Gonzalez v. J.P. Morgan Chase Bank, N.A.

• Decision Date: 11 January 2017
• Docket Number: 16–cv–02611 (JGK)
• Citation: 228 F.Supp.3d 277
• Parties: GONZALEZ, Plaintiff, v. J.P. MORGAN CHASE BANK, N.A. et al., Defendants.
• Court: U.S. District Court — Southern District of New York

228 F.Supp.3d 277

GONZALEZ, Plaintiff,

v.J.P. MORGAN CHASE BANK, N.A. et al., Defendants.

16–cv–02611 (JGK)

United States District Court, S.D. New York.

Signed January 11, 2017

Filed January 12, 2017

Elias N. Sakalis, Sakalis & Associates, Riverdale, NY, for Plaintiff.

Brian Peter Scibetta, Buckley Madole, P.C., Iselin, NJ, Stuart Lawrence Kossar, Knuckles, Komosinski & Elliot, LLP, Elmsford, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

JOHN G. KOELTL, District Judge:

This action is the latest in a series of lawsuits that rely on a standard form complaint to assert various claims against, among others, mortgage loan servicers, underwriters, and trusts in connection with purported defects related to mortgage loan assignments. Complaints derived from the form complaint (or complaints that are coincidently similar to the form complaint) have not fared well in the United States District Courts for the Southern District of New York. See, e.g. , Horton v. Wells Fargo Bank N.A. , No. 16-CV-1737 (KBF), 2016 WL 6781250 (S.D.N.Y. Nov. 16, 2016) ; Harriot v. JP Morgan Chase Bank NA , No. 16 CIV. 211 (GBD), 2016 WL 6561407 (S.D.N.Y. Oct. 21, 2016) ; Nath v. JP Morgan Chase Bank , No. 15-CV-3937 (KMK), 2016 WL 5791193 (S.D.N.Y. Sept. 30, 2016) ; Springer v. U.S. Bank Nat'l Ass'n , No. 15-CV-1107(JGK), 2015 WL 9462083 (S.D.N.Y. Dec. 23, 2015) ; Le Bouteiller v. Bank of N.Y. Mellon , No. 14 CIV. 6013 PGG, 2015 WL 5334269 (S.D.N.Y. Sept. 11, 2015) ; Obal v. Deutsche Bank Nat. Trust Co. , No. 14 CIV. 2463, 2015 WL 631404 (S.D.N.Y. Feb. 13, 2015), aff'd , No. 15-775, 2016 WL 6518865 (2d Cir. Nov. 3, 2016) (summary order). The present complaint is no exception.

The plaintiff, Felipe Gonzalez, has asserted claims against the defendants, J.P. Morgan Chase Bank, N.A. ("Chase"); the Federal National Mortgage Association, As Trustee for Fannie Mae Guaranteed Remic Pass–Through Certificates Fannie Mae Remic Trust 2008–81 ("Fannie Mae"); Rushmore Loan Management Services, LLC ("Rushmore"); and various Does alleged to be "individuals or corporations that aided and abetted in the civil conspiracy to deny Plaintiff's due process." Am. Compl. ¶ 8. The defendants have moved to dismiss the Amended Complaint for want of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.¹

The Court has jurisdiction pursuant to 28 U.S.C. § 1331 over the plaintiff's federal claims under the Truth in Lending Act (the "TILA"), 15 U.S.C. § 1601 et seq., and supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over the plaintiff's state law claims.²

For the following reasons, the defendants' motions to dismiss the Amended Complaint are granted .

I.

When presented with a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, and a motion to dismiss on other grounds, the first issue is whether the Court has the subject matter jurisdiction necessary to consider the merits of the action. See Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n , 896 F.2d 674, 678 (2d Cir. 1990).

In defending against a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff bears the burden of proving the Court's jurisdiction by a preponderance of the evidence. Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). In considering such a motion, the Court generally must accept the material factual allegations in the complaint as true. See J.S. ex rel. N.S. v. Attica Cent. Schs. , 386 F.3d 107, 110 (2d Cir. 2004). The Court does not, however, draw all reasonable inferences in the plaintiff's favor. Id. ; see also Graubart v. Jazz Images–, Inc. , No. 02-CV-4645 (KMK), 2006 WL 1140724, at *2 (S.D.N.Y. Apr. 27, 2006). Indeed, where jurisdictional facts are disputed, the Court has the power and the obligation to consider matters outside the pleadings, such as affidavits, documents, and testimony, to determine whether jurisdiction exists. See Anglo–Iberia Underwriting Mgmt. Co. v. P.T. Jamsostek , 600 F.3d 171, 175 (2d Cir. 2010) ; APWU v. Potter , 343 F.3d 619, 627 (2d Cir. 2003) ; Kamen v. Am. Tel. & Tel. Co. , 791 F.2d 1006, 1011 (2d Cir. 1986). In so doing, the Court is guided by the body of decisional law that has developed under Rule 56 of the Federal Rules of Civil Procedure. Kamen , 791 F.2d at 1011 ; see also Aguilar v. Immigration & Customs Enf't Div. of the U.S. Dep't of Homeland Sec. , 811 F.Supp.2d 803, 821–22 (S.D.N.Y. 2011).

