Noriega v. US Bank, National Association et al

Filing 21

MEMORANDUM & ORDER granting 18 Motion to Dismiss for Failure to State a Claim; For the foregoing reasons, Defendants' motion to dismiss (Docket Entry 18) is GRANTED. Plaintiff's claim for a declaratory judgment is DISMISSED WITHOUT PREJ UDICE for lack of subject matter jurisdiction. Plaintiff's TILA claim and RESPA Section 2607 claim are DISMISSED WITH PREJUDICE. Plaintiff's RESPA Section 2605 claims are DISMISSED WITHOUT PREJUDICE and with leave to replead. If Plaintiff w ishes to replead his RESPA Section 2605 claims only, he must do so within thirty (30) days of the date of this Memorandum and Order. If he fails to do so, these claims will be dismissed with prejudice. The Clerk of the Court is directed mail a copy of this Order to pro se Plaintiff. So Ordered by Judge Joanna Seybert on 7/25/2017. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
HECTOR NORIEGA,
Plaintiff,

MEMORANDUM & ORDER
16-CV-1058(JS)(ARL)

-againstUS BANK, NATIONAL ASSOCIATION, as
Trustee for the Structured Asset
Securities Corporation mortgage
Pass-Through Certificates,
Series 2005-ARI, and
AMERICA’S SERVICING COMPANY,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiff:
Hector Noriega, pro se
23 Bella Casa Lane
Central Islip, NY 11722
For Defendants:

Zalika Pierre, Esq.
Reed Smith LLP
599 Lexington Avenue
New York, NY 10022

SEYBERT, District Judge:
Plaintiff Hector Noriega (“Plaintiff”) commenced this
action alleging violations of the Truth in Lending Act (“TILA”),
15 U.S.C. § 1601, et. seq., and Real Estate Settlement Procedures
Act (“RESPA”), 12 U.S.C. § 2601 et. seq., and seeking a declaratory
judgment.
Bank,

Presently pending before the Court is defendants US

National

Association
and,

(“USBNA”)

collectively,

and

Company’s

(“ASC”

dismiss.

(Defs.’ Mot., Docket Entry 18.)

reasons, Defendants’ motion is GRANTED.

America’s

“Defendants”)

Servicing
motion

to

For the following

BACKGROUND1
On September 1, 2005, Plaintiff executed a negotiable
promissory Note and Mortgage in the amount of $384,750.00 with
respect to the subject property located at 23 Bella Casa Lane,
Central Islip, NY 11722 (the “Property”).2

(Compl. ¶¶ 1, 14.)

The

original lender was Argent Mortgage Company, LLC (“Argent”), an
entity that is now defunct.

(Compl. ¶ 16.)

On July 14, 2005,

Plaintiff signed a Truth-in-Lending Disclosure Statement (the
“TILA Statement”).
19-2.)

(TILA Stmt., Defs.’ Mot. Ex. B, Docket Entry

On July 14, 2005, the Mortgage was assigned by Argent in

favor of USBNA; this assignment was recorded on July 16, 2009.

The following facts are taken from the Complaint, documents
that are incorporated by reference in the Complaint, and
documents of which the Court takes judicial notice. See Sira v.
Morton, 380 F.3d 57, 67 (2d Cir. 2004) (“[a] complaint is deemed
to include any written instrument attached to it as an exhibit,
materials incorporated in it by reference, and documents that,
although not incorporated by reference, are integral to the
complaint”) (internal quotation marks and citation omitted).
Parenthetically, Plaintiff’s argument that Defendants’ exhibits
are inadmissible because they are photocopies, (Pl.’s Br.,
Docket Entry 15, at 4), is without merit. All allegations in
the Complaint are presumed to be true for the purposes of this
Memorandum and Order.
1

Defendants submitted a Fixed Rate Note signed by Plaintiff and
dated July 14, 2005, (Note, Defs.’ Mot. Ex. C, Docket Entry 193), and a mortgage signed by Plaintiff and dated July 14, 2005,
(Mortg., Defs.’ Mot. Ex. D, Docket Entry 19-4). While Plaintiff
alleges the Note and Mortgage were signed on September 1, 2005,
(Compl. ¶ 14), the operative dates of the Note and Mortgage are
not determinative with respect to the pending motion. The Court
notes that the Mortgage submitted by Defendants was recorded on
September 1, 2005. (See,Mortg.)
2

2

(First Assignment, Defs.’ Mot. Ex. E, Docket Entry 19-5.)

On

November 7, 2011, the Mortgage was assigned by USBNA in favor of
ASC with an effective date of November 30, 2009. (Sec. Assignment,
Defs.’ Mot. Ex. F, Docket Entry 19-6; see also Compl. ¶ 19 (stating
that ASC is Argent’s “successor in interest”).)

