Fournier v. Bank of America Corporation et al

Filing 29

DECISION AND ORDER denying Plaintiff's 26 Cross-Motion for injunctive relief and granting Defendants' 18 Motion to Dismiss. Plaintiff is granted leave to replead w/in 30 days of the date of this Decision and Order, or the remaining claims will be dismissed, w/out further order of the Court. Signed by Senior Judge Thomas J. McAvoy on 2/4/2014. (amt) [Pltf served via reg. mail]

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
MARISSA ANGELIQUE FOURNIER,
Plaintiff,
v.

5:13-CV-00702

BANK OF AMERICA CORPORATION;
BANK OF AMERICA, N.A.;
BOA HOME LOAN SERVICING, LP,
Defendants.
___________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
Plaintiff, Marissa Angelique Fournier, brings an action alleging that Defendants,

Bank of America Corporation (“BAC”), and Bank of America, N.A. for itself and as
successor by merger to BAC Home Loans Servicing, LP, sued herein as BOA Home Loan
Servicing, LP (“BANA”), violated the Real Estate Procedures Act (“RESPA”), the Fair Debt
Collection Practices Act (“FDCPA”), and Section 349 of the New York General Business
Law. Plaintiff also asserts claims for breach of contract and intentional infliction of
emotional distress. See Compl., dkt. #1. Defendants move pursuant to FED. R. CIV. P.
12(b)(6) to dismiss all of these claims. See Mot. Dismiss, dkt. #18. Plaintiff has filed
opposition to the motion and nominally asserted a cross-motion for injunctive relief. See

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dkt. # 26.1
For the reasons that follow, Defendants’ motion is granted for each claim, however
Plaintiff is granted leave to replead with respect to the RESPA, FDCPA, and Section 349
claims. Plaintiff’s cross motion for injunctive relief is denied.
II.

STANDARD OF REVIEW
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement

of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic
Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41,
47, 78 S. Ct. 99 (1957)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations . . . a plaintiff's obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. at 1964-65.
“Factual allegations must be enough to raise a right to relief above the speculative level
. . . on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).” Id. at 1965. “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)(quoting Twombly, 550 U.S. at 570). A
complaint does not suffice “if it tenders naked assertions devoid of further factual

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In dkt. # 26, entitled “Opposition to Defendants’ Motion to Dismiss, Memorandum of Law and
Support of Opposition, and Motion for Temporary Injunction or Restraining Order,” Plaintiff essentially argues
against granting Defendants’ motion. As to the claim for injunctive relief, Plaintiff merely requests in her
“Wherefore” clause that “the Court issue a temporary restraining order or injunction preventing BANA from
foreclosing on [Plaintiff’s] home at least until this instant case is resolved.” Dkt. # 26, p. 14.

2

enhancement.” Ashcroft, 129 S. Ct. at 1949. Legal conclusions must be supported by
factual allegations. Id. at 1950. Nonetheless “[a] document filed pro se is ‘to be liberally
construed’ and ‘a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Therefore, “[a] pro
se complaint ‘should not [be] dismiss[ed] without [the Court] granting leave to amend at
least once when a liberal reading of the complaint gives any indication that a valid claim
might be stated.’” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (alterations in
original) (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991)).
III.

BACKGROUND
Plaintiff purchased a home in Cicero, New York with a mortgage loan on October

28, 2008. Dkt. #1 ¶ 11. She alleges that “Defendants claim to hold the note on the
mortgage,” “serviced the mortgage,” and that Plaintiff “is not aware of any other person or
entity who claims to hold the note . . . .”2 Id. ¶¶ 12–13. According to the Complaint, from
November 1, 2008 until March 1, 2011, Plaintiff made regular mortgage payments. Id. ¶
14. However, beginning in January of 2010, Plaintiff began submitting requests for a
federally funded loan modification “[i]n anticipation of future financial distress” caused by a
divorce with her husband. Id. ¶¶ 15-16. Between January 6, 2010 and August 22, 2011,
Plaintiff submitted four loan modification applications, id. ¶ 16, but became “[f]rustrated by
the unwarranted denials of her applications . . . .” Id. ¶ 21. On March 20, 2012, Plaintiff

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Throughout Plaintiff’s complaint, she refers to Defendants collectively, as though they are one
corporate entity. The Court follows this practice solely for the purpose of restating Plaintiff’s allegations.

