Gonzalez v. J.P. Morgan Chase Bank. N.A. et al
Filing
46
MEMORANDUM OPINION AND ORDER re: 20 MOTION to Dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). filed by J.P. Morgan Chase Bank. N.A., Federal National Mortgage Association, 24 MOTION to Dismiss Plaintiff's Complaint. filed by Rushmore Loan Management Services, LLC, 34 MOTION for Extension of Time to Amend 19 Amended Complaint,. filed by Felipe Gonzalez. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the foregoing reasons, the defendants' motions to dismiss are granted. The claims for money damages for violations of the TILA, rescission und er the TILA, and specific performance are dismissed with prejudice. The claims for declaratory relief, constructive fraud, and slander of title are dismissed without prejudice. The plaintiff may file a second amended complaint by February 3, 2017. If the plaintiff fails to file a second amended complaint by that date, the action will be dismissed with prejudice. The Clerk is directed to close all pending motions. (As further set forth in this Order.) (Amended Pleadings due by 2/3/2017.), (Signed by Judge John G. Koeltl on 1/11/2017) (cf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------GONZALEZ,
Plaintiff,
- v.-
16-cv-02611 (JGK)
MEMORANDUM OPINION
AND ORDER
J.P. MORGAN CHASE BANK, N.A. ET AL,
Defendants.
-----------------------------------JOHN G. KOELTL, District Judge:
This action is the latest in a series of lawsuits that rely
on a standard form complaint to assert various claims against,
among others, mortgage loan servicers, underwriters, and trusts
in connection with purported defects related to mortgage loan
assignments. Complaints derived from the form complaint (or
complaints that are coincidently similar to the form complaint)
have not fared well in the United States District Courts for the
Southern District of New York. See, e.g., Horton v. Wells Fargo
Bank N.A., No. 16-CV-1737 (KBF), 2016 WL 6781250 (S.D.N.Y. Nov.
16, 2016); Harriot v. JP Morgan Chase Bank NA, No. 16 CIV. 211
(GBD), 2016 WL 6561407 (S.D.N.Y. Oct. 21, 2016); Nath v. JP
Morgan Chase Bank, No. 15-CV-3937 (KMK), 2016 WL 5791193
(S.D.N.Y. Sept. 30, 2016); Springer v. U.S. Bank Nat’l Ass’n,
No. 15-CV-1107(JGK), 2015 WL 9462083 (S.D.N.Y. Dec. 23, 2015);
Le Bouteiller v. Bank of N.Y. Mellon, No. 14 CIV. 6013 PGG, 2015
WL 5334269 (S.D.N.Y. Sept. 11, 2015); Obal v. Deutsche Bank Nat.
Trust Co., No. 14 CIV. 2463, 2015 WL 631404 (S.D.N.Y. Feb. 13,
2015), aff’d, No. 15-775, 2016 WL 6518865 (2d Cir. Nov. 3, 2016)
(summary order). The present complaint is no exception.
The plaintiff, Felipe Gonzalez, has asserted claims against
the defendants, J.P. Morgan Chase Bank, N.A. (“Chase”); the
Federal National Mortgage Association, As Trustee for Fannie Mae
Guaranteed Remic Pass-Through Certificates Fannie Mae Remic
Trust 2008-81 (“Fannie Mae”); Rushmore Loan Management Services,
LLC (“Rushmore”); and various Does alleged to be “individuals or
corporations that aided and abetted in the civil conspiracy to
deny Plaintiff’s due process.” Am. Compl. ¶ 8. The defendants
have moved to dismiss the Amended Complaint for want of subject
matter jurisdiction pursuant to Rule 12(b)(1) of the Federal
Rules of Civil Procedure, and for failure to state a claim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure.1
The Court has jurisdiction pursuant to 28 U.S.C. § 1331
over the plaintiff’s federal claims under the Truth in Lending
Act (the “TILA”), 15 U.S.C. § 1601 et seq., and supplemental
1
The claims against the Does suffer from the same deficiencies
as the claims against Chase, Fannie Mae, and Rushmore. The
present motions to dismiss are thus treated as having been
brought on behalf of the Does. See Springer, 2015 WL 9462083, at
*2 n.1 (citing McCarty v. Bank of N.Y. Mellon, No. 14-cv-6756
(AT), 2015 WL 5821405, at *1 n.1 (S.D.N.Y. Sept. 8, 2015)).
2
jurisdiction pursuant to 28 U.S.C. § 1367 over the plaintiff’s
state law claims.2
For the following reasons, the defendants’ motions to
dismiss the Amended Complaint are granted.
I.
When presented with a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction, and a motion to dismiss on other grounds, the
first issue is whether the Court has the subject matter
jurisdiction necessary to consider the merits of the action. See
Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass’n, 896 F.2d 674,
678 (2d Cir. 1990).
2
The Amended Complaint also asserts jurisdiction pursuant to
various other federal statutes, such as the “Securities Act of
33.” See Am. Compl. ¶ 1. However, the Amended Complaint includes
no causes of actions with respect to those statutes, nor
allegations that could support such causes of actions, nor has
the plaintiff argued in his papers that there is a basis for
jurisdiction under those statutes. “Merely invoking the
existence of some federal statute, without presenting facts or
alleging a claim related to that statute, does not establish
federal question jurisdiction.” Harriot, 2016 WL 6561407, at *5
(quoting Chan Ah Wah v. HSBS Bank PLC, No. 13-CV-4789, 2014 WL
2453304, at *2 (S.D.N.Y. June 2, 2014)).
Relatedly, in their respective papers, the plaintiff,
Chase, and Fannie Mae presume that the Court has jurisdiction
pursuant to 28 U.S.C. § 1332, but the Amended Complaint does not
allege diversity of citizenship as a basis for jurisdiction.
Indeed, it does not appear that diversity could be a basis for
jurisdiction in this action because the plaintiff and the
defendant Rushmore both appear to be citizens of California. Am.
Compl. ¶¶ 5-6; see Advani Enters., Inc. v. Underwriters at
Lloyds, 140 F.3d 157, 160 (2d Cir. 1998).