That same day,

ASC assigned the Mortgage in favor of USBNA; this assignment was
recorded on December 12, 2011.

(Third Assignment, Defs.’ Mot.

Ex. G, Docket Entry 19-7.)
On
action

December

against

5,

2011,

Plaintiff

in

USBNA
state

commenced
court

a

(the

foreclosure
“Foreclosure

Action”), and on March 27, 2014, the court entered a final judgment
of foreclosure and sale (the “Foreclosure Judgment”).

(See,

Foreclosure J., Defs.’ Mot. Ex. H, Docket Entry 19-8.)
I.

The Complaint
On

March

4,

against USBNA and ASC.

2016,

Plaintiff

commenced

this

action

Plaintiff alleges that ASC failed to

disclose certain charges on the TILA statement.

(Compl. ¶ 19.)

Plaintiff also alleges that Defendants violated TILA and its
implementing regulation, Regulation Z, by “calculating the annual
percentage

rate

(‘APR’)

disclosed amounts.”

based

upon

(Compl. ¶ 21.)

improperly

calculated

and

Plaintiff alleges that he is

entitled to “rescind the transaction,” and asserts that he first
learned of Defendants’ actions in February 2016.
24.)

(Compl. ¶¶ 22,

Plaintiff also contends that Defendants failed to comply
3

with changes to TILA effectuated by the Dodd-Frank Wall Street
Reform and Consumer Protection Act (“Dodd Frank”) to the extent
that Dodd Frank “requires servicers to credit payments as of the
date of receipt, unless a delay will not result in a charge or
negative credit report” and mandates that payoff statements be
sent no more than seven days after a written request.
¶¶ 41-42.)

(Compl.

Plaintiff avers that ASC “disclose[d] that Defendant

[USBNA] owned the Loan, however, failed to indicate when, how, and
if any recorded documents exist to legitimize the lawful transfer.”
(Compl. ¶ 44.)
Plaintiff also alleges that ASC violated Real Estate
Settlement Procedures Act (“RESPA”) Section 2607 by “accept[ing]
charges for the rendering of real estate services which were in
fact charges for other than services actually performed.”
¶¶ 25-26.)

(Compl.

Plaintiff alleges that on or about January 26, 2015,

he submitted a qualified written request (“QWR”) that was not
acknowledged within twenty days of receipt as required by RESPA
Section 2605(e)(1)(A).

(Compl. ¶¶ 29-30.)

Plaintiff also alleges

that Defendants failed to comply with Dodd Frank’s changes to
RESPA’s response timeline for QWRs and requirements for escrow
accounts.

(Compl. ¶¶ 34-36.)

Plaintiff again alleges that he

first learned of Defendants’ actions in February 2016.
¶ 48.)

4

(Compl.

Finally, Plaintiff alleges that Defendants do not have
standing to foreclose on the Property and seeks a “judicial
determination and declaration” regarding whether: (1) “Defendant
[USBNA] abandoned its interest in the Subject Property”; (2) “the
unrecorded Assignment of Mortgage by [USBNA] is fraudulent and
void by statute”; (3) “the Mortgage secures the Note” and (4) “the
Mortgage is enforceable by [USBNA], its successor in interest or
its agent.”

(Compl. ¶¶ 50-53.)

Plaintiff also requests that the

Court enter a declaratory judgment that “determine[s] the rights
and

duties

of

the

parties

involved

in

this

lawsuit

for

the

following Declarations: [t]hat Defendant [USBNA] is the trustee of
the securitized trust in the instant case and; [t]hat Defendant
ASC is the servicer of Plaintiff’[s] loan.”

(Compl. ¶ 70.)

In the Prayer for Relief, Plaintiff seeks damages for
TILA and RESPA violations and “a Declaration as to the roles of
all parties.”
II.

(Compl. at 10.)

Defendants’ Motion
On December 2, 2016, Defendants filed their motion to

dismiss.3

(See, Defs.’ Mot.)

Defendants argue that the Court

lacks subject matter jurisdiction pursuant to the Rooker Feldman

On August 25, 2016, Defendants filed their first motion to
dismiss. (See, Defs.’ First Mot., Docket Entry 11.) By
Electronic Order dated December 2, 2016, the Court dismissed
that motion without prejudice based on Defendants’ failure to
file a supporting memorandum of law.
3

5

doctrine

since

Plaintiff

seeks

to

reverse

determination in the Foreclosure Action.
Entry 20, at 4-6.)
are

barred

estoppel.

by

the

state

court’s

(Defs.’ Br., Docket

Defendants also argue that Plaintiff’s claims

the

doctrines

of

res

judicata

and

collateral

(Defs.’ Br. at 6-8.)
Defendants contend that Plaintiff’s TILA claim is barred

by the one-year statute of limitations and Plaintiff does not have
the right to rescind the mortgage loan under TILA.
12-15.)

