Zaychick v. Bank of America, N.A.
Zaychick v. Bank of America, N.A.
Opinion of the Court
ORDER GRANTING DEFENDANT’S SECOND MOTION TO DISMISS
This matter is before the Court on Defendant’s Second Motion to Dismiss [DE 27]. Plaintiff filed a Response to the Motion. [DE 30]. Defendant failed to file a Reply; the time period for a reply has passed. This matter is adequately briefed for the Court’s, disposition. The Court has reviewed the documents in the case file and is fully advised in the premises. For the reasons set forth below, Defendant’s Motion is granted and Plaintiffs Amended Complaint is dismissed with prejudice on various grounds, including the Court’s lack of subject matter jurisdiction over Plaintiffs claim.
I. BACKGROUND
Plaintiff is a former homeowner whose home mortgage was serviced by Defendant. Plaintiff defaulted on her loan and foreclosure proceedings were initiated in March of 2012. In January of .2014 Plaintiff filed a loss-mitigation application in an attempt to save her home. Her application was denied on May 9, 2014 because she “did not show sufficient evidence of impending hardship.” Plaintiff appealed the denial. Plaintiffs appeal was unsuccessful.
Thereafter, a final judgment of foreclosure was entered in state court and Plaintiffs home was sold at auction on October 3, 2014. Eviction proceedings were initiated against Plaintiff. Eviction proceedings remain ongoing.. After Plaintiffs home was sold at. auction, Plaintiff (through counsel) sent a letter on November 3, 2014 to Defendant seeking more specific information as to why her loss-mitigation application had been denied in May of 2014. Defendant responded; however, Plaintiff asserts that Defendant’s response did not satisfy Defendant’s obligations under the Real Estate Settlement Procedures Act. This lawsuit followed.
On July 27, 2015, the Court dismissed Plaintiffs Complaint without prejudice due to Plaintiffs failure to plausibly plead a causal- connection between her alleged damages and Defendant’s alleged wrongdoing. Plaintiff filed an Amended Complaint and Defendant’s Second Motion to Dismiss is the matter presently before the Court.
ii. Legal standard
In considering a motion to dismiss, the Court must accept the allegations in a complaint- as true and construe them in a light most favorable to the plaintiffs. See Resnick v. AvMed, Inc., 693 F.3d 1317, 1321 (11th Cir. 2012). At the pleading stage, the Complaint need only contain a “short
III. ANALYSIS AND DISCUSSION
Plaintiff has brought a single claim against Defendant under the Real Estate Settlement Procedures Act, RESPA. See 12 U.S.ó § 2605. This claim is premised upon three separate grounds. The first two grounds pertain to “Regulation X” requirements to consider loss-mitigation applications, which is codified in pertinent part at 12 C.F.R. § 1024.41 and which is enforced through RESPA. Plaintiffs third and final ground is based upon a mortgage servi-cer’s Regulation X obligations to provide information, which are also enforced through RESPA. See 12 C.F.R. § 1024.36. The Court first addresses Plaintiffs grounds premised upon Regulation X requirements to consider loss-mitigation applications.
1. Plaintiffs RESPA Claim Premised upon 12 C.F.R. § 1024.41
Regulation X allows for borrowers to submit loss-mitigation applications prior to a final foreclosure of the borrower’s home. Regulation X requires a loan servicer, upon receipt of a complete loss-mitigation application,
Federal review of state-court judgments may only occur in the United States Supreme Court. 28 U.S.C. § 1257(a); see also Figueroa v. Merscorp, Inc., 766 F.Supp.2d 1305 (S.D.Fla. 2011). Therefore, this Court lacks jurisdiction to review final state-court judgments. The Rooker-Feldman doctrine encapsulates and delineates the rule that district courts may not review final state-court judgments, and the doctrine precludes review of claims that are “inextricably intertwined” with state judgments. Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009). However, where a party did not have a “reasonable opportunity to raise [a] federal claim in state proceedings” the doctrine does not apply. Id. In such a situation, a plaintiffs claims are not considered to be inextricably intertwined with the state court judgment. See Powell v. Powell, 80 F.3d 464, 467 (11th Cir. 1996).
