Castro v. The Bank of New York Mellon et al

Filing 19

MEMORANDUM & ORDER granting in part and denying in part 13 Motion to Dismiss for Failure to State a Claim; For the foregoing reasons, Defendants' motion (Docket Entry 13) is GRANTED IN PART and DENIED IN PART. The RESPA claim against the B ank of New York Mellon and the Fourteenth Amendment claim against the Bank of New York Mellon and Shellpoint are DISMISSED WITH PREJUDICE. To the extent the Amended Complaint asserts claims under TILA or the UCC, those claims are also DISMISSED WITH PREJUDICE. However, because the Court GRANTS Plaintiff leave to amend his RESPA claim against Shellpoint and the FDCPA claims against the Bank of New York Mellon and Shellpoint, those claims are DISMISSED WITHOUT PREJUDICE. Any Second Amended Compla int shall be filed within thirty (30) days from the date of this Memorandum and Order, shall be titled Second Amended Complaint, and shall bear the same docket number as this Order, No. 17-CV-4375(JS)(GRB). If Plaintiff fails to file a Second Amend ed Complaint within thirty (30) days, this case will be dismissed with prejudice. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 8/30/2018. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
MARIO E. CASTRO,
Plaintiff,

MEMORANDUM & ORDER
17-CV-4375(JS)(GRB)

-against–
THE BANK OF NEW YORK MELLON, as
trustee for the certificate holders
of CWALT Inc., Alternative Loan Trust
2006-0A11 mortgage pass through
certificates 2006-0A11, f/k/a THE
BANK OF NEW YORK, ALTERNATIVE LOAN TRUST
2006-0A11 MORTGAGE PASS THROUGH
CERTIFICATES 2006-0A11, SHELLPOINT
MORTGAGE SERVICING, and UNKNOWN DEFENDANTS,
Defendants.
-------------------------------------X
APPEARANCES
For Plaintiff:
Mario E. Castro, pro se
419 West Hills Road
Melville, NY 11747
For Defendants:

Joseph M. DeFazio, Esq.
Natsayi Mawere, Esq.
Akerman LLP
666 Fifth Ave, 20th Floor
New York, NY 10018

SEYBERT, District Judge:
Plaintiff

Mario

Castro

(“Plaintiff”)

commenced

this

action against the Bank of New York Mellon, as trustee for the
certificate holders of CWalt Inc., Alternative Loan Trust 20060A11 mortgage pass through certificates series 2006-0A11 (the
“Trust”) formerly known as the Bank of New York (the “Bank of New
York Mellon”), Alternative Loan Trust 2006-0A11 mortgage pass

through

certificates

series

2006-0A11,1

Shellpoint

Mortgage

Servicing (“Shellpoint”), Select Portfolio Servicing (“Select”),
Bank of America, NA (“Bank of America”), and unknown defendants on
July 24, 2017.

(Compl., Docket Entry 1.)

On August 2, 2017,

Plaintiff filed an Amended Complaint naming only the Bank of New
York Mellon, as trustee for the Trust, Shellpoint, and unknown
defendants (collectively “Defendants”).
4.)

(Am. Compl., Docket Entry

Generally, Plaintiff alleges that Defendants violated the

Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601
et seq., the Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C.

§

1692

et

seq.,

and

the

Fourteenth

Amendment

of

the

Constitution during the course of servicing his mortgage loan.
(Am. Compl. at ECF pp. 3-7.)
Currently pending before the Court is Defendants’ motion
to

dismiss

the

Complaint

Procedure 12(b)(6).

pursuant

to

Federal

Rule

(Defs.’ Mot., Docket Entry 13.)

of

Civil

For the

following reasons, Defendants’ motion is GRANTED IN PART and DENIED
IN PART.

The Clerk of the Court is directed to TERMINATE Alternative
Loan Trust 2006-0A11 mortgage pass through certificates series
2006-0A11 as a separate defendant in this action.
1

2

BACKGROUND
I.

