Echeverry v. Wells Fargo Bank N. A.

Filing 16

ORDER granting 10 Motion to Dismiss. Closing Case. Signed by Judge Darrin P. Gayles on 11/29/2016. (zvr) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-cv-61635-GAYLES
MARTHA ECHEVERRY,
Plaintiff,
v.
WELLS FARGO BANK, N.A.,
Defendant.
/
ORDER
THIS CAUSE comes before the Court on the Defendant Wells Fargo Bank, N.A.’s (“Wells
Fargo”) Motion to Dismiss [ECF No. 10]. The Court has carefully considered the Complaint, the
parties’ briefs, the record, and the applicable law, and is otherwise fully advised in the premises.
Plaintiff Martha Echeverry commenced this action on July 11, 2016. In her Complaint,
she brings claims against Wells Fargo alleging breach of contract; a violation of the Real Estate
Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605; and a violation of Article 5-102 of the
Uniform Commercial Code, all arising (the Court presumes) from Wells Fargo’s alleged failure
to modify a loan. She also seeks specific performance and judicial review of her applied-for loan
modification.
To survive a motion to dismiss brought pursuant to Federal Rule of Civil Procedure
12(b)(6), a claim “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face,’” meaning that it must contain “factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
While a court must accept well-pleaded factual allegations as true, “conclusory allegations . . .

are not entitled to an assumption of truth—legal conclusions must be supported by factual allegations.” Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). “[T]he pleadings are construed
broadly,” Levine v. World Fin. Network Nat’l Bank, 437 F.3d 1118, 1120 (11th Cir. 2006), and the
allegations in the complaint are viewed in the light most favorable to the plaintiff, Bishop v. Ross
Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016).
“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys
and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998). However, “such liberal construction does not extend to a pro se litigant’s failure
to comply with either federal procedural rules or local court rules.” Jarzynka v. St. Thomas Univ.
of Law, 310 F. Supp. 2d 1256, 1264 (S.D. Fla. 2004) (citing Wayne v. Jarvis, 197 F.3d 1098, 1104
(11th Cir. 1999)). Furthermore, “this leniency does not give a court license to serve as de facto
counsel for a party . . . or to rewrite an otherwise deficient pleading in order to sustain an action.”
GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998) (citations and internal
quotation marks omitted).
At the outset, Echeverry’s Complaint should be dismissed for failure to comply with Federal Rule of Civil Procedure 10(b), which provides that a party “must state its claims or defenses
in numbered paragraphs, each limited as far as practicable to a single set of circumstances,” Fed.
R. Civ. P. 10(b), as none of the paragraphs of her Complaint are numbered. Beyond that, the Court
has reviewed the Complaint and finds that it is utterly devoid of factual allegations that would
plausibly support any claim upon which relief can be granted. Additionally, the Court agrees with
the arguments presented in Wells Fargo’s brief, see Def.’s Mot. at 12-18, and for these reasons,
it is
ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss [ECF No. 10] is
GRANTED. The Plaintiff’s Complaint [ECF No. 1] is DISMISSED WITHOUT PREJUDICE.
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Should the Plaintiff wish to amend her Complaint, she must do so by December 30, 2016.
If she fails to file an amended complaint by that date, the Court shall dismiss her Complaint with
prejudice. Furthermore, that amended complaint must state under what authority this Court can
require Wells Fargo to modify a loan after a foreclosure judgment has been entered by the state
court.
This action is CLOSED.
DONE AND ORDERED in Chambers at Miami, Florida, this 29th day of November, 2016.

_________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE

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