3
In defending against a motion to dismiss for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure, the plaintiff bears the burden
of proving the Court’s jurisdiction by a preponderance of the
evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
2000). In considering such a motion, the Court generally must
accept the material factual allegations in the complaint as
true. See J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107,
110 (2d Cir. 2004). The Court does not, however, draw all
reasonable inferences in the plaintiff’s favor. Id.; see also
Graubart v. Jazz Images-, Inc., No. 02-CV-4645 (KMK), 2006 WL
1140724, at *2 (S.D.N.Y. Apr. 27, 2006). Indeed, where
jurisdictional facts are disputed, the Court has the power and
the obligation to consider matters outside the pleadings, such
as affidavits, documents, and testimony, to determine whether
jurisdiction exists. See Anglo–Iberia Underwriting Mgmt. Co. v.
P.T. Jamsostek, 600 F.3d 171, 175 (2d Cir. 2010); APWU v.
Potter, 343 F.3d 619, 627 (2d Cir. 2003); Kamen v. Am. Tel. &
Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). In so doing, the
Court is guided by the body of decisional law that has developed
under Rule 56 of the Federal Rules of Civil Procedure. Kamen,
791 F.2d at 1011; see also Aguilar v. Immigration & Customs
Enf’t Div. of the U.S. Dep’t of Homeland Sec., 811 F. Supp. 2d
803, 821-22 (S.D.N.Y. 2011).
4
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
the allegations in the complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff’s favor.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007). The Court’s function on a motion to dismiss is “not to
weigh the evidence that might be presented at a trial but merely
to determine whether the complaint itself is legally
sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
1985). The Court should not dismiss the complaint if the
plaintiff has stated “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “A claim has facial plausibility 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
(2009). While the Court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that a
court must accept as true all of the allegations contained in
the complaint is inapplicable to legal conclusions.” Id.
When faced with a pro se complaint, the Court must
“construe [the] complaint liberally and interpret it to raise
the strongest arguments that it suggests.”3 Chavis v. Chappius,
3
Although the plaintiff is currently represented by counsel, see
Dkt. 41, the plaintiff initially brought this action proceeding
5
618 F.3d 162, 170 (2d Cir. 2010) (citation and internal
quotation marks omitted). “Even in a pro se case, however, . . .
threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
(citation omitted). Thus, although the Court is “obligated to
draw the most favorable inferences” that the complaint supports,
it “cannot invent factual allegations that [the plaintiff] has
not pled.” Id.; see also Cooksey v. Digital, No. 14-CV-7146
(JGK), 2016 WL 5108199, at *2 (S.D.N.Y. Sept. 20, 2016).
When presented with a motion to dismiss pursuant to Rule
12(b)(6), the Court may consider documents that are referenced
in the complaint, documents that the plaintiff relied on in
bringing suit and that are either in the plaintiff’s possession
or that the plaintiff knew of when bringing suit, or matters of
which judicial notice may be taken. See Chambers v. Time Warner,
Inc., 282 F.3d 147, 153 (2d Cir. 2002).
II.
The plaintiff’s claims arise out of a mortgage loan in the
sum of $387,750 (the “Mortgage Loan”) that was originated by
Chase, which the plaintiff used to refinance a property located
in Van Nuys, California (the “Property”). Am. Compl. ¶ 9; Kossar
pro se. Because counsel was retained after the Amended Complaint
and the opposition to the motions to dismiss were filed, the
motions to dismiss are treated as if they are directed against
the pleadings of a pro se litigant.
6
Decl., Ex. A (The Promissory Note). The plaintiff entered into
the Mortgage Loan with Chase on July 20, 2007, and granted the
deed of trust (the “Deed of Trust”) for the Property to Chase,
which was recorded by the Recorder’s Office of Los Angeles
County, California (the “Recorder’s Office”) on July 30, 2007.
Am. Compl. ¶ 9; Scibetta Decl. ¶ 2; Scibetta Decl., Ex. 1 (The
Deed of Trust). On February 16, 2009, Chase assigned the Deed of
Trust to an affiliate, Chase Home Finance, LLC (“CHF”), which
was recorded by the Recorder’s Office on March 4, 2009. Am.
Compl. ¶ 11; Scibetta Decl. ¶ 3; Scibetta Decl., Ex. 2 (The
Assignment of the Deed of Trust to CHF). On October 6, 2010, CHF
assigned the Deed of Trust to Fannie Mae, which was recorded by
the Recorder’s Office on October 8, 2010. Am. Compl. ¶ 9;
Scibetta Decl. ¶ 4; Scibetta Decl., Ex. 3 (The Assignment of the
Deed of Trust to Fannie Mae). The plaintiff alleges that he
learned about purported defects associated with the latter two
assignments on August 24, 2015, by conducting a certified
forensic loan audit. Am. Compl. ¶¶ 11, 13; Compl., Ex. B (The
Property Securitization Analysis Report).4 Fannie Mae
subsequently placed the Deed of Trust into a real estate
mortgage investment trust, Fannie Mae Remic Trust 2008-81 (the
4
The plaintiff’s exhibits are attached to the original
Complaint.
7
“Trust”), for which Fannie Mae served as trustee. Am. Compl. ¶¶
9-13.
The plaintiff raises a host of purported issues with
respect to the assignments that he claims void those
assignments, including that the assignments violated the
applicable loan instruments underlying the Mortgage Loan (such
as the Promissory Note and the Deed of Trust), the Pooling and
Servicing Agreement (the “PSA”) that governed the Trust, “New
York trust law,” “California Law,” and other federal statutes.
See Am. Compl. ¶¶ 11, 14, 20-21, 23-32, 34-37. The plaintiff
alleges that another improper assignment of the Deed of Trust in
violation of the PSA occurred on March 7, 2012. See Am. Compl. ¶
27.
Meanwhile, on June 1, 2009, the plaintiff defaulted on the
Mortgage Loan. Am. Compl. ¶ 9; Scibetta Decl., Ex. 5 (Notice of
Default). Around 2010, the plaintiff alleges that he applied to
Chase for a loan modification, an application Chase denied. Am.
Compl. ¶ 9. The plaintiff remains in default on the Mortgage
Loan, but has continued to make payments on the Mortgage Loan
and remains in possession of the Property. Am. Compl. ¶ 9; see
also Compl., Ex. A (Ltr. from Rushmore to the plaintiff). There
is no allegation that the Property is the subject of a pending
nonjudicial foreclosure action.
8
The plaintiff attributes the default to Chase’s original
decision to issue the Mortgage Loan to the plaintiff. Am. Compl.