Factual Background2
On March 7, 2006, Plaintiff executed a mortgage in favor

of Mortgage Electronic Registration System (“MERS”), as nominee
for Countrywide Bank, N.A., on property located at 419 West Hills
Road, Melville, New York (the “Property”) as security for a loan
of $448,800.00.
at ECF p. 4-23.)

(Mortg., Mawere Decl., Ex. A, Docket Entry 13-2,
The mortgage was assigned to the Bank of New

York Mellon on September 1, 2011.

(Assignment, Mawere Decl., Ex.

B., Docket Entry 13-3, at ECF p. 4.)3
Plaintiff alleges that he sent requests for information
to both the Bank of New York Mellon, which holds the mortgage, and
Shellpoint, which services the loan, but has not received the
requested information.

(Am. Compl. at ECF p. 4.)

Specifically,

he maintains that, on February 8, 2017, he mailed a Qualified
Written Request (the “QWR”) to Defendants and did not receive a
response.

(Am. Compl. at ECF p. 4; QWR, see Compl., Docket

The following facts are taken from the Amended Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
2

The Court has considered both the mortgage and the assignment
because these documents are either incorporated by reference or
integral to the Amended Complaint. See Sira v. Morton, 380 F.3d
57, 67 (2d Cir. 2004).
3

3

Entry 1, at ECF pp. 14-32.)4

He further alleges that he sent a

notice of default on April 13, 2017 and a request for inspection
of the original “wet ink” promissory note on June 8, 2017.5

(Am.

Compl. at ECF pp. 4-5; Not. of Default, Compl. at ECF pp. 33-34;
Request.)

Plaintiff attached copies of the signed certified mail

receipts to his original Complaint.

(Compl. at ECF pp. 7-13.)

Plaintiff avers that “defendants have refused to produce
all answers requested as it regards to the validation of debt,
proof

of

original

and

properly

validated

promissory

note

instrument (not a copy) along with proof of proper transfers,
receipts, as well as proper ledger accounting arriving at for said
debt.”

(Am. Compl. at ECF p. 5.)

He maintains that he is

“requesting basic validation of debt from entities not made known
to [him]” and that his “credit was used to profit and abuse.”
Compl. at ECF p. 6.)

(Am.

Plaintiff alleges that this conduct violated

his Fourteenth Amendment rights to “life, liberty, and property”
and “due process.”

(Am. Compl. at ECF p. 7.)

While Plaintiff did not attach certain documents, including the
QWR, to the Amended Complaint, he attached them to his original
Complaint. In light of his pro se status, the Court will
consider the documents attached to the original Complaint. (See
Compl. at ECF pp. 7-60.)
4

While Plaintiff alleges that he sent the request for inspection
of the original note on June 8, 2017, the request is dated
May 18, 2017. (See Request, Compl. at ECF pp. 35-36.)
5

4

The Amended Complaint alleges that Plaintiff and his
family have “suffered extensive stress and harassment,” including
numerous phone calls.6

(Am. Compl. at ECF p. 4.)

The Amended

Complaint also refers to “confusing” statements made by Shellpoint
but does not identify any specific statements.

(Am. Compl. at ECF

p. 8.)
Plaintiff alleges that the threats of displacement have
caused

fear,

depression,

nightmares,

and

“continuous

sleep

deprivation,” have negatively affected his children’s schoolwork,
and have made it difficult for him to “work[ ] productively and
effectively.” (Am. Compl. at pp. 6-7.) He alleges that his credit
and his “future of trying to recoup a fair life for [his] family
has been destroyed.”

(Am. Compl. at ECF p. 6.)

Plaintiff

specifically avers that he has suffered “economic loss” due to
reports made to credit agencies.

(Am. Compl. at ECF p. 4.)

He is

seeking compensation of three times the “unproven alleged loan
debt through profiting” of $445,000 and punitive damages for a
total of $2,335,000.
II.

(Am. Compl. at ECF pp. 4, 8.)

Procedural History
The Court construes the Amended Complaint as asserting

the following claims: (1) a violation of RESPA, 12 U.S.C. § 605(e),
for failing to respond to the QWR; (2) violations of the FDCPA,

It appears that at the time the Amended Complaint was filed,
the calls had stopped. (Am. Compl. at ECF p. 7.)
6

5

including 15 U.S.C. §§ 1692d, 1692e, 1692f, and 1692g; and (3) a
violation of Plaintiff’s constitutional rights pursuant to 42
U.S.C. § 1983.
On October 24, 2017, Defendants filed their motion to
dismiss.