3

sent a Qualified Written Request (“QWR”), requesting “all assignments, transfers,
allonges, or other documents evidencing a transfer, sale or assignment of Plaintiff’s
mortgage, deed of trust, promissory note or other document that secures payment by
Plaintiff to her alleged obligation in this account from the inception of her loan to the
present date.” Id. ¶¶ 27-28. Between May 4, 2012 and July 9, 2012, Plaintiff sent three
more QWRs. Id. ¶¶ 29-31. On July 7, 2012, Defendants sent Plaintiff a letter “offering to
negotiate a commitment to modify the mortgage and approving the Plaintiff for Workout
Assistance,” id. ¶ 39, and on July 24, 2012, Plaintiff received a response to her QWRs. Id.
¶ 32. On July 10, 2012, Plaintiff sent Defendants a letter “outlining the viable claims she
believed she had against the Defendants and offering to settle the mater outside of court.”
Id. ¶ 43. The proposed settlement consisted of three conditions:
a. Plaintiff would release and hold harmless the Defendants from all claims
outlined in the above letter, b. The agreement is for accord and satisfaction
of the mortgage, and c. Defendant shall provide the Plaintiff with a
satisfaction of mortgage, releasing any rights or claims it had on the
Plaintiff’s residence.
Id. ¶ 43.
In addition, Plaintiff included a cashier’s check for $1,866.12, and stated in her
letter that “if the Defendants did not agree they should return the check and if they did
agree, they should cash the check . . .” and become bound by Plaintiff’s terms. Id. ¶ 44.
Defendants endorsed and cashed the check, but on July 30, 2012 sent Plaintiff a letter
“with instructions and pay off procedures.” Id. ¶¶ 45, 47. On July 31, 2012, Plaintiff sent
Defendants a letter “requesting that Defendants uphold their end of the agreement,” hired
an attorney, and sent a letter of representation to the Defendants. Id. ¶¶ 48-49. On two

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separate occasions before Plaintiff fired her attorney on October 1, 2012, Defendants sent
letters directly to the Plaintiff despite being aware that Plaintiff was represented by
counsel. Id. ¶¶ 54, 56-57. Plaintiff claims that in the ensuing months, Defendants
“continued to harass Plaintiff by threatening to foreclose on the Plaintiff’s residence,” and
failed to issue a satisfaction of mortgage. Id. ¶ 58. Plaintiff also claims that she suffered
from “personal humiliation, embarrassment, mental anguish, and severe emotional
distress, manifested in physical ailments such as headaches, stomach discomfort, severe
depression, severe anxiety, lack of sleep, inability to get out of bed, and an attempted
suicide.” Id. ¶ 59. Lastly she claims to have “made extensive improvements to the
residence in reliance on the accord and satisfaction agreement . . . with the Defendant.”
Id. ¶ 60.
Plaintiff brings five causes of action against the Defendants. First, she claims that
Defendants “systematically and continuously” violated RESPA by failing to respond to
Plaintiff’s first three QWRs, and by failing to “provid[e] the name and telephone number of
any individual employed by, or the offices or department of, the servicer who can provide
assistance to the borrower.” Id. ¶ 64. Next, Plaintiff alleges that Defendants violated
FDCPA by contacting Plaintiff when they knew Plaintiff was represented by counsel, and
“engaged in conduct, the natural consequence of which was to harass, oppress, or abuse
a person in connection with the collection of a debt . . . .” Id. ¶¶ 69-70. Plaintiff also
alleges breach of a contract, purportedly occuring when Defendants cashed the cashier’s
check sent with the July 10, 2012 letter while refusing to grant an accord and satisfaction.
Id. ¶¶ 73–74, 84. Plaintiff’s fourth claim alleges that Defendants engaged in deceptive

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business practices in violations of Section 349 of New York General Business Law. Id. ¶
87. Lastly, Plaintiff asserts intentional infliction of emotional distress resulting from
Defendants’ continual and intentional violation of the law. Id. ¶¶ 94, 99. The Defendants
move to dismiss each claim. See Defs. Mem. L., dkt. #19.
IV.

