Yanes et al v. Ocwen Loan Servicing, LLC et al

Filing 84

MEMORANDUM & ORDER granting 67 Motion to Dismiss; For the foregoing reasons, Defendants' motion to sever and to dismiss is GRANTED. The claims of all Plaintiffs, with the exception of the claims of first-named plaintiff Pedro Yanes, a re SEVERED pursuant to Rules 20 and 21 of the Federal Rules of Civil Procedure and are DISMISSED WITHOUT PREJUDICE to commencing separate actions. Moreover, Defendants' motion to dismiss the Amended Complaint as to Yanes's claims is GRAN TED. However, his claims are DISMISSED WITHOUT PREJUDICE and with leave to replead. If Yanes wishes to file a Second Amended Complaint, he must do so within thirty (30) days of the date of this Memorandum and Order. If he does not do so, his clai ms will be dismissed with prejudice and the case will be closed. Party Mary Jo Anderson, Jennifer Brooks, Sandra Buck, Alphonzo C. Byrd, Kenneth Bywater, Krystal Campbell, Edgar Caraballo, Melissa Cardilli, Bernadette Chapman, Buddy Cline, Ronnie D avis, Sr, Jacob Echevarria, Horacio Elman, Laverne Enger, Clarence Evans, Lizabeth Farley, Denise D. Farley-Renkel, Jose Figueroa, Dameian Flores, Ricardo Gomez, Bonita Goodman, Daryll Henry, Denise Howard, Patrick O. Kane, Joeann Kelly, Dave Krussow , Carl Malchow, Aaron Mathis, Brenda Mintz, Dennis Mintz, Maria Elena Ospina, Cyndrell Parker, Melvin Pegues, Darryl Queen, April Querol, Michael Ramsay, Diana Rodriguez, John Roes 1-100, Edwin Romero, Donald R. Sands, Jr, Jorge Santiago, Gregory Serafini, Kim Smith, Yolette Szatkowski, Robert Wagner, Darryl West, Patricia White, Brett Adams and Dulce Alvarez-Cheverez terminated. So Ordered by Judge Joanna Seybert on 4/14/2014. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
PEDRO YANES, DULCE ALVAREZ-CHEVEREZ,
MICHAEL RAMSAY, JOEANN KELLY,
RICARDO GOMEZ, DARRYL WEST, JORGE
SANTIAGO, DARYLL HENRY, SANDRA BUCK,
HORACIO ELMAN, JENNIFER BROOKS,
BUDDY CLINE, CARL MALCHOW, ALPHONZO
C. BYRD, AARON MATHIS, BONITA
GOODMAN, CYNDRELL PARKER, DONALD R.
SANDS, JR., ROBERT WAGNER, DENISE
HOWARD, RONNIE DAVIS, SR., DARRYL
QUEEN, MELVIN PEGUES, EDWIN ROMERO,
DENISE D. FARLEY-RENKEL, LAVERNE
ENGER, MARIA ELENA OSPINA, DIANA
RODRIGUEZ, APRIL QUEROL, EDGAR
CARABALLO, JOSE FIGUEROA, JACOB
ECHEVARRIA, PATRICK O. KANE,
GREGORY SERAFINI, KIM SMITH, KENNETH
BYWATER, DENNIS MINTZ, BRENDA MINTZ,
YOLETTE SZATKOWSKI, MELISSA CARDILLI,
PATRICIA WHITE, LIZABETH FARLEY,
DAMEIAN FLORES, KRYSTAL CAMPELL,
BRETT ADAMS, BERNADETTE CHAPMAN,
DAVE KRUSSOW, CLARENCE EVANS, JOHN
ROES 1-100, and MARY JO ANDERSON,

MEMORANDUM & ORDER
13-CV-2343(JS)(GRB)

Plaintiffs,
-againstOCWEN LOAN SERVICING, LLC; WELLS
FARGO BANK, N.A., individually and
doing business as America’s
Servicing Company; BANK OF
AMERICA, N.A.; JPMORGAN CHASE BANK,
N.A.; M&T BANK CORPORATION; PNC
BANK, N.A.; MORTGAGE INVESTORS
CORP.; and NATIONSTAR MORTGAGE, LLC, 1
Defendants.
---------------------------------------X

1

The Court has drafted the caption according to how it currently
appears on the docket.