¶ 17. The plaintiff alleges that, had Chase conducted proper due
diligence on the plaintiff, Chase would have known that he did
not qualify for the Mortgage Loan, which would have dissuaded
Chase from issuing the Mortgage Loan to the plaintiff, who would
have avoided the subsequent default. Am. Compl. ¶¶ 10, 17.
In August 2012, the plaintiff, represented by counsel,
brought an action related to the denial of the plaintiff’s
application to modify the Mortgage Loan against, among other
defendants, Chase and Fannie Mae in the Superior Court of the
State of California, County of Los Angeles, asserting claims for
breach of contract, promissory estoppel, negligent
misrepresentation, fraud, and violation of the California Unfair
Competition Law (the “California State Litigation”). See
Gonzalez v. JPMorgan Chase, et al., Civil Case No. LC097089;
Gonzalez v. JPMorgan Chase Bank, N.A., No. B252568, 2015 WL
778763, at *3-5 (Cal. Ct. App. Feb. 24, 2015) (unpublished
opinion); Am. Compl. ¶ 9. The plaintiff’s claims in the
California State Litigation were based, in part, on allegations
related to the assignments already discussed. See Gonzalez, 2015
WL 778763, at *2.
On January 16, 2013, the plaintiff brought another action
also related to the Mortgage Loan against, among others, Chase
9
and Fannie Mae in the United States District Court for the
Central District of California asserting claims for violations
of the TILA, violations of the Real Estate Settlement Procedures
Act (the “RESPA”), “wrongful foreclosure in violation of public
policy,” breach of contract, and breach of the covenant of good
faith and fair dealing (the “California Federal Litigation”).
See Gonzalez v. J.P. Morgan Chase Bank aka J.P. Morgan Bank
N.A., et al., No. 13-cv-00319 (SJO) (C.D. Ca.); Am. Compl. ¶ 9;
Scibetta Decl., Ex. 7 (The Complaint in the California Federal
Litigation) at 1. The plaintiff’s TILA claims were predicated on
the plaintiff’s discovery that “another lender or servicer”
different from the “original lender” was “in charge of the
[Mortgage Loan],” and on the theory that the transfers of the
Promissory Note underlying the Mortgage Loan had violated 15
U.S.C. § 1641(g) of the TILA. Scibetta Decl., Ex. 7 at 10 ¶ 15,
11-12. On March 20, 2013, the plaintiff voluntarily dismissed
without prejudice the California Federal Litigation. Am. Compl.
¶ 9; Scibetta Decl., Ex. 8 (Notice of Voluntary Dismissal of the
California Federal Litigation).
The California State Litigation continued. On September 12,
2013, the Superior Court of the State of California, County of
Los Angeles, dismissed the California State Litigation for
failure to state a claim. See Gonzalez, Civil Case No. LC097089.
The plaintiff appealed. While the appeal was pending, on January
10
19, 2015, Chase offered the plaintiff a settlement that would
have modified favorably the terms of the Mortgage Loan. Am.
Compl. ¶ 9. The plaintiff did not agree to the settlement, which
the plaintiff attributes to the alleged incompetence of his
counsel in the California State Litigation, who is not named as
a party in this action. Am. Compl. ¶ 9.
On February 24, 2015, in an unpublished opinion, the
California Court of Appeal, Second District, Division 5,
affirmed the judgment dismissing the plaintiff’s claims in the
California State Litigation.5 See Gonzalez, 2015 WL 778763, at
*1. The court predicated its affirmance on the plaintiff’s
failure to show that he had suffered any injury or detriment as
a result of the alleged conduct by Chase and Fannie Mae. See id.
at *6-10.6
5
The defendants do not argue that the plaintiff should be
collaterally estopped from pursuing his claims in this Court.
6
The unpublished decision in Gonzalez, 2015 WL 778763, at *2-3,
references certain alleged efforts that Chase and Fannie Mae
took between 2010 and 2013 to foreclose on the Property, which
apparently culminated in a sham foreclosure sale that Chase
caused to be rescinded. According to Gonzalez, the plaintiff
never lost possession of the Property, and, indeed, suffered no
injury or detriment as a result of any of the alleged acts. See
id. at *6-10. The plaintiff does not base his present claims on
the sham foreclosure discussed in Gonzalez; in fact, the Amended
Complaint does not reference the sham foreclosure at all, and
the plaintiff asserted in his opposition papers that this is a
pre-foreclosure case. Pl.’s Mem. Op. at 4. Counsel for the
plaintiff reiterated at oral argument on the present motions
that the Amended Complaint is not based on any prior, pending,
or imminent foreclosure action against the Property. See
Transcript of Oral Argument at 11-12 (Oct. 17, 2016).
11
Around February 2016, Chase transferred its Mortgage Loan
servicing responsibilities to Rushmore. Am. Compl. ¶ 6; Compl.,
Ex. A.
On April 7, 2016, the plaintiff commenced the present
action in this Court, and, on July 26, 2016, filed the Amended
Complaint.7 The plaintiff has asserted five claims against the
defendants in connection with purported defects in the
assignments of the Mortgage Loan: First, declaratory judgment
that the assignments of the Mortgage Loan are void in order to
preclude any future attempts by the defendants to foreclose on
the Property; second, fraud; third, unspecified violations of
the TILA; fourth, slander of title; and fifth, violations of 15
U.S.C. § 1641(g) of the TILA. In addition, the plaintiff has
brought a sixth claim for specific performance to enforce the
terms of the proposed settlement agreement that was offered in
the California State Litigation, but that the plaintiff did not
7
On September 22, 2016, after the defendants filed their papers
in support of their motions to dismiss and the plaintiff filed
his papers in opposition, the plaintiff moved for leave to amend
the Amended Complaint. See Dkt. 34. On October 17, 2016, at oral
argument on the present motions, counsel for the plaintiff
indicated that the plaintiff did not wish to amend the Amended
Complaint prior to the decision on these motions. Accordingly,
the motion to amend was denied on the record as moot, without
prejudice to renewal.
12
accept, and a seventh claim for rescission of the Mortgage Loan
pursuant to 15 U.S.C. § 1635 of the TILA.8
III.
A.
The plaintiff lacks standing to pursue the claim for
declaratory judgment that the assignments are void.
