Castro v. The Bank of New York Mellon et al

Filing 46

MEMORANDUM ORDER granting 32 Motion to Dismiss; For the foregoing reasons, Defendants' motion is GRANTED and all claims are DISMISSED WITH PREJUDICE. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED. The Clerk of the Court is further directed to mail a copy of this Memorandum and Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 7/22/2019. 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;
SHELLPOINT MORTGAGE SERVICING;
and UNKNOWN DEFENDANTS,
Defendants.
-------------------------------------X
APPEARANCES
For Plaintiff:
Mario E. Castro, pro se
419 West Hills Road
Melville, New York 11747
For Defendants:

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

SEYBERT, District Judge:
Before the Court is the motion of defendants The Bank of
New York Mellon f/k/a The Bank of New York, as Trustee for the
Certificate Holders of CWALT, Inc., Alternative Loan Trust 2006OA11 Mortgage Pass-Through Certificates Series 2006-OA11 (the
“Bank”)

and

Shellpoint

Servicing

Incorporated

(“Shellpoint”)

(together, “Defendants”) to dismiss plaintiff Mario E. Castro’s
(“Plaintiff” or “Castro”) Second Amended Complaint (“SAC”).

(See

Mot.

D.E.

32;

SAC,

D.E.

23.)

For

the

following

reasons,

Defendants’ motion is GRANTED and all claims are DISMISSED WITH
PREJUDICE.
BACKGROUND
The Court assumes the parties’ familiarity with the
record and the Court’s previous Order and discusses the underlying
facts and issues only to the extent necessary to resolve this
motion.

(See generally Castro v. Bank of N.Y. Mellon, 17-CV-4375,

2018 WL 4158344 (E.D.N.Y. Aug. 30, 2018); and Aug. 30, 2018 M&O,
D.E.

19.)

generally

Previously,
alleged

that

in

his

while

Amended
servicing

Complaint,1
his

Plaintiff

mortgage

loan,

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.

§

1962

et

seq.,

and

the

Fourteenth Amendment of the Constitution.

(Am. Compl. at ECF pp.

3-7; Castro, 2018 WL 4158344, at *1-2.)

On October 24, 2017,

Defendants moved to dismiss the Amended Complaint (First Mot.,
D.E. 13), and this Court granted the motion in part and denied it
in part (Castro, 2018 WL 4158344 at *7).

The Court dismissed

several claims with prejudice: the RESPA claim against the Bank,
the Fourteenth Amendment claim against the Bank and Shellpoint,

Plaintiff initially filed a Complaint on July 24, 2017. (Compl.,
D.E. 1.)
The initial Complaint was not served on any parties.
Plaintiff filed an Amended Complaint on August 2, 2017.
(Am. Compl., D.E. 4.)
1

2

and, to the extent the Court construed them as asserted by the
Amended Complaint, claims under the Truth in Lending Act (“TILA”)
and Article 3 of the Uniform Commercial Code (“UCC”).
2018 WL 4158344 at *7, *6 n.11.

Castro,

The Court dismissed without

prejudice and granted Plaintiff leave to replead only (1) his RESPA
claim against Shellpoint and (2) his FDCPA claims against the Bank
and Shellpoint.

Id. at *7.

With respect to the RESPA claim, the Amended Complaint
alleged that Defendants violated the statute by failing to respond
to

Plaintiff’s

Qualified

Written

Request

(“QWR”)

and

related

correspondence seeking information about his mortgage and debt.
(Am. Compl. at ECF pp. 4-5.)
depression, and anxiety.
relevant

here,

in

the

He generally alleged economic loss,

(Am. Compl. at ECF pp. 4, 6, 7.)
prior

Order,

this

Court

found

As
that

Plaintiff’s allegations of damages in connection with Defendants’
RESPA violations were insufficient.
*5.

Castro, 2018 WL 4158344 at

Specifically, he had not “explained how Shellpoint’s failure

to respond caused his damages.”

Id. at *5.

The Court observed

that “[b]ased on these allegations, it appear[ed] 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.”

Id.

As to the FDCPA claim, the Amended Complaint alleged
that Plaintiff and his family suffered stress and harassment,
3

received numerous phone calls, and were subject to confusing
statements by Shellpoint.