DISCUSSION
a.

BAC as a defendant.

Defendants argue that the Court should dismiss BAC with prejudice “because
[Plaintiff] has not alleged any facts that reflect any relationship between BAC and herself
or any wrongdoing on the part of BAC.” Dkt. #19 at 18. The Defendants further state that
while BAC is the corporate parent of BANA, that status is “insufficient to subject [BAC] to
liability in this action.” Id. at 19. The Court agrees that the Complaint, as it stands, states
no cognizable claims against BAC. Gorham-DiMaggio v. Countrywide Home Loans, Inc.,
Civ. No. 1:08-CV-019 (LEK/RFT), 2009 WL 1748743 at *10 (N.D.N.Y. June 19, 2009)
(citing Beck v. Consolidated Rail Corp., 394 F. Supp 2d. 632, 638 (S.D.N.Y. 2005)) (“[A]s
[a] general rule of law, a shareholder, which would include a parent corporation's
controlling ownership interest in a subsidiary, cannot be held liable for the acts of the
corporation, without a greater showing of dominion and control over the subsidiary.”), aff’d,
421 F. App’x 97 (2d Cir. 2011). Therefore the Court dismisses all claims with respect to
BAC. However, Plaintiff is a pro se and, as discussed above, the Court must read her
complaint liberally. In an amended complaint, Plaintiff could plausibly allege facts
supporting a valid claim or claims against BAC. Consequently, the Court will permit
Plaintiff leave to replead specific allegations against BAC as they relate to the claims not

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dismissed with prejudice in this Decision and Order. To bring a valid claim against BAC
that will survive a motion to dismiss, the Plaintiff must allege additional facts that implicate
BAC directly. Thus, a proper amended complaint that includes BAC as a Defendant must
allege facts identifying actions taken directly by BAC, if such facts exist, and not merely
actions taken by the Defendants collectively.
b.

RESPA Claims

Plaintiff’s RESPA claims arise from her allegation that Defendants failed to provide
information requested in three QWRs within the statutorily required time frame, while also
failing to “provid[e] the name and telephone number of any individual employed by, or the
office or department of, the servicer who can provide assistance to the borrower.” Dkt. #1
¶ 64. Additionally, Plaintiff asserts that Defendants’ illegal conduct was “systematic and
continuous” with respect to the Plaintiff. Id. Defendants contend that Plaintiff’s RESPA
claims fail to state claims for damages, dkt. #19 at 11-13, and that Plaintiff failed to allege
“any facts to demonstrate that she sent proper QWRs” to Defendants. Id. at 13.
1.

Damages

First, the Defendants claim that Plaintiff fails to state a claim for either actual
damages or statutory damages arising from “‘a pattern or practice of noncompliance with
the requirements of’ RESPA,” Id. at 12 (quoting 12 U.S.C. § 2605(f)(1)(B)). Under Section
2605(f)(1)(A), “a plaintiff must allege actual damages resulting from a violation of
[RESPA].” Corazzini v. Litton Loan Servicing L.L.P., No. 1:09-cv-199 (MAD/ATB), 2010
WL 6787231, at *11 (N.D.N.Y. June 15, 2010) (citing 12 U.S.C. § 2605(f)(1)(A)); see also
Gorham-DiMaggio, 2009 WL 1748743, at *9 (demonstrating that RESPA requires a