Under the Declaratory Judgment Act (the “DJA”), “[i]n a
case of actual controversy within its jurisdiction . . . any
court of the United States . . . may declare the rights and
other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be
sought.” 28 U.S.C. § 2201(a) (emphasis added). A court’s
exercise of jurisdiction under the DJA is discretionary. See Dow
Jones & Co. v. Harrods, Ltd., 346 F.3d 357, 359 (2d Cir. 2003)
(per curiam); Bruce Winston Gem Corp. v. Harry Winston, Inc.,
No. 09-cv-7352 (JGK), 2010 WL 3629592, at *6 (S.D.N.Y. Sept. 16,
2010). However, the Court of Appeals for the Second Circuit has
held that federal district courts must entertain declaratory
judgment actions when the judgment “will serve a useful purpose
in clarifying and settling the legal relations in issue” or
“when it will terminate and afford relief from the uncertainty,
8
In the Amended Complaint, the claims for specific performance
and rescission are stated in the same cause of action, but are
properly construed as the sixth and seventh claims,
respectively.
13
insecurity, and controversy giving rise to the proceeding.”
Cont’l Cas. Co. v. Coastal Sav. Bank, 977 F.2d 734, 737 (2d Cir.
1992) (citation omitted); see also Duane Reade, Inc. v. St. Paul
Fire and Marine Ins. Co., 411 F.3d 384, 389 (2d Cir. 2005);
Springer, 2015 WL 9462083, at *6.
As with any action, Article III of the United States
Constitution limits the jurisdiction of federal courts to
“Cases” and “Controversies.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 559 (1992). To satisfy the requirements of Article III
standing, a plaintiff must show that (1) he has suffered an
actual or imminent injury in fact, which is concrete and
particularized; (2) there is a causal connection between the
injury and defendant’s actions; and (3) it is likely that a
favorable decision in the case will redress the injury. Id. at
560–61. “The party invoking federal jurisdiction bears the
burden of establishing these elements.” Id. at 561.
Even if a plaintiff has constitutional standing, the
plaintiff must also satisfy prudential standing requirements.
The “prudential standing rule . . . normally bars litigants from
asserting the rights or legal interests of others in order to
obtain relief from injury to themselves.” Warth v. Seldin, 422
U.S. 490, 509 (1975). “[T]he plaintiff generally must assert his
own legal rights and interests, and cannot rest his claim to
14
relief on the legal rights or interests of third parties.” Id.
at 499
The claim for declaratory judgment is based upon purported
violations of the PSA, the Deed of Trust, the Promissory Note,
New York trust law, “California law,” and a nonspecific morass
of federal statutes.9 But, regardless of the violations, the
plaintiff has failed to establish how the allegedly defective
assignments or improper securitization of the Mortgage Loan
9
The plaintiff alleges that the securitization of the Deed of
Trust violated “New York trust law,” and that the Trust is
“organized and existing under the laws of New York.” Am. Compl.
¶¶ 7, 15. The parties do not dispute that the PSA is governed by
New York law. The Court can treat the PSA as governed by New
York law in accordance with the implied consent of the parties.
See Cox v. Nationstar Mortg. LLC, No. 15CV9901(DLC), 2016 WL
3926467, at *3 n.4 (S.D.N.Y. July 18, 2016) (citing Chau v.
Lewis, 771 F.3d 118, 126 (2d Cir. 2014)).
The positions of the parties are less clear with respect to
the governing law of the Promissory Note and the Deed of Trust.
The plaintiff argues that California law should govern his state
law claims. He asserts that the Property is located in
California and that the events underlying this suit occurred in
California, which implies that the Promissory Note and Deed of
Trust should be governed by California law. The defendants
respond that the Amended Complaint and the plaintiff’s choiceof-forum suggested to the defendants that they would only have
to confront issues related to New York law in this action. The
defendants do not otherwise challenge that the Deed of Trust and
Promissory Note are governed by California law. The Deed of
Trust provides that it is governed by the location of the
Property, see Scibetta Decl., Ex. 1 at 12 ¶ 16, namely,
California. Because the Deed of Trust specifies that it is
governed by the law of California, and the defendants do not
contest that either the Promissory Note or the Deed of Trust are
governed by California law, the Court will treat both loan
instruments as governed by California law. See Cox, 2016 WL
3926467, at *3 n.4; Horton, 2016 WL 6781250, at *3 & n.3.
15
could have injured the plaintiff in an actual, imminent, or
concrete way. Moreover, the plaintiff lacks prudential standing
to pursue his claims based on violations of the PSA and New York
trust law because the plaintiff cannot establish that he is an
intended beneficiary under the PSA or New York trust law. The
Court of Appeals for the Second Circuit, and the United States
District Courts for the Southern District of New York, have
repeatedly rejected essentially identical claims for declaratory
relief based on a plaintiff’s alleged apprehension about
potential foreclosure actions as too hypothetical, speculative,
and abstract to support constitutional standing, and also as
barred by considerations of prudential standing. See, e.g.,
Rajamin v. Deutsche Bank Nat. Trust Co., 757 F.3d 79, 85-86 (2d
Cir. 2014) (affirming dismissal of claims for declaratory
judgment that the assignments of mortgages were invalid on the
theory that they violated New York trust law and the governing
documents of the mortgage trust into which they were placed for
want of standing); Obal v. Deutsche Bank Nat’l Trust Co., No.
15-775, 2016 WL 6518865, at *1 (2d Cir. Nov. 3, 2016) (summary
order) (“[The plaintiff] lacked both constitutional and
prudential standing to challenge either the validity of the
assignment of his mortgage loan or the assignment’s compliance
with laws, regulations, and the Trust’s prospectus and pooling
and servicing agreement.”); Harriot, 2016 WL 6561407, at *5-6;
16
Springer, 2015 WL 9462083, at *3-6; Le Bouteiller, 2015 WL
5334269, at *4-8; see also Ocampo v. JPMorgan Chase Bank, 93 F.
Supp.3d 109, 115-17 (E.D.N.Y. 2015) (holding that the plaintiffmortgagors lacked standing to “challeng[e] their obligations
under the mortgage merely because that obligation was assigned,
even if wrongly”).