Notably, the Eleventh Circuit and many district courts have applied the Rooker-Feldman doctrine to dismiss actions where a plaintiff was seeking, in reality, to challenge state-court foreclosure judgments. See, e.g., Parker v. Potter, 368 Fed.Appx. 945, 947-48 (11th Cir. 2010) (rejecting un
Here, Plaintiffs claims are inextricably intertwined with her final state-court foreclosure judgment. By Plaintiffs own admission as alleged in her complaint, Plaintiff brought the issue of Defendant’s review of her loss-mitigation application to the attention of the state court during her foreclosure proceedings. More specifically, Plaintiff alleges - that her loss-mitigation application to Defendant (which was rejected) did not consider her for a HAMP loss-mitigation program as follows: •
In order to maximize the likelihood that she would receive' a HAMP modification, Borrower continued to employ and pay a law firm known as “Litigátion Law” to assist her with her loss mitigation application and represent her in the foreclosure lawsuit, even though she had entered into a stipulation for a consent judgment. Importantly however, the stipulation noted that there was a pending loss mitigation application, and contemplated that the sale would not take place for 150 days, thereby allowing ample time to complete the loss mitigation review process.
After the May 17th correspondence (and therefore after the May 9th denial letter) Bank of America repeatedly requested documentation supporting Borrower’s loss mitigation application. Borrower promptly complied each time. Borrower continued to employ Litigation Law, in large part to assist her with the loss mitigation process and in complying with Bank of America’s related requests.
On October 22nd, 2014, an attorney associated with Litigation Law and representing Borrower appeared at hearing [sic] before the state court asking that the sale be cancelled because Borrower’s loss mitigation application was pending. Counsel for the foreclosure Plaintiff (who was retained by Bank of America and who reported to Bank of America) opposed that request and represented that Borrower’s application had been denied during the month of May.
DE 26 ¶¶ 20-22 (emphasis added). Thus, pursuant to Plaintiffs allegations: (i) there was a stipulation for consent judgment in her state court foreclosure proceeding, (ii) that stipulation contained a clause pertaining to her loss-mitigation application with
It is Plaintiffs contention that foreclosure was wrongful and that the state court erred by not cancelling the scheduled foreclosure sale. All of the evidence upon which Plaintiff now relies to allege that she was not considered for a HAMP loan modification was available to Plaintiff during the pendency of her foreclosure proceedings.
There are no procedural bars to the application of the Rooker-Feldman doctrine to this case as this case was filed subsequent to Plaintiffs final state court judgment. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Were judgment to be entered in this case in favor of Plaintiff, it would necessarily follow that the state court foreclosure was in error and, as a result, this Court cannot grant Plaintiff her requested relief without disturbing the Florida foreclosure judgment. See, e.g,, Swiatkowski v. Citibank, 745 F.Supp.2d 150 (E.D.N.Y. 2010). It is for state appellate courts and the United States Supreme Court to tell state courts that they are wrong. See Figueroa v. Merscorp, Inc., 766 F.Supp.2d 1305, 1324 (S.D.Fla. 2011). To the extent Plaintiff seeks monetary damages and does not seek to overturn the. state court foreclosure judgment, this has no bearing on the Court’s decision as damages would only be available where there was a wrongful foreclosure. See, e.g., Rene v. Citibank, 32 F.Supp.2d 539, 543 (E.D.N.Y. 1999). Finally, the Court finds that Plaintiff did have a reasonable opportunity to raise her claims in her state court proceeding. See Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009).
2. Plaintiffs RESPA Claim Premised on 12 C.F.R. § 1024.36 .
Plaintiff has also brought her RES-PA claim on the contention that after her home was sold at foreclosure, she sent a written request for information to Defendant for information pertaining to her loss-mitigation application. Plaintiff takes issue with a request she made for “all loss' mitigation options that the owner/invéstor/holder is participating in,” DE 26 ¶ 29. Plaintiff alleges that Defendant’s response to this inquiry violated RESPA and Regulation X because Defendant’s response did not “provide[ ] any information responsive to the specific request about the owner/investor/holder’s loss-mitigation alternatives.” Id. ¶ 30. Plaintiffs request for information lacked clarity.
Plaintiffs request was phrased in the present tense:
*1278 6. All loss migration option that the owner/investor/holder is participating in.