(Defs.’ Br. at

Additionally, Defendants argue that Plaintiff’s RESPA

claim is barred by the statute of limitations and, alternatively,
the RESPA claim fails on the merits because “Plaintiff simply
quotes sections of the statute followed by unsupported conclusory
allegations.”

(Defs.’ Br. at 17-18.)

Finally, Defendants argue

that Plaintiff’s claim for a declaratory judgment or injunctive
relief is defective, as it improperly seeks an advisory opinion
and

is

premised

on

Defendants’

alleged

lack

of

standing

to

foreclose on the Property, which is “not a viable affirmative cause
of action, but at best, a defense to an action.”

(Defs.’ Br. at

18-19.)
Plaintiff alleges that the Rooker Feldman doctrine is
inapplicable to the case at bar based on “newly discovered evidence
which debunks the erroneous decision rendered at the State court-

6

level.”
this

(Pl.’s Br. at 2-3.)4

action

are

Plaintiff avers that the claims in

“substantially

different”

from

those

in

the

Foreclosure Action, and discovery will reveal that Defendants
falsified and concealed assignments.

(Pl.’s Br. at 3.)

Plaintiff

alleges that he has “prima facie evidence that the loan has been
securitized,” and contends that “the chain of title has been
broken, and Defendants are not the holders in due course of the
note, with any rights to enforce the note.”

(Pl.’s Br. at 4-5.)

Plaintiff argues that as a result, Defendants do not have legal
standing to pursue foreclosure.

(Pl.’s Br. at 5.)

DISCUSSION
“A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court lacks the
statutory or constitutional power to adjudicate it.”
United States, 201 F.3d 110, 113 (2d Cir. 2000).

Makarova v.

The plaintiff

bears the burden of demonstrating by a preponderance of the
evidence

that

resolving

a

jurisdiction,
pleadings.”

subject
motion
the

matter

to

Court

jurisdiction

dismiss
“may

for

lack

consider

exists.
of

Id.

subject

evidence

In

matter

outside

the

See Morrison v. Nat’l Austl. Bank, Ltd., 547 F.3d

As Plaintiff failed to respond to Defendants’ pending motion,
the Court will consider Plaintiff’s opposition filed in
conjunction with Defendants’ earlier filed motion to dismiss.
(See generally Pl.’s Br.)
4

7

167, 170 (2d Cir. 2008), aff’d, 561 U.S. 247, 130 S. Ct. 2869,
177 L. Ed. 2d 535 (2010) (citation omitted).
To withstand a motion to dismiss, a complaint must
contain factual allegations that are sufficient to state a facially
“plausible” claim to relief.

Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955 (2007)).
plausibility

standard

is

not

a

“probability

This

requirement”

and

requires “more than a sheer possibility that a defendant has acted
unlawfully.”

Id. (internal quotations and citations omitted).

While all allegations in the complaint must be accepted as true,
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
679.

The

Court’s

plausibility

determination

is

a

Id. at

“context-

specific task that requires the reviewing court to draw on its
judicial experience and common sense.”

Harris v. Mills, 572 F.3d

66, 72 (2d Cir. 2009) (internal quotation marks omitted).
A complaint filed by a pro se litigant is to be construed
liberally and “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.
Ed. 2d 1081 (2007).

See also Hiller v. Farmington Police Dep’t,

No. 12-CV-1139, 2015 WL 4619624, at *7 (D. Conn. July 31, 2015)
(Noting that the dismissal of a pro se complaint pursuant to Rule
8

12(b)(6) is not appropriate “unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.”) (internal quotation marks and
citation omitted).

Nevertheless, a pro se complaint must state a

plausible claim for relief and comply with the minimal pleading
standards set forth in Federal Rule of Civil Procedure 8.

Hiller,

2015 WL 4619624, at *7.
I.

Rooker Feldman
Pursuant to the Rooker Feldman doctrine, this Court

“lack[s]

jurisdiction

over

cases

appeals of state court judgments.”

that

essentially

amount

to

Vossbrinck v. Accredited Home

Lenders, Inc., 773 F.3d 423 (2d Cir. 2014).

This doctrine applies

where four requirements are met: “(1) the federal-court plaintiff
lost in state court; (2) the plaintiff complain[s] of injuries
caused by a state court judgment; (3) the plaintiff invite[s] . .
. review and rejection of that judgment; and (4) the state judgment
was rendered before the district court proceedings commenced.”
Id. (internal quotation marks and citation omitted; alterations in
original).