(See Defs.’ Mot.)

Plaintiff filed his opposition on

November 27, 2017, and Defendants filed their reply on December 11,
2017.

(Pl.’s

Opp.,

Docket

Entry

15;

Defs.’

Reply,

Docket

Entry 16.)
DISCUSSION
I.

Legal Standard
Federal

Rule

of

Civil

Procedure

8

requires

that

a

complaint contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.”
Rule

12(b)(6)

complaint

provides

fails

“to

that

state

dismissal

a

claim

FED. R. CIV. P. 8(a)(2).
is

upon

appropriate
which

relief

if
can

the
be

granted.” FED. R. CIV. P. 12(b)(6). To survive a motion to dismiss,
a complaint must plead “enough facts to state a claim to relief
that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007).

A claim is plausible

“when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for
the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678,

129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).

Although the

Court must accept all allegations in the Amended Complaint as true,
6

this tenet is “inapplicable to legal conclusions.”

Id.

Thus,

“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
(citation

omitted).

determination

is

a

Ultimately,

the

“context-specific

Court’s

task

that

Id.

plausibility
requires

the

reviewing court to draw on its judicial experience and common
sense.”

Id. at 679, 129 S. Ct. at 1950.
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
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.
In deciding a motion to dismiss, the Court is generally
confined to “the allegations contained within the four corners of
[the] complaint.”

Pani v. Empire Blue Cross Blue Shield, 152 F.3d
7

67, 71 (2d Cir. 1998).

However, the Court may consider “any

written instrument attached to [the complaint] as an exhibit,
materials incorporated in it by reference, and documents that,
although

not

complaint.”

incorporated

by

reference,

are

integral

to

the

Sira, 380 F.3d at 67; see also Chambers v. Time

Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (observing that a
document is “integral” if the complaint “relies heavily upon its
terms

and

effect”)

(internal

quotation

marks

and

citation

omitted).
II.

RESPA Claim
The Amended Complaint alleges that Defendants violated

RESPA by failing to respond to the QWR and related correspondence.
(Am. Compl. at ECF pp. 4-5.)

Congress enacted RESPA to “‘insure

that consumers throughout the Nation are provided with greater and
more timely information on the nature and costs of the settlement
process

and

are

protected

from

unnecessarily

high

settlement

charges caused by [ ] abusive practices that have developed in
some areas of the country.’”

Yanes v. Ocwen Loan Servicing, LLC,

No. 13-CV-2343, 2015 WL 631962, at *7 (E.D.N.Y. Feb. 12, 2015)
(alteration in original) (quoting 12 U.S.C. § 2601).

Section

2605(e) outlines the duty of loan servicers when they receive an
inquiry from a borrower.

12 U.S.C. § 2605(e).

Specifically, this

section “‘permits a borrower to submit to a servicer of her loan(s)
a qualified written request (QWR) for information related to
8

servicing

of

accordingly.’”

the

loan

and

requires

the

servicer

to

respond

Noriega v. US Bank, Nat’l Ass’n, No. 16-CV-1058,

2017 WL 3172998, at *7 (E.D.N.Y. July 25, 2017) (quoting Gorbaty
v. Wells Fargo Bank, N.A., No. 10-CV-3291, 2014 WL 4742509, at *4
(E.D.N.Y. Sept. 23, 2014) (internal quotation marks omitted).

A

QWR is “correspondence that identifies a borrower’s account and
includes a statement of the reasons for the belief of the borrower,
to the extent applicable, that the account is in error or provides
sufficient detail to the servicer regarding other information
sought by the borrower.”

Mack v. ResCap Borrower Claims Trust,

678 F. App’x 10, 14 (2d Cir. 2017) (internal quotation marks and
citation omitted).

When a servicer receives a QWR, it must

acknowledge receipt within five days and depending on the nature
of the inquiry, take certain actions within thirty days. 12 U.S.C.
§ 2605(e)(1)-(2).