To the extent Plaintiffs request for information is interpreted literally, Plaintiff sought information as to what loss-mitigation programs, as of November 3, 2014, the owner of her (former) home was offering to other borrowers in the present. Plaintiff has provided no authority that she was entitled to this information, nor has Plaintiff provided authority that such a request falls within the scope of a proper Regulation X request for information. By contrast, the scope of Regulation X limits Plaintiffs requests for information to requests that have some bearing to her (in this case former) mortgage loan:
Information request. A servicer shall comply with the requirements of this section for any written request for information from a borrower that includes the name of the borrower, information that enables the servicer to identify the borrower’s mortgage loan account, and states the information the borrower is requesting with respect to the borrower’s mortgage loan.
12 C.F.R. § 1024.36(a) (emphasis added). Therefore, to the extent Plaintiffs request for information is interpreted literally, Plaintiffs request for information was an improper Regulation X request because it did not concern the borrower’s mortgage loan — it sought abstract information on programs offered to other borrowers, in the present, by the new owner of her home.
In the alternative, Plaintiff’s RES-PA claim premised on her request for information must fail because of a lack of damages. Plaintiff again argues to this
To the extent Plaintiff alleges emotional damages
Bank of America’s failure to consider Borrower for a HAMP modification has caused borrower to sustain damages. If Borrower were qualified for a HAMP modification, Borrower would have avoided the emotional distress associated with losing her home, as well as the costs of relocation. Alternatively, even if she would not have qualified for a HAMP modification, Borrower went to substantial effort, and incurred expense including but not limited to expenses associated with professional assistance with her HAMP application, in order to be considered for a HAMP modification. As a result of Bank of America’s failure to consider her for the HAMP program, Borrower’s efforts and expenditures relating to her HAMP application were wasted.
Bank of America’s failure to provide Borrower with the information that she requested under 12 C.F.R § 1024.36, has caused her to sustain actual damages, including but not limited to the costs associated with preparing and sending her Request for Information, and emotional distress.
DE 26 ¶¶ 26, 31.
For all of the foregoing reasons, Defendant’s Second Motion to Dismiss is granted and Plaintiffs Amended Complaint is dismissed. Plaintiff has had ample opportunity to amend her pleading and litigate this case. Further amendments would be futile. See Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). Accordingly, the Court’s dismissal is with prejudice.
IV. CONCLUSIONS AND RULING
It is therefore ORDERED AND ADJUDGED that Defendant’s Second Motion to Dismiss [DE 27] is GRANTED, that Plaintiffs Amended Complaint is DISMISSED WITH PREJUDCE, that the Clerk of the Court is directed to CLOSE THIS CASE, and that all other pending motions are DENIED AS MOOT.
DONE and ORDERED.
. For an unknown reason, Plaintiff has persisted in alleging a loss-mitigation application was submitted, instead of alleging that a complete loss-mitigation application was submitted. The Court construes this lack of specificity in Plaintiff's favor and assumes that Plaintiff submitted a complete loss-mitigation application to Defendant, which is an inference strengthened by the fact that Defendant’s rejection of the application contained no references to the application being denied due to a lack of completeness. See DE 26-1.
. To the extent it could be inferred from Plaintiffs allegations that Defendant defrauded the state court by falsely representing to £he court that Plaintiff’s loss-mitigation application was denied (as inherent in such a representation would be that it was denied lawfully after considering Plaintiff for all available programs), that too is a matter directly related to the validity of the state court’s entry of final judgment.
. Plaintiff also alleges damages associated with relocation, however, Plaintiff has alleged that she has contested eviction proceedings for one year and continues to occupy her home. DE 26 ¶ 8. Plaintiff has also failed to link, in any way, future damages associated with moving (which clearly is a result of her foreclosure) with Defendant's failure to provide greater information on its internal loan-review processes.
, Because the Court finds that Plaintiff’s RESPA claim is substantively deficient, the Court declines to hypothetically consider whether Plaintiff has properly alleged statutory damages by referencing non-parties, in other cases that have been closed for various reasons, including settlement; Plaintiff has failed to brief that issue with legal authority.
Reference
- Full Case Name
- Elina ZAYCHICK v. BANK OF AMERICA, N.A.
- Cited By
- 1 case
- Status
- Published