However, “[i]ndependent claims are not barred by

Rooker-Feldman even if they involve the identical subject matter
and parties as previous state-court suits.”

McCann v. Rushmore

Loan Mgmt. Servs., LLC, No. 15-CV-6502, 2017 WL 1048076, at *3
(E.D.N.Y. Mar. 16, 2017) (internal quotation marks and citation
omitted).
9

Plaintiff easily satisfies the first and fourth elements
of Rooker Feldman in light of the Foreclosure Judgment, which was
entered on March 27, 2014.

(See, Foreclosure J.)

Thus, the

question becomes whether Plaintiff complains of injuries caused by
the Foreclosure Judgment and invites review and rejection of the
Foreclosure Judgment.
The Court finds that Plaintiff’s claim for a declaratory
judgment is barred by the Rooker Feldman doctrine. As previously
noted,

Plaintiff

requests

a

“judicial

determination

and

declaration” with respect to whether: (1) “[USBNA] abandoned its
interest in the Subject Property,” (2) “the unrecorded Assignment
of

Mortgage

by

[USBNA]

is

fraudulent

and

void

by

statute,”

(3) “the Mortgage secures the Note,” and (4) “the Mortgage is
enforceable by [USBNA], its successor in interest or its agent.”
(Compl. ¶¶ 50-53.)

Indeed, Plaintiff also expressly seeks a

“judicial determination and declaration of the rights, obligations
and interest of the parties with regard to the Subject Property.”
(Compl. ¶ 54.)

Thus, Plaintiff complains of injuries caused by

the Foreclosure Judgment by seeking a declaration regarding the
parties’ “obligations and interest” in the Property, and invites
review and rejection of the Foreclosure Judgment insofar as he
seeks various declarations that USBNA has no interest in the
Mortgage

and

the

Mortgage

is

unenforceable.

Accordingly,

Plaintiff’s declaratory judgment claim is DISMISSED for lack of
10

subject

matter

jurisdiction

pursuant

to

the

Rooker

Feldman

doctrine.5
However,

the

Court

reaches

a

different

result

with

respect to Plaintiff’s TILA and RESPA claims since he is expressly
seeking damages for these claims.

(Compl. at 10.)

In Vossbrinck,

the Second Circuit noted that the plaintiff’s pro se complaint
could be construed as asserting fraud claims that were not barred
by Rooker Feldman “because they seek damages from [d]efendants for
injuries

[plaintiff]

suffered

from

their

alleged

fraud,

the

adjudication of which does not require the federal court to sit in
review of the state court judgment.”

Vossbrinck, 773 F.3d at 427.

Similarly, here, Plaintiff is seeking monetary damages for his
TILA and RESPA claims, which, in turn, does not require that the
Court review and reject the Foreclosure Judgment.

Thus, these

claims are not barred by Rooker Feldman to the extent they seek
damages.

See, e.g., McCann, 2017 WL 1048076, at *4 (holding that

the plaintiff’s RESPA claim was not barred by Rooker Feldman where
“[p]laintiff seeks only money damages for the actions or inactions
of the loan servicer”).
The

Court

acknowledges

that

Plaintiff

states,

with

respect to his TILA claim, that this Complaint “is intended to be

Parenthetically, the Court is unpersuaded by Plaintiff’s
argument that unspecified “newly discovered evidence” precludes
the application of the Rooker Feldman doctrine. (Pl.’s Br. at
3.)
5

11

construed

for

rescission,
transaction.”

purposes

[and

of

this

Plaintiff]

claim

hereby

(Compl. ¶ 22.)

as

a

formal

elects

to

notice

rescind

of
the

To the extent Plaintiff seeks

“rescission” of the Mortgage as relief for his TILA claim, that
relief is barred by Rooker Feldman as it necessitates a review and
rejection of the Foreclosure Judgment.

Moreover, Plaintiff’s

request for rescission is misplaced as “TILA’s right of rescission
does not apply to residential mortgage transactions.”

Deswal v.

U.S. Nat’l Ass’n, No. 13-CV-3354, 2014 WL 1932589, at *2, n.3
(E.D.N.Y. May 14, 2014), aff’d, 603 F. App’x 22 (2d Cir. 2015).
II.

Res Judicata
The

doctrine

of

res

judicata

provides

that

“a

disposition on the merits bars litigation between the same parties
or those in privity with them of a cause of action arising out of
the same transaction or series of transactions as a cause of action
that either was raised or could have been raised in the prior
proceeding.”

Castellano v. JP Morgan Chase Bank, N.A., No. 13-

CV-3390, 2014 WL 988563, at *4 (S.D.N.Y. Mar. 13, 2014) (internal
quotation marks and citation omitted).

