Bravo v. Merscorp Inc. et al

Filing 25

MEMORANDUM AND ORDER. Defendants' motion is denied as toplaintiff's TILA claim against BANA and BAC Home Loans. The motion is granted to the extent that plaintiff's RESPA, breach of contract, U.C.C., and fraud claims are dismissed with prejudice as to all defendants. Further, plaintiff's FDCPA and TILA claims are dismissed with prejudice as to MERSCORP and BOA. Plaintiff's FDCPA claim is dismissed without prejudice as to BANA, BAC Home Loans, and MERS, a nd his TILA claim is dismissed without prejudice as to MERS. With respect to all claims dismissed without prejudice, 30 days leave is granted from the entry of this order to replead those claims. To do so, plaintiff shall file an amended complaint containing all of his factual allegations, including any documents or other exhibits, in support of those FDCPA and TILA claim. The amended complaint shall be identified as the "Amended Complaint" and bear the same docket number as this Order. Ordered by Judge Eric N. Vitaliano on 4/9/2013. C/M. (Siegfried, Evan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

------------------------------------------------------------](
VICTORIANO BRAVO,
Plaintiff,

MEMORANDUM & ORDER

-against-

12-CV-884 (ENV)(LB)

MERSCORP, INC., et al,

Defendant.

"

------------------------------------------------------------

VITALIANO, D.J.
Plaintiff Victoriano Bravo brings this action prose against defendants,
MERSCORP Holdings, Inc.("MERSCORP"); Mortgage Electronic Registration
Systems, Inc. ("MERS"); Bank of America Corporation ("BOA"); BAC Home
Loans Servicing, LP ("BAC Home Loans"); and Bank of America N.A. ("BANA").
On May 31, 2012, defendants moved to dismiss for failure to state a claim. The
motion is granted in part and denied in part.
Factual Background
The following facts are drawn from the complaint, including the
attached ellhibits. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.
2002). All reasonable inferences are construed in plaintiff's favor. See Gorman v.

Consol. Edison Corp., 488 F.3d 586, 591-92 (2d Cir. 2008).
On June 23,2003, plaintiff borrowed $431,000 from Countrywide
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Home Loans secured by a promissory note. 1 (Com pl., Count 1 ~ 2.) He also signed
an accompanying mortgage instrument ("mortgage") that pledged as collateral the
property plaintiff acquired with the proceeds of the loan. (Com pl. Ex. 1 at 59-61,
Ex. 2 at 73-105.) The mortgage designated MERS as the mortgagee of record as
well as the sole "nominee for Lender and Lender's successors and assigns." (Compl.
Ex. 2 at 73).
Although Bravo says he never received a signed copy of his mortgage
documents/ (Compl., Count 1 ~ 4), he paid his mortgage until he began
experiencing financial difficulties in early 2011. At that point, he requested a
modification from BAC Home Loans but was denied. (Com pl., Count 1 ~ 5.)
Collections activities began in May 2011, first by BAC Home Loans and later by
BANA. (Compl., Count 1 ~~ 7, 8)
Spurred by news stories concerning the abuses of the banking industry,
Bravo became worried that he would not own his home once he paid off his
mortgage. (Compl., Count 1 ~~ 6, 7.) Plaintiff began investigating the ownership of
his mortgage and decided to stop making payments in August 2011 when he learned

1

Bank of America acquired Countrywide Home Loans, Inc. on July 1, 2008.
(Compl. ~ 5.) The loan servicing branches of the two companies merged, and the
surviving loan servicer is defendant BAC Home Loans Servicing LP
f/k/a/Countrywide Home Loans Servicing, Inc. (Compl. ~ 5.)
2
It is not clear that plaintiff received the "copy of the Note and of this Security
Instrument," to which he is entitled under the mortgage. (Compl. Ex. 2 at 91.) To
the extent that the copies of the mortgage and note filed as Exhibit 1 to the
complaint represent the only copies that Bravo was given, he received only a partial
copy of the mortgage, (compare Com pl. Ex. 1 and Comp. Ex.2), and he never was
provided with a signed copy of the note, (Compl. Ex. 1 at 59-61).
2

that it was owned by Countrywide Home Loans, not BANA. 3 (Com pl., Count 1 'II
9.) Nonetheless, his investigative efforts continued into November 2011 when he
discovered that the records at the Kings County Clerk's Office contradicted the
information available on MERS website; the former reflected that MERS had
assigned the mortgage to BANA, while the latter listed BANA as a servicer.
(Compl., Count 1 '1['1[9, 12.) Seeking explanation, Bravo contacted BANA, BAC
4