APPEARANCES
For Plaintiffs:

For Defendants
Ocwen:

Michael E. Herskowitz, Esq.
Michael Andrew Lehrman, Esq.
The Hoffman Law Group, P.A.
1999 Flatbush Avenue, Suite 201
Brooklyn, NY 11234

Brian M. Forbes, Esq.
Robert Bruce Allensworth, Esq.
Robert W. Sparkes, Esq.
K&L Gates LLP
One Lincoln Street
Boston, MA 02111
David S. Versfelt, Esq.
Kirkpatrick Lockhart Preston Gates Ellis LLP
599 Lexington Avenue
New York, NY 10022

Wells Fargo:

Allison J. Schoenthal, Esq.
Patrick Joseph Dempsey, Esq.
Hogan Lovells US LLP
875 Third Avenue
New York, NY 10022

Bank of America:

Nafiz Cekirge, Esq.
120 Broadway, Suite 300
Santa Monica, CA 90401
Scott Harris Kaiser, Esq.
Bryan Cave LLP
1290 Avenue of the Americas
New York, NY 10104

JPMorgan Chase:

Brian A. Herman, Esq.
Katarzyna Mularczyk, Esq.
Morgan, Lewis & Bockuis, LLP
101 Park Avenue
New York, NY 10178

M&T Bank:

S. Robert Schrager, Esq.
Carmine Joseph Castellano, Esq.
Hodgson Russ LLP
1540 Broadway, 24th Floor
New York, NY 10036

2

PNC Bank:

Caroline Kathryn Eisner, Esq.
Matthew P. Previn, Esq.
Richard Eric Gottlieb, Esq.
Buckley Sandler LLP
1133 Avenue of the Americas, Suite 3100
New York, NY 10036

Mortgage Investors: Michael Y. Kieval, Esq.
Jason Wayne McElroy, Esq.
Weiner Brodsky Kider PC
1300 19th Street, NW, Fifth Floor
Washington, DC 20036
Nationstar:

Bradley L. Mitchell, Esq.
Constantine D. Pourakis, Esq.
Stevens & Lee, P.C.
485 Madison Avenue
New York, NY 10022

SEYBERT, District Judge:
Currently
sever

and/or

pending

dismiss

by

before

the

defendants

Court

Bank

of

is

a

motion

America,

to

N.A.;

JPMorgan Chase Bank, N.A.; M&T Bank; Mortgage Investors Corp.;
Nationstar Mortgage, LLC; Ocwen Loan Servicing, LLC; PNC Bank
National Association; and Wells Fargo Bank, N.A. (collectively
“Defendants”).

For the following reasons, Defendants’ motion is

GRANTED.
BACKGROUND 2
This action was initially commenced on April 17, 2013
by fifty-four named plaintiffs and “John Roes 1-100” against
thirteen

defendants.

Since

then,

2

various

parties

have

been

The following facts are drawn from the Amended Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
3

voluntarily
plaintiffs

dismissed.
Pedro

Presently

Yanes

remaining

(“Yanes”),

Dulce

are

claims

by

Alvarez-Cheverez,

Michael Ramsay, Joeann Kelly, Ricardo Gomez, Darryl West, Jorge
Santiago,
Brooks,

Daryll

Buddy

Henry,

Cline,

Sandra

Carl

Buck,

Malchow,

Horacio
Alphonzo

Elman,
C.

Jennifer

Byrd,

Aaron

Mathis, Bonita Goodman, Cyndrell Parker, Donald R. Sands, Jr.,
Robert Wagner, Denise Howard, Ronnie Davis, Sr., Darryl Queen,
Melvin Pegues, Edwin Romero, Denise D. Farley-Renkel, Laverne
Enger, Maria Elena Ospina, Diana Rodriguez, April Querol, Edgar
Caraballo,
Gregory
Brenda

Jose

Figueroa,

Serafini,
Mintz,

Kim

Yolette

Jacob

Smith,

Echevarria,

Kenneth

Szatkowski,

Patrick

Bywater,

Melissa

O.

Dennis

Cardilli,

Kane,
Mintz,

Patricia

White, Lizbeth Farley, Dameian Flores, Krystal Campbell, Brett
Adams, Bernadette Chapman, Dave Krussow, Clarence Evans, Mary Jo
Anderson,

and

John

Roes

1-100

(collectively

“Plaintiffs”)

against Defendants as alleged in the Amended Complaint.
Plaintiffs are homeowners who assert that Defendants
committed various “illegal” acts in the creation and servicing
of their home mortgage loans.
Entry 60.)