The plaintiff argues that those cases are distinguishable
because the plaintiff is alleging (without any specificity) that
the assignments violated the Deed of Trust, the Promissory Note,
and California law. The plaintiff cites Springer, 2015 WL
9462083, at *6-9, where this Court dismissed a plaintiffmortgagor’s claims for want of standing against a trustee for
the purported failure to comply with the prospectus governing
the trust that held the mortgage loan, but found that the
plaintiff-mortgagor had standing to pursue two claims for
declaratory relief that sought to adjudicate the status of the
defendants’ property interest in the promissory note and deed of
trust underlying the mortgage loan. In Springer, 2015 WL
9462083, at *7, the plaintiff-mortgagor alleged that the
defendants had commenced a pending, nonjudicial foreclosure on
the plaintiff-mortgagor’s property even though, as the
plaintiff-mortgagor claimed, the defendants had no legal
authority to do so under the deed of trust, the promissory note,
and Nevada law. The clear allegations of harm arising from a
17
pending foreclosure were sufficient to establish a justiciable
controversy as to those two claims for declaratory judgment. See
id. at *7-8. By contrast, missing in this case are any
allegations of a pending foreclosure, or other harm that could
be fairly traceable to the assignments. See, e.g., McCarty v.
The Bank of N.Y. Mellon, No. 14 CIV. 6756 (AT), 2015 WL 5821405,
at *3 (S.D.N.Y. Sept. 8, 2015), aff’d, No. 15-3184, 2016 WL
5341972 (2d Cir. Sept. 21, 2016) (summary order); Obal, 2015 WL
631404, at *5-6; Boco v. Argent Mortg. Co, LLC, No. 13-CV-1165
(DLI), 2014 WL 1312101, at *3 (E.D.N.Y. Mar. 31, 2014).
The plaintiff also cites the decision of the Supreme Court
of California in Yvanova v. New Century Mortg. Corp., 365 P.3d
845 (Cal. 2016), but Yvanova is distinguishable on the same
basis as Springer. As the Supreme Court of California in Yvanova
explained,
Our ruling in this case is a narrow one. We hold only
that a borrower who has suffered a nonjudicial
foreclosure does not lack standing to sue for wrongful
foreclosure based on an allegedly void assignment
merely because he or she was in default on the loan
and was not a party to the challenged assignment. We
do not hold or suggest that a borrower may attempt to
preempt a threatened nonjudicial foreclosure by a suit
questioning the foreclosing party’s right to proceed.
Id. at 848.
The Supreme Court of California further specified that its
holding was limited to wrongful foreclosure claims based on
assignments of deeds of trusts that were “not merely voidable
18
but void, depriving the foreclosing party of any legitimate
authority to order a trustee’s sale.” Id. at 861. According to
Yvanova, “A void contract is without legal effect,” while “a
voidable transaction, unlike a void one, is subject to
ratification by the parties.” Id. at 852.
The plaintiff does not allege that the Property is
currently subject to a nonjudicial foreclosure, or that such
foreclosure is imminent; instead, the plaintiff is attempting to
preempt a hypothetical foreclosure, a situation which Yvanova
expressly declined to address. Moreover, as the court reasoned
in Watson v. Bank of Am., N.A., No. 16-cv-513 (GPC), 2016 WL
6581846, at *14-17 (S.D. Cal. Nov. 7, 2016), “[b]ased on a
careful review of the Yvanova, post-Yvanova court of appeal
cases and post-Yvanova district court cases, in order to
establish standing to challenge an assignment in either a preforeclosure or post-foreclosure case, a plaintiff must assert
harm that produces ‘an invasion of his or her legally protected
interest’, prejudice or injury.” Id. at *16; see also Lundy v.
Selene Fin., LP, No. 15-CV-05676-JST, 2016 WL 1059423, at *1-2,
*13-14 (N.D. Cal. Mar. 17, 2016) (concluding that a plaintiffmortgagor had standing to pursue a wrongful foreclosure claim
where the defendants had initiated pending foreclosure
proceedings). Here, there is no assertion of harm.
19
Furthermore, the Amended Complaint includes no specific
allegations that could lead to the conclusion that the
assignments were void, as opposed to merely voidable. See
Horton, 2016 WL 6781250, at *3-5 (finding that merely alleging
that a promissory note and deed of trust were split in violation
of “the Note, Deed of Trust, and/or California law” was
insufficient to allege that a mortgage was unenforceable); Cox
v. Nationstar Mortg. LLC, No. 15-CV-9901 (DLC), 2016 WL 3926467,
at *3 (S.D.N.Y. July 18, 2016).
In addition, there would be no basis for the exercise of
discretionary jurisdiction over the plaintiff’s claim for
declaratory relief that the assignments were void. In deciding
whether to exercise jurisdiction pursuant to the DJA, courts
consider a variety of factors, “including whether the
declaratory relief would resolve the controversy, whether
declaratory relief would serve a useful purpose in clarifying
the legal relations between the parties, whether the party
seeking declaratory relief was engaging in forum shopping,
whether declaratory relief would create a conflict with another
jurisdiction, and whether a more appropriate form of relief
exists.” Springer, 2015 WL 9462083, at *8 (citing Obal, 2015 WL
613404, at *6).
Each of these factors would weigh against the exercise of
jurisdiction in this Court. Implicit in the conclusion that the
20
plaintiff lacks standing to pursue his claim for declaratory
relief is that deciding the rightful owner of the Mortgage Loan
in the abstract would not be useful for the parties. See Obal,
2015 WL 631404, at *6 (“[A] declaration that the Assignment is
void will raise, not resolve, questions regarding who is then
the proper owner and holder of the Note and Mortgage; what is to
be done about payments received on the Note after the
Assignment; and who has the authority to negotiate a loan
modification or short sale with [the plaintiff-mortgagor].”).
Despite being in default on the Mortgage Loan for nearly a
decade, the plaintiff continues to remain in possession of the
Property. See id.
Accordingly, the plaintiff’s claim for declaratory relief
is dismissed.
B.
The plaintiff has brought claims for constructive fraud and
slander of title. Both claims are predicated upon the theory
that the assignments of the Promissory Note and Deed of Trust
underlying the Mortgage Loan were void. See Am. Compl. at 12,
14-15.10 As already explained, the plaintiff lacks standing to
challenge the validity of the assignments. Therefore, these
10
The paragraphs of the Amended Complaint with respect to the
claims are misnumbered. As such, citations to those portions of
the Amended Complaint refer to the page numbers of the ECF
document.
