Yeh Ho v. Wells Fargo Bank, N.A.
Filing
64
ORDER AND OPINIONgranting in part and denying in part 45 Motion to Dismiss. Second Amended Complaint due by 6/24/2019. Signed by Judge Kenneth A. Marra on 5/9/2019. See attached document for full details. (ir)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-81522-CIV-MARRA/MATTHEWMAN
KAREN C. YEH HO,
Plaintiff,
vs.
WELLS FARGO BANK, N.A.,
Defendant.
________________________/
ORDER AND OPINION ON MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant’s Motion to Dismiss Amended
Complaint [DE 45]. The Court has carefully considered the motion, response, reply,
and is otherwise fully advised in the premises.
BACKGROUND
Plaintiff initiated this action by filing a Complaint on November 11, 2015 (DE
1). Proceeding pro se, Plaintiff alleged claims for: (i) violation of the Real Estate
Settlement Practices Act (“RESPA”) (Count I); (ii) fraud (Count II); (iii) violations of
Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) (Count IV); (iv) wrongful
foreclosure (Count V); (v) violations of the Consumer Financial Protection Act
(“CFPA”) (Count VI); (vi) violations of the Fair Debt Collection Practices Act
(“FDCPA”); and (vii) infliction of emotional distress (DE 1). Defendant moved to
dismiss the Complaint (DE 10), which motion was granted by the Court (DE 15). On
August 29, 2016, the Court entered a Final Judgment in favor of Defendant (DE 16).
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Plaintiff appealed the Final Judgment to the Eleventh Circuit Court of Appeals
(DE 17, 20, 21). As Plaintiff did not challenge the Court’s dismissal of Counts II, III,
IV, V, VII, VIII, IX and X, the Eleventh Circuit concluded that Plaintiff must have
abandoned them (DE 25 at 6 n.2). In addition, because the Eleventh Circuit
concluded that the RESPA violation claim was not barred by the Florida litigation
privilege, it reversed the Court’s ruling dismissing the RESPA violation claim and
remanded for further proceedings (DE 25 at 15).
On September 18, 2018, Plaintiff filed a Motion for Leave to File Amended
Complaint (“Motion to Amend”) (DE 35 at 1-2). Therein, Plaintiff sought to amend
the Complaint to assert the following claims: (i) a violation of the Equal Credit
Opportunity Act (“ECOA”) (Count I); (ii) a violation of the Fair Housing Act (“FHA”)
(Count II); (iii) contract fraud (Count III); (iv) a RESPA violation (Count IV); (v)
violations of the CFPA;1 (vi) a FDCPA violation (Count VIII); and (vii) infliction of
emotional distress (Count IX) (see DE 35-1). Defendant filed a Response in Opposition
to the Motion for Leave to File Amended Complaint (DE 36). Defendant did not
address Plaintiff’s Fair Housing Act claim.
On November 7, 2018, the Court granted in part and denied in part Plaintiff’s
Motion to Amend (DE 39). Specifically, the Court denied Plaintiff’s request to add
Counts III, V, VIII, and IX as barred by the law-of-the-case doctrine (DE 39 at 6-7).
1
Plaintiff did not separately number her CFPA violations claim but it stands to
reason that it should be numbered Count V.
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That left Count I asserting a violation of the Equal Credit Opportunity Act, Count II
asserting a violation of the Fair Housing Act, and Count IV alleging a RESPA violation.
The Amended Complaint became the operative complaint as to these three counts
only (DE 39 at 7-8). Pursuant to the Administrative Procedures of Southern District of
Florida, the Court directed Plaintiff to separately file her Amended Complaint, which
the Court deemed filed and served as of the date of entry of the Order.