Home Loans, and Countrywide Home Loans by letter on December 17, 2011,
requesting information about ownership of the loan and the recipients' authority to
service it. (Compl., Count 1 '1[10; Compl. Ex. 4 at 125-27.) Defendants never
replied. (Compl., Count 1 '1[11.)
Plaintiff demands $500,000 for "actual and future damages," (Com pl.,
Prayer for Relief 'I[ 51), as well as a declaratory judgment clarifying whether: (1) the
note was properly sold by Countrywide Home Loans, (Compl., Prayer for Relief 'If
52); (2) each defendant was a rightful nominee or assignee of the mortgage pursuant
to U.C.C. § 3-104(a), (b), (Compl., Prayer for Relief'lf'lf53-56); (3) the assignment of
the mortgage was proper, (Compl., Prayer for Relief'I[SS-61); and (4) any
defendant has standing to enforce the mortgage agreement, (Com pl., Prayer for
Relief '1[64). Plaintiff also seeks an injunction prohibiting defendants from servicing

3

Plaintiff mischaracterizes the records he was researching at the Kings County
Clerk's Office, referring repeatedly to the note instead of the mortgage.
4
Plaintiff addressed his letter to Bank of America Home Loan Servicing, LP.
(Compl. Ex. 4 at 125.) Defendant BAC Home Loans' letterhead reflects that Bank
of America Home Loan Servicing, LP and BAC Home Loans are one and the same.
(Compl. Ex. 6 at 145.)
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the loan. (Compl., Prayer for Relief~ 57.)
Standard of Review
To survive dismissal 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."' Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (U.S. 2009) (quoting Bell

Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007)). "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."

Iqbal, 129 S. Ct. at 1949. Plaintiffs must provide more than a "formulaic recitation
of the elements of a cause of action." Twombly, 127 S. Ct. at 1965.
A court must presume the truth of all factual allegations in the
complaint for purposes of Rule 12(b)(6), but the court is not bound to accept the
truth of legal conclusions couched as factual allegations. Papasan v. Allain, 478 U.S.
265, 286, 106 S. Ct. 2932, 2944 (1986). Indeed, it is the factual allegations that are
paramount, as "a complaint need not pin plaintiff's claim for relief to a precise legal
theory," nor does it need to provide "an exposition of his legal argument." Skinner

v. Switzer, 131 S. Ct. 1289, 1296 (2011). In analyzing well-pled facts, a court will
draw all reasonable inferences in favor of plaintiff. See Gorman v. Consolidated

Edison Corp., 488 F.3d 586, 591-92 (2d Cir. 2007). Moreover, because plaintiff here
proceeds prose, his complaint must be read liberally and interpreted as raising the
strongest arguments it suggests. See McEachin v. McGuinnis, 357 F.3d 197, 200 (2d
Cir. 2004). If a liberal reading of the complaint "gives any indication that a valid
4

claim might be stated," the court must grant leave to amend it. See Cuoco v.