(See generally Am. Compl., Docket

Plaintiffs allege that, during the origination of

their loans, Defendants offered terms that Plaintiffs would not
have

accepted

misrepresentations.
did

not

require

had

it

not

been

(Am. Compl. ¶ 33.)
sufficient

financial
4

for

Defendants’

Moreover, Defendants
documentation,

and

ultimately provided mortgages unsuitable to Plaintiffs’ incomes.
(Am. Compl. ¶¶ 37, 39.)
Although

Defendants

offered

various

types

of

loans,

they did not convey the long-term consequences of those loans to
Plaintiffs.

(Am.

Compl.

¶

43.)

For

example,

Defendants

“marginalized” the consequences of negatively amortized loans,
downplaying the difficulties of refinancing and the increased
amount

of

principal.

disadvantages

of

(Am.

certain

Compl.
loans

¶¶
to

44-45.)

Despite

homeowners,

the

Defendants

encouraged their personnel to market them due to the financial
benefits they stood to gain.
to

Plaintiffs,

Defendants’

they

(Am. Compl. ¶¶ 46-49.)

entered

into

misrepresentations

and

these

loans

omissions.

According
based

(Am.

upon
Compl.

¶¶ 49-53.)
Ultimately,
payments

and

Plaintiffs

requested

(Am. Compl. ¶¶ 2-3.)
provided

that

after

modifications

on

their

through

mortgage

Defendants.

Defendants ignored Plaintiffs’ requests or

Plaintiffs

modification.

loan

defaulted

with

application

(Am. Compl. ¶ 4.)

completion

of

the

materials

for

a

They represented to Plaintiffs
materials,

Plaintiffs

would

be

provided terms to make payments under a “trial modification.”
(Am. Compl. ¶ 5.)

If Plaintiffs made those payments, there

would be a permanent modification.

5

(Am. Compl. ¶ 5.)

Plaintiffs allege that they accepted Defendant’s loan
modification
contract.

offers
(Am.

and

began

Compl.

¶

performance,

7.)

thus

Specifically,

forming
the

a

Amended

Complaint asserts that “Plaintiffs either provided all of the
requested documentation in support of their loan modification
application to Defendants, and otherwise met all the conditions
precedent pursuant to a trial modification offer, or attempted
to do so in good faith, but faced substantial interference from
Defendants.”
substantial

(Am.

Compl.

8.)

Where

it

interference,

¶

was

because

Plaintiffs

faced

Defendants

were

essentially “shepherding Plaintiffs into foreclosure” through an
“onerous” and “complicated” process.
Moreover,
documentation,
requests.”

in

instances

“Defendants

still

(Am. Compl. ¶ 10.)

(Am. Compl. ¶ 9.)

where

Plaintiffs

sent

missing

did

provide

documentation

This was so even when Plaintiffs

provided the documents on several occasions and was the result
of a policy to burden Plaintiffs’ compliance with modification
terms.

(Am. Compl. ¶¶ 10-11.)
In addition, Plaintiffs allege that they were denied

trial
status.

modifications

on

baseless

(Am. Compl. ¶ 12.)

claims

regarding

financial

“In cases where trial modification

was not given, Defendants either gave no explanation for the
denial, or alleged that Plaintiffs did not provide the necessary
documentation for processing or review.”
6

(Am. Compl. ¶ 13.)

Plaintiffs allege that Defendants had a financial incentive to
encourage

foreclosure

modification.

or

short

sale,

(Am. Compl. ¶¶ 14-16.)

rather

than

loan

Where Plaintiffs were

able to meet the conditions of modification, they were given
terms to make payments on a trial basis, but ultimately denied
permanent

modification

nonetheless.

(Am.

Compl.

¶¶

14-15.)

Even “[w]hen a permanent modification was granted, Defendants
included

such

disadvantageous

terms

that

Plaintiffs’ performance impossible . . . .”
Furthermore,
Program

(“HAMP”)

under

lenders

the

must

Home

ultimately

(Am. Compl. ¶ 17.)

Affordable

conduct

rendered

a

Net

Modification

Present

Value

(“NPV”) calculation of the property as modified and unmodified.
(Am. Compl. ¶ 23.)