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

The Court

held that it was “unclear whether [the Bank] or Shellpoint are
debt collectors within the meaning of the statute” and, further,
that Plaintiff had “fail[ed] to plead factual allegations to
support [his] claims and fail[e]d to provide the ‘short plain
statement’ required by [Federal Rule of Civil Procedure Rule 8].”
Castro, 2018 WL 4158344 at *6.
In granting Plaintiff leave to replead his RESPA claim
against Shellpoint and his FDCPA claims against the Bank and
Shellpoint, this Court warned Plaintiff that “[i]n 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 [RESPA] Section 2605(e) claim, he is directed to attach
the QWR to the Second Amended Complaint.”

Id. at *7.

After Plaintiff filed his SAC Defendants again moved to
dismiss on February 4, 2019.

(Def. Second Mot., D.E. 32.)

On

April 3, 2019 Plaintiff filed his opposition to Defendants’ Second
Motion to Dismiss, (Pl. Opp., D.E. 39), and then subsequently filed
a “Declaration” after the due date for his opposition.
D.E. 42.)

On April 22, 2019 Defendants filed their reply.

4

(Decl.,
(Def.

Reply, D.E. 44.)

For the following reasons, Defendants’ motion is

GRANTED.
DISCUSSION
I.

Legal Standard
The well-established standards, as stated in the prior

order,

require

that

a

complaint

contain

“a

short

and

plain

statement of the claim showing that the pleader is entitled to
relief.”

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

Rule 12(b)(6) provides that

dismissal is appropriate if the complaint fails “to state a claim
upon which relief can 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).

Although

a

pro

se

litigant’s

complaint,

“however

inartfully pleaded, [is] 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), it must
still state a plausible claim for relief and comply with the
minimal pleading standards of Rule 8.

Hiller v. Farmington Police

Dep’t, No. 12-CV-1139, 2015 WL 4619624, at *7 (D. Conn. July 31,
2015).
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
5

67, 71 (2d Cir. 1998), but may consider “any written instrument
attached to [the complaint] as an exhibit, materials incorporated
in it by reference, and documents that, although not incorporated
by reference, are integral to the complaint.” Sira v. Morton, 380
F.3d 57, 67 (2d Cir. 2004); 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.

Claims in Plaintiff’s SAC
The Court addresses several preliminary matters before

discussing the substance of Defendants’ motion.

First, the prior

order dismissed, with prejudice, Plaintiff’s RESPA claim against
the

Bank,

Fourteenth

Amendment

claim

against

Shellpoint, and claims under TILA or the UCC.
4158344 at *7.

the

Bank

and

Castro, 2018 WL

For the reasons elaborated in the prior order, the

Court does not consider these claims insofar as they are asserted
in the SAC.
Second, on the same day he filed his SAC, Plaintiff
submitted what he styled as a “motion to set aside judgment” (Mot.
to Set Aside, D.E. 22) which this Court construes as a motion for
reconsideration of its prior Order dismissing the claims in his
Amended Complaint and allowing him to replead (see Castro, 2018 WL
4158344). Plaintiff did not raise important matters or controlling
decisions that the Court overlooked that would have influenced its
6

prior decision.

Nor has he pointed to mistakes, inadvertence,

excusable neglect, newly discovered evidence, or fraud that would
have altered the decision.

See Rules 59(e) and 60(b) of the FED.

R. CIV. P. and Local Civil Rule 6.3.

Additionally, the motion

“incorporate[s his SAC] by reference.”

(Mot. to Set Aside at 2.)

The Court extensively considers the SAC in this Memorandum & Order.
Plaintiff’s motion to set aside is DENIED.
Third, Plaintiff claims in the SAC that his “suit is
presented at Common-Law as authorized by the Constitution for the
Great State of New York,” that he “grant[s] neither leave nor
permission to construe this in any other fashion than ‘Original
Jurisdiction,’” and that although “[o]ften times when recording
the suit individuals go through a great deal trying to articulate
their intentions, [he] will make no such efforts here.”
ECF

p.

2,

¶¶

4-6.)

He

objects

to

this

Court’s

(SAC at

rules

and

administrative policies as “inapplicable.” (SAC at ECF p. 2, ¶ 6.)
He references a “Trust Agreement” but does not explain how it
applies to his allegations.

(SAC at ECF pp. 3-4.)