21
claims, which are dependent upon theories that the plaintiff
cannot establish for want of standing, must be dismissed. See Le
Bouteiller, 2015 WL 5334269, at *9-10 (dismissing essentially
identical claims on the same basis (citing Rajamin, 757 F.3d at
87–88)).
In any event, neither claim is sufficiently well-pleaded to
survive a motion to dismiss. The parties dispute whether New
York or California law applies --- including whether there is an
actual conflict between the two --- but the application of the
law of either state results in the same outcome of dismissal of
the claims.11
The claim for constructive fraud fails to meet the
heightened pleading standard of Rule 9(b) of the Federal Rules
of Civil Procedure, which requires a plaintiff to plead with
“particularity the circumstances constituting fraud.” The
complaint must “(1) specify the statements that the plaintiff
contends were fraudulent, (2) identify the speaker, (3) state
where and when the statements were made, and (4) explain why the
statements were fraudulent.” ATSI Commc’ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 99 (2d Cir. 2007); see also Vess v. CibaGeigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (“Averments
11
“As a general rule, a federal court sitting in diversity or
with pendent jurisdiction over state law claims applies the
choice of law rules of the state in which it sits.” Horton, 2016
WL 6781250, at *3 (citation omitted).
22
of fraud must be accompanied by ‘the who, what, when, where, and
how’ of the misconduct charged.” (citation omitted)). “Rule 9(b)
is not satisfied where the complaint vaguely attributes the
alleged fraudulent statements to ‘defendants.’” Mills v. Polar
Molecular Corp., 12 F.3d 1170, 1175 (2d Cir. 1993) (citation
omitted); see also Vess, 317 F.3d at 1106 (“[A] plaintiff must
set forth more than the neutral facts necessary to identify the
transaction. The plaintiff must set forth what is false or
misleading about a statement, and why it is false.” (citation
omitted)).
The plaintiff’s generalized allegations of material
misrepresentations, and actions taken by the defendants that
“were malicious and done willfully in conscious disregard of the
rights of the Plaintiff[],” Am. Compl. at 12-13, are entirely
conclusory. The allegations do not come close to meeting the
heightened pleading standard of Rule 9(b), and accordingly must
be dismissed. See Horton, 2016 WL 6781250, at *5 (dismissing a
similar fraud claim for want of particularity under California
law); Springer, 2015 WL 9462083, at *10 (dismissing a similar
fraud claim for want of particularity under New York law).
Second, the slander of title claim is unsupported by the
allegations in the Amended Complaint. The slander of title claim
23
is predicated upon the “wrongful foreclosure” of the Property.12
Am. Compl. at 14-15. However, there is no allegation that the
Property has been subject to a foreclosure; indeed, as the
plaintiff has conceded, this is a pre-foreclosure case. Cf.
Abraham v. Am. Home Mortg. Servicing, Inc., 947 F. Supp. 2d 222,
236 (E.D.N.Y. 2013) (dismissing a similar slander of title claim
under New York law where the allegations in the pleadings
contradicted the plaintiff’s theory underlying the slander of
title claim).
Moreover, none of the allegations in the Amended Complaint
could plausibly support a slander of title claim under either
New York or California law. Under New York law, “To state a
claim for slander of title under New York law, a plaintiff must
allege (1) a communication falsely casting doubt on the validity
of complainant’s title, (2) reasonably calculated to cause harm,
and (3) resulting in special damages.” Nials v. Bank of Am., No.
13 CIV. 5720 (AJN), 2014 WL 2465289, at *4 (S.D.N.Y. May 30,
2014) (quoting Abraham, 947 F. Supp. 2d at 236). “New York law
also requires that Plaintiff demonstrate that the statements are
made with ‘malice’ or ‘at least a reckless disregard for their
12
To the extent that the plaintiff was attempting to assert a
claim for wrongful foreclosure under California law against the
defendants, the allegations are insufficiently particularized to
give fair notice to the defendants of that claim pursuant to
Rule 8(a) of the Federal Rules of Civil Procedure. Even
construing the Amended Complaint liberally, it could not meet
the Rule 8(a) fair notice threshold.
24
truth or falsity.’” Id. (citations omitted). The plaintiff has
failed to plead any allegations that could plausibly establish
falsity or the intent element of a slander of title claim under
New York law. See id.; Abraham, 947 F. Supp. 2d at 236.
Similarly, under California law, to state a claim for
slander of title, a plaintiff must allege: “(1) a publication,
(2) which is without privilege or justification, (3) which is
false, and (4) which causes direct and immediate pecuniary
loss.” Horton, 2016 WL 6781250, at *6 (citation omitted). “A
privilege, either absolute or qualified, is a defense to a
charge of slander of title.” Id. (citation omitted). “[W]here
the Complaint shows that the communication or publication is one
within the classes of qualified privilege, it is necessary for
the plaintiff to go further and plead and prove that the
privilege is not available as a defense in the particular case,
e.g., because of malice.” Id. (citation omitted).
The plaintiff has failed to set forth any arguments that
the alleged “publications” were not privileged. Furthermore,
there are no particularized allegations that could lead to the
conclusion that the publications were made with malice, or that
they were false. See id. at *7 & n.11. Accordingly, the slander
of title claim must be dismissed. See id. (dismissing a similar
slander of title claim under California law).
25
C.
The plaintiff has brought two claims for damages for
purported violations of the TILA in connection with the
assignments of the Mortgage Loan. The first claim is for
multiple, although unspecified, violations of the TILA, and the
second, more particularized claim is for purported violations of
15 U.S.C. § 1641(g), which provides that “not later than 30 days
after the date on which a mortgage loan is sold or otherwise
transferred or assigned to a third party, the creditor that is
the new owner or assignee of the debt shall notify the borrower
in writing of such transfer . . . .” The plaintiff has also
brought a claim for rescission of the Mortgage Loan pursuant to
15 U.S.C. § 1635 of the TILA.
The defendants argue that the claims under the TILA are
untimely. “Where the dates in a complaint show that an action is
barred by a statute of limitations, a defendant may raise the
affirmative defense in a pre-answer motion to dismiss.” Ghartey
v. St. John’s Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989);
see also Twersky v. Yeshiva Univ., 993 F. Supp. 2d 429, 434
(S.D.N.Y. 2014), aff’d, 579 Fed.Appx. 7 (2d Cir. 2014) (summary
order).