“When a modification has an NPV equal to, or

greater than, the amount likely to be obtained from sale in
foreclosure,

lenders

must

offer

a

modification.

However,

Defendants’ CDS/CDO [“Credit Debt Swap” and “Collateralized Debt
Obligations”]
amount

that

foreclosure.”

holdings
could

create

a

reasonably

financial

be

(Am. Compl. ¶ 23.)

offset

obtained

beyond

through

sale

the
in

Thus, “Defendants have thus

created an alarming conflict of interest as part of their losssharing

agreements

incentivizing
faith.”

them

in
to

the

securitization

negotiate

(Am. Compl. ¶ 20.)

with

the

of

mortgages,

Plaintiffs

in

bad

Moreover, Defendants do not set

7

specific

standards

modifications.

for

determining

who

will

be

granted

loan

(Am. Compl. ¶ 25.)

Plaintiffs assert the following causes of action: (1)
Count One: Breach of Contract; (2) Count Two: Breach of the
Implied

Covenant

of

Three:

Promissory

Good

Faith

Estoppel;

and

Dealing;

Count

(4)

Fair

(3)

Four:

Count

Fraudulent

Concealment; (5) Count Five: Fraud for Demanding and Collecting
Monthly

Note

Violations

of

Payments

under

False

State

Consumer

Pretenses;

Protection

(6)

Count

Six:

(7)

Count

Statutes;

Seven: Violations of the Federal Truth in Lending Act (“TILA”);
(8) Count Eight: Unjust Enrichment; (9) Count Nine: Fraud in the
Inducement; and (10) Count Ten: Violations of the Real Estate
Settlement Procedures Act (“RESPA”).
DISCUSSION
Defendants now move to sever Plaintiffs’ claims and to
dismiss the Amended Complaint.
issue

of

severance

before

The Court will first address the

turning

to

Defendants’

motion

to

dismiss.
I. Severance
A. Federal Rule of Civil Procedure 20
1. Legal Standard
Rule

20(a)(1)

permits

the

joinder

of

multiple

plaintiffs in an action if: “(A) they assert any right to relief
jointly, severally, or in the alternative with respect to or
8

arising out of the same transaction, occurrence, or series of
transactions or occurrences; and (B) any question of law or fact
common to all plaintiffs will arise in the action.”
P. 20(a)(1).

FED. R. CIV.

These elements are preconditions and both must be

met for joinder to be proper.

Deskovic v. City of Peekskill,

673 F. Supp. 2d 154, 159 (S.D.N.Y. 2009) (“As is clear from the
plain language of [the Rule], both criteria must be met for
joinder to be proper.”).

While “[t]he requirements of Fed. R.

Civ. P. 20(a) are to be interpreted liberally to enable the
court to promote judicial economy by permitting all reasonably
related claims for relief by or against different parties to be
tried in a single proceeding, the requirements of the rule still
must be met and constrain the Court’s discretion.”

Kalie v.

Bank of Am. Corp., --- F.R.D. ----, 2013 WL 4044951, at *3
(S.D.N.Y.

Aug.

9,

2013)

(alteration

in

quotation marks and citation omitted).

original)

(internal

“If a court concludes

that [parties] have been improperly joined under Rule 20, it has
broad discretion under Rule 21 to sever [those] parties . . .
from the action.”

Id.

In determining whether claims arise out of the same
“transaction” or “occurrence” under Rule 20(a), “courts are to
look

to

the

logical

relationship

between

the

claims

and

determine ‘whether the essential facts of the various claims are
so logically connected that considerations of judicial economy
9

and fairness dictate that all the issues be resolved in one
lawsuit.’”
12,

22

Id. (quoting United States v. Aquavella, 615 F.2d

(2d

Cir.

demonstrating

1979)).

that

Plaintiffs

joinder

is

proper

bear

the

under

burden

Rule

of

20(a).

Deskovic, 673 F. Supp. 2d at 159.
2. Application
Here, the claims of Plaintiffs--forty-nine individuals
with properties in numerous states--do not arise out of the same
transaction or occurrence.
in

opposition,

courts

have

primarily

severed

Plaintiffs raise several arguments
asserting

claims

in

that,

to

the

mortgage-related

extent
cases,

cases involve loan origination and not loan modification.

that
those
The

Court disagrees.
Recently, the undersigned issued an Order severing the
plaintiffs in an action involving claims regarding mortgage loan
modification and the same Plaintiffs’ counsel.