If the servicer fails to comply with Section

2605(e), a borrower may recover “any actual damages to the borrower
as a result of the failure” and “any additional damages, as the
court

may

allow,

in

the

case

of

a

pattern

or

practice

of

noncompliance with the requirements of this section, in an amount
not to exceed $2,000.”
Defendants
dismissed

against

12 U.S.C. § 2605(f)(1).
argue

the

Bank

that
of

the
New

RESPA
York

claim

Mellon

should

because

be
only

servicers are subject to claims related to QWRs, and the Bank of

9

New York Mellon is not the servicer of Plaintiff’s loan.7
Br., at 5.)

The Court agrees.

(Defs.’

Section 2605(e) concerns the “duty

of loan servicer[s] to respond to borrower inquiries,” see 12
U.S.C. § 2605(e), and Plaintiff acknowledges that Shellpoint is
the servicer of the loan, (Am. Compl. at ECF p. 4).

Therefore,

the RESPA claim against the Bank of New York Mellon is DISMISSED.
Next, Defendants contend that the RESPA claim against
Shellpoint must be dismissed because Plaintiff’s QWR was sent to
the incorrect address and as a result, it had no duty to respond.
(Defs.’ Br. at 5-6.)

The regulations implementing RESPA permit

servicers to designate a specific address for QWRs.

See Roth v.

CitiMortgage Inc., 756 F.3d 178, 181 (2d Cir. 2014); 12 C.F.R
§ 1024.36(b) (“A servicer may, by written notice provided to a
borrower, establish an address that a borrower must use to request
information . . . .
borrower

must

information.”).

The notice shall include a statement that the

use

the

established

address

to

request

The Second Circuit recently held that “‘[f]ailure

to send the [request] to the designated address . . . does not
trigger the servicer’s duties under RESPA.’”

Roth, 756 F.3d at

Defendants’ first argument--that the Court should dismiss the
RESPA claim based on Plaintiff’s failure to attach the QWR to
his Amended Complaint--does not warrant detailed discussion.
(See Defs.’ Br., Docket Entry 13-5, at 5.) While the QWR was
not attached to the Amended Complaint, it was attached to the
initial Complaint. In light of Plaintiff’s pro se status, the
Court declines to dismiss the claim for this reason.
7

10

182 (quoting Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 114849 (10th Cir. 2013) (alterations in original)).

Specifically, “as

long as a servicer complies with the notice requirements . . . for
designating a QWR address, a letter sent to a different address is
not a QWR.”

Id.

For example, a servicer may designate an address

for QWRs by including the address in the borrower’s monthly
mortgage statement.

See Kelmetis v. Fed. Nat’l Mortg. Ass’n, No.

16-CV-0246, 2017 WL 395120, at *8 (N.D.N.Y. Jan. 27, 2017).
Plaintiff’s correspondence was sent to P.O. Box 740039,
Cincinnati, Ohio, 45274.

(QWR at ECF p. 14.)

Defendants contend

that Shellpoint’s website designates P.O. Box 10826, Greenville,
South

Carolina,

29603

as

the

proper

address

for

information

requests, and they attached a copy of the “Contact Us” page of
Shellpoint’s website as an exhibit to their motion.8
Mawere Decl., Ex. C, Docket Entry 13-4.)

(Website,

Defendants submit that

because Plaintiff did not send his request to the Greenville
address, his request cannot be considered a QWR and no duty to
respond arose.

Even assuming that the Court could consider the

In his opposition, Plaintiff contends that whether he used the
correct address is irrelevant because Shellpoint acknowledged
receiving the QWR by letter dated April 27, 2017. (Pl.’s Opp.
at 4, 18.) However, after Roth, any alleged response by the
servicer is not determinative. See Roth, 756 F.3d at 182
(reasoning that when a servicer properly notifies a borrower of
its designated QWR address, and the borrower sends a QWR to a
different address, “a letter sent to a different address is not
a QWR [ ] even if an employee at that address . . . in fact
responds to that letter.”).
8

11

information on Shellpoint’s website for purposes of a motion to
dismiss, this argument fails.
on

a

website

borrower.”

does

not

Publishing the designated address

constitute

“written

See 12 C.F.R. § 1024.36(b).

notice

to

[the]

Furthermore, the website

does not “include a statement that the borrower must use the
established address to request information.”

