Gorham-Dimaggio v. Countrywide Home Loans, Inc., 1:08-CV-00019 (LEK/RFT).

• Decision Date: 17 December 2008
• Docket Number: No. 1:08-CV-00019 (LEK/RFT).,1:08-CV-00019 (LEK/RFT).
• Parties: Kim GORHAM-DIMAGGIO, Plaintiff, v. COUNTRYWIDE HOME LOANS, INC.; Countrywide Home Loans, Inc., LP; Countrywide Home Loans Servicing, LP; Countrywide Financial Corp.; Investor Number 1688597323, Defendants.
• Court: U.S. District Court — Northern District of New York

592 F.Supp.2d 283

Kim GORHAM-DIMAGGIO, Plaintiff, v. COUNTRYWIDE HOME LOANS, INC.; Countrywide Home Loans, Inc., LP; Countrywide Home Loans Servicing, LP; Countrywide Financial Corp.; Investor Number 1688597323, Defendants.

No. 1:08-CV-00019 (LEK/RFT).

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

December 17, 2008.

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Richard L. Dimaggio, Jr., Office of Richard L. Dimaggio, Glenville, NY, for Plaintiff.

Kenneth C. Rudd, Steven S. Rand, Yoav M. Griver, Zeichner, Ellman Law Firm, New York, NY, for Defendants.

MEMORANDUM-DECISION AND ORDER¹

LAWRENCE E. KAHN, District Judge.

On April 7, 2008, Defendant Countrywide Financial Corp., along with its affiliates, Countrywide Home Loans, Inc.; Countrywide Home Loans, Inc., LP; Countrywide Home Loans Servicing, LP, (collectively, "Defendants") and Investor Number 1688597323², filed a motion pursuant to FED.R.CIV.P. 12(b)(6) to dismiss all claims asserted by the Plaintiff, Kim Gorham-DiMaggio, in her Amended Complaint. Motion (Dkt. No. 17); Am. Compl. (Dkt. No. 15). Plaintiff's Amended Complaint alleges that the Defendants engaged in discriminatory conduct by manipulating and misrepresenting escrow payment information, causing her to default on her mortgage. See Am. Compl. Plaintiff is seeking $8,000,000 in connection with various federal and state law claims.

I. Background³

On June 13, 2003, Plaintiff, a resident of New York, obtained a mortgage loan on her home from the Defendants in the amount of $145,350. Mortgage Contract (Dkt. No. 17, Attach. 9). Under the terms of the mortgage contract ("the Note"), Plaintiff became responsible for making all monthly payments in principle and escrow to the Defendants, including Defendants' projections of escrow, "unless Lender t[old] [Plaintiff], in writing, that [Plaintiff] d[id] not have to do so." Am. Compl. ¶ 19; Note § 3(a). The Note further specifies, "[i]f [Plaintiff] do[es] not pay the full amount of each monthly payment on the date it is due, [Plaintiff] will be in default." Am. Compl. ¶ 19.

A previous default was settled by the parties in September 29, 2005, and a subsequent dispute was settled in October 2006 ("Gorham I"). Aff. of David L. Permut at ¶ 5 (Dkt. No. 17, Attach. 3); Am. Compl. ¶ 29. The current interest owed under the mortgage is a fixed rate reached as a result of the settlement from Gorham I. Id.

In March 2007, Plaintiff received a bill from the Defendants for $1,506. Am. Compl. ¶ 53. The amount of the March bill was an unexpected increase for the Plaintiff, as her combined monthly principal and escrow payment had been $1,411 since November 2006. Id. ¶ 52. Plaintiff paid the full amount of the March bill. Id. ¶ 53. In April 2007, Plaintiff received a bill in the amount of $1,528, but paid only $1,411. Id. ¶ 59. The check was not cashed, but was returned to the Plaintiff on May 5, 2007 because it was $117 dollars less than the amount owed under the April bill. Id. ¶ 8, 13. Plaintiff claims the Defendants then prevented her from accessing her online account on May 5, and defaulted her on the mortgage loan shortly thereafter (no date given). Id. ¶ 8.