See generally

D’Angelis v. Bank of Am., N.A., No. 13-CV-5472, 2014 WL 202567
(E.D.N.Y. Jan. 16, 2014).

There, as here, the Court notes that

it is well-settled that separate loan transactions are separate
“transactions or occurrences” and generally are not sufficiently
related to constitute a “series of transactions or occurrences”
within the meaning of Rule 20(a)(1).
cases).
against

See id. at *2 (collecting

Moreover, even claims asserted by separate plaintiffs
a

common

defendant

do
10

not

arise

out

of

the

same

“transaction” or “occurrence.”
2013 WL 4044951, at *4).

See id. at *2 (quoting Kalie,

In any event, the Amended Complaint

also includes claims regarding loan origination, and not solely
loan modification.

(See Am. Compl. ¶¶ 33-42.)

The Court takes this opportunity to note that several
courts across this District have ordered severance in similar
actions--and rejected similar arguments in opposition--involving
Plaintiffs’ counsel.

See, e.g., Martin v. Bank of Am., N.A.,

No. 13-CV-2350, 2014 WL 977653 (E.D.N.Y. Mar. 12, 2014); Green
v. Citimortgage, Inc., No. 13-CV-2341, 2013 WL 6712482 (E.D.N.Y.
Dec. 18, 2013); Traina v. HSBC Mortg. Servs., Inc., No. 13-CV2336, 2013 WL 6576856 (E.D.N.Y. Dec. 12, 2013).

Accordingly,

the claims of all Plaintiffs, with the exception of the firstnamed plaintiff, Pedro Yanes, are SEVERED pursuant to Rule 20
and DISMISSED WITHOUT PREJUDICE to commencing a separate action.
B. Federal Rule of Civil Procedure 21
Finally, even if Plaintiffs satisfied Rule 20(a), the
Court would reach the same result in exercising its discretion
under Rule 21 of the Federal Rules of Civil Procedure.

Rule 21

provides, in relevant part, that “[o]n motion or on its own, the
court

may

at

any

time,

on

just

terms,

add

or

party . . . [and] sever any claim against any party.”
CIV. P. 21.

11

drop

a

FED. R.

In deciding whether to sever a claim under Rule 21,
courts generally consider, in addition to the preconditions set
forth in Rule 20(a): “[1] whether settlement of the claims or
judicial
would

economy

be

would

avoided

if

be

facilitated;

severance

were

[2] whether

granted;

and

prejudice

[3] whether

different witnesses and documentary proof are required for the
separate claims.”
v.

Credit

Crown Cork & Seal Co., Inc. Master Ret. Trust

Suisse

(S.D.N.Y.

2013)

First

Boston

(quoting

Corp.,

Erausquin

288

v.

F.R.D.

Notz,

331,

Stucki

333

Mgmt.

(Bermuda) Ltd., 806 F. Supp. 2d 712, 720 (S.D.N.Y. 2011)).

“A

court should consider whether severance will ‘serve the ends of
justice

and

further

litigation.’”
Inc.

v.

the

prompt

and

efficient

disposition

of

Crown Cork, 288 F.R.D. at 332 (quoting T.S.I. 27,

Berman

Enters.,

Inc.,

115

F.R.D.

252,

254

(S.D.N.Y.

1987)); see also In re Ski Train Fire in Kaprun, Austria, on
November 11, 2004, 224 F.R.D. 543, 546 (S.D.N.Y. 2004).
Here,
distinct

Plaintiffs’

witnesses

and

individual

documentary

claims

proof.

will

Kalie,

require
2013

WL

4044951, at *6 (finding that judicial economy was not served by
joining mortgage-related claims because “each plaintiff’s claims
implicate

distinct

Furthermore,
facilitated

loans,

settlement
if

the

locations,
of

claims

the

claims

relating

transactions are litigated separately.
12

dates

to

and

is

personnel”).

likely

separate

to

be

mortgage

See Adams v. U.S. Bank,

N.A., No. 12-CV-4640, 2013 WL 5437060, at *4 (E.D.N.Y. Sept. 27,
2013).
the

In addition, “[a] joint trial could lead to confusion of

jury

and

thereby

prejudice

defendants.”