See id.

While

Defendants may have designated an address on Plaintiff’s monthly
statements or in a separate notice, those documents--even if they
could be considered at this stage--are not before the Court.
Because it is unclear if Shellpoint properly designated a QWR
address, dismissal for this reason is not warranted at this
juncture.

See Roth, 756 F.3d at 182 (holding that correspondence

sent to a different address is not a QWR “as long as a servicer
complies with the notice requirements . . . for designating a QWR
address”) (emphasis supplied).
Finally, Defendants argue that the RESPA claim fails
because Plaintiff has not sufficiently pled damages. (Defs.’ Br.
at 6-7.)

To survive a motion to dismiss, “a plaintiff bringing a

Section 2605 claim must, in addition to showing defendant’s failure
to comply with the provisions of Section 2605, identify actual
damages that he or she sustained as a result of defendant’s alleged
violation(s).”
plaintiff

must

Yanes, 2015 WL 631962, at *7.
demonstrate

that

his

In other words, a

actual

damages

proximately caused by the defendant’s violation of RESPA,”
12

“were
and

when the claim involves a failure to respond to a QWR, the
complaint “must offer factual allegation[s] linking [the] alleged
harms to [the defendant’s] failure to timely respond to [the]
QWR[ ].”

Bonadio v. PHH Mortg. Corp., No. 12-CV-3421, 2014 WL

522784, at *6 (S.D.N.Y. Jan. 31, 2014) (first and third alterations
in original) (internal quotation marks omitted).

When a plaintiff

is seeking statutory damages, he must show “a pattern or practice
of noncompliance with the requirements of § 2605.”

Noriega, 2017

WL 3172998, at *8 (internal quotation marks and citation omitted).
The Court agrees that Plaintiff’s allegations of damages
are insufficient.

He alleges that: (1) he has been “paying since

2006 to countless organizations, ha[s] gone through economic loss
and [he and his] family suffer[] [from] stress [and] depression,”
(Am. Compl. at ECF p. 4); (2) he has “suffered from economic loss
due to damage reporting of credit,” (Am. Compl. at ECF p. 4); (3)
his “family is being threatened with displacement from [their]
home and not knowing where [they] will live has caused fear and
depression, nightmares, [and] school work for [his] children has
faltered,” (Am. Compl. at ECF p. 6); (4) he has “a difficult time
working productively and effectively, thinking about not having a
home,” (Am. Compl. at ECF p. 6); and (5) “the fear, depression of
my family being kicked out of [their] home has caused and continual
letters stating the same has caused (irreparable) damage,” (Am.
Compl.

at

ECF

p.

7).

However,
13

he

has

not

explained

how

Shellpoint’s failure to respond caused his damages.

See, e.g.,

Yanes, 2015 WL 631962, at *7 (dismissing RESPA claim when the
plaintiff alleged that he suffered “financial loss and severe
mental anguish and emotional distress over facing the loss or
possible loss of his home”) (internal quotation marks omitted);
Bonadio, 2014 WL 522784, at *6 (dismissing RESPA claim when the
plaintiff

alleged

inconvenience”

and

that

his

damages

“emotional

included

distress

and

“time
mental

spent

and

anguish”)

(internal quotation marks omitted); Gorbaty v. Wells Fargo Bank,
N.A., No. 10-CV-3291, 2014 WL 4742509, at *5-9 (E.D.N.Y. Sept. 23,
2014) (finding the plaintiff’s allegations of litigation costs,
loss of equity, reputational harm, emotional harm, and harm to
creditworthiness to be insufficient to allege actual damages as a
result of the alleged Section 2605 violation).