(i)
The plaintiff’s claims for damages under the TILA are timebarred. Under 15 U.S.C. § 1640(e), claims for damages pursuant
26
to the TILA must be brought within one year from the date of the
occurrence of the violation. Springer, 2015 WL 9462083, at *11
(citing Feliciano v. U.S. Bank Nat. Ass’n, No. 13-CV-5555 KBF,
2014 WL 2945798, at *5 (S.D.N.Y. June 27, 2014)); see also
Grimes v. Fremont Gen. Corp., 785 F. Supp. 2d 269, 285 (S.D.N.Y.
2011) (collecting cases). The last alleged improper assignment
occurred on March 7, 2012, and the plaintiff initiated this
action on April 7, 2016, far outside the one-year statute of
limitations.
The plaintiff argues that the statute of limitations should
be equitably tolled because the defendants allegedly
fraudulently concealed the TILA violations, and because the
plaintiff purportedly required a forensic audit to determine the
existence of some of the TILA violations. For claims under
federal law, the federal doctrine of equitable tolling applies.
See Feliciano, 2014 WL 2945798, at *6 (citing Zerilli–Edelglass
v. New York City Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003)).
“Equitable tolling is available in ‘rare and exceptional
circumstances,’ where the court finds that ‘extraordinary
circumstances’ prevented the party from timely performing a
required act, and that the party ‘acted with reasonable
diligence throughout the period he sought to toll.’” Grimes, 785
F. Supp. 2d at 286 (citations omitted). “[A] statute of
limitations may be tolled due to the defendant’s fraudulent
27
concealment if the plaintiff establishes that: (1) the defendant
wrongfully concealed material facts relating to defendant’s
wrongdoing; (2) the concealment prevented plaintiff’s discovery
of the nature of the claim within the limitations period; and
(3) plaintiff exercised due diligence in pursuing the discovery
of the claim during the period plaintiff seeks to have tolled.”
Corcoran v. N.Y. Power Auth., 202 F.3d 530, 543 (2d Cir. 1999)
(citations and internal quotation marks omitted). “In cases
involving TILA, ‘the courts have held uniformly that fraudulent
conduct beyond the nondisclosure itself is necessary to
equitably toll the running of the statute of limitations[,]’ . .
. because if the very nondisclosure or misrepresentation that
gave rise to the TILA violation also tolled the statute of
limitations, the effect of the statute of limitations would be
nullified.” Grimes, 785 F. Supp. 2d at 286 (citations omitted).
Equitable tolling is unavailable here. The plaintiff has
pleaded no facts that could lead to the inference that the
defendants wrongfully concealed any material facts above and
beyond the alleged TILA violations themselves. See id. at 287;
Williams v. Aries Fin., LLC, No. 09-CV-1816 (JG), 2009 WL
3851675, at *7 (E.D.N.Y. Nov. 18, 2009). There are no plausible
allegations that any acts by the defendants prevented the
plaintiff from accessing the courts to vindicate his rights. To
the contrary, the plaintiff already brought claims years ago
28
based on the complained-of assignments against Chase and Fannie
Mae for violations of the TILA in the California Federal
Litigation, and another set of claims against Chase and Fannie
Mae involving the same assignments in the California State
Litigation. See Feliciano, 2014 WL 2945798, at *6 (rejecting
request for equitable tolling because, based on the filings in
another action, the plaintiff had been, or should have been, on
notice of the complained-of mortgage loan assignments years
prior to the filing of the action); Grimes, 785 F. Supp. 2d at
286-87. While the plaintiff alleges that the forensic audit
uncovered “newly discovered evidence” about the assignments, of
which the plaintiff was presumably unaware at the time he
initiated the prior litigations, see Am. Compl. ¶ 11, that is
not a persuasive justification for equitable tolling, especially
because the plaintiff knew enough to bring a federal action
three years ago against Chase and Fannie Mae for TILA violations
(including for purported violations of 15 U.S.C. § 1641(g)) in
connection with the same assignments. Accordingly, the
plaintiff’s claims for damages pursuant to the TILA are timebarred.
(ii)
Pursuant to 15 U.S.C. § 1635(f), a borrower’s right to
rescission “shall expire three years after the date of
consummation of the transaction or upon the sale of the
29
property, whichever occurs first.” The Mortgage Loan was
consummated in 2007, meaning that the plaintiff’s right to seek
rescission of the Mortgage Loan expired years prior to the
initiation of this suit.
The plaintiff again argues for equitable tolling, and, were
that an available remedy under 15 U.S.C. § 1635(f), it would be
denied for the reasons already discussed. However, in Beach v.
Ocwen Fed. Bank, 523 U.S. 410 (1998), the Supreme Court held,
based on “Congress’s manifest intent,” that “the [TILA] permits
no federal right to rescind, defensively or otherwise, after the
3-year period of § 1635(f) has run.” Id. at 419 (emphasis
added); see also Jesinoski v. Countrywide Home Loans, Inc., 135
S. Ct. 790, 792 (2015). Based on the plain language of 15 U.S.C.
§ 1635(f), and the Supreme Court’s interpretation of that
language in Beach, “This three-year period is a statute of
repose, rather than a statute of limitations, meaning that the
right is extinguished after the three-year period passes and is
not subject to equitable tolling.” Reinhart v. Citimortgage,
Inc., No. 15-CV-1095, 2016 WL 1259413, at *6 (N.D.N.Y. Mar. 30,
2016) (quoting Jacques v. Chase Bank USA, N.A., 2016 WL 423770,
at *9 (D. Del. Feb. 3, 2016)), reconsideration denied, No. 15CV-1095, 2016 WL 3176650 (N.D.N.Y. June 7, 2016); see also,
e.g., Sherzer v. Homestar Mortg. Servs., 707 F.3d 255, 264 n.6
(3d Cir. 2013) (noting that equitable tolling is unavailable
30
under 15 U.S.C. § 1635(f) (citing Rosenfield v. HSBC Bank, USA,
681 F.3d 1172, 1181 (10th Cir. 2012)); McOmie-Gray v. Bank of
Am. Home Loans, 667 F.3d 1325, 1329 (9th Cir. 2012) (“Because §
1635(f) is a statute of repose, it extinguished [the
plaintiff’s] right to rescission . . . three years after the
consummation of the loan.”); Jones v. Saxon Mortg., Inc., 537
F.3d 320, 326-27 (4th Cir. 1998) (per curiam) (same); see also
CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2183 (2014) (“Statutes
of limitations, but not statutes of repose, are subject to
equitable tolling . . . .”); Police & Fire Ret. Sys. of City of
Detroit v. IndyMac MBS, Inc., 721 F.3d 95, 106 (2d Cir. 2013)
(“[A] statute of repose is subject [only] to legislatively
created exceptions . . . and not to equitable tolling.”