Moritsugu, 222 F.3d 99, 112 {2d Cir. 2000).
Discussion
1. Real Estate Settlement Procedures Act

Plaintiff alleges that defendants 5 violated the Real Estate Settlement
Procedures Act ("RESPA"), 12 U.S.C. § 2605(e), by failing to respond to his
December 17, 2011Ietter requesting documentation and information about
ownership of the loan. (Compl., Count 1 ~ 11; see also Compl. Ex. 4 at 125-27; Pl.'s
Response at~~ 46-47.) Defendants argue that plaintiff's allegations fall short for
two reasons. First, defendants claim that plaintiff's self-titled "Verification of Proof
of Claim" did not fit the statutory description of a qualified written request
("QWR") and therefore did not require a response. Second, defendants contend
that plaintiff does not allege either actual damages or "a pattern or practice of
noncompliance with the requirements" of RESPA that would warrant damages
under 12 U.S.C. 2605(f). (Def.'s Reply at 8.)
Pursuant to 12 U.S.C. § 2605(e)(1)(A), (2)(A)-(C), upon receipt of a
QWR, a loan servicer must provide a written response within 20 days and take
certain actions within 60 days, including investigating the issues raised in the QWR,

5

Although plaintiff does not specify the targets of his RESPA cause of action, the
Court construes the complaint as bringing the claim against the two defendants that
received the letter, BANA and BAC Home Loans, as well as MERS, which, Bravo
claims, directed their actions. Plaintiff does not substantiate the alleged agency
arrangement with supporting facts. As such, the pleadings do not support a finding
that such a control relationship existed.
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making any necessary corrections, and providing the requested information or
explaining its unavailability. Noncompliance entitles a borrower to actual damages
as well as "additional damages [of up to $1,000], as the court may allow, in the case
of a pattern or practice of noncompliance." 12 U.S.C. § 2605(f)(1)(A), (B).
Not all communications from a borrower require a response under
RESPA. Nor do all complaints permit recovery in the event that a borrower does
not respond. The statute applies only to "written correspondence" requesting
"information relating to the servicing of [a]loan." 12 U.S.C. § 2605(e)(1)(A).
Servicing is defined as "receiving any scheduled periodic payments from a borrower
pursuant to the terms of any loan ... and making the payments of principal and
interest and such other payments with respect to the amounts received from the
borrower as may be required pursuant to the terms of the loan." 12 U.S.C.A. §
2605(i)(3).
Plaintiff's correspondence falls short of the statutory definition of a
QWR. While the plain language of the letter reflects that plaintiff intended to give
formal notice and includes an explicit reference to RESPA, it merely seeks copies of
loan documents, verification of the identity of the holder in due course of the loan,
and proof of the servicer's authority to service the loan. (Com pl. Ex. 4 at 125-27.)
The letter says nothing about defendants' receipt of scheduled periodic payments or
the amount of such payments. Thus, the letter "served as a communication
challenging the validity of the loan and not a communication relating to the
servicing of the loan as defined by statute." Ward v. Security Atlantic Mortgage
6

Electronic Registrations Systems, Inc., 858 F. Supp. 2d 561, 574 (E.D.N.C. 2012). See,
e.g., Junod v. Dream House Mortgage Co., 2012 WL 94355 at *3-*4 (C.D. Cal. 2012);
Hintz v. JPMorgan Chase Bank, 2011 WL 579339 at *8 (D. Minn. 2011); Corazzini v.
Litton Loan Servicing LLP, 2010 WL 6787231 at *11 (N.D.N.Y. 2010).
Even if the communication were a QWR, defendants assert correctly
that plaintiff fails to state a claim, because he pleads neither actual damages flowing
from the charged RESPA violation nor facts showing a pattern or practice of
noncompliance with the QWR provisions of RESPA warranting statutory damages
under 12 U.S.C. § 2605(t). (Def.'s Reply at 8-9.)
Plaintiff therefore fails to state a claim under RESPA. Because a
redrafting of the complaint cannot remedy the shortcomings of plaintiff's attached
correspondence with defendants, the cause of action is dismissed with prejudice.
2. Truth in Lending Act
Reading the complaint liberally, the Court construes plaintiff's
reference to the Truth in Lending Act ("TILA") as an effort to state a claim under
that statute. (Compl., Count 1 ~ 11; Compl. Ex. 4 at 127.) As with RESPA, plaintiff
alleges that BANA and BAC Home Loans, and, by extension, MERS, violated TILA
by failing to respond to his December 171etter. Defendants did not address this
claim in their briefing, although they moved to dismiss the complaint in its entirety.
Regardless, plaintiff's TILA claim survives.
Pursuant to 15 U.S.C. § 1641(t){2), "[u]pon written request by the
obligor, the servicer shall provide the obligor, to the best knowledge of the servicer,
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with the name, address, and telephone number of the owner of the obligation or the
master servicer of the obligation." While plaintiff's letter to BANA and BAC Home
Loans did not neatly list the specific information to which he was entitled under
TILA, the plain language of his correspondence communicated a request for
precisely the type of information that the statute seeks to put in his hands. (Com pl.
Ex. 4 at 125-127.) In addition to demanding "the name and address of the investor
associate with this mortgage loan," plaintiff also asked the recipients to "identify ...
the Holder in Due Course." (Compl. Ex 4 at 127.) Defendants, Bravo alleges, never
responded. (Compl., Count 1 , 11.)
Even though §15 U.S.C. § 1641(t)(2) imposes liability only on creditors
or assignees, thereby exempting servicers from liability, see Gale v. Franklin Loan

