Horsburgh v. Bank of Am.

Decision Date27 March 2023
Docket Number21-cv-07945 (NSR)
PartiesIAIN HORSBURGH, Plaintiff, v. BANK OF AMERICA, N.A., COUNTRYWIDE HOME LOANS, INC., and DOES 1 through 100 Defendants.
CourtU.S. District Court — Southern District of New York


Plaintiff Iain Horsburgh (Plaintiff) brings this action against Bank of America, N.A. (“BANA” or Defendant BANA”), Countrywide Home Loans, Inc. (“Countrywide” or Defendant Countrywide”, and collectively with BANA, the Defendants), and Doe Defendants 1 through 100 (“Does”), asserting nineteen claims: (1) breach of contract; (2) intentional misrepresentation (fraud); (3) negligent misrepresentation; (4) breach of the implied covenant of good faith and fair dealing; (5) promissory estoppel; (6) unjust enrichment; (7) intentional interference with prospective economic advantage; (8) negligent interference with prospective economic advantage; (9) fraudulent conveyance; (10) conversion; (11) imposition of a constructive trust; (12) quiet title; (13) intentional infliction of emotional distress; (14) negligent infliction of emotional distress; (15) violation of the Equal Credit Opportunity Act (“ECOA”) Regulation B, 12 CFR § 202; (16) violation of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §1681; (17) violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §260 et. seq.; (18) violation of the Fair Debt Collections Practice Act (“FDCPA”), 111-203, Title X, 124 Stat. § 2092; and (19) injunctive relief. (See ECF No. 3 (“Compl.”)). Presently, before the Court is Defendants' motion to dismiss the Complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. (See ECF No 29.)[1] For the following reasons, the motion to dismiss is GRANTED.


The following facts as taken from Plaintiff's Complaint and are accepted as true and construed in the light most favorable to Plaintiff for purposes of this motion.

Plaintiff purchased the property at issue (the “Property”) in 1979 with financing secured through a third-party entity not named in the instant action. (Compl. ¶¶ 8-9.) The property was located at 14 Wellyn Road, Bronxville, New York. (Compl. ¶ 1.) From the institution of the mortgage in 1979 until 2006 Plaintiff made timely payments on the original Notes. (Id. ¶ 10.) In 2006, Plaintiff refinanced the Property with Defendant BANA. (Id. ¶ 11.) BANA later conveyed that mortgage to Wells Fargo[2]. (Id. ¶ 12.) Plaintiff took a second mortgage with Countrywide. (Id. ¶ 13.) Both mortgages were recorded with the Mortgage Electronic Registry Systems, Inc. (“MERS”). (Id ¶¶ 15, 28, 51.) MERS holds legal title to mortgages on behalf of its members as nominee and mortgagee of record for purposes of recording the mortgage. (Id. ¶¶ 21, 51.) On an unknown date, the Fixed Rate Note was endorsed in blank by Countrywide. (Id. ¶ 52.)

On December 23, 2011, an Assignment of Mortgage was executed by MERS as Nominee for America's Wholesale Lender, which names as assignee BANA, successor-by-merger to BAC Home Loans Servicing LP (formerly known as Countrywide Home Loans Servicing LP). (Id. ¶¶ 22, 58.) On August 20, 2013, an Assignment of Mortgage was executed by BANA successor-by-merger, to BAC Home Loans Servicing, LP formerly known as Countrywide Home Loans Servicing, L.P. (Id. ¶ 59.) This document names the assignee as U.S. Bank, NA as Trustee. (Id.)

Plaintiff alleges that this assignment has no corresponding endorsement of the Fixed Rate Note. (Id.)

On March 14, 2018, a Forensic Mortgage Analysis (“Mortgage Analysis”)[3] was performed which allegedly revealed multiple filing deficiencies regarding the loan documents, in violation of federal laws. (Id. ¶ 15.) Plaintiff alleges, inter alia, that files are missing an Affiliated Business Arrangement Disclosure, Servicing Disclosure Statement, Escrow Account Disclosure, date and signing of the Uniform Residential Loan Application, Disclosure of Credit Scores, and Notice to Home Loan Applicant. (Id.) In addition, a Securitization Audit Report, dated March 14, 2018, purportedly showed that certain of the documents pertaining to assignments were likely robo-signed, which, Plaintiff alleges, would render those assignments null and void. (Id. ¶¶ 16-18, 64.)