On January 2, 2019, Defendant moved to dismiss the First Amended Complaint
with Prejudice (DE 45) based solely on the argument that it is an impermissible
shotgun pleading. When the response deadline (January 16, 2019) passed without any
response from Plaintiff, or motion for extension of time to respond, the Court issued
a Notice to Pro Se Plaintiff and extended, sua sponte, the deadline for Plaintiff to file
a response to February 1, 2019 (DE 47). On February 1, 2019, Plaintiff filed a Motion
for Default against Defendant, apparently under the misguided belief that filing a
Motion for Default relieved her of the obligation to respond to the Motion to Dismiss.
On March 19, 2019, the Court issued an Order Requiring Response to Motion to Dismiss
by March 29, 2019. On March 29, 2019, Plaintiff finally filed a response to the Motion
to Dismiss (DE 60).
STANDARD OF REVIEW
When reviewing a motion to dismiss, courts accept the allegations as presented
in the complaint as true and view those facts “in the light most favorable to the
plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). The issue before the
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Court is “‘not whether [Plaintiff] will ultimately prevail’ ... but whether his
complaint [is] sufficient to cross the federal court’s threshold.” Skinner v. Switzer,
562 U.S. 521, 529–30 (2011) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
When a litigant is proceeding pro se, liberal construction of pleadings is
particularly important. Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1253 (11th Cir.
2017), cert. denied, – U.S. –, 138 S.Ct. 557 (2017); Lowe v. Delta Air Lines Inc., 730
F.App’x 724, 728 (11th Cir. 2018); GJR Investments, Inc. v. Cnty. of Escambia, Fla.,
132 F.3d 1359 (11th Cir.1998), overruled on other grounds by Ashcroft v. Iqbal, 556
U.S. 662 (2009). Courts show leniency to pro se litigants not enjoyed by those with
the benefits of a legal education. Powell v. Lennon, 914 F.2d 1459, 1463 (11th
Cir.1990). Although the court will hold pro se pleadings to a less stringent standard
and construe the complaint more liberally, the complaint must set forth "enough facts
to state a claim to relief that is plausible on its face." Tannenbaum v. U.S., 148 F.3d
1262, 1263 (11th Cir. 1998) (per curiam ); Neitzke v. Williams, 490 U.S. 319, 324–25
(1989) (noting federal courts have discretion to dismiss pro se complaints if they lack
an arguable basis in fact or in law).
DISCUSSION
Defendant claims it is nearly impossible to respond to the First Amended
Complaint in a coherent fashion, and moves to dismiss it as an impermissible shotgun
pleading for failure to comply with Federal Rules of Civil Procedure 8 and 10.
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The Court agrees to some extent with Defendant that Plaintiff’s First Amended
Complaint is a far cry from a “short and plain statement of the claim showing that
the pleader is entitled to relief” as required by Rule 8. The “introduction” and
“statements” sections of the First Amended Complaint alone span 29 pages and
contain lengthy, rambling paragraphs. Additionally, each cause of action expressly
re-incorporates all prior numbered allegations, and “any allegations that are material
are buried beneath innumerable pages of rambling irrelevancies.” Magluta v.
Samples, 256 F.3d 1282, 1284 (11th Cir. 2001). Defendant argues Plaintiff’s First
Amended Complaint is an impermissible shotgun pleading wherein “[m]any of the
factual allegations appear to relate to only one or two counts, or to none of the
counts at all” such that “a reader of the complaint must speculate as to which factual
allegations pertain to which count.” See Chudasama v. Mazda Motor Corp., 123 F.3d
1353, 1359 n.9 (11th Cir. 1997).