In New York, res judicata

is applicable where there is: “(1) there is a previous adjudication
on the merits; (2) the previous action involved the party against
whom res judicata is invoked or its privy; and (3) the claims
involved were or could have been raised in the previous action.”
Gordon v. First Franklin Fin. Corp., No. 15-CV-0775, 2016 WL
12

792412, at *6 (E.D.N.Y. Feb. 29, 2016) (internal quotation marks
and citation omitted).

Pro se litigants are equally bound by the

doctrine of res judicata.

Done v. Wells Fargo Bank, N.A., No. 08-

CV-3040, 2009 WL 2959619, at *3 (E.D.N.Y. Sept. 14, 2009).
Pursuant to New York’s transactional approach to res
judicata, “once a claim is brought to a final conclusion, all other
claims

arising

out

of

the

same

transaction

or

series

of

transactions are barred, even if based upon different theories or
if seeking a different remedy.”

Yeiser v. GMAC Mortg. Corp., 535

F. Supp. 2d 413, 422 (S.D.N.Y. Feb. 13, 2008) (internal quotation
marks and citation omitted).

To determine whether claims are part

of the same transaction for res judicata purposes, New York courts
utilize a “pragmatic test” in which the Court “analyz[es] whether
the facts are related in time, space, origin, or motivation,
whether they form a convenient trial unit, and whether their
treatment as a unit conforms to the parties’ expectations or
business understanding or usage[.]”

Gordon, 2016 WL 792412, at *6

(internal quotation marks and citation omitted; second alteration
in original).
jurisdiction

While New York is a “permissive counterclaim”
and

does

not

require

a

litigant

to

assert

all

counterclaims in their original action, an exception to this rule
“bars a subsequent lawsuit that amounts to an attack on a judgment
previously issued by the state court.”

13

Dolan v. Select Portfolio

Servicing, Inc., No. 13-CV-1552, 2014 WL 4662247, at *4 (E.D.N.Y.
Sept. 18, 2014) (internal quotation marks and citation omitted).
The

Court

construes

the

Complaint

as

asserting

the

following claims against Defendants under TILA and RESPA: (1)
violations of TILA based on (a) failure to include and disclose
charges on the TILA Statement, (Compl. ¶¶ 19-20), (b) improper
calculation of the APR, (Compl. ¶ 21), and (c) failure to credit
payments

as

of

the

date

of

receipt

and

timely

send

payoff

statements, (Compl. ¶¶ 42-43); (2) violation of RESPA Section 2607
based on the acceptance of unearned fees, (Compl. ¶ 26); and (3)
violation of RESPA Section 2605 based on the failure to (a)
acknowledge Plaintiff’s QWR submitted on or about January 26, 2015,
(Compl. ¶¶ 29-33), (b) timely return any escrow balance after a
full payoff, (Compl. ¶ 36), and (c) respond to a request for the
identity and address of the owner or assignee of the mortgage,
(Compl. ¶ 36).6
The Court finds that Plaintiff’s TILA claim and RESPA
Section 2607 claim against USBNA are barred by the doctrine of res
judicata.

First, the Foreclosure Judgment constitutes a final,

While the Complaint does not indicate which claims are asserted
against each Defendant, the Court notes that the only specific
references in Plaintiff’s TILA and RESPA claims are to actions
taken by ASC, not USBNA. (See generally Compl. ¶¶ 19-48.)
Nevertheless, in light of Plaintiff’s pro se status, the Court
liberally construes the Complaint as asserting TILA and RESPA
claims against both ASC and USBNA.
6

14

prior adjudication on the merits.

See Done, 2009 WL 2959619, at

*4 (“the judgment of foreclosure entered against [the plaintiff]
is an adjudication on the merits, which prevents reconsideration
of any claim that is based on the same facts as the foreclosure
judgment and which would disturb [defendant’s] ability to enforce
rights provided by the mortgage and the note securing [plaintiff’s]
property”).

Second, Plaintiff was a defendant in the Foreclosure

Action commenced by USBNA.7
Third,

the

Court

finds

that

Plaintiff

is

“seeking

alternative relief in federal court based on the same series of
transactions involved in the foreclosure proceeding.”
F. Supp. 2d at 422.
failure

to

Yeiser, 535

Plaintiff’s TILA claim is based on the alleged

disclose

charges

on

the

TILA

Statement,

improper

calculation of the APR, failure to credit payments as of the date
of receipt, and failure to timely send payoff statements.
¶¶ 19-21, 42-43.)

As noted, Plaintiff’s RESPA Section 2607 claim

is based on the alleged acceptance of unearned fees.
¶ 26.)

(Compl.

(Compl.

