Hernandez De Leon v. Ocwen Loan Servicing
District Judge Leo T. Sorokin: ORDER entered For the reasons set forth in this Order, 35 Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint is ALLOWED. In the circumstances of this case, a further period of time to file another complaint is unwarranted. Accordingly, this case is DISMISSED WITH PREJUDICE. A copy of this Order has been mailed to the Plaintiff. (Montes, Mariliz)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JANURIS HERNANDEZ DE LEON
Case No. 16-cv-10402-LTS
OCWEN LOAN SERVICING,
ORDER ON MOTION TO DISMISS (DOC. 35)
February 14, 2017
For the reasons that follow, the Court ALLOWS Defendant’s Motion to Dismiss
Plaintiff’s Second Amended Complaint.
On February 25, 2016, Plaintiff Januris Hernandez De Leon, proceeding pro se, filed a
Complaint against Defendant Ocwen Loan Servicing, LLC. Plaintiff alleged discrimination and
violations under various state and federal statutes. On August 1, 2016, the Court granted
Defendant’s Motion to Dismiss for Failure to State a Claim under Federal Rules of Civil
Procedure Rule 8(a) and Rule 12(b)(6) Doc. 24 at 3. Specifically, the Court determined that the
allegations of the Complaint were conclusory. See id. The Court permitted Plaintiff twenty-one
days to file an amended complaint to cure the pleading deficiencies identified by the Court. Id.
On August 22, 2016, Plaintiff filed a timely Amended Complaint. Doc. 26. Defendant
again moved to dismiss. Doc. 27. As explained in more detail in the Court’s opinion, the Court
directed Plaintiff to file a Second Amended Complaint to cure pleading deficiencies identified by
the Court in part because the Amended Complaint failed to set forth specific factual allegations
to support her claims. See Doc. 29 at 3, 6. The Court denied the motion to dismiss as moot in
light of its ruling and granted Plaintiff twenty-one days to file a Second Amended Complaint. Id.
Plaintiff filed a timely Second Amended Complaint on September 21, 2016. Defendant
again filed a Motion to Dismiss the case on October 5, 2016. Doc. 35. For the next two months,
Plaintiff neither responded to Defendant’s Motion nor requested an extension of time. Doc. 38 at
1. On December 6, 2016, the Court ordered Plaintiff to respond by December 28, 2016 and
warned that this case will be dismissed if Plaintiff fails to do so. Id. at 2. On January 3, 2017,
five days after the Court-imposed filing deadline, Plaintiff filed a response. Notwithstanding the
late response and the Court’s “inherent power to dismiss case[s] sua sponte for failure to
prosecute,” Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016) (citing, inter alia, Link v. Wabash R.
Co., 370 U.S. 626, 631-32 (1962)), the Court considers the merits of the parties’ arguments.
The Second Amended Complaint suffers from the same pleading deficiencies that Court
previously identified and fails to state a claim upon which relief may be granted.
As the Court explained, Rule (8)(a) demands “more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff’s
allegations must include “more than labels and conclusions.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007).
To survive a motion to dismiss, a complaint must contain sufficient factual matter to state
a claim to relief that is plausible on its face. Iqbal, 556 U.S. at 678. There must be enough
factual content to allow the court to “draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Meeting this standard is important because a pleading must
provide a defendant with “fair notice of what the . . . claim is and the grounds upon which it
rests.” Silverstrand Invs. v. AMAG Pharm., Inc., 707 F.3d 95, 101 (1st Cir. 2013) (quoting
Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011)) (alteration in original).
A. Count I
Count I alleges a claim unlawful discrimination. Doc. 34 at 2. Plaintiff asserts that
Citibank refused a loan modification “since the plaintiff is a minority home owner” but has failed
to allege any specific facts that suggest that the refusal was motivated by a discriminatory bias.
Id. Plaintiff’s claims in the Opposition to Defendant’s Motion are similarly vague and
speculative. Plaintiff asserts that “Defendant has treated the plaintiff differently” and that “this
fact by itself is evidence of discrimination.” Doc. 40 at 2. But Plaintiff has not provided any
basis for concluding that Citibank treated her differently than others with similar financial
records. Plaintiff has also not made any assertions regarding Defendant’s specific actions or
communications that demonstrate a discriminatory animus. Accordingly, Count I of the Second
Amended Complaint fails to cure the pleading deficiencies previously explained by the Court.
