Pierce v. Ocwen Loan Servicing LLC

• Decision Date: 03 June 2019
• Docket Number: 1:18-cv-01466 (BKS/CFH)
• Parties: HARRIET ELVETA PIERCE, Plaintiff, v. OCWEN LOAN SERVICING LLC a/k/a OCWEN FINANCIAL (OCWEN) CORPORATION; TRUSTCO BANK; ALTISOURCE SOLUTIONS INC.; REAL HOME SERVICES AND SOLUTIONS INC.; DEUTSCHE BANK AG; DOES 1 THROUGH 100 INCLUSIVE; and MARCUS SCHENCK CFO, Defendants.
• Court: U.S. District Court — Northern District of New York

HARRIET ELVETA PIERCE, Plaintiff, v. OCWEN LOAN SERVICING LLC a/k/a OCWEN FINANCIAL (OCWEN) CORPORATION;TRUSTCO BANK;¹ ALTISOURCE SOLUTIONS INC.; REAL HOME SERVICESAND SOLUTIONS INC.; DEUTSCHE BANK AG; DOES 1 THROUGH 100 INCLUSIVE;and MARCUS SCHENCK CFO,² Defendants.

1:18-cv-01466 (BKS/CFH)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

June 3, 2019

Appearances:

Plaintiff, pro se:

Harriett Elveta Pierce

Saratoga Springs, NY 12866

For Defendant Trustco Bank:

Peter A. Pastore

McNamee Lochner PC

677 Broadway, Suite 500

Albany, NY 12207

For Defendants Ocwen Loan Servicing, LLC,

Deutsche Bank, Altisource Solutions, Inc., and

REALHome Services and Solutions, Inc.:

Patrick G. Broderick

Brian S. Pantaleo

Greenberg Traurig, LLP

200 Park Avenue, 39th Floor

New York, NY 10166Hon. Brenda K. Sannes, United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff pro se Harriett Elveta Pierce filed this action under 42 U.S.C. § 1983, alleging that Defendants violated her Fourth and Fourteenth Amendment rights in connection with Plaintiff's property at 138 Jefferson Street, Saratoga, New York (the "property" or "138 Jefferson Street"). (Dkt. No. 11). In addition to her constitutional claims, Plaintiff brings causes of action under state law for: fraud in the concealment; fraud in the inducement; breach of contract; breach of fiduciary duty; and negotiable instrument. (Id. at 9-15). Presently before the Court are: Plaintiff's motion for a preliminary injunction, (Dkt. No. 4); Defendant Trustco Bank's motion to dismiss the Amended Complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, (Dkt. No. 17), which was joined by Defendants Altisource Solutions Inc., Deutsche Bank AG, Ocwen Loan Servicing LLC, Real Home Services and Solutions, Inc (Dkt. No. 23); and Plaintiff's motion to file an amended complaint, (Dkt. No. 27). Plaintiff opposes Defendants' motion to dismiss and moves to strike it from the docket. (Dkt. No. 29). For the reasons that follow, the Amended Complaint is dismissed without prejudice.

II. FACTS

According to the Amended Complaint, "the private property located at 138 Jefferson Street, Saratoga County, New York" is Plaintiff's "shelter in which plaintiff has a constitutional right to own or possess." (Dkt. No. 11, at 4). Plaintiff disputes Defendant Ocwen Loan Services, LLC's "claim to legal title and equitable title" of 138 Jefferson Street. (Id.). Plaintiff "issued two . . . [s]ecurities or items of credit to execute in the capacity of . . . a Tangible Note to Ocwen . . . for a total of $567,000.00." (Id.).

On August 25, 2016, Plaintiff "sent notice" to Ocwen "of contract agreement/promissory NOTE . . . in the amount of $67,000.00 [and $500,000] with special deposit, authorization of said NOTE being medallion guaranteed by Defendant Trustco Bank." (Id. at 5). The same day, Ocwen accepted from Plaintiff "full payoff for the property" at 138 Jefferson Street. (Id. at 6). Defendant Ocwen, however "misappropriated" Plaintiff's "contract agreement and promissory note, negotiable instrument" and "fraudulently concealed plaintiffs [sic] Notes and now purports to be the owner of plaintiffs [sic] private property in which they were entrusted to disclose and appropriately apply to plaintiffs mortgage loan account." (Id.). Defendant Ocwen "has conspired to steal plaintiffs [sic] private property and is acting in concert" with the other Defendants. (Id. at 7). On September 23, 2016, Plaintiff and Ocwen "entered into a consent judgment or agreement with Plaintiff . . . regarding the Plaintiff zero ($0) balance and or liability owed to defendant(s) as a result the original contract agreement therefore should have been discharged by substitution." (Id. at 4). Further, according to the Amended Complaint, "Defendants Deutsche Bank AG purportedly sold or transferred plaintiffs private property located at 138 Jefferson Street . . . to Defendants Ocwen . . . while Defendant Deutsche Bank AGE . . . brought foreclosure action against plaintiff." (Id. at 7). Plaintiff claims that the sale was not valid and was fraudulent. (Id.). Plaintiff further alleges that Defendants Altisource and REALHome Services have fraudulently represented that the last time the 138 Jefferson Street property was sold was in August 2003. (Id.). Plaintiff alleges Defendants "have discriminated against her because of her age (84) and her race." (Id. at 8).