Services, 701 F. 3d 1240, 1244-45 (9th Cir. 2012); St. Breux v. U.S. Bank, Nat. Ass'n,
2013 WL 331592 at *6 (S.D. Fla. 2013); Matza v. Countrywide Home Loans, Inc.,
2012 WL 2499203 (D. Nev. 2012); Ording v. BAC Home Loans Service, LP, 2011 WL
99016 at *3 (D. Mass. 2011); Selby v. Bank ofAmerica, Inc., 2011 WL 902182 at *6
(S.D. Cal. 2011); Consumer Solutions REO, LLC v. Hillery, 2010 WL 1222739 at *3
(N.D. Cal 2010), the exhibits to plaintiff's complaint support an inference that
BANA and BAC Home Loans not only serviced the loan, (Com pl. Ex. 5 at 139), but
also were assigned the loan by MERSon October 3, 2010, 6 (Compl. Ex. 3 at 109-11).

6

Plaintiff questions the validity of the transfer. (E.g., Com pl., Count 1 , 18.)
However, to construe the facts in the light most favorable to the nonmoving party,
the Court assumes for the purposes of this claim that MERS assigned the mortgage
to BANA and BAC Home Loans.
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Accordingly, defendants' motion is denied as to DANA and BAC Home Loans but
granted as to other defendants. The TILA claims against them are dismissed, but
plaintiff is granted leave to replead as to MERS if Bravo can, in good faith, supply
facts supporting a control relationship between MERS and either DANA or BAC
Home Loans.
3. Fair Debt Collection Practices Act
Plaintiff's letter of December 17, 2011 also made reference to the Fair
Debt Collection Practice Act ("FDCPA"), 16 U.S.C. § 1692g(b). (Compl. Ex. 4 at
127.) The Court construes the reference as an attempt to bring an FDCPA claim.
As with the TILA claim, defendants did not brief the issue. Notwithstanding, the
claim must be dismissed.
FDCPA governs the practices of debt collectors. As defined by statute,
a debt collector is any person "who regularly collects or attempts to collect, directly
or indirectly, debts owed or due or asserted to be owed or due another ... [as well
as) any creditor who, in the process of collecting his own debts, uses any name other
than his own which would indicate that a third person is collecting or attempting to
collect such debts." 15 U.S.C. § 1692a(6). Explicitly excluded from the definition is
"any officer or employee of a creditor while, in the name of the creditor, collecting
debts for such creditor" and "any person while acting as a debt collector for another
person, both of whom are related by common ownership or affiliated by corporate
control, if the person acting as a debt collector does so only for persons to whom it is
so related or affiliated and if the principal business of such person is not the
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collection of debts." 15 U.S.C. § 1692a(6)(a), (b).
A borrower can trigger a dispute procedure under FDCPA by sending
a written notice within 30 days of receiving a statutorily-required notice from a debt
collector. 15 U.S.C. § 1692g(b). The letter either must alert the debt collector that
the debt is disputed or request the name and address of the original creditor. 15
U.S.C. § 1692g(b). Upon receipt of such a notice, the debt collector must cease
collection activities until the verification of the debt or the name and address of the
original creditor is obtained and provided to the borrower. 15 U.S.C. § 1692g(b).
Even if Bravo's letter is construed as disputing the debt, the complaint
suffers three fatal deficiencies. First, plaintiff does not refer to an initial notice from
any defendant, rendering it impossible to assess whether the letter was sent within
the 30-day window for initiating a dispute. Second, the pleadings are silent as to
whether defendants continued to attempt to collect the debt. Finally, Bravo's
papers fail to allege that any of the recipients of the letter qualified as a debt
collector, as defined by 15 U.S.C. § 1692a(6). 7
Plaintiff's FDCP A claim is therefore dismissed as to all defendants.
Bravo may amend his complaint to remedy the foregoing shortcomings vis a vis
BANA and BAC Home Loans. Additionally, as with plaintiff's TILA claim, plaintiff
is granted leave to replead his claim as to MERS if Bravo can, in good faith, supply

