Librizzi v. Ocwen Loan Servicing, LLC, CASE NO. 15–60107–CIV–BLOOM/VALLE

• Decision Date: 12 August 2015
• Docket Number: CASE NO. 15–60107–CIV–BLOOM/VALLE
• Citation: 120 F.Supp.3d 1368
• Parties: Kenneth E. Librizzi , Plaintiff, v. Ocwen Loan Servicing, LLC , Argent Mortgage Company, LLC , Homeward Residential, Inc., Transunion LLC , Equifax Information Services, LLC , Experiean Information Solutions, LLC and Deutsche Bank National Trust Company , as Trustee for Argent Securities, Inc. Asset–Backed Pass–Through Certificates, Series 2003–W9 , Defendants.
• Court: U.S. District Court — Southern District of Florida

120 F.Supp.3d 1368

Kenneth E. Librizzi , Plaintiff,

v.Ocwen Loan Servicing, LLC , Argent Mortgage Company, LLC , Homeward Residential, Inc., Transunion LLC , Equifax Information Services, LLC , Experiean Information Solutions, LLC and Deutsche Bank National Trust Company , as Trustee for Argent Securities, Inc. Asset–Backed Pass–Through Certificates, Series 2003–W9 , Defendants.

CASE NO. 15–60107–CIV–BLOOM/VALLE

United States District Court, S.D. Florida.

Signed August 12, 2015

Filed August 13, 2015

Kenneth E. Librizzi, Pompano, FL, pro se.

Maikel N. Eskander, Phelan Hallinan, PLC, Adam James Wick, Joshua Robert Levine, Baker Donelson Bearman, Caldwell & Berkowtiz, PC, Douglas Jordan Stamm, Burr and Forman LLP, Fort Lauderdale, FL, Reid Stephens Manley, Burr & Forman LLP, Birmingham, AL, Franklin Gordon Cosmen, Jr., Quintairos Prieto Wood & Boyer P.A., Maria Helena Ruiz, Kasowitz, Benson, Torres & Friedman LLP, Miami, FL, John Anthony Love, King & Spalding, Jessica C. Casey, Jones Day, Atlanta, GA, for Defendants.

ORDER

BETH BLOOM, UNITED STATES DISTRICT JUDGE

THIS CAUSE comes before the Court upon: Defendant Experian and Defendant Trans Union LLC's Motions to Dismiss, ECF Nos. [68], [69], filed under Fed. R. Civ. P. 12(b)(6) on May 26, 2015; Defendant Equifax's Motion for Judgment on the Pleadings, ECF No. [78], filed under Fed. R. Civ. P. 12(c) on May 29, 2015; Defendant Argent Mortgage Company, LLC's Motion to Dismiss, ECF No. [72], filed under Fed. R. Civ. P. 12(b)(6) on May 27, 2015; and Defendants Ocwen Loan Servicing, Homeward Residential, Inc., & Deutsche Bank's Motion to Dismiss, ECF No. [82], filed under Fed. R. Civ. P. 12(b)(6) on June 6, 2015. The Court is fully advised after careful review of the Motions, the parties' briefs, the record, and the applicable law.

I. Background

Plaintiff, proceeding pro se , filed an Amended Complaint, ECF No. [66], on May 12, 2015, seeking legal and equitable relief under: a claim of breach of good faith and fair dealing under Florida law; the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601, et seq. ; the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, et seq. ; the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. ; the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), Fla. Stat. § 501.201, et seq. ; and the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq.

According to the Amended Complaint, "Plaintiff signed a fully non-escrowed non Fannie Mae and non Freddie Mac related primary residence mortgage loan for approx. $225,000 on October[ ] 2003 with Defendant [ ] Argent Mortgage." ECF No. [66] at 4. Plaintiff explains "after which time various loan servicing companies began servicing the loan for approximately ten years until, finally, on March 11, 2013 Defendant [ ] Ocwen Financial Services LLC, after an apparent take-over of then loan servicer Defendant [ ] Homeward Residential, also began assuming servicing rights to Plaintiff's subject loan." Id. Plaintiff alleges that "[p]rior to Defendant [ ] Ocwen servicing the loan, Defendant [Homeward Residential] sent Plaintiff a letter indicating the original terms of the loan (monthly payment amount, non-escrow status, non-default, no later charges, ‘current’ status) were still standing." Id.

Plaintiff alleges that "since March 11, 2013[,] the normal monthly payment of $1350 has always been sent on-time before any late fee deadlines and well before 30 days late." Id. Plaintiff alleges that "Defendant [ ] Ocwen pretty much immediately began to charge Plaintiff for escrow (taxes only) on subject mortgage but Plaintiff never acknowledged the validity of such escrow. Instead Plaintiff tirelessly made efforts to communicate escrow was not valid." Id. at 5. Plaintiff alleges that "Defendant [ ] Ocwen began to service[ ] Plaintiff's loan as if it were an escrowed account applying Plaintiff's normal $1350 payments in such a way as to require setting up a suspense account and considering the loan in default," and "[o]nce Ocwen considered the loan in default, Ocwen began adding a lost list of other fees Plaintiff continuously complained were also invalid." Id.