The SAC that

follows is 57 pages and 211 paragraphs of mostly unintelligible
and inapplicable statements that do not appear to relate to or
support his claims.

Although Plaintiff makes passing mentions of

RESPA and the FDCPA, he does not allege particular facts relevant
to his claims. The SAC does not present a short and plain statement
of the facts as required by Rule 8.
7

However, due to Plaintiff’s

pro se status, the Court reads the SAC liberally and addresses any
allegations that could be construed as relevant to his RESPA and
FDCPA claims.
Additionally,

Plaintiff’s

“opposition”

arguments in response to Defendants’ motion.

makes

no

Rather, it “requests

a stay of the proceedings” and “objects to Defendant’s [sic] Motion
to Dismiss,” because he “wishes to proceed through arbitration as
specified in the ‘Presentment/Motion to Compel’ and as agreed upon
in the referenced agreement.”
attached

documents

which

he

(Pl. Opp. at 2.)
claims

demonstrate

Plaintiff has
that

he

and

Defendants have an agreement where arbitration is the exclusive
remedy and thus moves to compel it. These documents are not signed
by Defendants and Defendants dispute any alleged agreement to
arbitrate.

(Def. Reply at 2, 4.)

They are largely incoherent and

appear to have been created by Plaintiff.
these

documents

Plaintiff’s

do

claims

not
and,

constitute

an

accordingly,

The Court finds that

agreement
it

will

to
not

arbitrate
stay

the

proceedings or send the matter to arbitration.
A.

RESPA Claim against Shellpoint
To survive a motion to dismiss, “a plaintiff bringing a

[RESPA] Section 2605 claim must, in addition to showing [a]
defendant’s failure to comply with the provisions of Section 2605,
identify actual damages that he or she sustained as a result of
[the] defendant’s alleged violation(s).”
8

Yanes v. Ocwen Loan

Servicing, LLC, No. 13-CV-2343, 2015 WL 631962, at *7 (E.D.N.Y.
Feb. 12, 2015).

In other words, a plaintiff must demonstrate that

his actual damages “were proximately caused by the defendant’s
violation of RESPA,” 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) (internal
quotation marks and citation 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).
Further,

a

conclusory

assertion

that

the

plaintiff

merely suffered “damages” is insufficient to state claim under
RESPA. Compare 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) with Kapsis v. Am. Home Mortg.
9

Servicing Inc., 923 F. Supp. 2d 430, 448 (E.D.N.Y. 2013) (the
allegation that a servicer “misapplied the borrowers’ payments on
the loan” sufficiently pled actual damages) and Hutchinson v. Del,
Sav. Bank FSB, 410 F. Supp. 2d 374, 383 (D.N.J. 2006) (the
plaintiffs sufficiently pled actual damages when they claimed they
suffered “negative credit ratings on their credit reports [and]
the inability to obtain and borrow another mortgage loan and other
financing” when the defendant “allegedly reported [p]laintiffs’
delinquent [ ] payments to credit bureaus during the 60 day
statutory period after it received [p]laintiffs’ qualified written
request”) (internal quotation marks omitted).

The damages must be

caused by the statutory violation and they must be stated with
some specificity.

Plaintiff has not met either requirement here.

Plaintiff alleges that Defendant’s “actions have caused
irreparable harm, including failure of ability to concentrate at
work and perform daily work activities, lack of sleep, stress,
family issues, family stressing, medical issues due to stress . .
. harassment/threats of unlawful foreclosure actions, negative
marks

on

credit

reports

as

they

were

required

to

cease

all

collection efforts until the debt has been validated and provided
verification of the debt and proof that they are the holders in
due course of my wet ink signature note in violation of policy and
law.”

(SAC at ECF p. 50, ¶ 198.)

He states that the “damages are

continual and ongoing and they are still damaging [his] credit til
10

this day damaging his credit worthiness and ability to obtain any
other type of credit to build and create a future for himself and
family and livelihood.”
First,

(SAC at ECF p. 50, ¶ 198.)

Plaintiff

does

not

sufficiently

allege

how

Shellpoint’s failure to respond to his requests proximately caused
his damages.

In 57 pages, he does not explain how the lack of

response to his QWR caused his stress, anxiety, or credit issues.
See Bonadio, 2014 WL 522784 at *6 (“[s]imply saying that . . . the
servicer’s failure to respond to a QWR caused damages without
specifying how those damages were caused, is not enough to survive
a motion to dismiss”) (internal quotation marks and citation
omitted).

