A. Sanchez-Rivera, Lopez Sanchez & Pirillo, LLC, Vanessa M. Torres-Quinones, Martinez & Torres Law Offices, PSC, Katia Veronica Recio-Curet, Millennium Partners LLC, Mauricio O. Muniz-Luciano, Marini Pietrantoni Muniz LLC, Alejandro Garcia-Carballo, Carlos A. Valldejuly-Sastre, Salvador J. Antonetti-Stutts, O'Neill & Borges, LLC, Rafael Perez-Bachs, McConnell Valdes, LLC, Jose A. Ocasio-Robles, Ocasio Robles Law Offices, Ramon E. Dapena, Ivan Llado-Rodriguez, Morell Cartagena & Dapena, Alfredo Fernandez-Martinez, Carlos R. Baralt-Suarez, Delgado Fernandez LLC, Alejandro Bellver-Espinosa, Bellver Espinosa Law Firm, Arlyn Gonzalez-Diaz, Fernando J. Valderrabano-Marina, Edgar Hernandez-Sanchez, Cancio, Nadal, Rivera & Diaz, Juan Marcos Acevedo-Ramirez, Hector J. Ferrer-Rios, Vanessa Saxton-Arroyo, San Juan, PR, Michael Y. Kieval, Weiner Brodsky Kider PC, Mitchel H. Kider, Pro Hac Vice, Washington, DC, Coral Del Mar Lopez-Rosario, Alston & Bird, LLC, Los Angeles, CA, Andrew C. Glass, Gregory N. Blase, K & L Gates LLP, Boston, MA, for Defendant(s).

OMNIBUS OPINION AND ORDER

DANIEL R. DOMÍNGUEZ, United States District Judge

Pending before the Court are twelve (1) Motions to Dismiss and one (1) separate Motion to Joinder: (1) Defendant Banco Popular's Motion to Dismiss the Complaint (Docket No. 96); (2) Defendant Scotiabank's Motion to Dismiss under Rules 12(b)(6) (Docket No. 99); (3) Firstbank's Motion to Dismiss Amended Complaint (Docket No. 103); (4) Motion to Dismiss First Amended Complaint by Defendants Bayview Loan Servicing LLC and Lakeview Loan Servicing LLC (Docket No. 104); (5) Santander Motion to Dismiss First Amended Complaint and Joinder to Motions to Dismiss Filed by Co-Defendants (Docket No. 107); (6) Motion to Dismiss First Amended Complaint for Lack of Personal Jurisdiction by Defendant Wells Fargo & Co. (Docket No. 108); (7) Roosevelt REO PR. Corp., Roosevelt Cayman Asset Company II and Rushmore Loan Management Services' Motion to Dismiss First Amended Complaint (Docket No. 110); (8) RNMP, LLC and TRM, LLC's Motion to Dismiss First Amended Complaint and Joinder to Motions to Dismiss by Banco Popular and Lime Residential (Docket No. 113); (9) James B. Nutter & Company and Federal National Mortgage Association's Motion to Dismiss and/or Strike, or Stay Plaintiffs' First Amended Complaint (Docket No. 114); (10) James B. Nutter & Company and Federal National Mortgage Association's Motion to Join Defendants Oriental Bank Puerto Rico and Banco Popular Puerto Rico's Motion to Dismiss (Docket No. 115); (11) Defendant Lime Residential, LTD.'s Motion to Dismiss Plaintiff's First Amended Complaint (Dkt. 5) (Docket No. 119); (12) Freddie's Amended Motion to Dismiss the Amended Complaint (Docket No. 131), and (13) Operating Partners Co., LLC's Motion to Dismiss the Amended Complaint (Docket No. 132). For the reasons set forth below, the aforementioned Motions to Dismiss and the Motion to Joinder (Docket Nos. 96, 99, 103, 104, 107, 108, 110, 113, 114, 115, 119, 131 and 132) are hereby GRANTED .

I. FACTUAL BACKGROUND

At the outset, the Court notes that Plaintiffs' pleadings included in the First Amended Complaint filed under Docket No. 5 are unclear, very broad and often convoluted and/or of difficult understanding. As a result, this Court has undertaken a maximum of effort to fully comprehend Plaintiffs' allegations and will convey them in a general manner.

Plaintiffs brought a class action suit on behalf of themselves and Class Members who either have been subject to illegitimate foreclosures or sought modifications of payment on their individual mortgage loans through their mortgage servicers of Defendants. Plaintiffs contacted Defendants in an attempt to reduce their loan payments due to a reduction of job hours which affected their payment capacity. See Docket No. 5 at 6. The Defendants allegedly explained to Plaintiffs that they would submit Plaintiffs to a loss mitigation process which would make Plaintiffs eligible to make reduced monthly payments during a three-month trial period. See Docket No. 5 at 7. Plaintiffs allege they complied with the reduced payments but were still harassed by Defendants for delinquency of their payments. Plaintiffs assert that their rights under the Home Affordable Modification Program (HAMP) were not acknowledged. The HAMP program provided a mechanism to stay any foreclosure proceedings and help Plaintiffs fulfill the promise of smaller loan payments. Id. Plaintiffs thus claim that Defendants' failure to honor the HAMP program provisions left them "financially devastated." Docket No. 5 at 8.

