Hernandez De Leon v. Ocwen Loan Servicing

Filing 24

District Judge Leo T. Sorokin: ORDER entered 13 Defendant's Motion to Dismiss Complaint is ALLOWED. Plaintiff may, within 21 days, file an amended complaint that cures the pleading deficiencies discussed in this Order. If Plaintiff does not file an amended complaint that states a plausible claim to relief within 21 days, the Court may dismiss this action in its entirety. A copy of this Order has been mailed by first class mail to the Plaintiff. (Amended Complaint due by 8/22/2016) (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

JANURIS HERNANDEZ DE LEON,
Plaintiff,
v.
OCWEN LOAN SERVICING, LLC,
Defendant.

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Civil No. 16-10402-LTS

ORDER
August 1, 2016
SOROKIN, J.
For the reasons that follow, the Court ALLOWS Defendant’s Motion to Dismiss.

I.

BACKGROUND
On February 25, 2016, Plaintiff Januris Hernandez De Leon, proceeding pro se, filed a

Complaint alleging that Defendant Ocwen Loan Servicing, LLC, discriminated against her by
“not accepting [a] loan modification” from Plaintiff on account of her status as a “minority
applicant” and as the mother of a child with a disability. Doc. 1 at 3. Plaintiff alleges violations
under various state and federal anti-discrimination laws, including the Americans with
Disabilities Act, and alleges a breach of an implied covenant of good faith and fair dealing. Id.
at 4. Plaintiff further alleges that Defendant does not have authority to auction her home and has
“failed to disclose the costs and the fees associated with” Plaintiff’s home loan, in violation of
the Real Estate Settlement Procedures Act (“RESPA”). Id. at 3-5.

On April 18, 2016, Defendant filed a Motion to Dismiss the Complaint. Docs. 13, 14.
Defendant states that Plaintiff has sued the improper party, as Defendant is merely the loan
servicer, not the mortgagee of record, and thus is not the foreclosing entity. 1 Doc. 14 at 2-3.
Defendant further argues that Plaintiff’s claims are impermissibly vague. Id. at 3.
On July 1, 2016, Plaintiff filed a response to Defendant’s Motion to Dismiss, in which
she claims that she “never received any notice” that Citibank was the mortgagee of record. Doc.
21 at 1. Plaintiff does not address – at least in any manner that the Court can discern –
Defendant’s argument that it is not the foreclosing entity. Plaintiff requests permission to amend
the Complaint, id. at 4, but does not explain how an amended complaint might be different from
the instant one.
On July 27, 2016, Plaintiff filed an emergency motion to stop the auction of her home.
Doc. 22 at 1. The Court denied the emergency motion. Doc. 23.

II.

DISCUSSION
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short and plain

statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S.

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According to Defendant, Citibank is the mortgagee of record. Doc. 14 at 3. Defendant submits
two documents – a mortgage agreement, Doc. 13-1, and a corporate assignment of mortgage,
Doc. 13-2 – as proof that Citibank is the mortgagee and thus that Ocwen Loan Servicing, LLC,
has been wrongly named as a party. Defendant states, without further elaboration, that these
documents are “public record[s] of which the Court can take judicial notice.” Doc. 14 at 1, 2.
That bare statement is not enough to persuade the Court to take judicial notice of the documents.
See Freeman v. Town of Hudson, 714 F.3d 29, 37 (1st Cir. 2013) (“Other than invoking the label
‘public records,’ which is too broad a term to rely on, [Defendant] make[s] no developed
argument as to why [these] documents . . . are either categorically or in this instance eligible to
be considered on a motion to dismiss.”). Moreover, the documents do not appear to be official
public records, let alone official records that have “indicia of reliability.” Id. at 36. Finally,
Defendant has not explained to the Court how the documents conclusively demonstrate that it
has been wrongly named as a party for each of the claims in the Complaint.
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662, 677-78 (2009). “[T]he pleading standard Rule 8 announces does not require detailed factual
allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Id. at 678. “To survive a motion to dismiss [under Rule 12(b)(6)], a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. “Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 679. If a complaint’s facts “do not permit the court to infer more than the
mere possibility of misconduct,” the complaint has not shown “that the pleader is entitled to
relief.” Id.
The Complaint is dismissed under Rule 8(a)(2) and Rule 12(b)(6). Plaintiff alleges no
facts to support her claim that Defendant has discriminated against her. She notes that she is a
minority and the mother of a child with a disability, see Doc. 1 at 2-3, but she alleges no facts to
support her claim that Defendant refused a loan modification because she is a minority or the
mother of a child with a disability. In addition, Plaintiff does not allege any facts – let alone
sufficient facts to state a plausible claim to relief – to support any of her other legal claims.
Thus, the Complaint is merely “an unadorned, the-defendant-unlawfully-harmed-me accusation,”
and does not allow the Court “to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678-79.
For all of these reasons, Defendant’s Motion to Dismiss is ALLOWED. Plaintiff may,
within 21 days, file an amended complaint that cures the pleading deficiencies discussed in this

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Order. If Plaintiff does not file an amended complaint that states a plausible claim to relief
within 21 days, the Court may dismiss this action in its entirety.
SO ORDERED.

/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge

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