Second, Plaintiff has simply rehashed the alleged

damages this Court found insufficient in its prior order.

Again,

“[b]ased 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

foreclosure proceedings.”

the

mortgage

loan

and

potential

Castro, 2018 WL 4158344 at *5.

Third,

as the prior order explained, when a plaintiff is seeking statutory
damages, he must show “a pattern or practice of noncompliance with
the requirements of § 2605.”

Noriega v. US Bank, Nat’l Ass’n, No.

16-CV-1058, 2017 WL 3172998, at *8 (E.D.N.Y. July 25, 2017).
Plaintiff has again not done so, and as he did in his Amended
Complaint, indicates only that Defendants have “violated these
acts on more than 2 occasions.”
11

(SAC at ECF p. 50, ¶ 196.)

He

does

not

offer

violations.
at

*8

any

factual

allegations

This is insufficient.

(holding

that

allegations

of

these

additional

See Gorbaty, 2014 WL 4742509
of

statutory

damages

were

insufficient when the plaintiff failed to “adduce[ ] any factual
allegations

suggesting

additional

RESPA

Defendants beyond those already alleged”).

violations

by

the

Plaintiff has failed

to cure the deficiencies in his pleadings despite this Court’s
clear

instructions

and

guidance.

His

RESPA

claims

against

Shellpoint are thus DISMISSED WITH PREJUDICE.
B.

FDCPA Claims against Shellpoint and the Bank
As explained in the prior Order, to assert a claim under

the FDCPA, Plaintiff must allege three threshold elements: (1) he
was a “consumer”; (2) 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).

The prior order

found it was “unclear whether the Bank [ ] or Shellpoint are debt
collectors within the meaning of the statute.”
4158344 at *6.

Castro, 2018 WL

It also found that Plaintiff had not made a short

and plain statement of facts demonstrating he was entitled to
relief for alleged FDCPA violations.

Id.

Even assuming Plaintiff’s conclusory allegation in his
SAC that Defendants are “debt collector[s] as described in the
[FDCPA] . . . as they have also purchased this debt while it is/was
12

in default” (SAC at ECF p. 50, ¶ 196) sufficiently alleges that
Defendants are debt collectors, he has failed to allege “any
conduct the natural consequence of which is to harass, oppress, or
abuse any person in connection with the collection of a debt.”
U.S.C. § 1692d.
deceptive,

or

Further, he has not shown the use of “false,
misleading

representation[s]”

unconscionable means” to collect a debt.
1692f.

15

or

“unfair

or

15 U.S.C. §§ 1692e,

He gives no factual basis for his claims and does not

explain how either Defendant allegedly harassed him in connection
with a debt or made false representations.

Thus, his FDCPA claims

against the Bank and Shellpoint are DISMISSED WITH PREJUDICE.2
III. Leave to Replead
Although leave to replead should be freely granted,
especially with pro se litigants, “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,

The SAC’s caption includes the Fair Credit Reporting Act
(“FCRA”), 16 U.S.C. Section 1681. The FCRA is mentioned by name
only on ECF pp. 24 and 37, with no accompanying facts.
Plaintiff did not allege FCRA violations in his prior Amended
Complaint. The Court does not read the SAC as alleging
violations of the FCRA. To the extent the caption also includes
“Public Policy,” “New York Trust Laws, that New York Debt
Collection procedural statutes, [and] New York Organic
Constitution common Law,” Plaintiff has made no efforts to
allege facts supporting any of these purported “claims.” The
Court does not read the SAC as alleging violations of these
statutes either. See FED. R. CIV. P. 8.
2

13

at *4 (E.D.N.Y. Aug. 13, 2012).

This Court has given Plaintiff a

second opportunity to allege his claims and included guidance for
him to do so.

He has responded with a largely incomprehensible

and unsupported SAC. The Court finds that further repleading would
be futile and does not grant Plaintiff leave to replead.
CONCLUSION
For the foregoing reasons, Defendants’ motion is GRANTED
and all claims are DISMISSED WITH PREJUDICE.

The Clerk of the

Court is directed to enter judgment accordingly and mark this case
CLOSED.
The Clerk of the Court is further 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:

July
22 , 2019
Central Islip, New York

14