Of course, Defendant is aware that the Court must give great leniency to pro
se litigants, and by now, Defendant and this Court are quite familiar with Plaintiff
and her alleged damages. The Court has been able to conduct its own review of
Plaintiff's First Amended Complaint (DE 41) and finds that it adequately states claims
for violations of the Equal Credit Opportunity Act and the RESPA, suggesting that
Defendant ought to be able to do the same. The Court considers that Defendant has
at least enough information to be placed on notice as to the nature of these claims,
and therefore it is not “virtually impossible to know which allegations of fact are
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intended to support which claim(s) for relief.” Weiland v. Palm Beach County
Sheriff's Office, 792 F.3d 1313, 1320, 1323 (11th Cir. 2015) (“The unifying
characteristic of all types of shotgun pleadings is that they fail to one degree or
another, and in one way or another, to give the defendants adequate notice of the
claims against them and the grounds upon which each claim rests”). As far as Count
II, asserting a violation of the Fair Housing Act, on its face, the complaint fails to
state a cause of action and will be dismissed.
The Equal Credit Opportunity Act
Plaintiff asserts an Equal Credit Opportunity Act violation in Count I. The ECOA
was enacted to insure that financial institutions make credit decisions fairly and
without discriminating on the basis of sex or marital status. See 12 C.F.R. § 202.1(b)
(2019). “The purpose of the ECOA is to eradicate credit discrimination waged against
women, especially married women whom creditors traditionally refused to consider
for individual credit.” Stern v. Espirito Santo Bank of Fla., 791 F. Supp. 865, 867
(S.D. Fla. 1992) (quoting Anderson v. United Fin. Co., 666 F.2d 1274, 1277 (9th Cir.
1982)); see also SureTec Ins. Co. v. Nat’l Concrete Structures, Inc., Case No. 12-CIV60051, 2012 WL 12860161, at *3 (S.D. Fla. July 3, 2012). The ECOA makes it unlawful
“for any creditor to discriminate against any applicant, with respect to any aspect of
a credit transaction ... on the basis of ... marital status....” 15 U.S.C. § 1691(a)(1).
Specifically, the ECOA prohibits a creditor from requiring the signature of an
applicant's spouse or other person, other than a joint applicant, on any credit
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instrument if the applicant qualifies under the creditor's standards of creditworthiness for the amount and terms of the credit requested. 12 C.F.R. §
202.7(d)(1); Anderson, 666 F.2d at 1276, 1277.
The First Amended Complaint and response to the Motion to Dismiss make clear
that Plaintiff believes she was discriminated against on the basis of her martial status
when Defendant required her to complete the loan modification process by supplying
it with: (a) “signed redrafted modification documents or original modification
documents signed by both her and her husband,” and (b) her “marital status.” DE 60
at 7-8;2 Compl. (DE 41) ¶ 124. She also alleges in her First Amended Complaint that
Defendant violated the ECOA by not notifying her within 30 days of receipt of her
completed modification application of Defendant's denial of the application. 15
U.S.C. § 1691(d)(1); Compl. ¶ 123. These allegations provide enough information to
put Defendant on notice as to the nature of Plaintiff’s ECOA claims.
The Fair Housing Act
Plaintiff asserts a Fair Housing Act violation in Count II. The Fair Housing Act,
42 U.S.C. § 3601, et seq., makes it unlawful, in pertinent part, to “discriminate
2
Plaintiff asserts these requests are direct evidence of marital discrimination.
“Direct evidence is evidence that establishes the existence of discriminatory intent
behind the . . . decision without any inference or presumption. As the Eleventh
Circuit has explained, “only the most blatant remarks, whose intent could be nothing
other than to discriminate on the protected classification are direct evidence of
discrimination.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.
1998) (internal quotations omitted)
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against any person in the terms, conditions, or privileges of sale or rental of a
dwelling, or in the provision of services or facilities in connection therewith, because
of ... familial status ....” 42 U.S.C. § 3604(b). “‘Familial status’ means one or more
individuals (who have not attained the age of 18 years) being domiciled with ... a
parent or another person having legal custody of such individual or individuals ....”