Based on these

allegations, it appears that Plaintiff’s damages were not caused
by Shellpoint’s failure to respond to the QWR, but by difficulties
repaying the mortgage loan and potential foreclosure proceedings.
Moreover, Plaintiff has failed to allege any “pattern or practice
of non-compliance” to support a claim for statutory damages.9

See

Gorbaty, 2014 WL 4742509, at *8 (holding that allegations of
statutory damages were insufficient when the plaintiff failed to

As a result, the Court need not address whether actual damages
are required to state a claim under Section 2605. See Noriega,
2017 WL 3172998, at *8 n.10.
9

14

“adduce[ ] any factual allegations suggesting additional RESPA
violations by the Defendants beyond those already alleged”).
Therefore, because Plaintiff has not adequately pled
damages, the RESPA claim against Shellpoint is DISMISSED.
III.

The FDCPA Claims
The Amended Complaint alleges that Plaintiff and his

family

have

“suffered

extensive

received numerous phone calls.

stress

and

harassment”

(Am. Compl. at ECF p. 4.)

and
The

Amended Complaint also refers to “confusing” statements made by
Shellpoint but does not identify any specific statements.

(Am.

Compl. at ECF p. 8.) While Plaintiff does not refer to any specific
provisions of the FDCPA, the Court construes the Amended Complaint
as asserting claims under 15 U.S.C. §§ 1692d, 1692e, 1692f, and
1692g.10
The FDCPA “establishes certain rights for consumers
whose debts are placed in the hands of professional debt collectors
for collection.”

DeSantis v. Computer Credit, Inc., 269 F.3d 159,

161 (2d Cir. 2001); see also 15 U.S.C. § 1692(e) (describing that
the purpose of the statute is “to eliminate abusive debt collection
practices”).

To assert a claim under the FDCPA, Plaintiff must

allege three threshold requirements: (1) he was a “consumer”; (2)

The Court must construe pro se submissions “liberally” and
interpret them to “raise the strongest possible arguments.”
Nike, Inc. v. Top Brand Co., Ltd., No. 00-CV-8179, 2006 WL
2884437, at *2 (S.D.N.Y. Oct. 6, 2006).
10

15

Defendants were “debt collector[s]”; and (3) Defendants’ act or
omission violated the FDCPA.

See Polanco v. NCO Portfolio Mgmt.,

Inc., 132 F. Supp. 3d 567, 578 (S.D.N.Y. 2015) (internal quotation
marks and citation omitted).
Section 1692d prohibits debt collectors from engaging
“in any conduct the natural consequence of which is to harass,
oppress, or abuse any person in connection with the collection of
a debt.”

15 U.S.C. § 1692d.

Sections 1692e and 1692f prohibit

the use of “false, deceptive, or misleading representation[s]” or
“unfair or unconscionable means” to collect a debt.
§§ 1692e, 1692f.

15 U.S.C.

Section 1692g requires that “[w]ithin five days

after the initial communication with a consumer in connection with
the collection of any debt, a debt collector shall . . . send the
consumer a written notice,” known as a validation notice.
U.S.C. § 1692g(a).

15

The validation notice is required to contain

certain information, including “the amount of the debt,” “the name
of the creditor to whom the debt is owed,” and a series of
statements outlining the dispute procedures. 15 U.S.C. § 1692g(a);
see also Douyon v. N.Y. Med. Health Care, P.C., 894 F. Supp. 2d
245, 255 (E.D.N.Y. 2012), amended on reconsideration, No. 10-CV3983, 2013 WL 5423800 (E.D.N.Y. Sept. 25, 2013).
The Court finds that Plaintiff’s allegations fail to
state a FDCPA claim.

Initially, it is unclear whether the Bank of

New York Mellon or Shellpoint are debt collectors within the
16

meaning of the statute.

See Roth, 756 F.3d at 183 (affirming

dismissal of FDCPA claim when the amended complaint failed to
allege that the defendant “acquired [the plaintiff’s] debt after
it was in default”). Further, the Amended Complaint fails to plead
factual allegations to support Plaintiff’s FDCPA claims and fails
to provide the “short and plain statement” required by the Federal
Rules.

FED. R. CIV. P. 8(a)(2).

Thus, to the extent that Plaintiff

is asserting FDCPA claims, those claims are DISMISSED.
IV.

