Pirrelli v. Ocwen Loan Servicing, LLC

• Decision Date: 03 June 2015
• Docket Number: 2013-07539
• Citation: 12 N.Y.S.3d 110,129 A.D.3d 689,2015 N.Y. Slip Op. 04625
• Parties: Ronald PIRRELLI, et al., respondents, v. OCWEN LOAN SERVICING, LLC, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 689

12 N.Y.S.3d 110

2015 N.Y. Slip Op. 04625

Ronald PIRRELLI, et al., respondents

v.OCWEN LOAN SERVICING, LLC, et al., appellants, et al., defendants.

2013-07539

Supreme Court, Appellate Division, Second Department, New York.

June 3, 2015.

Houser & Allison, APC, New York, N.Y. (Lijue T. Philip of counsel), for appellants OCWEN Loan Servicing, LLC, U.S. Bank, N.A., as Trustee for the Registered Holders of MASTR Asset Backed Securities Trust 2005–WMC1, Mortgage Pass–Through Securities, Scott Anderson, Doris Chapman, Noemi Morales, UBS Securities, MERSCORP, Inc., and Mortgage Electronic Registration Systems, Inc.

Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Ellis M. Oster and John A. DiCaro of counsel), for appellants Shapiro & DiCaro, LLP, and Julie Doyle.

Law Office of James D. Reddy, P.C., Lindenhurst, N.Y., for respondents.

PETER B. SKELOS, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

Opinion

In an action, inter alia, pursuant to RPAPL article 15 and to recover damages under General Business Law § 349, the defendants OCWEN Loan Servicing, LLC, U.S. Bank, N.A., as Trustee for the Registered Holders of MASTR Asset Backed Securities Trust 2005–WMC1, Mortgage Pass–Through Securities, Scott Anderson, Doris Chapman, Noemi Morales, UBS Securities, MERSCORP, Inc., and Mortgage Electronic Registration Systems, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.) dated April 22, 2013, as denied their motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, and the defendants Shapiro & DiCaro, LLP, and Julie Doyle separately appeal, as limited by their brief, from so much of the same order as denied that branch of their separate motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof denying those branches of the motion of the defendants OCWEN Loan Servicing, LLC, U.S. Bank, N.A., as Trustee for the Registered Holders of MASTR Asset Backed Securities Trust 2005–WMC1, Mortgage Pass–Through Securities, Scott Anderson, Doris Chapman, Noemi Morales, UBS Securities, MERSCORP, Inc., and Mortgage Electronic Registration Systems which were pursuant to CPLR 3211(a) to dismiss the causes of action to recover damages for negligent infliction of emotional distress, intentional infliction of emotional distress, violations of the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. §§ 1961 et seq. ), and violations of the Federal Fair Debt Collection Practices Act (15 U.S.C. §§ 1692 et seq. ) insofar as asserted against them, and substituting therefor provisions granting those branches of the motion, and (2) by deleting the provision thereof denying that branch of the motion of the defendants Shapiro & DiCaro, LLP, and Julie Doyle which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable by the plaintiffs to the defendants Shapiro & DiCaro, LLP, and Julie Doyle.

The instant action involves an allegedly fraudulent mortgage loan transaction. Beginning in approximately 1987, the plaintiffs became the owners of a house in Sag Harbor. The subject property was titled in the plaintiffs' names until 2004, when they applied for a mortgage refinancing loan. The plaintiffs asserted in their complaint that a mortgage broker, the defendant Michael Lupo, suggested that they “add” a third party named Dexter Dick to the loan application. Dick applied for and was approved for two mortgage loans from WCM Mortgage (hereinafter WCM). A closing was conducted on or about December 22, 2004. The complaint alleged that, after the closing, the plaintiffs made payments on the loan to WCM and/or to its servicer, the defendant OCWEN Loan Servicing, LLC (hereinafter OCWEN), until approximately August 2005. The plaintiffs alleged that, in August 2005, they discovered that Dick had become the sole titled owner of the subject property, pursuant to a deed executed in late 2004 purporting to transfer the property from the plaintiffs to Dick. The plaintiffs claimed that they did not sign the deed, or that they did not know that they signed a document that purported to be a deed. The complaint alleged that the plaintiffs ceased making loan payments in August 2005, based on their discovery of the deed purporting to transfer, to Dick, sole title to the subject property.

In 2005, the plaintiffs commenced an action pursuant to RPAPL article 15 against Dick and others to quiet title to the subject property. In early 2006, the subject mortgages were purportedly assigned by the defendant Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), as nominee for WCM, to the defendant U.S. Bank, N.A. U.S. Bank, N.A., then intervened in the 2005 action to quiet title. In early 2006, U.S. Bank, N.A., commenced two foreclosure actions against, among others, Dick and the plaintiffs. Those actions were stayed by order of the Supreme Court dated March 10, 2008.