(citations and internal quotation marks omitted)).
The plaintiff’s right to rescission under the TILA has
expired, and he cannot now seek to bring that claim.13
D.
The plaintiff seeks specific performance of the settlement
that Chase offered, but that he never accepted. The plaintiff
did not respond to the defendants’ arguments for dismissal of
13
The Amended Complaint includes several oblique references to
violations of the RESPA and the FDCPA, but does not detail which
sections of these respective statutes have been violated, or
include any specific causes of action related to those statutes.
These allegations are too conclusory and nonspecific to state a
claim for relief under those respective statutes. See Harriot,
2016 WL 6561407, at *5; see also Fed. R. Civ. P. 8(a).
31
that claim, which is properly deemed abandoned. See, e.g., Gym
Door Repairs, Inc. v. Young Equip. Sales, Inc., No. 15-CV-4244
(JGK), 2016 WL 4747281, at *18 (S.D.N.Y. Sept. 12, 2016),
reconsideration denied, No. 15-CV-4244 (JGK), 2016 WL 6652733
(S.D.N.Y. Nov. 10, 2016).
In any event, under New York law, “For [the plaintiff] to
justify [his] entitlement to [specific performance], [he] must
first establish the existence of a contract with [the
defendants].” Edge Grp. WAICCS LLC v. Sapir Grp. LLC, 705 F.
Supp. 2d 304, 312 (S.D.N.Y. 2010); see also Illumina, Inc. v.
Ariosa Diagnostics, Inc., No. CV 14-01921 (SI), 2014 WL 3897076,
at *4 (N.D. Cal. Aug. 7, 2014) (same under California law). The
plaintiff’s allegations establish that he never agreed to the
proposed settlement. Accordingly, there is no settlement
agreement that the plaintiff can seek to enforce.
E.
The defendant Rushmore argued in its papers that the
plaintiff lacks standing, and that none of the plaintiff’s
allegations are directed against it, especially because Rushmore
only became the loan servicer of the Mortgage Loan in 2016,
while the events underlying the plaintiff’s claims occurred
years earlier. The plaintiff did not respond to Rushmore’s
arguments in his papers. Accordingly, the claims against
Rushmore are properly deemed abandoned, and the claims against
32
Rushmore are dismissed on that ground as well. See, e.g.,
Springer, 2015 WL 9462083, at *12 (dismissing similar claims as
abandoned because the opposition to the motion to dismiss did
not address the arguments favoring dismissal); Obal, 2015 WL
631404, at *10 (same).
IV.
The plaintiff has requested leave to amend the Amended
Complaint, including to add claims against the defendants for
purported violations of the California Homebuyer Bill of Rights
(the “HBOR”). Rule 15(a) provides that leave to file an amended
complaint should be granted “freely . . . when justice so
requires.” Fed. R. Civ. P. 15(a)(2); see also Foman v. Davis,
371 U.S. 178, 182 (1962) (“Rule 15(a) declares that leave to
amend ‘shall be freely given when justice so requires’; this
mandate is to be heeded.” (citation omitted)). The claims for
money damages for violations of the TILA, rescission under the
TILA, and specific performance are dismissed with prejudice
because further amendment would be futile. With respect to these
claims, the plaintiff cannot cure the timeliness and other
pleading defects in the Amended Complaint.
The declaratory relief, constructive fraud, and slander of
title claims are dismissed without prejudice. The plaintiff
should be given leave to replead these claims consistent with
this opinion. The plaintiff retained counsel after filing the
33
Amended Complaint, and his opposition to the motions to dismiss,
as a pro se litigant. The plaintiff has only amended the
complaint once. Moreover, the defendants have not addressed the
viability of the plaintiff’s proposed HBOR claim. While there
are plainly potential threshold issues to bringing such a claim,
it cannot be said at this point that those issues are
insurmountable. Now that the plaintiff is represented in this
action, the plaintiff should be given the opportunity to amend
the Amended Complaint consistent with this opinion to assert
against the defendants any potentially meritorious claim, so
long as the claim has a good faith basis in fact and in law. See
Smith v. Soros, No. 02-Cv-4229 (JGK), 2003 WL 22097990, at *8
(S.D.N.Y. Sept. 5, 2003) (citing Branum v. Clark, 927 F.2d 698,
705 (2d Cir. 1991)), aff’d, 111 F. App’x 73 (2d Cir. 2004)
(summary order).
In their papers, the defendants intimated that if the
plaintiff’s claims were not dismissed with prejudice, this
action should be transferred to the United States District Court
for the Central District of California pursuant to 28 U.S.C. §
1404. In the event that that the plaintiff decides to file a
second amended complaint, the defendants may renew the
application, or the plaintiff may bring the application himself.
The parties should also be advised that the action may be
transferred by the Court of its own accord “[f]or the
34
convenience of parties and witnesses, [and] in the interest of
justice . . . .” 28 U.S.C. § 1404(a); see also Mobil Corp. v.
S.E.C., 550 F. Supp. 67, 69 (S.D.N.Y. 1982). The plaintiff is a
California resident, the Property is located in California, all
relevant events occurred in California, and the pleadings raise
issues of California law. The parties will be given notice and
an opportunity to be heard prior to any transfer.
CONCLUSION
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit. For the foregoing reasons, the
defendants’ motions to dismiss are granted. The claims for money
damages for violations of the TILA, rescission under the TILA,
and specific performance are dismissed with prejudice. The
claims for declaratory relief, constructive fraud, and slander
of title are dismissed without prejudice. The plaintiff may file
a second amended complaint by February 3, 2017. If the plaintiff
fails to file a second amended complaint by that date, the
action will be dismissed with prejudice. The Clerk is directed
to close all pending motions.
SO ORDERED.
Dated:
New York, New York
January 11, 2017
____________/s/_______________
John G. Koeltl
United States District Judge
35
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