The Court finds that these claims amount to an attack on

the Foreclosure Judgment and could have been raised during the

As the Mortgage was assigned by ASC to USBNA on November 7,
2011, (see Third Assignment)--prior to the commencement of the
Foreclosure Action on December 5, 2011 (see Foreclosure J.)--ASC
was a predecessor in interest to USBNA and is not in privity
with USBNA for res judicata purposes. See Yeiser, 535 F. Supp.
2d at 423.
7

15

Foreclosure Action, as they “ar[ose] out of Defendant[s’] dealings
with the mortgage.”

Castellano, 2014 WL 988563, at *5-6 (holding

that the plaintiff’s TILA claim could have been litigated in the
state court foreclosure action); see also Zap v. Fed. Home Loan
Mortg. Corp., No. 15-CV-0624, 2016 WL 2992147, at *4 (N.D.N.Y.
May 20, 2016) (holding that the plaintiff’s RESPA claim was barred
by res judicata and noting that “[w]hile Plaintiff asserts a myriad
of new legal theories for relief that she did not raise in the
state court action, each of her causes of action could have been
raised in the previous proceeding”).

But see Utreras v. Chicago

Title Ins. Co., No. 12-CV-4766, 2013 WL 4700564, at *4 (E.D.N.Y.
Sept. 1, 2013) (“[t]hough plaintiff’s predatory lending claim as
it relates to the foreclosure is barred by the doctrine of res
judicata, courts in this district have found violations of federal
predatory lending statutes to arise out of separate transactions
than mortgage defaults, and therefore have declined to find them
barred by res judicata”).

Cf.

Hinds v. Option One Mortg. Corp.,

No. 11-CV-6149, 2012 WL 6827477, at *5 (E.D.N.Y. Dec. 6, 2012),
report

and

recommendation

adopted,

2013

WL

132719

(E.D.N.Y.

Jan. 10, 2013) (“[i]nasmuch as Plaintiff’s fraud claim is premised
on

his

allegations

that

Defendants

obtained

the

underlying

mortgage through predatory lending tactics and fraud, res judicata
operates to preclude federal review of such a claim”) (emphasis in
original; citation omitted).

Accordingly, Plaintiff’s TILA claim
16

and RESPA Section 2607 claim based on unearned fees are DISMISSED
against USBNA based on res judicata.
As previously noted, the Court liberally construes the
Complaint to allege RESPA Section 2605 claims based on Defendants’
failure to: (1) acknowledge Plaintiff’s QWR submitted on or about
January 26, 2015, (Compl. ¶¶ 29-33), (2) timely return any escrow
balance after a full payoff, (Compl. ¶ 36), and (3) respond to a
request for the identity and address of the owner or assignee of
the mortgage, (Compl. ¶ 36).

The first two claims appear to be

based on incidents that occurred after the entry of the Foreclosure
Judgment and, thus, cannot be barred by res judicata.

As to the

third claim, it is unclear when Plaintiff made a request for the
identity and address of the Mortgage owner or assignee.

Indeed,

it is also unclear whether Plaintiff’s allegation regarding this
request is a reference to his QWR.

In an abundance of caution,

the Court declines to hold this third RESPA Section 2605 claim
barred by res judicata since it may relate to a request that
occurred after the entry of the Foreclosure Judgment.

Similarly,

while Defendants argue that these claims are barred by collateral
estoppel, the Court cannot conclude that these issues were resolved
in the Foreclosure Action since they relate to incidents that may
not

have

Judgment.

occurred

until

after

the

entry

of

the

Foreclosure

Thus, the Court declines to dismiss Plaintiff’s RESPA

17

Section 2605 claim against USBNA on res judicata or collateral
estoppel grounds.
II.

Statute of Limitations
The Court finds that Plaintiff’s TILA claims and RESPA

Section 2607 claim against ASC fail based on the statute of
limitations.

TILA has a one-year statute of limitations that

accrues on the “date of the alleged violation,”

Dins v. Bank of

America, N.A., No. 16-CV-5741, 2017 WL 570944, at *3 (S.D.N.Y.
Feb. 13, 2017) (internal quotation marks and citation omitted),
and it is well settled that “in closed-end credit transactions
like the [mortgage and home equity loans] at issue, the date of
the occurrence of the violation is no later than the date the
plaintiff enters the loan agreement or, possibly, when defendant
performs by transmitting funds to plaintiffs,” Gorbaty v. Wells
Fargo Bank, N.A., No. 10-CV-3291, 2014 WL 4742509, at *12, n.18
(internal quotation marks and citations omitted; alteration in
original).

