Tardi-Osterhoudt v. McCabe, Weisberg & Conway LLC, 1:18-cv-00840 (BKS/CFH)
| Decision Date | 06 September 2019 |
| Docket Number | 1:18-cv-00840 (BKS/CFH) |
| Parties | ANNE MARIE TARDI-OSTERHOUDT, Plaintiff, v. McCABE, WEISBERG & CONWAY LLC; SAHAR HAMLANI, ESQ.; OCWEN LOAN SERVICING, LLC; DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for the Registered Holder of Morgan Stanley ABS Capital I Inc. Trust 2007-HE1 Mortgage Pass-Through Certificates, Series 2007-HE1; and DOES 1 through 10 inclusive, Defendants. |
| Court | U.S. District Court — Northern District of New York |
Appearances:
Plaintiff pro se:
Anne Marie Tardi-Osterhoudt
For Defendants Ocwen Loan Servicing LLC and Deutsche Bank National Trust Company, as Trustee for the Registered Holder of Morgan Stanley ABS Capital I Inc. Trust 2007-HE1 Mortgage Pass-Through Certificates, Series 2007-HE1:
Patrick G. Broderick
Ryan Sirianni
Greenberg Traurig, LLP
200 Park Avenue, 39th Floor
For Defendants McCabe, Weisberg & Conway, LLC and Sahar Hamlani:
Melissa DiCerbo
McCabe, Weisberg & Conway, LLC
New Rochelle, NY 10801 Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDERPlaintiff pro se Anne Marie Tardi-Osterhoudt brings this action against Defendants McCabe, Weisberg & Conway, LLC ("McCabe"), Sahar Hamlani (together with McCabe, the "McCabe Defendants"), Ocwen Loan Servicing LLC ("Ocwen"), and Deutsche Bank National Trust Company, as Trustee for the Registered Holder of Morgan Stanley ABS Capital I Inc. Trust 2007-HE1 Mortgage Pass-Through Certificates, Series 2007-HE1 ("Deutsche Bank"), alleging that they engaged in unlawful credit collection practices in violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692c(a)-(b), 1692e, 1692g(b). (Dkt. No. 1, ¶¶ 65-69). She seeks $587,191.02 in damages. (Id. ¶ 71). Defendants Ocwen and Deutsche Bank have moved to dismiss the Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 13). The McCabe Defendants have moved for dismissal under Rule 12(b)(6) or, in the alternative, for summary judgment under Rule 56. (Dkt. No. 15). For the reasons set forth below, Defendants Ocwen and Deutsche Bank's motion to dismiss is granted. The McCabe Defendants' motion for summary judgment is granted in part and denied in part.
To survive a motion to dismiss under Rule 12(b)(6), "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)). The plaintiff must provide factual allegations sufficient "to raise a right to relief above the speculative level." Id. (quoting Bell, 550 U.S. at 555). The Court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff'sfavor. 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)). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The court "liberally construe[s] pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest." Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (citations and internal quotation marks omitted). "The policy of liberally construing pro se submissions is driven by the understanding that '[i]mplicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.'" Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). Although the court is "obligated to draw the most favorable inferences" that a plaintiff s complaint supports, the court "cannot invent factual allegations that he has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). The pleadings must still contain factual allegations that raise a "right to relief above the speculative level." Twombly, 550 U.S. at 555.
Plaintiff and her husband, Reginald Osterhoudt, own property at 40 Sunnybrook Circle in Highland, New York. (Dkt. No. 1, ¶ 15). On June 23, 2006, the Osterhoudts borrowed money from New Century Mortgage Corporation ("New Century").2 (Id. ¶¶ 13, 14). The loan, in theprincipal amount of $165,600, was memorialized in a note and secured by a mortgage on the property. (Id. ¶¶ 14, 15). The "planned path of the Plaintiff's Note" was for the note to be acquired and pooled with other mortgage notes in a trust created for that purpose—the Morgan Stanley ABS Capital I Inc. Trust 2007-HE1 (the "Pass-Through Trust").3 (Id. ¶ 18). Under this "plan," third-party investors would receive "pass-through certificates" giving them beneficial ownership in the trust-held assets, but the trustee would hold legal title to assets. (See id. ¶¶ 16-18).