42 U.S.C. § 3602(k). Therefore, the FHA “prohibits discrimination against families
with children.” Fair Hous. Ctr. of the Greater Palm Beaches, Inc. v. Sonoma Bay
Comm. Homeowners Ass'n, Inc., 682 F.App’x 768, 770 (11th Cir. 2017) (citing 42
U.S.C. §§ 3604, 3602(k) (emphasis provided). “To qualify for familial status
protection, it would seem that the primary caretaker must not only live in the home
with the children, but the adults and children should also function as family
together.” Estvanko v. City of Perry, Case No. 09-CIV-137, 2011 WL 1750232, at *6
(M.D. Ga. May 6, 2011).
Plaintiff’s First Amended Complaint fails to identify even a scintilla of factual
support for a FHA violation claim. Notably, the Complaint is devoid of any mention
whatsoever of a child under the age of 18 living in the home. Plaintiff is of the belief
that “marital discrimination [] is also family status discrimination[,] it is therefore
Fair Housing Act discrimination.” DE 60 at 8. This is an incorrect assumption.
Plaintiff must make allegations that demonstrate that she has standing as a
member of a class protected by the FHA, or that she is an “aggrieved person,” a
nonclass member who suffers actual injury as an ancillary effect of present or
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imminent discrimination against a protected class member. Wasserman v. Three
Seasons Ass'n No. 1, Inc., 998 F.Supp. 1445, 1446 (S.D. Fla. 1998); Hernandez v.
Monarch Real Estate Corp., Case No. 08-732 MCA/WPL, 2009 WL 10707040, at *5
(D.N.M. 2009); 14A C.J.S. Civil Rights § 439 (2019). Notwithstanding the leniency
afforded to pro se plaintiffs, Count II fails to allege that Defendant engaged in
familial status discrimination in violation of the Fair Housing Act, and Count II will be
dismissed for failure to state a claim. Fed. R. Civ. P. 12(b)(6).
Real Estate Settlement Practices Act
Plaintiff asserts a Real Estate Settlement Practices Act violation in Count III,
the final count of Plaintiff’s First Amended Complaint. On appeal, the Eleventh
Circuit concluded, in pertinent part:
Ho submitted an application to Wells Fargo, but did not receive a
written response as required by § 1024.41(b)(2)(B) or (c)(1) before her
home was sold in violation of § 1024.41(g). Ho’s complaint therefore
alleges sufficient facts to state a plausible violation of RESPA and
Regulation X. At this stage of proceedings, she has also sufficiently
alleged a causal connection between Wells Fargo’s RESPA violation and
her actual damages. We therefore conclude Ho’s complaint states a
plausible claim for relief under RESPA and Regulation X. . .
DE 25 at 10-11 of 16. Given that the Eleventh Circuit has acknowledged that Plaintiff
has stated a plausible claim for relief under RESPA, these allegations provide enough
information to put Defendant on notice as to the nature of Plaintiff’s RESPA claims.
Accordingly, in accordance with the conclusions reached above, it is hereby
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss Amended
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Complaint [DE 45] is granted in part and denied in part. It is denied as to Counts I
and III. It is granted as to Count II, because Plaintiff has failed to state a FHA claim
based on family status. Plaintiff has not alleged any facts supporting discrimination
on the basis of family status because she has not alleged she has been discriminated
against as a result of a child or children living with her. See, e.g., Hunt v. Aimco
Properties, L.P., 814 F.3d 1213, 1222 (11th Cir. 2016); Floyd v. PEM Real Estate
Group, Case No. 17-451-TFM-N, 2019 WL 641088, at *3 (S.D. Ala. Jan. 1, 2019).
Plaintiff will be given one chance to reallege this count. Acknowledging that
Plaintiff is incarcerated, the Court will allow Plaintiff until June 24, 2019 to file a
Second Amended Complaint which alleges facts that portray or describe any
discriminatory acts against her in connection with individuals under the age of 18
living with her. Plaintiff’s failure to file a Second Amended Complaint by June 24,
2019 will result in this case moving forward on Counts I and III only.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 9th day of May, 2019.
_________________________
KENNETH A. MARRA
United States District Judge
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