III. DISCUSSION

A. Motion to Dismiss for Failure to State a Claim

1. Standard of Review - Fed. R. Civ. P. 12(b)(6)

To survive a motion to dismiss, "a complaint must provide 'enough facts to state a claim to relief that is plausible on its face.'" Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Although a complaint need not contain detailed factual allegations, it may not rest on mere labels, conclusions, or a formulaic recitation of the elements of the cause of action, and the factual allegations 'must be enough to raise a right to relief above the speculative level.'" Lawtone-Bowles v. City of New York, No. 16-cv-4240, 2017 WL 4250513, at *2, 2017 U.S. Dist. LEXIS 155140, at *5 (S.D.N.Y. Sept. 22, 2017) (quoting Twombly, 550 U.S. at 555). A court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014) (citing ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). When deciding a motion to dismiss, a court's review is ordinarily limited to "the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference." See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). A complaint that has been filed pro se "must be construed liberally with 'special solicitude' and interpreted to raise the strongest claims that it suggests." Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). "Nonetheless, a pro se complaint must state a plausible claim for relief." Id.

2. Analysis

Plaintiff purports to bring claims under 42 U.S.C. § 1983, alleging that Defendants subjected her to race and age discrimination and violated her Fourth and Fourteenth Amendmentrights.³ (Dkt. No. 11, at 8). Defendants argue that these claims must be dismissed because the Amended Complaint "fails to make the required allegation that the defendants' alleged conduct occurred under color of state law." (Dkt. No. 17-1, at 6). "To state a claim under § 1983, a plaintiff must allege that defendants violated plaintiff's federal rights while acting under color of state law." McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014). In this case, there is no allegation that any Defendant is a state actor or was acting under color of state law. See Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) ("In order to state a claim under § 1983, a plaintiff must allege that [s]he was injured by either a state actor or a private party acting under color of state law."); Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (noting that § 1983 "excludes from its reach merely private conduct, no matter how discriminatory or wrongful") (internal quotations marks omitted). Nor does Plaintiff allege that Defendants were acting in a joint activity or conspiracy with a state actor to violate Plaintiff's constitutional rights. See Carrillos v. Incorporated Village of Hempstead, 87 F. Supp. 3d 357, 371 (E.D.N.Y. 2015) ("A private actor may be considered to be acting under the color of state law for purposes of Section 1983 if she was 'a willful participant in joint activity with the State or its agents.' This potential liability under Section 1983 also applies to a private party who conspires with a state official to violate the plaintiff's constitutional rights." (quoting Ciambriello, 292 F.3d at 324)). Thus, because the Amended Complaint, even construed liberally, fails to allege a cause of action against Defendants under § 1983, Plaintiff's Fourth and Fourteenth Amendment claims are dismissed for failure to state a claim.

Although Plaintiff refers a number of other federal statutes in the Amended Complaint, including 31 U.S.C. § 5103 ("Legal Tender"), 18 U.S.C. § 8 ("Obligation or other security of the United States defined"), and 12 U.S.C. § 1813(L) (defining the term "deposit" in the context of banks and banking), none appears to provide a private right of action. Further, in the absence of a substantive federal claim, the Declaratory Judgment Act, 28 U.S.C. § 2201, which the Amended Complaint also relies on, (Dkt. No. 11, at 1), does not "provide an independent cause of action." In re Joint E. & S. Dist. Asbestos Litig., 14 F.3d 726, 731 (2d Cir. 1993). Thus, to the extent Plaintiff intends to bring claims under these statutory provisions, the Court sua sponte dismisses such claims as frivolous. Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (holding that a district court has the inherent authority to "dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee"); see also Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) ("An action is 'frivolous' when either: (1) 'the factual contentions are clearly baseless, such as when allegations are the product of delusion or fantasy;' or (2) 'the claim is based on an indisputably meritless legal theory.'" (quoting Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990))). For these reasons, and for the reasons stated above, the Court likewise dismisses these claims as alleged against the non-moving Defendants.

B. Motion to Dismiss for Lack of Subject Matter Jurisdiction

1. Standard of Review - Fed. R. Civ. P. 12(b)(1)

"In resolving a motion to dismiss...