Hill v. DLJ Mortg. Capital, Inc.
| Decision Date | 30 September 2016 |
| Docket Number | 15-CV-3083 (SJF)(AYS) |
| Parties | TONYA HILL, Plaintiff, v. DLJ MORTGAGE CAPITAL, INC., DOONAN, GRAVES AND LONGORIA, LLC, and SELENE FINANCE LP, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
On May 27, 2015, plaintiff Tonya Hill ("plaintiff") commenced this action against defendants DLJ Mortgage Capital, Inc. ("DLJ"), Selene Finance LP ("Selene") and Doonan, Graves and Longoria, LLC (DG&L) (collectively, "defendants"), alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692, et seq.; the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601, et seq., and its implementing regulation, Regulation X, 12 C.F.R. § 1024.37; and Section 349 of the New York General Business Law ("GBL"). Defendants now move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss plaintiff's claims in their entirety for failure to state a claim for relief. For the reasons set forth below, defendants' motions are granted to the extent set forth herein.
"The debt underlying this case" is a promissory note ("the Note"), , in the principal amount of three hundred seventy-nine thousand two hundred dollars ($379,200.00) that plaintiff executed and delivered to Accredited Home Lenders, Inc. ("AHL") on November 22, 2005. . As security for the Note, plaintiff and her husband, George W. Hill (collectively, "the Hills"), executed and delivered a mortgage on the property located at 2087 Renfrew Avenue, Elmont, New York 11003 ("the Property"), to Mortgage Electronics Registration Systems, Inc. ("MERS"), as nominee for AHL, which was recorded in the Nassau County Clerk's Office on December 15, 2005 ("the Hill Mortgage"). (Id., Ex. B).
On or about January 1, 2008, plaintiff defaulted in her obligations under the Note. (Compl., ¶ 26). Thereafter, the Hill Mortgage was assigned from MERS, as nominee for AHL, to Aurora Loan Services, LLC ("Aurora") by virtue of an Assignment of Mortgage dated April 15, 2008, which was recorded in the Nassau County Clerk's Office on April 28, 2008. .
On or about April 18, 2008, Aurora, by counsel Steven J. Baum, P.C., commenced a mortgage foreclosure action against, inter alia, the Hills in the Supreme Court of the State of New York, County of Nassau ("the state court"). (Longoria Decl., Ex. F; see also Compl., ¶ 31).An order of reference was entered in the state court on September 3, 2008 upon the default of all defendants in the foreclosure action, including the Hills. (Longoria Decl., Ex. G). Although the order of reference indicates that it was issued upon, inter alia, "due proof that all Defendants [including the Hills] hav[e] been duly served and . . . the attached affidavit of mailing reflecting compliance with CPLR § 3215(g)(3)," (id. at 1), plaintiff alleges that she was not served with a summons and complaint in the foreclosure action. (Compl., ¶ 32). According to plaintiff, since she "did not know about Aurora's foreclosure action, she did not submit an answer to the complaint" in the state court. (Id., ¶ 33).
On or about December 11, 2008, a judgment of foreclosure and sale ("the Foreclosure Judgment") was entered in the state court action, upon the default of all of the defendants therein, including the Hills, which was recorded in the Nassau County Clerk's Office on December 17, 2008. (Longoria Decl., Ex. H; see also Compl., ¶ 34). Pursuant to the Foreclosure Judgment, the Property is to be sold in one (1) parcel at a public auction on a Tuesday at 11:30 a.m. by and under the direction of the appointed referee.2 (Longoria Decl., Ex. H).
On February 27, 2009, prior to the sale of the Property, plaintiff, by counsel David I. Pankin, Esq., filed a voluntary petition for relief under Chapter 13 of the United StatesBankruptcy Code ("the Bankruptcy Code") in the United States Bankruptcy Court, Eastern District of New York ("the bankruptcy court"). (Longoria Decl., Ex. I). During the pendency of this bankruptcy case, the Hill Mortgage was assigned from Aurora to GMAC Mortgage, LLC ("GMAC") by an Assignment of Mortgage dated March 31, 2009, and recorded in the Nassau County Clerk's Office on April 28, 2009. .
By order dated August 26, 2009, the bankruptcy court, inter alia, granted GMAC's unopposed motion for an order modifying the automatic stay and terminated the automatic stay as to GMAC "or its successors or assigns," (Longoria Decl., Exs. I and J), "permitting it to foreclose or otherwise pursue its mortgage remedies and rights on the [Property]." (Id.)