Fourteenth Amendment Claim
Plaintiff alleges that Defendants’ conduct violated his

Fourteenth Amendment rights.

(Am. Compl. at ECF pp. 6-7.)

The

Court construes these allegations as asserting a claim under 42
U.S.C. § 1983.
Section 1983 provides individuals with “a method for
vindicating federal rights,” including those rights conferred by
the United States Constitution.

Baker v. McCollan, 443 U.S. 137,

144 n.3, 99 S. Ct. 2689, 2694, 61 L. Ed. 2d 433 (1979).

To state

a claim under Section 1983, a plaintiff must demonstrate that the
defendant deprived him of a federal or constitutional right while
acting under color of state law.

Cox v. Warwick Valley Cent. Sch.

Dist., 654 F.3d 267, 272 (2d Cir. 2011).
requirement

exists

“[b]ecause

the

United

The state action
States

Constitution

regulates only the Government, not private parties.”

17

Flagg v.

Yonkers Sav. & Loan Ass’n, 396 F.3d 178, 186 (2d Cir. 2005)
(internal quotation marks and citation omitted).
Because the Bank of New York Mellon and Shellpoint are
not state actors, Plaintiff fails to state a Section 1983 claim
for violations of his Fourteenth Amendment rights.

Accordingly,

the Fourteenth Amendment claim is DISMISSED.11
V.

Leave to Amend
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), overruled on other grounds, Gonzaga v. Doe, 536 U.S.
273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002).

See also FED. R. CIV.

P. 15(a)(2) (“The 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).

To the extent that Plaintiff is asserting claims under the
Truth in Lending Act (“TILA”) or Article 3 of the Uniform
Commercial Code, those claims are also DISMISSED. Plaintiff
cites TILA and UCC Article 3 as bases for federal question
jurisdiction but fails to allege violations of any specific
provisions or allege facts to support claims under any
provisions. (See Am. Compl. at ECF p. 3.)
11

18

In light of Plaintiff's pro se status, the Court will
allow Plaintiff to amend his Amended Complaint.
Plaintiff

leave

to

re-plead

his

Section

The Court GRANTS

2605(e)

claim

for

Shellpoint’s failure to respond to the QWR and his FDCPA claims.
In any amended pleading, Plaintiff is directed to plead specific
facts (1) to demonstrate that his damages were proximately caused
by Shellpoint’s failure to respond to his QWR, and (2) to support
his claims under the FDCPA.

Additionally, if Plaintiff chooses to

re-plead his Section 2605(e) claim, he is directed to attach the
QWR to the Second Amended Complaint.
CONCLUSION
For the foregoing reasons, Defendants’ motion (Docket
Entry 13) is GRANTED IN PART and DENIED IN PART.

The RESPA claim

against the Bank of New York Mellon and the Fourteenth Amendment
claim against the Bank of New York Mellon and Shellpoint are
DISMISSED WITH PREJUDICE.

To the extent the Amended Complaint

asserts claims under TILA or the UCC, those claims are also
DISMISSED WITH PREJUDICE.

However, because the Court GRANTS

Plaintiff leave to amend his RESPA claim against Shellpoint and
the

FDCPA

claims

against

the

Bank

of

New

York

Mellon

and

Shellpoint, those claims are DISMISSED WITHOUT PREJUDICE.
Any

Second

Amended

Complaint

shall

be

filed

within

thirty (30) days from the date of this Memorandum and Order, shall
be titled Second Amended Complaint, and shall bear the same docket
19

number as this Order, No. 17–CV–4375(JS)(GRB).
cautioned
replace

that
the

the

Second

original

Amended

Complaint

Complaint

and

the

Plaintiff is
will

completely

Amended

Complaint.

Therefore, all claims and allegations Plaintiff wishes to pursue
must be included in the Second Amended Complaint.

If Plaintiff

fails to file a Second Amended Complaint within thirty (30) days,
this case will be dismissed with prejudice.
The Clerk of the Court is directed to mail a copy of
this Memorandum and Order to the pro se Plaintiff.

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

Dated:

August
30 , 2018
Central Islip, New York

20