7

The Court notes that if MERS' assignment of the loan is in fact valid, and if the
mortgage followed the note, as required by law, BANA and BAC Home Loans
probably fall within one of the two carve-outs codified at 15 U.S.C. § 1692a(6)(a),

(b).
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facts supporting a control relationship between the defendant and either BANA or
BAC Home Loans.
4. Breach of Contract
To state a claim for breach of contract, plaintiff must show (1) the
existence of a contract; (2) claimant's performance under the contract; (3)
defendant's breach; and (4) resulting damages." Harsco Corp. v. Segui, 91 F.3d 337,
348 (2d Cir. 1996). Defendants contend persuasively that plaintiff's claim suffers
8

three fatal defects. (Def.'s Opp. at 10-13.) First, plaintiff fails to plead facts
demonstrating his own adequate performance. (Def.'s Opp. at 11-12.) Second, the
complaint fails to allege an actual breach. (Def.'s Opp. at 12.) Lastly, the complaint
is devoid of causally connected damages. (Def.'s Opp. at 13.)
Plaintiff does not start off on sound footing. Bravo admits in his
pleadings not only that he fell behind on his mortgage payments, (Com pl., Count 1 ~
7), but that he ultimately decided to stop paying altogether, (Com pl., Count 1 ~ 9).
Absent additional pleadings justifying plaintiff's conduct, it appears that plaintiff,
not defendant, violated the terms of the mortgage. Pursuant to § 1 of the Covenants
section of the agreement, plaintiff must "pay [l]ender on time principal and interest
due under the note.'' (Compl. Ex. 1 at 43.) Not having fulfilled his obligations
under the contract, plaintiff cannot sustain a claim for breach of contract. Radin v.
8

Although plaintiff contests the validity of the assignment of the mortgage to BANA
and/or BAC Home Loans, (Compl., Count 1 ~~ 12, 19, 25, 26, 28, 29, 32-36), and by
extension brings into question whether the relevant contracts would apply to BANA
or BAC Home Loans at all, the Court assumes for the purpose of this claim that
both the note and mortgage bind these two defendants.
11

Albert Eistein College ofMedicine of Yeshiva University, 2005 WL 1214281 at *14
(S.D.N.Y. 2005).
Focusing on whether BANA or BAC Home Loans violated the terms of
either the note or the mortgage, Bravo pleads five alleged violations: refusing to
modify the terms of his loan, (Compl, Count 1 ,. 5), sending default notices, (Compl.,
Countl ,. 7), accelerating the loan, (Com pl., Countl ,. 7), threatening foreclosure,
(Com pl., Countl ,. 7), and failing to prove ownership of the loan or otherwise justify
its assignment (Compl, Count 1 ,.,. 24-37). In fact, either the note or the mortgage
authorizes each of the first four alleged violations. Section 12(a) of the mortgage
grants the lender the right to "refuse to extend time for payment or otherwise
modify amortization of the Sums Secured." (Compl. Ex. 2 at 89.)