Plaintiff asserts, however, that the "actual path of Plaintiff's Note" did not follow that plan; the "Note was not deposited into the Pass-Through Trust by any Pooling and Servicing Agreement . . . , by any signature pages by Deutsche Bank as Trustee of the Pass-Through Trust, by any express Mortgage Loan Purchase Agreement, or reflected in any documents uploaded to the [Securities and Exchange Commission ('SEC')] website, or any mortgage loan schedules, if any." (Id. ¶ 19). She claims that, instead, a "nameless" investor "invested in the Note, became creditor, and appointed . . . a servicer/custodian, ultimately Ocwen." (Id. ¶ 20). She further alleges that "New Century immediately lodged Plaintiff's Note with a trustee ('Intermediate Trustee') in an irrevocable trust ('Intermediate Trust') for the benefit of the investor," and that the "Intermediate Trust provided for transferring Plaintiff's Note to the Pass-Through Trust in the event of Plaintiff's default on her Note." (Id. ¶ 21). According to Plaintiff, the "Intermediate Trust was only designed to hold Plaintiff's Note so long as it [was] a performing asset," whilethe Pass-Through Trust "was designed as a separate business for Deutsche Bank to receive and collect defaulted debt . . . from the Intermediate Trust." (Id. ¶ 29). Plaintiff further alleges that "Deutsche Bank is merely operating as a conduit for a post-default collection process that the investor controls" and that "Ocwen was and is concealing the investor's name and interest in the debt" because the "investor's business policy is to remain hidden in any chain of title." (Id. ¶¶ 32-33).
Plaintiff failed to make the payment due on March 1, 2017 and failed to make any subsequent payments to bring the loan current. (Id. ¶ 22). She alleges that Deutsche Bank "received and acquired the defaulted debt between March 2, 2017 and March 17, 2017," that "the right to collect for Deutsche Bank was then transferred to Ocwen," and that "Ocwen then began collecting the debt for Deutsche Bank." (Id. ¶ 23 (emphases and footnotes omitted)). She further asserts that "Ocwen then hired the McCabe Firm which subsequently acquired the defaulted debt and began collecting it on behalf of Deutsche Bank on or before March 17, 2017." (Id.).
Every month starting on July 17, 2017, Ocwen "regularly mailed Plaintiff monthly statements" specifying the amount due and indicating that: "[t]his communication is from a debt collector attempting to collect a debt"; Plaintiff's loan was accelerated; payment must be sent to Ocwen by certified funds; and "[f]ailure to bring your loan current may result in fees and foreclosure—the loss of your home." (Id. ¶ 41).
McCabe mailed Plaintiff a letter, dated July 19, 2017, stating that McCabe was a debt collector "retained in connection with the debt identified in this notice." (Id. ¶ 42). The notice specified: (1) the amount of the debt due as of July 17, 2017; (2) the name of the creditor (Deutsche Bank as trustee for the registered holder of pass-through certificates); (3) McCabe's assumption that the debt was valid unless Plaintiff disputed it within 30 days; (4) Plaintiff's rightto dispute and seek verification of the debt by sending a request within 30 days; (5) Plaintiff's right to obtain the name of the original creditor by sending a written inquiry within 30 days; (6) McCabe's address; (7) notification that the notice was an attempt to collect a debt and that any information obtained would be used for that purpose; and (8) the possibility of additional rights under "state or other applicable law, including but not limited to bankruptcy law." (Id.). On July 28, 2017, Plaintiff sent McCabe a notice of dispute, which disputed the debt and requested validation. (Id. ¶ 45). Plaintiff claims that "Defendants never responded to the Notice of Dispute with validation or the information requested." (Id. ¶ 46).
On August 25, 2017, McCabe recorded an assignment of mortgage (the "AOM") from New Century to Deutsche Bank with the Ulster County Clerk. (Id. ¶ 24). The AOM, which was dated August 11, 2017 and executed by "New Century Mortgage Corporation by its attorney in fact Ocwen Loan Servicing, LLC," specified that the mortgage secured Plaintiff's "original principal sum of $165,600.00 with interest." (Id.). The AOM included the name of Plaintiff and her husband and information about Plaintiff's property. (Id. ¶ 48). It further indicated at the top left: "Recording Requested By: OCWEN LOAN SERVICING, LLC" and "Record and Return to: McCabe, Weisberg & Conway." (Id.).
On November 20, 2017, the McCabe Defendants contacted the Ulster County Clerk and transmitted Plaintiff's name and address, as well as information regarding the debt, stating that the Osterhoudts defaulted on their debt, which became due on March 1,...
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