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showing of actual damages and proximate cause). Defendants contend that Plaintiff has
failed to show any damages. Dkt. #19 at 11-12. Plaintiff alleges, in wholly conclusory
terms, that Defendants’ actions were the proximate cause of her extreme emotional
distress, dkt. # 1 ¶ ¶ 66, 99, “manifested in physical ailments such as headaches, stomach
discomfort, severe depression, severe anxiety, lack of sleep, inability to get out of bed,
and an attempted suicide.” Id. ¶ 59. Because Plaintiff fails to state how the Defendants’
alleged violations of RESPA are the proximate cause of her injuries, the Court agrees with
Defendants that Plaintiff has failed to allege facts plausibly demonstrating that her physical
ailments constitute recoverable damages under RESPA.
Plaintiff also argues that she has monetary damages of $1,866.12 because BANA
has “a contractual duty to return” the check which she allegedly sent in connection with the
purported accord and satisfaction. (Opp. at 10). Plaintiff offers no explanation as to why
she is entitled to the return of these funds or how these damages arise from any purported
RESPA violation.
RESPA also allows an individual to seek “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.” 12 U.S.C. 2605(f)(1)(B). Defendants
contend that Plaintiff has failed to “establish ‘a pattern or practice of noncompliance with
the requirements’ of RESPA.” Dkt. #19 at 12 (quoting 12 U.S.C. § 2605(f)(1)(B)).
“‘Pattern or practice’ means ‘a standard or routine way of operating.’” Gorbaty v. Wells
Fargo Bank, N.A., 10-CV-3291 (NGG/SMG), 2012 U.S. Dist. LEXIS 55284 at 19 (E.D.N.Y.
April 18, 2012) (quoting McLean v. GMAX Mortg. Corp., 595 F. Supp. 2d 1360, 1365 (S.D.

8

Fla. 2009)). In Gorbaty, the Court found that two violations of RESPA were insufficient to
establish “a pattern or practice” under 2605(f)(1)(B). Gorbaty, 2012 U.S. Dist. LEXIS
55284 at 19; see also McLean, 595 F. Supp. 2d at 1365 (same); In re Maxwell, 281 B.R.
101, 123 (Bankr. D. Mass. 2002) (same); but see Ploog v. Homeside Lending Inc., 209 F.
Supp. 2d 863, 868 (N.D. Ill. 2002) (finding five instances of noncompliance with RESPA to
be sufficient to establish statutory damages). In light of Plaintiff’s allegation that
“Defendants are regularly engaged in the servicing of residential mortgages,” dkt. #1 ¶ 8,
the Court agrees with Defendants that three instances of noncompliance with RESPA is
insufficient to establish a pattern or practice of noncompliance, particularly where
Defendants responded to Plaintiff’s fourth alleged QWR in a timely manner. See In re
Maxwell, 281 B.R. at 123 (ruling that two violations of RESPA were insufficient to establish
a pattern or practice of noncompliance, where there was testimony that the loan provider
serviced “a large number of loans in most, if not all, of the 50 states . . . .”). As a result,
the Court finds that Plaintiff has failed to state a claim under RESPA.
2.

Propriety of Plaintiff’s QWRs

Defendants also contends that Plaintiff has not alleged sufficient facts to
demonstrate that the four letters she sent to Defendant between March 20, 2012 and July
9, 2012 are actually QWRs within the meaning of RESPA, which states:
For purposes of this subsection, a qualified written request shall be a written
correspondence, other than notice on a payment coupon or other payment
medium supplied by the servicer, that-- (i) includes, or otherwise enables the
servicer to identify, the name and account of the borrower; and (ii) 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.

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12 U.S.C. § 2605(e)(1)(B).
Plaintiff failed to allege, in nonconclusory terms, that any of her four alleged QWRs
complied with the statutory definition of a QWR. Therefore, the Court must conclude that
Plaintiff’s letters sent on or about March 20, 2012, May 4, 2012, May 11, 2012, and July 9,
2012 were not proper QWRs within the meaning of RESPA.
3.

Leave to Replead RESPA Claims

The Court finds that Plaintiff has failed to allege damages under Section 2605(f)(1),
or properly demonstrated her letters dated March 20, 2012, May 4, 2012, May 11, 2012,
and July 9, 2012 qualify as QWRs within the meaning of 12 U.S.C. § 2605(e)(1)(B).
However, the Court grants Plaintiff leave to replead in order to correct these deficiencies.
A liberal reading of the Complaint does not foreclose the possibility that Plaintiff may have
a valid RESPA claim. To bring a valid RESPA claim that will survive a motion to dismiss,
the Plaintiff must allege additional facts either that: (1) she suffered damages that were
proximately caused by Defendants’ failure to timely respond to Plaintiff’s first three letters
that she contends were QWRs, or, (2) Defendants engaged in a pattern or practice of
noncompliance with RESPA. Furthermore, Plaintiff must allege facts illustrating that her
alleged QWRs meet the statutory requirements of 12 U.S.C. § 2605(e)(1)(B). Failure to
address these deficiencies will result in the RESPA claim being dismissed with prejudice.
b.