Plaintiff alleges that "during the approx. two years of Plaintiff arguing his case with Defendant Ocwen, the communications increased to the point of becoming bizarre." Id. Plaintiff alleges that he never received mail from Defendant Ocwen because the mail was sent to the wrong address. See id. Plaintiff also alleges that "Ocwen has returned Plaintiff's last two $1350 payments completely," because based on a phone call with one of Defendant Ocwen's representatives, "payments were being returned because the amount sent does not include insurance escrow which was added to the account in April, 2014." Id. at 6. Plaintiff alleges that "[u]ntil this call Plaintiff has never received any information that insurance issues were a problem (all former escrow issues above were only related to property taxes)." Id.

Plaintiff alleges that he "learned by an email from Ocwen on 1–16–15 that a notice was sent, not to Plaintiff's actual address where aforementioned default and foreclosure notices are being sent, but to a different address than one Plaintiff resides at." Id. Plaintiff alleges that "Ocwen send[s] two sets of mail out, one indicating what Plaintiff needs to know about changes being made to mortgage terms, to the wrong address so that Plaintiff never gets that mail, and other mail notifying Plaintiff he is in default with amounts due that do not make sense to Plaintiff saying Plaintiff is in default and threatens foreclosure."Id. Plaintiff alleges "he was always paid undisputedly adequate property insurance without delay." Id.

Plaintiff also alleges that he started a risk management company on September 2009, "about 3 years prior to Ocwen's beginning to service Plaintiff's loan," and that "his credit was considered ‘excellent’ (750–800) at this time and was approved for many lines of credit and increased credit for the first three (3) years of this endeavor." Id. at 5. Plaintiff alleges that "Ocwen failed to credit Plaintiff's payment to subject loan as of the date of the receipt for almost two years despite receiving continuous complaints from Plaintiff providing proof of error and this same delay by Ocwen resulted in negative information about Plaintiff being reported to at least three different consumer reporting agencies for going on two years." Id. at 7.

Plaintiff has previously filed three lawsuits in state court. The first case (No. CONO13013319) was filed against Ocwen Financial Corporation on November 19, 2013, and an order of dismissal without prejudice was entered on September 5, 2014.¹ The second (No. CONO14004666) and third (No. CONO14004667) were also filed against Defendant Ocwen Financial Corporation on April 28, 2014, and both were dismissed pursuant to Plaintiff's voluntary dismissal on September 22, 2014.

II. Legal Standard

A pleading in a civil action must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While a complaint "does not need detailed factual allegations," it must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; see Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (explaining that the Rule 8(a)(2)'s pleading standards "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation"). Nor can a complaint rest on "naked assertion[s]' devoid of ‘further factual enhancement.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 (alteration in original)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Id . (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ).

When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiffs' allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiffs. See Chaparro v. Carnival Corp. , 693 F.3d 1333, 1337 (11th Cir.2012) ; Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance , 304 F.3d 1076, 1084 (11th Cir.2002). While the Court is required to accept all of the allegations contained in the complaint and exhibits attached to the pleadings as true, this tenet is inapplicable to legal conclusions. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ; Thaeter v. Palm Beach Cnty. Sheriff's Office , 449 F.3d 1342, 1352 (11th Cir.2006) ("When considering a motion to dismiss…the court limits its consideration to the pleadings and all exhibits attached thereto.") (internal quotation marks omitted). Pro se litigants are afforded a relaxed pleading standard. See Abele v. Tolbert , 130 Fed.Appx. 342, 343 (11th Cir.2005).

III. Discussion

a. Motions to Dismiss by Defendants Trans Union and Experian and Motion for Judgment on the Pleadings by Defendant Equifax

The Motions to Dismiss filed by Defendants Trans Union, Equifax, and Motion for Judgment on the Pleadings by Defendant Experian, each state the same grounds for dismissal of Plaintiff's Amended Complaint—first, that Plaintiff's FCRA claims fails because these Defendants are not "furnishers of information," and second, that Plaintiff cannot seek injunctive relief under FCRA. See ECF Nos. [68], [69], and [78].

Defendants argue that dismissal is merited because Plaintiff's FCRA claim relies on 15 U.S.C. § 1681s–2, which applies "only to ‘furnishers of information to consumer reporting agencies' and not to the actual credit reporting agency." ECF No. [68] at 3. See also ECF No. [69] at 4; ECF No. [78] at 3; ECF No. [66] at 8 (citing 15 U.S.C. § 1681s–2 ). While Defendants' recitation of the law...