Doc. 29 at 3-4. Thus, it is dismissed.
Count I also alleges a claim under the Home Affordable Mortgage Program (“HAMP”).
Doc. 34 at 2-3. As the Court previously noted, HAMP does not provide a private right of action;
Plaintiff cannot bring a claim solely based on the ground that Defendant violated HAMP. See,
e.g., Molina v. Aurora Loan Servs., LLC, 635 F. App’x 618, 624-626 (11th Cir. 2015). Instead,
Plaintiff may use the HAMP guidelines as the basis for a state law claim, such as a claim for
breach of contract or for violation of the Massachusetts consumer protection statute, Chapter
93A of the Massachusetts General Laws. See, e.g., Hannigan v. Bank of Amer., N.A., 48 F.
Supp. 3d 135, 142-43 (D. Mass. 2014); Stagikas v. Saxon Mortg. Servs., Inc., 795 F. Supp. 2d
129, 135-37 (D. Mass. 2011); Morris v. BAC Home Loans Servicing, 775 F. Supp. 2d 255, 259
(D. Mass 2011). Plaintiff has neither alleged a separate state law cause of action nor pled
sufficient factual allegations to support such a claim.
B. Count II
Count II alleges a violation of Massachusetts General Laws Chapter 93A. Doc. 34 at 3.
To state a valid claim under 93A, plaintiff must allege that the defendant “committed an unfair or
deceptive practice, causing economic injury to the plaintiff.” Hanrahran v. Specialized Loan
Servicing, LLC, 54 F. Supp. 3d 149, 153 (D. Mass. 2014). While a bank's handling of a loan
modification process can be a basis for action under 93A, such action requires allegations
showing unfairness or deceptiveness beyond minor delays or technical errors. See id. at 154-55.
“For example, plaintiffs have successfully survived the motion to dismiss stage when they
alleged a pattern or course of conduct involving misrepresentations, delay, and evasiveness in
evaluating a HAMP application.” Id. at 156 (holding that the plaintiff sufficiently pleaded a 93A
claim by alleging that the defendant failed to respond to her application for almost twenty
months, falsely stated that the application was missing documents, and falsely claimed that a
notice was sent regarding these documents).
Here, Plaintiff simply asserts that Defendant “acted unfairly” towards Plaintiff by
authorizing the foreclosure process while Plaintiff’s loan modification application was pending.
As the Court previously pointed out, Plaintiff does not provide any assertions concerning when
she contacted Citibank about a possible loan modification and what information she provided;
the response by Citibank; what representations or promises, if any, Citibank made regarding her
eligibility for a loan modification; and the terms of any trial loan modification agreement.
Without any of this factual content, and without any timeline of relevant events, the Court cannot
find Defendant’s course of conduct unfair or deceptive. It is insufficient to merely assert that the
violation itself, such as “the failure to evaluate plaintiffs” or “the denial of a HAMP
modification,” was unfair. Markle v. HSBC Mortg. Corp. (USA), 844 F. Supp. 2d 172, 186 (D.
Moreover, a plaintiff bringing a 93A claim must first submit a demand letter to the
defendant at least 30 days before filing suit. McKenna v. Wells Fargo Bank, N.A., 693 F.3d 207,
217 (1st Cir. 2012); Mass. Gen. Laws ch. 93A, § 9(3). This demand letter requirement “is not
merely a procedural nicety, but, rather, ‘a prerequisite to suit.’” Id. at 217–18 (quoting Rodi v. S.
New Eng. Sch. of Law, 389 F.3d 5, 19 (1st Cir.2004)). Nothing in the Second Amended
Complaint suggests that Plaintiff sent a demand letter to Citibank or that the requirement did not
apply. Therefore, Plaintiff’s failure to meet the demand letter requirement also warrants the
dismissal of Count II.
For these reasons, Defendant’s Motion to Dismiss (Doc. 35) is ALLOWED and
Plaintiff’s Second Amended Complaint is DISMISSED. In the circumstances of this case, a
further period of time to file another complaint is unwarranted. Accordingly, this case is
DISMISSED WITH PREJUDICE.
/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge
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