FDCPA Claims

Plaintiff also claims that the Defendants violated the FDCPA by contacting Plaintiff
despite the fact Defendants knew Plaintiff was represented by legal counsel, and by
“engag[ing] in conduct, the natural consequence of which was to harass, oppress, or

10

abuse a person in connection with the collection of a debt, in violation of the FDCPA.”
Dkt. #1 at ¶¶ 69-71. In response, Defendants argue that “BANA originated [Plaintiff’s]
mortgage loan, and accordingly, is not a debt collector under the statute.” Dkt. #19 at 14.
The Court agrees that Defendants’ actions are not covered by FDCPA. “It is the purpose
of [the FDCPA] to eliminate abusive debt collection practices by debt collectors, to insure
that those debt collectors who refrain from using abusive debt collection practices are not
competitively disadvantaged, and to promote consistent State action to protect consumers
against debt collection abuses.” 15 U.S.C. § 1692(e). However, the statute defines debt
collector as “any person who uses any instrumentality of interstate commerce or the mails
in any business the principal purpose of which is the collection of any debts, or who
regularly collects or attempts to collect, directly or indirectly, debts owed or due or
asserted to be owed or due another.” 15 U.S.C. § 1692a(6). “In particular, FDCPA
excludes originators of credit from the definition of ‘debt collector’ under certain conditions
. . . .” McAnaney v. Astoria Financial Corp., 357 F. Supp. 2d 578, 592 (E.D.N.Y. 2005).
The statute states that the term “debt collector” does not include,
any person collecting or attempting to collect any debt owed or due or
asserted to be owed or due another to the extent such activity (i) is incidental
to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii)
concerns a debt which was originated by such person; (iii) concerns a debt
which was not in default at the time it was obtained by such person; or (iv)
concerns a debt obtained by such person as a secured party in a
commercial credit transaction involving the creditor.
15 U.S.C. § 1692a(6)(F) (emphasis added); see also, Doherty v. Citibank (S.D.) N.A., 375
F. Supp. 2d 158, 162 (E.D.N.Y. 2005) (“[T]he FDCPA expressly limits its application to
debt collectors, not creditors . . . .”).

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In the case at hand, it is clear from the mortgage3 that BANA is the original lender.
Dkt. #18, ex. 2 at 2. Furthermore, in the Complaint, Plaintiff acknowledges that she “is not
aware of any other person or entity who claims to hold the note on the aforementioned
mortgage,” aside from the Defendants. Dkt. #1 at ¶¶ 12-13. Therefore, the Court
concludes that because BANA originated the loan, the express language of the FDCPA
precludes any claims against BANA. As a result, the FDCPA claim against BANA is
dismissed with prejudice. For this reason, the Court need not address whether BANA’s
communications with Plaintiff constituted attempts to collect a debt.
With respect to BAC, this issue becomes more complicated because Plaintiff
improperly refers to BANA and BAC collectively, even though they are distinct corporate
entities. See generally id. Had Plaintiff alleged that BAC attempted to collect a debt
owned under Plaintiff’s mortgage,4 BAC could be subject to FDCPA, assuming that its
actions violated the law, because BAC is not the originator of the loan. It appears that
Defendants have conceded as much. See dkt. #19 at 14 n.9. For the reasons stated
above, the Court finds it appropriate to allow Plaintiff to submit an amended complaint with
respect to specific allegations against BAC. As a consequence, the Court cannot
foreclose the possibility that Plaintiff may raise a valid claim against BAC under FDCPA.
However, the current Complaint makes no such allegations, and therefore the Court will

3

Where a complaint incorporates a document by reference, the court may deem that document to be
a part of the complaint, and reference it when deciding whether dismissal is appropriate under FED. R. CIV. P.
12(b)(6). Int’l Audiotext Network, Inc. v. American Tel. & Tel. Co., 62 F.3d 69, 72 (1995) (citing Cortec Indus.,
Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991)). Plaintiff referenced her mortgage in the Complaint,
Dkt. #1 ¶ 11–13, and therefore it is appropriate for the Court to consider the full contents of that document.
4

This is an assertion entirely absent from the Complaint.