All Plaintiffs are residents of Puerto Rico with real estate property holdings in Puerto Rico. See Docket No. 5 at 4.¹ The unknown Plaintiffs, and the Class Members which they represent, are likewise described in very broad terms as any person who has real estate in Puerto Rico and whose real estate is encumbered by a mortgage loan serviced by any of the Defendants in the instant case. The Class Members also include mortgagors who have complied with their obligations under the loan modification programs and have not received any of the benefits of the alleged modifications. See Docket No. 5 at 8. Defendants, on the other hand, are banks or mortgage loan servicers committed to providing mortgage loans to qualified individuals in Puerto Rico. Id. Unknown Defendants, on the other hand, are considered any bank, financial institution or mortgage loan servicers devoted to providing mortgage loans to qualified individuals with offices, branches and subsidiaries in Puerto Rico which can be liable for actions alleged in the Complaint.

The Plaintiffs alleged individual claims related to mortgage loan transactions with one or more of the Defendants. The Complaint, however, fails to specify which financial institution, i.e. which Defendant, financed which loan and/or were designated to provide services under federal laws, the Real Estate Settlement Procedures Act ("RESPA"), Home Affordable Modification Program ("HAMP"), Truth in Lending Act ("TILA"), and Home Affordable Refinance Program ("HARP"). The Plaintiffs instead seem to believe that their individual claims revolve around similar issues and can be addressed under one Complaint.

II. LEGAL STANDARDS

A. FED R. CIV. P. 12(B)(1)

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."),² a case may be dismissed for lack of subject-matter jurisdiction. Moreover, a failure to state a claim upon which relief can be granted may be dismissed under Rule 12(b)(6).

The standard of review under subsection 12(b)(1) lack of subject matter jurisdiction is "similar to that accorded a dismissal for failure to state a claim" under subsection 12(b)(6). Murphy v. United States , 45 F.3d 520, 522 (1st Cir. 1995). However, "[w]hile the court generally may not consider materials outside the pleadings on a Rule 12(b)(6) motion, it may consider such materials on a Rule 12(b)(1) motion." Gonzalez v. United States , 284 F.3d 281, 288 (1st Cir. 2002). These materials may include "affidavits and testimony to resolve factual disputes concerning the existence of jurisdiction." Fernández Molinary, et als. v. Industrias La Famosa, Inc., et als. , 203 F.Supp.2d 111, 114-115 (D.P.R. 2002) (citing Land v. Dollar , 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947) ).

In a jurisdictional challenge by a defendant, the burden of proving jurisdiction is on the plaintiff. Rolón v. Rafael Rosario & Associates, Inc., et al. , 450 F.Supp.2d 153, 153 (D.P.R. 2006) ; see also , Mercado Arocho v. United States, 455 F.Supp.2d 15, 17 (D.P.R. 2006) ("Plaintiff shall meet the burden of establishing the factual predicates of jurisdiction by a preponderance of the evidence.")(internal citations and quotations omitted). Moreover, a dismissal pursuant to a Rule12(b)(1), as a direct challenge to federal subject matter jurisdiction, also includes sovereign immunity, mootness, ripeness, and subject matter jurisdiction. See Valentin v. Hospital Bella Vista , 254 F.3d 358, 362-363 (1st Cir. 2001). Federal courts "are courts of limited jurisdiction, and therefore must be certain that they have explicit authority to decide a case." Bonas v. Town of North Smithfield , 265 F.3d 69, 75 (1st Cir. 2001) (internal citations omitted).

B. FED R. CIV. P. 12(B)(2)

Pursuant to Fed. R. Civ. P. 12(b)(2)" Rule 12(b)(2)", a defendant may move to dismiss a complaint for lack of personal jurisdiction. Where the Court refrains from holding an evidentiary hearing, the Court applies the "prima facie" standard. United States v. Swiss Am. Bank, Ltd. , 274 F.3d 610, 618-19 (1st Cir. 2001) (internal citations omitted); see generally , International Trading Partners, Inc. v. Cobra Scooters, LLC , 403 F.Supp.2d 180, 183 (D.P.R. 2005).

Pursuant to the "prima facie" standard, the plaintiff is responsible for establishing that the Court has personal jurisdiction over the defendants. See Swiss Am. Bank, 274 F.3d at 618. However, to persuade, the plaintiff may not rely solely on the pleadings. See Negron-Torres v. Verizon Commc'ns, Inc. , 478 F.3d 19, 23 (1st Cir. 2007) (internal citations omitted). Rather, the plaintiff must submit properly supported facts and "make affirmative proof." Id. In essence, the "inquiry is whether the plaintiff has proffered evidence which, if credited, is sufficient to support findings of all facts...