Secti~n

6(C) of the

note requires the lender to send written notice, (Compl. Ex. 1 at 61), if the borrower
defaulted on the loan, as plaintiff admits he did, (Com pl. ,. 7). Moreover, § 6(C) of
the note entitles the lender to accelerate the loan. (Com pl. Ex. 1 at 61.) Finally,§
22(b )(4) of the mortgage requires the lender to give notice that in the event of a
"failure to correct the default ... [l]ender or another person may acquire the
[p]roperty by means offoreclosure." (Compl. Ex. 2 at 95.) Conversely, plaintiff
does not plead, and the Court did not find on independent review, a single provision
of either the note or the mortgage requiring the lender to prove its ownership of
either the note or the mortgage or otherwise alert the borrower of an assignment or
transfer.
Plaintiff's claim also falls short, because the complaint does not
12

support an inference that any breach by defendants caused cognizable damages.
Bravo simply demands $500,000 for "actual and future damages." (Compl., Prayer
for Relief~ 51.) "A claim for breach of contract must rest on more than a
conclusory allegation that the defendant's breach caused damages, even where the
exact amount of damages is alleged." Comfort Inn Oceanside v. Hertz Corp., 2011
WL 5238658 at *8 (E.D.N.Y. 2011). Failing to do so, plaintiff cannot sustain a claim
for breach of contract.
Plaintiff's claim is dismissed with prejudice, since nothing in the
pleadings even hints that such a claim may be validly repleaded in an amended
complaint.
5. U.C.C. Claims
Plaintiff alleges that defendants violated three provisions of the U.C.C. 9
(Compl, Count 1 ~~ 19, 20; Count 2, ~~ 46-50.) He first attacks MERS as the
contractually-designated nominee of loan originator, Countrywide Home Loans,
Inc. (Compl., Count

1~~

19, 35.) Without stating at what point MERS had a duty

to prove to the note holder (the lender) its authority "to dispose of collateral," much
less how he, as the borrower, would have been aware of any such disclosure, Bravo
contends that defendants ran afoul ofU.C.C. § 3-104(1)(a), (b) by failing to supply
evidence ofMERS' authority to do so. (Compl., Count

9

1~~

19, 35.) As defendants

Bravo casts the alleged U.C.C. violations as violations of "the basic principal [sic}
of contract law." (Com pl., Count 2.) As interposed, however, these violations stem
from alleged breaches of the Code as opposed to actual breaches of any provision of
the agreement executed by the parties.
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argue, U.C.C. 3-104 does not, in fact, create a duty of disclosure. Rather, the cited
provision defines the term "negotiable instrument" as an "unconditional promise or
order to pay a sum certain in money." § 3-104(1)(b). Plaintiff's note constitutes a
negotiable instrument pursuant to§ 3-104(1)(b), Mortgage Electronic Registration

Systems, Inc. v. Coakley, 838 N.Y.S.2d 622, 623 (N.Y. App. Div. 2nd Dept. 2007), but
that fact alone does not create liability under the Code as a freestanding matter.
Bravo goes on to charge that defendants violated U.C.C. §§ 3-602 and
3-603 by benefitting financially from payments he made on his loan, which
defendants neither held as owners in due course nor to which they had an alternate
source of right. (Compl., Count 2 ~~ 46-50.) Defendants contend correctly that,
even if they wrongly benefitted from Bravo's payments, they would not have
violated §§ 3-602(a) or 3-603(a). The former establishes the conditions under which
a borrower can satisfy his obligation by paying a party other than the party entitled
to enforce the instrument. U.C.C. § 3-602. The latter addresses payment of an
obligation. Neither bears upon which parties can benefit from such payments.
Ultimately, as long as the borrower is credited with proper payment required by the
instrument, who might, in fact, finally benefit from that payment, under the U.C.C.,
is none of the borrower's concern.
In sum, plaintiff states no facts supporting a cause of action under any
of the U.C.C. provisions cited in the complaint. There is absolutely nothing in the
pleadings to suggest plaintiff has even a faint hope of amending his claim to assert a
cause of action resting on violation of any U.C.C. provision. Leave to attempt such
14

amendment is denied.
6. Fraud
In his motion opposition, Bravo alleges that "[t]or the same reasons
already discussed above, it's clear that the (p]laintiff has pleaded a plausible fraud
claim against defendant." (PI. 's Br. ~53.) In any case, he does not assert fraud in
his actual pleadings, so any such claim is not properly before the Court. Wright v.

Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998). Of course, evidence of a
plausible claim would win a chance to replead it in an amended complaint. The
Court finds, however, that his factual allegations fall far short of suggesting that a
plausible fraud claim exists.
"Under New York law, to state a claim for fraud a plaintiff must
demonstrate: (1) a misrepresentation or omission of material fact; (2) which the
defendant knew to be false; (3) which the defendant made with the intention of
inducing reliance; (4) upon which the plaintiff reasonably relied; and (5) which
caused injury to the plaintiff." Solow v. Citigroup, Inc., 2013 WL 149902 at *2 (2d
Cir. 2013). "[A] party must state with particularity the circumstances constituting
fraud or mistake." Fed. R. Civ. P. 9(b). "Malice, intent, knowledge, and other
conditions of a person's mind may be alleged generally." Fed. R. Civ. P. 9(b).
In his opposition papers, Bravo argues that the mortgage documents
were inherently "misleading concerning the 'interest rate[s] and payment
amounts,"' and by containing "language that was difficult to understand." (Pl.'s
Br. ~49.) Even assuming these allegations to be true, as the Court must at this stage
15

of the proceedings, plaintiff's claim fails. To start, the only alleged
misrepresentation plaintiff cites in his brief is the language of the contract itself.
Disagreements as to the meaning of contract language are properly resolved as
matters of contract law, not as tort claims for fraud. Cf. Aviamax Aviation Ltd. v.

Bombardier Aerospace Corp., 2010 WL 1882316 (D. Conn. 2010). Moreover,
nowhere does plaintiff present facts supporting an inference that any defendant
intended to defraud him. Complex contract language that seems inscrutable or
misleading to a layperson will not suffice. The pleadings are silent as to defendants'
"conscious misbehavior or recklessness." See Shields v. Citytrust Bancorp, Inc., 25
F.3d 1124, 1128 (2d Cir. 1994). Other than a result displeasing to Bravo and the
label of fraud, there is nothing but a standard transaction. No other act or omission
is mentioned.
Plaintiff's fraud claim, therefore, fails as a matter of law and is
dismissed with prejudice.
7. Declaratory Judgment Act
The Court's power to order declaratory relief emanates from the
Declaratory Judgment Act ("DJA"). The DJA is purely procedural .and neither
creates substantive rights beyond those available under the law, nor produces
otherwise unavailable causes of action. See, e.g., Chevron Corp. v. Naranjo, 661 F.3d
232, 244-245 (2d Cir. 2012). Where, as here, plaintiff does not prevail on such
separate claim or claims, the Court cannot order declaratory relief under the DJA.

16

Conclusion
For all the forgoing reasons, defendants' motion is denied as to
plaintiff's TILA claim against BANA and BAC Home Loans. The motion is granted
to the extent that plaintiff's RESPA, breach of contract, U.C.C., and fraud claims
are dismissed with prejudice as to all defendants. Further, plaintiff's FDCPA and
TILA claims are dismissed with prejudice as to MERSCORP and BOA. Plaintiff's
FDCPA claim is dismissed without prejudice as to BANA, BAC Home Loans, and
MERS, and his TILA claim is dismissed without prejudice as to MERS. With
respect to all claims dismissed without prejudice, 30 days leave is granted from the
entry of this order to replead those claims. To do so, plaintiff shall file an amended
complaint containing all of his factual allegations, including any documents or other
exhibits, in support of those FDCPA and TILA claim. The amended complaint shall
be identified as the "Amended Complaint" and bear the same docket number as this
Order.
SO ORDERED.
Dated:
Brooklyn, New York
April 9, 2013

s/ ENV
ERIC N. VITALIANO
United States District Judge

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