U.S. Bank National Association (“U.S. Bank”), the trustee for the mortgage loan trust and a nonparty (id. ¶ 59) to the instant action, instituted a foreclosure action (the “Foreclosure Action”) against Plaintiff in the N.Y. Supreme Court, Westchester County, in 2013.[4] (See ECF No. 31 (“Blaine Decl.”), Exh. G.)[5] A final judgement of foreclosure and sale was entered in the Foreclosure Action on December 7, 2016. (Blaine Decl., Exh. H.) Plaintiff instituted a series of four bankruptcy actions between 2018[6] and 2019, filing three separate petitions under Chapter 13 and one under Chapter 11 in an attempt to stay the foreclosure and have the court intervene and address the improprieties raised in this instant action. (Compl. ¶¶ 67-71). On October 7, 2019, Plaintiff filed an emergency Order to Show Cause with a temporary restraining order in the Foreclosure Action in an attempt to stay the foreclosure sale. (Id. ¶ 72; Blaine Decl., Exh. K.) The State Court presiding over the Foreclosure Action declined to sign the Order to Show Cause. (Blaine Decl., Exh. L.) At the time of the foreclosure sale on October 11, 2019, Plaintiff alleges the Property was valued at $799,000-in contrast to the title report which valued the Property at $563,000. (Compl. ¶ 19.) The Property was sold to U.S. Bank for $25,000 on October 11, 2019. (Id.) On February 21, 2020, Plaintiff filed a notice of appeal from the State Court's denial of the temporary restraining order on the eve of the foreclosure sale. (Blaine Decl., Exh. N.)

I. Federal Rule 12(b)(1)

A case is properly dismissed for lack of subject matter jurisdiction under [Federal] Rule [of Civil Procedure] 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (internal citation and quotation marks omitted). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). In assessing whether there is subject matter jurisdiction, the Court must accept as true all material facts alleged in the complaint, Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009), but “the court may resolve [any] disputed jurisdictional fact issues by referring to evidence outside of the pleadings, such as affidavits ...” Zappia Middle E. Const. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000).

II. Federal Rule 12(b)(6)

A Rule 12(b)(6) motion challenges the sufficiency of the allegations in the complaint. See ATSI Commnc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). To survive a motion under 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially 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 (2009) (citing Twombly, 550 U.S. at 556). More specifically, the plaintiff must allege facts sufficient to show “more than a sheer possibility that a defendant acted unlawfully,” id., and cannot rely on mere “labels or conclusions” to support a claim. Twombly, 550 U.S. at 555. If the plaintiff's pleadings “have not nudged [his or her] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Id. at 570.

In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, “documents attached to the complaint as an exhibit,” and documents incorporated by reference in the complaint. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). A court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “Additionally, if the allegations of a complaint are contradicted by documents made a part thereof, the document controls and the court need not accept as true the allegations of the complaint.” Barnum v. Millbrook Care Ltd. P'ship, 850 F.Supp. 1227, 1232-33 (S.D.N.Y. 1994), aff'd, 43 F.3d 1458 (2d Cir. 1994) (table decision).

I. Rooker-Feldman doctrine

Defendants first aver that the Court lacks subject matter jurisdiction over Plaintiff's claims pursuant to the Rooker-Feldman doctrine. (ECF No. 30 (“Def. Br”). at 7.) The Rooker-Feldman doctrine “denies ‘federal district courts . . . jurisdiction over cases that essentially amount to appeals of state court judgments.' Barbato v. United States Bank Nat'l Ass'n, No. 14-CV-2233 (NSR), 2016 WL 158588, at *2 (S.D.N.Y. Jan. 12, 2016) (citing Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014)). To apply the Rooker-Feldman doctrine, the Court must find that the following four requirements are met:

(1) the federal-court plaintiff lost in state court; (2) the plaintiff ‘complain[s] of injuries caused by a state court judgment'; (3) the plaintiff ‘invite[s] ... review and rejection of that judgment'; and (4) the state judgment was ‘rendered before the district court proceedings commenced.'

Vossbrinck, 773 F.3d at 426 (citing Hoblock v Albany Cnty. Bd. of Elecs., 422 F.3d 77, 85 (2d Cir. 2005)). The Second...

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