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp. , 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden , 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "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, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility 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, 173 L.Ed.2d 868 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions." Id.

When faced with a pro se complaint, the Court must "construe [the] complaint liberally and interpret it to raise the strongest arguments that it suggests."³ Chavis v. Chappius , 618 F.3d 162, 170 (2d Cir. 2010) (citation and internal quotation marks omitted). "Even in a pro se case, however, ... threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted). Thus, although the Court is "obligated to draw the most favorable inferences" that the complaint supports, it "cannot invent factual allegations that [the plaintiff] has not pled." Id. ; see also Cooksey v. Digital , No. 14-CV-7146 (JGK), 2016 WL 5108199, at *2 (S.D.N.Y. Sept. 20, 2016).

When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc. , 282 F.3d 147, 153 (2d Cir. 2002).

II.

The plaintiff's claims arise out of a mortgage loan in the sum of $387,750 (the "Mortgage Loan") that was originated by Chase, which the plaintiff used to refinance a property located in Van Nuys, California (the "Property"). Am. Compl. ¶ 9; Kossar Decl., Ex. A (The Promissory Note). The plaintiff entered into the Mortgage Loan with Chase on July 20, 2007, and granted the deed of trust (the "Deed of Trust") for the Property to Chase, which was recorded by the Recorder's Office of Los Angeles County, California (the "Recorder's Office") on July 30, 2007. Am. Compl. ¶ 9; Scibetta Decl. ¶ 2; Scibetta Decl., Ex. 1 (The Deed of Trust). On February 16, 2009, Chase assigned the Deed of Trust to an affiliate, Chase Home Finance, LLC ("CHF"), which was recorded by the Recorder's Office on March 4, 2009. Am. Compl. ¶ 11; Scibetta Decl. ¶ 3; Scibetta Decl., Ex. 2 (The Assignment of the Deed of Trust to CHF). On October 6, 2010, CHF assigned the Deed of Trust to Fannie Mae, which was recorded by the Recorder's Office on October 8, 2010. Am. Compl. ¶ 9; Scibetta Decl. ¶ 4; Scibetta Decl., Ex. 3 (The Assignment of the Deed of Trust to Fannie Mae). The plaintiff alleges that he learned about purported defects associated with the latter two assignments on August 24, 2015, by conducting a certified forensic loan audit. Am. Compl. ¶¶ 11, 13; Compl., Ex. B (The Property Securitization Analysis Report).⁴ Fannie Mae subsequently placed the Deed of Trust into a real estate mortgage investment trust, Fannie Mae Remic Trust 2008–81 (the "Trust"), for which Fannie Mae served as trustee. Am. Compl. ¶¶ 9–13.

The plaintiff raises a host of purported issues with respect to the assignments that he claims void those assignments, including that the assignments violated the applicable loan instruments underlying the Mortgage Loan (such as the Promissory Note and the Deed of Trust), the Pooling and Servicing Agreement (the "PSA") that governed the Trust, "New York trust law," "California Law," and other federal statutes. See Am. Compl. ¶¶ 11, 14, 20–21, 23–32, 34–37. The plaintiff alleges that another improper assignment of the Deed of Trust in violation of the PSA occurred on March 7, 2012. See Am. Compl. ¶ 27.

Meanwhile, on June 1, 2009, the plaintiff defaulted on the Mortgage Loan. Am. Compl. ¶ 9; Scibetta Decl., Ex. 5 (Notice of Default). Around 2010, the plaintiff alleges that he applied to Chase for a loan modification, an application Chase denied. Am. Compl. ¶ 9. The plaintiff remains in default on the Mortgage Loan, but has continued to make payments on the Mortgage Loan and remains in possession of the Property. Am. Compl. ¶ 9; see also Compl., Ex. A (Ltr. from Rushmore to the plaintiff). There is no allegation that the Property is the subject of a pending nonjudicial foreclosure action.

The plaintiff attributes the default to Chase's original decision to issue the Mortgage Loan to the plaintiff. Am. Compl. ¶ 17. The plaintiff alleges that, had Chase conducted proper due diligence...