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dismiss the FDCPA claim until proper allegations are made in an amended complaint.
c.

Breach of Contract Claims

Plaintiff claims that there was an accord and satisfaction when Defendants
endorsed and cashed the check of $1,866.12, which was sent with Plaintiff’s July 10, 2012
letter, and that this contract was breached when BANA demanded that Plaintiff continue
paying her mortgage. Dkt. #1 ¶¶ 72–84. Defendants argue that such a contract was
explicitly precluded by the terms of the mortgage agreement. Dkt. #19 at 9. As explained
above, Plaintiff referenced her mortgage in the complaint, Dkt. #1 ¶ 11–13, and therefore
the Court may consider the full contents of that document. Defendants cites to three
clauses from the mortgage that bar Plaintiff’s breach of contract claim:
No offset or claim which I might have now or in the future against Lender will
relieve me from making payments due under the Note and this Security
Instrument or keeping all of my other promises and agreements secured by
this Security Instrument.
Dkt. #18, ex. 2 at 5.
Even if Lender does not exercise or enforce any right of Lender under this
Security Instrument or under Applicable Law, Lender will still have all of
those rights and may exercise and enforce them in the future. Even if: (1)
Lender obtains insurance, pays taxes, or pays other claims, charges or Liens
against the Property; (2) Lender accepts payments from third Persons; or (3)
Lender accepts payments in amounts less than the amount then due,
Lender will have the right under Section 22 below to demand that I make
Immediate Payment in Full of any amounts remaining due and payable to
Lender under the Note and under this Security Instrument.
Id. at 12.
When Lender has been paid all amounts due under the Note and under this
Security Instrument, Lender will discharge this Security Instrument by
delivering a certificate stating that this Security Instrument has been
satisfied.

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Id. at 16.
The Court agrees with Defendants that “[t]hese contractual provisions . . . prevent
[Plaintiff] from asserting that a partial tender creates an accord and satisfaction.” Dkt. #19
at 9. Therefore, Plaintiff’s contract claim fails to state a claim upon which relief can be
granted, and must be dismissed. Because the express language of the mortgage barred a
contract of the kind alleged by Plaintiff, there is no indication from the Complaint that
Plaintiff has a valid breach of contract claim of the type asserted.
Moreover, Plaintiff’s opposition papers fail to create a question of fact concerning
the amount that she owed such to avoid dismissal of the breach of contract claims. First,
BANA’s August 17, 2012 letter to her does not identify any bona fide dispute over the
amount due, but instead refutes her claim. Second, BANA’s recording of a corrective
mortgage due to the inadvertent omission of a Notary Public’s stamp on the first document
sent for recording does not created a dispute as to the amount owed under the note. See,
e.g., Commonwealth Land Title Ins. Co. v. Lituchy, 188 A.D.2d 353, 591 N.Y.S.2d 770 (1st
Dep’t 1992) (“the original failure to record the mortgage and pay the tax does not render
the mortgage and note unenforceable”). And third, BANA was not obligated to offer
Plaintiff a loan modification due to the asserted “wrongful delay and denials
of [Plaintiff’s] modification application.” See, e.g., Wright v. Bank of Am., N.A., No.
153533/12, 2013 WL 6409966 at *7, 2013 N.Y. Slip Op. 33074(U) (N.Y. Sup., N.Y. Cty.
Dec. 4, 2013) (“a mortgage lender is under no legal obligation to modify a loan”); JP
Morgan Chase Bank, Nat’l Ass’n v. Ilardo, 36 Misc.3d 359, 375, 940 N.Y.S.2d 829, 841
(N.Y. Sup., Suffolk Cty. 2012) (“there is no federal entitlement to a permanent loan

14

modification”). Interest accrued on the loan because, by her own admission, Plaintiff
voluntarily stopped making mortgage payments. This does not amount to a plausible
breach of contract claim. Consequently, the Breach of Contract claims are dismissed with
prejudice.
d.