Kalie,

2013

WL

4044951, at *6 (citation and internal quotation marks omitted).
Thus, for these reasons, the Court also finds that the Rule 21
factors require severance of all claims besides those of the
first-named plaintiff, Pedro Yanes.
II. Dismissal
Defendants
claims

with

further

prejudice

move

pursuant

to
to

Procedure 8(a)(2), 9(b), and 12(b)(6). 3

dismiss
Federal

all

of

Rules

of

Yanes’s
Civil

The Court will first set

out the applicable legal standards before turning to the merits
of Defendants’ motion.
A. Legal Standards
1. Under Rule 12(b)(6)
Pursuant to Rule 8(a)(2) of the Federal Rules of Civil
Procedure, a pleading must contain a “short and plain statement
of the claim showing that the pleader is entitled to relief.”
Under

the

now

well-established

3

Iqbal/Twombly

standard,

a

More accurately, Defendants moved to: “(1) dismiss misjoined
Plaintiffs without prejudice, and dismiss all claims of the
first-named
Plaintiff,
Pedro
Yanes,
with
prejudice,
or
alternatively, (2) dismiss the Amended Complaint as to all
Plaintiffs with prejudice.”
(Defs.’ Br., Docket Entry 69, at
1.)
Given the broad nature of the Amended Complaint and the
lack of any allegations specific to the individual Plaintiffs
and individual Defendants, the Court cannot dismiss all claims
with prejudice.
13

complaint satisfies Rule 8 only if contains enough allegations
of fact to state a claim for relief that is “plausible on its
face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.

Ct. 1955, 167 L. Ed. 2d 929 (2007); accord Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).
This “plausibility standard,” which governs motions to
dismiss

under

principles.”

Rule

12(b)(6),

is

governed

must

“[t]wo

working

Iqbal, 556 U.S. at 670, 678; accord Harris v.

Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).
Court

by

accept

“inapplicable

to

all

allegations

legal

as

First, although the

true,

conclusions;”

this

thus,

“tenet”

is

“[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”

Iqbal, 556 U.S. at 678;

see also Twombly, 550 U.S. at 555, 557 (a pleading that offers
“labels

and

conclusion”

or

“naked

assertion[s]”

devoid

“further factual enhancement” does not satisfy Rule 8).

of

Second,

only complaints that state a “plausible claim for relief” can
survive

a

motion

to

dismiss.

Iqbal,

556

U.S.

at

679.

Determining whether a complaint does so is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.”

Id.; accord Harris, 572 F.3d at

72.

14

2.

Under Rule 9(b)

To state a claim sounding in fraud or mistake, Rule
9(b)

of

the

heightened

Federal

pleading

Rules

of

standard:

Civil
“[A]

Procedure

party

imposes

must

state

a

with

particularity the circumstances constituting fraud or mistake.”
FED. R. CIV. P. 9(b).

The Second Circuit has read Rule 9(b) to

require that a complaint “(1) specify the statements that the
plaintiff contends were fraudulent, (2) identify the speaker,
(3)

state

where

and

when

the

statements

were

made,

and

(4)

explain why the statements were fraudulent,” in order to survive
a motion to dismiss.
Cir.

2004)

(quoting

Rombach v. Chang, 355 F.3d 164, 170 (2d
Mills

v.

Polar

Molecular

Corp.,

12

F.3d

1170, 1175 (2d Cir. 1993)) (internal quotation marks omitted).
B. Analysis
Defendants

preliminarily

assert

that

the

Amended

Complaint should be dismissed because Plaintiffs have provided
only a generalized pleading that “lumps together” Plaintiffs’
individualized claims against separate defendants.

(Defs.’ Br.

at 9 (citation and internal quotation marks omitted).

The Court

agrees.
Having

severed

all

of

the

claims

except

those

of

plaintiff Yanes, the deficiencies of the Amended Complaint are
apparent.