In the instant action, the plaintiffs alleged, inter alia, that OCWEN, U.S. Bank, N.A., as Trustee for the Registered Holders of MASTR Asset Backed Securities Trust 2005–WMC1, Mortgage Pass–Through Securities, Scott Anderson, Doris Chapman, Noemi Morales, UBS Securities, MERSCORP, Inc., and MERS (hereinafter collectively the OCWEN defendants) committed improper acts related to the foreclosure actions. The plaintiffs also alleged, inter alia, that the defendants Shapiro & DiCaro, LLP, and Julie Doyle (hereinafter together the attorney defendants) engaged in improper conduct in representing U.S. Bank, N.A., in the foreclosure actions. The plaintiffs alleged that the subject mortgages are invalid as a result of the fraudulent deed. The plaintiffs further alleged that MERS, as nominee for WCM, purported to assign the mortgage to U.S. Bank, N.A., by means of a fraudulent transaction and that, in the foreclosure actions, U.S. Bank, N.A., knowingly relied on that fraudulent assignment. The plaintiffs asserted that they did not learn of the alleged forgery or fraud until early 2012 when, during the discovery process in the action to quiet title, they found out that, in addition to the assignment of mortgage that was recorded in 2006, there existed multiple “versions” of the purported assignment of mortgage, some of which were allegedly fraudulently “back-dated.”

In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the sole criterion is whether, from the complaint's “four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law” (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; see Country Pointe at Dix Hills Home Owners Assn., Inc. v. Beechwood Org., 80 A.D.3d 643, 649, 915 N.Y.S.2d 117 ; Fishberger v. Voss, 51 A.D.3d 627, 858 N.Y.S.2d 257 ). For purposes of a CPLR 3211(a)(7) motion, the facts pleaded are presumed to be true and are to be accorded every favorable inference (see Gershon v. Goldberg, 30 A.D.3d 372, 817 N.Y.S.2d 322 ).

Here, as the OCWEN defendants correctly assert, the complaint fails to state a cause of action to recover damages for negligent or intentional infliction of emotional distress as against them. The relationship between the plaintiffs and those defendants “does not give rise to a duty which could furnish a basis for tort liability” in negligence (Baumann v. Hanover Community Bank, 100 A.D.3d 814, 816, 957 N.Y.S.2d 111 ). Further, the plaintiffs did not allege that their “physical safety” was endangered or that they were caused to fear for their physical safety, which is generally an element of a cause of action based on negligent infliction of emotional distress (Santana v. Leith, 117 A.D.3d 711, 712, 985 N.Y.S.2d 147 ; see Sheila C. v. Povich, 11 A.D.3d 120, 130, 781 N.Y.S.2d 342 ). Moreover, the conduct complained of is not sufficiently extreme and outrageous to support the cause of action to recover for damages for intentional infliction of emotional distress (see Curtis–Shanley v. Bank of Am., 109 A.D.3d 634, 635, 970 N.Y.S.2d 830 ; Baumann v. Hanover Community Bank, 100 A.D.3d at 816, 957 N.Y.S.2d 111 ).

The complaint also fails to state a cause of action to recover damages for a violation of the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. §§ 1961 et seq.; hereinafter RICO) as against the OCWEN defendants, as the plaintiffs failed to assert that those defendants engaged in a “pattern of racketeering” (18 U.S.C. § 1962 [c]; see Becher v. Feller, 64 A.D.3d 672, 677, 884 N.Y.S.2d 83 ; see also Vicom, Inc. v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 781 [7th Cir.] ; Thompson v. Paasche, 950 F.2d 306, 310 [6th Cir.] ). The plaintiffs also failed to state a cause of action for relief under the federal Fair Debt Collection Practices Act (15 U.S.C. §§ 1692 et seq.; hereinafter the FDCPA) as against the OCWEN defendants. The FDCPA does not apply to a creditor, such as the defendant U.S. Bank, N.A., that seeks to enforce a debt owed directly to it (see 15 U.S.C. § 1692a [6][B] ), and the plaintiffs do not allege that any exceptions to that general rule pertain here (see Cavalry Portfolio Servs., LLC v. Renne, 27 Misc.3d 129[A], 2010 N.Y. Slip Op. 50615[U], 2010 WL 1441778 [App.Term, 2d Dept., 2d, 11th & 13th Jud. Dists.]; Sydney Realty, LLC v. Desiderio, 17 Misc.3d 137[A], 2007 N.Y. Slip Op. 52302[U], 2007 WL 4244783 [App.Term, 2d Dept., 9th & 10th Jud. Dists.] ). In any event, OCWEN began servicing the loan prior to the occurrence of the default. Therefore, it may not be deemed a “debt collector” within meaning of the FDCPA (15 U.S.C. § 1692a [6][F] ) that is subject to the...