Subsequently, Plaintiff's attorney contacted Defendants' attorney from Gorham I, David L. Permut, via email on June 13, 2007 requesting an explanation for the escrow increase. Am. Compl. ¶¶ 67, 68. An email response from Permut explained that the increased amount was established following an escrow re-analysis that was performed by the Defendants on February 16, 2007. Id. ¶ 68. The email further stated that notice of the increase was included in Plaintiff's February 2007 billing statement. Id. ¶ 68. Plaintiff maintains she never received a statement of the escrow increase in February, and that her billing statements represented that the escrow re-analysis would not be performed until April 2007. Id. ¶¶ 70, 71. Plaintiff does not allege that she attempted to call Countrywide for an explanation, but instead claims that several⁴ Countrywide representatives called her around this time in an unrelated attempt to convince her to refinance her home, during which calls they assured her that the escrow amount had not increased, and would not increase until September 2007. Am. Compl. ¶¶ 71, 75, 97. These representatives sent Plaintiff screen shots of her account information on February 28, 2007 and July 18, 2007 to verify this information. Id. ¶ 84. On both occasions, the screen shot showed that the total monthly payment was still $1,411, and that the escrow amount had not changed. Id. ¶ 84. Plaintiff does not provide the names or titles of any of the representatives who provided this information. Even after the March and April increase, Plaintiff claims her monthly billing statements contained information that an escrow re-analysis would not be performed until April 2007. Based on this, she believed that the amount she was being charged was incorrect. Id. ¶ 71.

Unsatisfied with the earlier response from Mr. Permut, Plaintiff sent Defendants a written request for information regarding the escrow increase "on or about June 15, 2007." Am. Compl. ¶ 86. Plaintiff claims she never received a response to her request. Id. ¶ 86.

Without stating when it happened, Plaintiff claims that the Defendants sent her account to a foreclosure attorney. Am. Compl. ¶ 94. Plaintiff further argues that Defendant's numerous call-centers or help-lines established to assist defaulted borrowers were never specifically offered to assist her. Id. ¶ 95-96.

Plaintiff filed the present action on January 7, 2008, seeking redress for the alleged discriminatory and retaliatory practices of the Defendants in servicing her escrow account. Plaintiff claims that the Defendants discriminated against her in the manner prescribed above, in an effort to recoup concessions arising out of the Gorham I settlement. Amend. Compl. ¶ 26, 28 (Dkt. No. 15). She seeks relief under several federal and state law claims.

II. Discussion

A. Standard of Review

Under a FED.R.CIV.P. 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, a district court is required to "accept all allegations in the complaint as true and draw all inferences in the light most favorable to the non-moving party[ ]." Ruggles v. Wellpoint Inc., 253 F.R.D. 61, 65 (N.D.N.Y. 2008) (citing FED.R.CIV.P. 12(b)(6)); Charles W. v. Maul, 214 F.3d 350, 356 (2d Cir.2000) (noting that Rule 12(b)(6) requires that the court "read the complaint liberally, drawing all reasonable inferences in plaintiff's favor.").

To withstand this Motion, the Plaintiff must plead facts sufficient to establish that her claim for relief is more than just conceivable, and is in fact "plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). In determining whether the complaint is sufficiently plausible, a district court is typically required to look only at "the allegations on the face of the complaint." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.2007). Thus, matters outside the pleadings are normally excluded from review unless the court decides to treat the motion as one for summary judgment under FED.R.CIV.P. 56. FED.R.CIV.P. 12(b)(6). However, "[i]n certain circumstances, the court [may] permissibly consider documents other than the complaint [when] ... [d]ocuments that are attached to the complaint or incorporated in it by reference are deemed part of the pleading." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.2007).

B. Claims I and II: FHA

Plaintiff raises two claims of discrimination under the Fair Housing Act (FHA), 42 U.S.C. § 3601 et seq. Plaintiff's first claim arises under § 3605, "Discrimination in Residential Real Estate Related Transactions," which states in pertinent part:

"(a) In general

It shall be unlawful for any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin."

42 U.S.C. § 3605(a).

The statute defines a "real estate-related transaction" as "[t]he making or purchasing of loans or providing other financial assistance (A) for purchasing, constructing, improving, repairing, or maintaining a dwelling; or (B) secured by residential real estate." 42 U.S.C. § 3605(b)(1)(A)(B); 24 C.F.R. § 100.120.

Plaintiff's second claim under the FHA arises under 42 U.S.C. § 3604, "Discrimination in the Sale or Renting of Houses or other Prohibited Practices," which makes it unlawful to "refus[e] to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B).

Construing Plaintiff's claims together, Plaintiff is alleging that the Defendants discriminated against her on the basis of her disability by not providing her with financial assistance afforded to similarly situated individuals, and by not making reasonable accommodations on behalf of her disability.

1. FHA Section 3605 Claim

In order to state a claim under § 3605, the plaintiff must plead "(1) that [s]he is a member of a protected class; (2) that [s]he attempted to engage in a `real estate-related transaction' and met all relevant qualifications for doing so; (3) that the defendant refused to transact business with [her] despite h[er] qualifications; and (4) that the defendants continued to engage in the type of transaction in question with other parties with similar qualifications." Johnson v. Citibank, 234 F.3d 1262 (2d Cir.2000).

Plaintiff is legally blind (90% and 100% vision loss in each eye) and accordingly is a member of a protected class. Pl.'s Aff. ¶ 3 (Dkt. No. 18, Attach. 2). However, Plaintiff fails to...