N.Y. GEN. BUS. LAW § 349 Claims

Plaintiff’s next contention is that Defendants violated N.Y. Gen. Bus. Law § 349.
Dkt #1 ¶¶ 85-92. Section 349 makes unlawful any “[d]eceptive acts or practices in the
conduct of any business, trade or commerce or in the furnishing of any service” in New
York State. N.Y. GEN. BUS. LAW § 349(a). “[C]ourts have held that ‘[t]o make out a prima
facie case under Section 349, a plaintiff must demonstrate that (1) the defendant's
deceptive acts were directed at consumers, (2) the acts are misleading in a material way,
and (3) the plaintiff has been injured as a result.’” McLean-Laprade v. HSBC, No. 7:12CV-1774 (LEK/ATB), 2013 WL 3930565 at *6 (N.D.N.Y. July 30, 2013) (quoting Maurizio
v. Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000)); see also Oswego Laborers' Local 214
Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25 (N.Y.1995) (same).
Furthermore, “[p]rivate contractual disputes are usually not within the statute because they
are “unique to the parties.” Harary v. Allstate Ins. Co., 983 F. Supp. 95, 98 (E.D.N.Y. 1997)
(quoting Oswego Laborers' Local 214 Pension Fund, 85 N.Y.2d at 25). In Corazzini v.
Litton Loan Servicing L.L.P., No. 1:09-CV-0199 (LEK/RFT), 2010 WL 1132683 at *8
(N.D.N.Y. Mar. 23, 2010), the court found:
Plaintiff's claim is indeed deficient. The only factual allegations contained in
her Complaint pertain to a dispute over late fees between the parties with
respect to Plaintiff's mortgage; put differently, Plaintiff only describes a
private contractual dispute, and her Complaint lacks any assertions of facts
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as to deceptive business practices aimed at the public. There is no basis in
her pleadings that might plausibly indicate that the alleged wrongful conduct
by Defendants against her applies to consumers generally. Such
inadequacy is fatal. Section 349 does not provide an opportunity for Plaintiff
to style her personal dispute with Defendants as a broad practice without the
benefit of factual allegations that would show conduct under the ambit of the
Law.
See also McLean-Laprade, 2013 WL 3930565 at *6 (dismissing a NY GBL § 349 claim
because it “involve[d] a private contractual dispute that [was] unique to the parties
involved. Plaintiffs ha[d] not shown that Defendants’ allegedly deceptive acts were
directed at consumers generally or had a broad impact on consumers at large.”).
Here, Plaintiff has failed to allege any facts illustrating misleading consumeroriented business practices. See generally dkt. #1. Plaintiff’s allegation under Section
349 relies entirely on her FDCPA, RESPA and breach of contract claims, and only
implicate Defendants’ conduct towards Plaintiff. Id. ¶ 87. The Complaint lacks any
assertion demonstrating that Defendants engaged in deceptive business practices with the
public in general. See generally dkt. #1. Therefore, this claim must be dismissed under
FED. R. CIV. P. 12(b)(6). However, because Plaintiff is a pro se, the Court will grant her
leave to replead on this issue. A liberal reading of the Complaint does not foreclose the
possibility that Plaintiff may have a valid Section 349 claim. To bring a claim that will
survive a motion to dismiss, the Plaintiff must allege additional facts that demonstrate
Defendants’ conduct satisfied each element required under Section 349, as described
above. Failure to do so will result in the Section 349 claim being dismissed with prejudice.
e.