RESPA Section 2607 also has a statute of limitations

of “[one] year . . . from the date of the occurrence of the
violation,” 12 U.S.C. § 2614, with the date of the violation being
“the date that the allegedly unlawful payment was made, namely the
closing date of the transaction,” Figueroa v. HSBC Bank U.S.A.,
N.A., No. 16-CV-0893, 2017 WL 1185263, at *6 (N.D.N.Y. Mar. 29,
2017) (internal quotation marks and citations omitted).

18

Plaintiff

commenced

this

action

on

March

4,

2016,

approximately eleven years after he executed the Note, Mortgage,
and

TILA

Statement,

Foreclosure

and

Judgment.

two

years

While

after

courts

the

will

entry

of

equitably

the
toll

limitations periods for fraudulent concealment, the plaintiff
bears the burden of demonstrating that tolling is appropriate.
Deswal, 2014 WL 1932589, at *2.

Plaintiff’s conclusory allegation

that he “first learned of the actions of said Defendant, including
its failure to disclose and the fraud committed upon them in
February

of

2016,”

(Compl.

¶¶

24,

48),

does

not

suffice

to

demonstrate that the statute of limitations should be tolled.
Accordingly, Plaintiff’s TILA claims and RESPA Section 2607 claim
against ASC are DISMISSED.8
III. RESPA Section 2605 Claims
As previously noted, Plaintiff’s remaining RESPA claims
allege violations of Section 2605 with respect to ASC’s: (1)
failure to acknowledge Plaintiff’s QWR submitted on or about
January 26, 2015, (Compl. ¶¶ 29-33), (2) failure to timely return
any escrow balance after a full payoff, (Compl. ¶ 36), and (3)

While, as set forth above, Plaintiff’s TILA claims and RESPA
Section 2607 claim against USBNA are barred by the doctrine of
res judicata, these claims against USBNA are also precluded by
the statute of limitations for the same reasons the statute of
limitations bars these claims against ASC.
8

19

failure to respond to a request for the identity and address of
the owner or assignee of the mortgage, (Compl. ¶¶ 42-43).
Section 2605 “permits a borrower to submit to a servicer
of

her

loan(s)

a

‘qualified

written

request’

(‘QWR’)

for

‘information related to servicing’ of the loan and requires the
servicer to respond accordingly.”
(quoting

12

U.S.C.

§

Gorbaty, 2014 WL 4742509, at *4

2605(e)(1)(A);

emphasis

omitted).

Additionally, Section 2605 also provides that “[i]f the terms of
any federally related mortgage loan require the borrower to make
payments to the servicer of the loan for deposit into an escrow
account . . . [a]ny balance in such account that is within the
servicer’s control at the time the loan is paid off shall be
promptly returned to the borrower within 20 business days or
credited to a similar account for a new mortgage loan to the
borrower with the same lender.”

12 U.S.C. § 2605(g).

Section

2605 further provides that “[a] servicer of a federally related
mortgage shall not . . . fail to respond within 10 business days
to a request from a borrower to provide the identity, address, and
other relevant contact information about the owner or assignee of
the loan.”

12 U.S.C. § 2605(k)(D).
First, Plaintiff has failed to plausibly plead a RESPA

claim.

“To plead a claim under RESPA, [the] plaintiff must offer

proof either by attaching the letter or pleading with specificity
such facts--such as when the letter was sent and to whom it was
20

directed, why it was sent, and the contents of the letter--that
the Court may determine if the letter qualifies as a QWR or notice
of error.”

Figueroa, 2017 WL 1185263, at *6 (internal quotation

marks and citation omitted; alteration in original).

Plaintiff

alleges that he “submitted a timely [QWR] on or about January 26,
2015” that was not acknowledged by ASC, (Compl. ¶¶ 29-32); however,
he failed to attach the letter or posit any allegations regarding
the contents of the letter or why it was sent.9
remaining

Section

allegations.

2605

claims

rest

on

similarly

Plaintiff’s
conclusory

(See Compl. ¶¶ 36-37 (“[A]fter receiving a full

payoff, any escrow balance must be returned within 20 days.

The

[Dodd-Frank] Act also implements a 10-business day deadline to
respond to a request for the identity and address of the owner, or
assignee, of the loan.

None of the aforementioned sections were

complied with”).)