In the fifty-six page Amended Complaint, the only

allegations specific to Yanes are:
15

Plaintiff Pedro Yanes is an individual and
resident
of
the
State
of
New
York.
Plaintiff Yanes owns the premises known as
and located at 8 E. Maple Street, Central
Islip, New York 11722.
Plaintiff Yanes
executed a promissory note to GMAC Mortgage,
LLC, which is secured by a mortgage against
these premises.
Said mortgage is currently
serviced by Defendant Ocwen Loan Servicing,
LLC.
Plaintiff Yanes applied for a loan
modification from Defendant Ocwen on or
about February 2013, and submitted a QWR to
Defendant Ocwen on or about November 2012.
Plaintiff
Yanes
alleges
wrongdoing
to
Defendant Ocwen as detailed throughout this
complaint.
(Am. Compl. ¶ 60.)
However,

the

Amended

Complaint

alleges

various

scenarios, some of which necessarily do not apply to Yanes.
way

of

example,

Plaintiffs,

individually,

were

at

By

different

stages in the loan modification process--some made requests for
materials

that

were

denied,

some

attempted

to

provide

documentation and others were successful in so doing, and some
even made modification payments on a trial basis.
Compl. ¶¶ 4-14.)

(See Am.

Moreover, with the exception of Ocwen, the

Amended Complaint does not allege Yanes’s connection to any of
the remaining Defendants. 4

See Kalie, 2013 WL 4044951, at *7

4

As Defendants correctly point out, some allegations pertain to
loan origination. However, Yanes alleges only that he executed
a promissory note with GMAC, which has been voluntarily
dismissed from this action (see Docket Entry 59) and that his
mortgage is currently serviced by Ocwen.
(Am. Compl. ¶ 60.)
While the Court cannot definitively conclude that Yanes’s loan
origination claims must be dismissed due to the lack of
16

(noting that the Amended Complaint did “not allege a factual
connection

between

Kalie’s

mortgage

and

any

of

the

three

remaining defendants.”).
In fact, the Amended Complaint is replete with legal
conclusions and bare recitations of legal elements, rather than
factual

allegations.

alternative,

numerous

Id.
ways

(“Each

in

which

claim
a

lists,

defendant

in

the

might

have

violated the statute in question, but the Amended Complaint does
not

state,

as

to

Kalie,

allegedly did so.”).

how

any

of

these

three

defendants

Such naked allegations fail to state each

and every of Yanes’s claims, and certainly fails to allege the
requisite specificity for his fraud-based claims.

In short, the

Amended Complaint wholly fails to allege “what wrongdoing the
defendants engaged in vis-à-vis” Yanes.

Id.; see also Martin,

2014 WL 977653, at *4 (“Martin’s reference to the wrongdoing
‘detailed throughout this complaint’ does not cure this defect
because it is unclear which of many allegations Martin refers
to.”).

Thus, Yanes has not set forth any plausible claims.
Given the sheer lack of factual allegations, the Court

will grant Yanes leave to replead.

See FED. R. CIV. P. 15(a)(2)

(courts should grant leave to amend “when justice so requires”);
see also Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d

allegations in the Amended Complaint,
hurdle in alleging any such claims.
17

Yanes

faces

a

serious

Cir. 2001) (holding that leave to amend should be granted unless
there is evidence of undue delay, bad faith, undue prejudice to
the non-movant, or futility).

Although Defendants raise several

potentially viable arguments as to why Yanes’s claims should be
dismissed with prejudice, the Court cannot evaluate them at this
time, and justice weighs in favor of amendment.
CONCLUSION
For the foregoing reasons, Defendants’ motion to sever
and to dismiss is GRANTED.
the

exception

of

the

The claims of all Plaintiffs, with

claims

of

first-named

plaintiff

Pedro

Yanes, are SEVERED pursuant to Rules 20 and 21 of the Federal
Rules of Civil Procedure and are DISMISSED WITHOUT PREJUDICE to
commencing separate actions.

Any plaintiff wishing to commence

a separate action must do so within thirty (30) days of the date
of this Memorandum and Order.

Additionally, the statute(s) of

limitations for any claims are tolled for a period of thirty
(30) days from the date of this Memorandum and Order. 5

[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]

5

Such tolling, however, will not affect claims that were barred
by the statute of limitations when this action was originally
commenced.
18

Moreover,

Defendants’

motion

to

Complaint as to Yanes’s claims is GRANTED.

dismiss

the

Amended

However, his claims

are DISMISSED WITHOUT PREJUDICE and with leave to replead.

If

Yanes wishes to file a Second Amended Complaint, he must do so
within
Order.

thirty

(30)

days

of

the

date

of

this

Memorandum

and

If he does not do so, his claims will be dismissed with

prejudice and the case will be closed.

SO ORDERED.

/s/ JOANNA SEYBERT__________
Joanna Seybert, U.S.D.J.
Dated:

April 14, 2014
Central Islip, NY

19