Intentional Infliction of Emotional Distress Claims

Plaintiff also alleges claims of Intentional Infliction of Emotional Distress. Dkt. #1 ¶¶

16

93-99. Defendants argue that these claims are time barred by the one year statute of
limitations. Dkt. #19 at 6. “In New York, a cause of action for intentional infliction of
emotional distress accrues on the date of injury and carries a one year statute of
limitations.” Waldran v. Milana, No. 5:10-CV-0065 (GTS/DEP), 2013 WL 2445047, at *4
(N.D.N.Y. June 5, 2013) (citing Wilson v. Erra, 942 N.Y.S.2d 127, 129 (N.Y. App. Div.
2012)); see also N.Y. C.P.L.R. 215(3) (McKinney 2006). Plaintiff alleges that she put
Defendants on notice of her emotional distress in a letter dated April 26, 2012. Dkt. #1 at
¶ 37. However, she did not bring this action until June 19, 2013. See generally dkt. #1.
Therefore, the claims of intentional infliction of emotional distress are time barred. The
Court dismisses these claims with prejudice.
f.

Request for temporary injunction

Plaintiff requests a temporary restraining order and a preliminary injunction to
prevent BANA from pursuing a foreclosure case in state court, at least until the instant
case is resolved. Pltf Opp., dkt. # 26, at 14. In order to be awarded injunctive relief, the
Plaintiff must first demonstrate “‘either (1) a likelihood of success on the merits or (2)
sufficiently serious questions going to the merits to make them a fair ground for litigation
and a balance of hardships tipping decidedly in the plaintiff's favor.’” WNET, Thirteen v.
Aereo, Inc., 712 F.3d 676, 684 (2d Cir. 2013)(quoting Salinger v. Colting, 607 F.3d 68, 79
(2d Cir. 2010)). “Second, a plaintiff seeking a preliminary injunction must demonstrate that
[s]he is likely to suffer irreparable injury in the absence of an injunction.” Id. (internal
quotation marks and citations omitted). The irreparable harm suffered by the plaintiff must
be “non-compensable in terms of money damages.” Wisdom Import Sales Co. L.L.C. v.

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Labatt Brewing Co., Ltd., 339 F.3d 101, 113-14 (2d Cir. 2003).
Plaintiff has failed to allege any facts plausibly indicating that she would suffer
irreparable harm that could not be remedied by monetary compensation should the
temporary restraining order not be granted. Moreover, Plaintiff continues to reside in the
mortgaged property despite the fact that she has not made a mortgage payment since
March 2011. Since Plaintiff cannot establish that she will suffer irreparable harm, the
Court denies Plaintiff’s request for a temporary restraining order or a preliminary injunction
to prevent BANA from pursuing a foreclosure case in state court.
V.

CONCLUSION
For the reasons discussed above, Defendants’ Motion to Dismiss [dkt. # 18] is

GRANTED.
The FDCPA claim against BANA, the breach of contract claims against all
defendants, and the intentional infliction of emotional distress claims against all
defendants are DISMISSED WITH PREJUDICE.
The RESPA claims against all defendants, the FDCPA claim against BAC, and the
N.Y. Gen. Bus. Law § 349 claims against all defendants are DISMISSED WITHOUT
PREJUDICE.
Plaintiff is GRANTED LEAVE TO REPLEAD with respect to BAC’s involvement in
this case, the RESPA claims, the FDCPA claim against BAC, and the N.Y. Gen. Bus. Law
§ 349 claims. Plaintiff is instructed to submit an amended complaint correcting the

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deficiencies in each claim, as described in this Decision and Order.5 Plaintiff must
replead within thirty (30) days of the date of this Decision and Order. Failure do so
will result in the Court dismissing all remaining claims with prejudice, without
further order of the Court.
Plaintiff’s cross-motion for injunctive relief [dkt. # 26] is DENIED.
IT IS SO ORDERED.
Dated:February 4, 2014

5

Any amended complaint must fully comply with FED. R. CIV. P. 11(b) which requires a party to sign a
pleading thereby certifying:
that to the best of the person's knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary
delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law or for establishing
new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely
have evidentiary support after a reasonable opportunity for further investigation or discovery;
and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so
identified, are reasonably based on belief or a lack of information.
Failure to comply with this rule could result in a Court issued sanction, or a motion for sanctions
brought by the opposing party. See FED. R. CIV. P. 11(c).

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