While Plaintiff alleges “[a] true and correct copy of Defendant
ASC’s letter is attached herewith and incorporated fully,” no
such letter was filed with his Complaint. (Compl. ¶ 45.) The
Court acknowledges that Defendants have annexed a letter from
Plaintiff to ASC titled “R.E.S.P.A. Qualified Written Request”
and dated January 17, 2015, (see Defs.’ Mot. Ex. I, Docket
Entry 19-9), and a letter from ASC to Plaintiff dated
January 27, 2015 (see Defs.’ Mot. Ex. J, Docket Entry 19-10).
However, the Court declines to consider this correspondence as
incorporated by reference in the Complaint as Plaintiff has not
confirmed that these documents are the same QWR and letter from
ASC referenced in the Complaint. Moreover, the Complaint
alleges that Plaintiff submitted a QWR on or about January 26,
2015, not January 17, 2015. (Compl. ¶ 29.)
9

21

Second, Plaintiff has failed to “allege a plausible
entitlement to either actual or statutory damages under RESPA[.]”
Gorbaty, 2014 WL 4742509, at *4.

To allege actual damages, the

plaintiff must assert that the defendant’s RESPA violation was the
proximate cause of his damages.

Bonadio v. PHH Mortg. Corp., No.

12-CV-3421, 2014 WL 522784, at *6 (S.D.N.Y. Jan. 31, 2014).

Thus,

“a plaintiff must offer factual allegation[s] linking her alleged
harms to [the defendant’s] failure to timely respond to her QWRs.”
Id. (internal quotation marks and citation omitted; alterations in
original) (dismissing the RESPA Section 2605 claim where the
plaintiff alleged actual damages that included “time spent and
inconvenience” and “emotional distress and anguish” but failed to
explain

how

those

issues

were

“specifically”

caused

by

the

defendant’s Section 2605 violations).
To

obtain

statutory

damages,

the

plaintiff

must

demonstrate a “pattern or practice of noncompliance with the
requirements of § 2605.”

Gorbaty, 2014 WL 4742509, at *8 (holding

that the plaintiff failed to establish the necessary “pattern or
practice”

for

violations).

statutory

damages

where

she

alleged

two

RESPA

Further, Courts in this Circuit have held that “an

allegation of actual damages is necessary to state a claim for
liability.”

Dolan, 2016 WL 4099109, at *5).

See also Figueroa,

2017 WL 1185263, at *7; Bonadio, 2014 WL 522784, at *5 (“proof of
actual damages is mandatory to recover on a § 2605(e) violation,
22

and a § 2605(e) claim cannot stand on statutory damages alone”)
(internal quotation marks and citation omitted).
While Plaintiff alleges that RESPA provides for the
recovery of actual and statutory damages, (Compl. ¶¶ 33, 38-39),
he has not posited a single allegation regarding how he was damaged
by

Defendants’

alleged

RESPA

Accordingly,

violations.10

Plaintiff’s RESPA Section 2605 claims are DISMISSED.
IV.

Leave to Replead
The Second Circuit has held that “[w]hen a motion to

dismiss is granted, the usual practice is to grant leave to amend
the complaint.”

Hayden v. Cty. of Nassau, 180 F.3d 42, 53 (2d

Cir. 1999); see also FED. R. CIV. P. 15(a)(2) (“[t]he court should
freely

give

leave

[to

amend]

when

justice

so

requires.”).

“However, a district court has the discretion to deny leave to
amend where there is no indication from a liberal reading of the
complaint that a valid claim might be stated.” Perri v. Bloomberg,
No. 11-CV-2646, 2012 WL 3307013, at *4 (E.D.N.Y. Aug. 13, 2012).
The Court declines to grant Plaintiff leave to replead
his TILA claims and RESPA Section 2607 claim.

As set forth more

fully above, these claims are barred by res judicata against USBNA
and also barred by the statute of limitations.

Accordingly,

The Court need not determine whether a RESPA 2605 claim may be
based on statutory damages alone, as Plaintiff has failed to
allege the requisite “pattern or practice” of noncompliance.

10

23

Plaintiff’s TILA claims and RESPA Section 2607 claim are DISMISSED
WITH PREJUDICE.
Though thin, the Court grants Plaintiff one opportunity
to

cure

the

deficiencies

of

his

RESPA

Section

2605

claims.

Accordingly, these claims are DISMISSED WITHOUT PREJUDICE and with
leave to replead.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss
(Docket Entry 18) is GRANTED.

Plaintiff’s claim for a declaratory

judgment is DISMISSED WITHOUT PREJUDICE for lack of subject matter
jurisdiction.

Plaintiff’s TILA claim and RESPA Section 2607 claim

are DISMISSED WITH PREJUDICE.

Plaintiff’s RESPA Section 2605

claims are DISMISSED WITHOUT PREJUDICE and with leave to replead.
If Plaintiff wishes to replead his RESPA Section 2605 claims only,
he must do so within thirty (30) days of the date of this Memorandum
and Order.

If he fails to do so, these claims will be dismissed

with prejudice.

The Clerk of the Court is directed mail a copy of

this Order to pro se Plaintiff.
SO ORDERED.

Dated:

July
25 , 2017
Central Islip, New York

24

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.