In or around September 2009, GMAC "entered into a trial modification agreement with [plaintiff] . . . ," (Compl., ¶ 36; see Rabitz Decl., Ex. D), pursuant to which she "made numerous payments in amounts between $1,860.00 and $2,779.80 . . . ." (Compl., ¶ 37; see Rabitz Decl., Ex. D). Nonetheless, plaintiff "was denied a reasonable permanent modification of her home loan."3 (Compl., ¶ 38).
By order entered December 17, 2009, the bankruptcy court granted the trustee's unopposed motion to dismiss the bankruptcy case for plaintiff's failure to make plan payments. (Longoria Decl., Ex. I). The bankruptcy case was closed on January 4, 2010. (Id.)
The Hill Mortgage was subsequently assigned from GMAC, by its attorney-in-fact Green Tree Servicing LLC ("Green Tree"), to U.S. Bank National Association ("U.S. Bank"), as indenture Trustee for SASCO Mortgage Loan Trust 2007-RNP1, by an Assignment of Mortgagedated March 26, 2011, (Longoria Decl., Ex. E), and recorded in the Nassau County Clerk's Office on May 11, 2011. .
On or about August 15, 2012, the Hills moved by way of order to show cause in the state court foreclosure action to stay the foreclosure sale of the Property scheduled for August 21, 2012, and to have the Foreclosure Judgment "vacated and voided with prejudice" on the basis that Aurora was "not the real party in interest." (Longoria Decl., Ex. L). Specifically, the Hills claimed:
(Id.) (emphasis omitted).
On August 20, 2012, the day before the scheduled sale of the Property, plaintiff's husband filed a pro se voluntary petition for relief under Chapter 13 of the Bankruptcy Code in the bankruptcy court. (Longoria Decl., Ex. M). On October 4, 2012, Mr. Hill's bankruptcy case was dismissed pursuant to 11 U.S.C. § 521(i)(1), (Longoria Decl., Ex. M), i.e., for failure "to file all of the information required under [11 U.S.C. § 521(a)(1)] within 45 days after the date of the filing of the petition[.]" 11 U.S.C. § 521(i)(1). Mr. Hill's bankruptcy case was closed on November 16, 2012. (Longoria Decl., Ex. M).
By order dated November 25, 2012, the state court denied the Hills's order to show cause in its entirety and vacated "all stays," finding, inter alia, (1) that the Hills "failed to establisheither a reasonable excuse for their failure to file an answer [in the foreclosure action] or a meritorious defense to the action," (Declaration of R. James DeRose III ["DeRose Decl."], Ex. C at 2) (citation omitted); (2) that they "do not deny entering into the subject mortgage and the note which it secures or that they defaulted in making the required payments," (id.); (3) that their application was "without any basis and devoid of merit," (id.); and (4) that they "also failed to establish any basis for the granting of a stay or a preliminary injunction in th[at] action or to cancel or postpone the sale of the subject property . . . ." (Id.) (citation omitted).
Plaintiff alleges that in 2013, Selene began servicing the Hill Mortgage, (Compl., ¶¶ 40-41), and DG&L "began communicating with [her] as the debt collection attorneys for Selene and DLJ."4 (Id., ¶ 60).
On May 13, 2013, one (1) day before the scheduled foreclosure sale of the Property, (see Rabitz Decl., Ex. C), plaintiff's husband filed another pro se voluntary petition for relief under Chapter 13 of the Bankruptcy Code in the bankruptcy court. (Longoria Decl., Ex. N). By order entered August 30, 2013, the bankruptcy court granted the trustee's motion to dismiss the case. (Id.) Mr. Hill's second bankruptcy case was closed on September 16, 2013. (Id.)
The Hill Mortgage was subsequently assigned from U.S. Bank to defendant DLJ, by an Assignment of Mortgage recorded in the Nassau County Clerk's Office on February 3, 2014. (Compl., Ex. A). Although plaintiff alleges that the Assignment of Mortgage to DLJ "does not include an assignment of [her] debt," (Compl., ¶ 44), the document itself provides that U.S. Bank"does hereby grant, sell, assign, transfer and convey to DLJ . . . all interest . . . in and to the [Hill Mortgage] . . . , together with the note(s) and obligations therein described or referred to, the money due and to become due thereon, with interest, and all rights accrued or to accrued under said Mortgage/Deed of Trust." (Id., Ex. A). Plaintiff further alleges that Selene "refused to provide [her] with information regarding DLJ's alleged ownership of the debt[] ....
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