Dins v. Bank of America, N.A. et al

Filing 22

OPINION AND ORDER re: 12 MOTION to Dismiss . filed by Bank of America, N.A., Wilmington Trust Company. For the reasons set forth above, defendants motion to dismiss is GRANTED. The claims against the unnamed defendants are dismis sed. Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to terminate the motion at ECF No. 12 and to terminate this action. (As further set forth in this Order.) (Signed by Judge Katherine B. Forrest on 2/13/2017) Copies Sent By Chambers. (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------ X
:
TATIANA DINS,
:
:
:
Plaintiff,
:
-v:
:
BANK OF AMERICA, N.A.; WILMINGTON
:
:
TRUST COMPANY, as trustee for CWHEQ
:
Revolving Home Equity Trust, Series 2006A;
:
DOES 1 THROUGH 100, inclusive,
:
Defendants.
:
X
-----------------------------------------------------------------KATHERINE B. FORREST, District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: February 13, 2017

16-cv-5741 (KBF)
OPINION & ORDER

Tatiana Dins, pro se, has brought this lawsuit against Bank of America, N.A.
(“BANA”), Wilmington Trust Company (“Wilmington”) as trustee for CWHEQ
Revolving Home Equity Trust, Series 2006A (“CWHEQ Trust” or the “Trust”), and
Does 1 through 100, contesting defendants’ alleged claims to her property.
Defendants have moved to dismiss the complaint for improper venue under Federal
Rule of Civil Procedure 12(b)(3) or for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). They also have asked the Court to strike Dins’s untimely
amended complaint. Given Dins’s pro se status, the Court will consider the late
filing. Even under the amended pleading, however, Dins has failed to state a claim
and defendants’ motion to dismiss is GRANTED.
I.

BACKGROUND
Dins brought this lawsuit on July 19, 2016. (Verified Compl., ECF No. 1.)

On September 13, 2016, defendants filed a motion to dismiss. (Mot. Dismiss, ECF
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No. 12.) On September 20, 2016, Dins moved for leave to amend her complaint.
(ECF No. 15.) The Court granted plaintiff’s request, and ordered Dins to file an
amended complaint by October 1, 2016. (ECF No. 16.) Six weeks after the
deadline, on November 14, 2016, Dins filed her amended complaint (“AC”) against
Wilmington, BANA, and unnamed individuals who or corporations that “aided and
abetted in the civil conspiracy to deny Plaintiffs’ due process.” (AC ¶ 8, ECF No.
17.) The AC’s factual allegations are, almost to a word, the same as those in the
original complaint, but its causes of action are different. The AC includes two
federal causes of action—for violations of the Truth in Lending Act (“TILA”) and
Regulation X of the Real Estate Settlement Procedures Act (“RESPA”)—in addition
to several state law claims. Defendants opposed plaintiff’s untimely amended
pleading and requested that the Court decline to consider it. (ECF No. 18.) The
Court informed the parties that it would consider the AC solely as a proposed
amendment, and that it deemed defendants’ motion to dismiss the original
complaint as sufficiently responsive to the AC’s allegations. (ECF No. 19.) This
case was transferred to the undersigned from the Honorable Analisa Torres on
November 22, 2016. On November 23, 2016, the Court issued an order noting that
plaintiff has provided several addresses in her filings, and directing Dins to inform
the Court of her current address. (Order, ECF No. 21.) Plaintiff has not responded
to the order.
Mindful that “a court is ordinarily obligated to afford a special solicitude
to pro se litigants,” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010), the Court

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will accept plaintiff’s untimely AC. Accordingly, the following facts are taken from
the AC. The Court also will consider the exhibits attached to defendants’ motion to
dismiss, as they are referenced in and integral to the AC. See DiFolco v. MSNBC

Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).
On January 20, 2006, Dins entered into a Home Equity Credit Line
Agreement (the “Note”) with Countrywide Home Loans, Inc. (“Countrywide”), a nonparty. (Saydah Affirm. Ex. A (“Note”), ECF No. 14.) The Note was secured by a
Deed of Trust (“Deed”) on Dins’s property at 2709 Jackson Street, San Francisco,
California, which also was dated January 20, 2006. (Saydah Affirm. Ex. B (“Deed”),
ECF No. 14.) The Deed was recorded on January 31, 2006 in San Francisco. (Id.;

see also AC ¶ 49(b).) Mortgage Electronic Registration Systems, Inc. (“MERS”) was
the beneficiary under the Deed and Countrywide’s nominee. (Deed at 1, 2.) The
Deed provides that MERS could exercise any of the rights under it, including
foreclosure and sale. (Id. at 2.) On February 8, 2013, MERS, as nominee for
Countrywide, assigned the Deed to BANA. (Saydah Affirm. Ex. C (“Assignment”),
ECF No. 14.) The Assignment was recorded on April 17, 2013 in San Francisco.
(Id.)
Dins alleges that her Note ended up in the securitized CWHEQ Trust, 1 which
was created pursuant to a Pooling and Servicing Agreement (“PSA”), after its
closing date of February 27, 2006. (AC ¶ 45.) 2 Dins provides no information on

Dins refers to the Trust as both the CWHEQ Trust and the CWHEP Trust. For consistency, the
Court will refer to it as the CWHEQ Trust.
2 Confusingly, at one point Dins alleges that “[t]he promissory note in this case became trust
property in compliance with the requirement set forth in the PSA,” (id. ¶ 49(b)), yet elsewhere, she
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when the Note or Deed was transferred to the Trust and by whom. Neither is
Wilmington’s alleged role in any scheme clear: Dins alleges that Wilmington is the
successor in interest to Countrywide, that it is responsible for BANA’s actions, and
that it is the trustee of the CWHEQ Trust. (Id. ¶¶ 6, 48.)
Dins makes several allegations of impropriety by defendants and other nonparties. The gravamen of these allegations appears to be that: (1) the assignment of
her loan to the Trust was void and contrary to the PSA because it occurred after the
Trust’s closing date, (id. ¶¶ 45, 54, 57); and (2) because only Countrywide had
“standing to assign the mortgage deed,” any later assignments are void, (id. ¶ 45).
Accordingly, Dins alleges that defendants have no claim to her property. (Id. ¶¶ 52,
58.) Dins also claims that Countrywide “table funded” her loan. (Id. ¶¶ 59-61.)
The clear import of the VAC is that defendants have attempted or are
attempting to foreclose on the property. Other than an undecipherable claim that
“the current foreclosure process is the second lien holder of [BANA] Mortgage which
is foreclosing in Nov., 2016 which affects the first mortgage,” (id. ¶ 66), and
conclusory allegations that the property “is currently in the non-judicial foreclosure
process” (id. ¶ 69; see also id. ¶¶ 65, 71, 85(a), 105, 110), Dins has not alleged any
specifics about the foreclosure. Dins also contends that defendants illegally failed to
review her August 2016 loan modification application. (Id. ¶¶ 92, 104, 109.)

contends that, “even if the Note and Mortgage had been transferred into the Trust by the closing
date, the transaction is still invalid and/or void as the Note would not have been transferred
according to the requirements of the PSA,” (id. ¶ 55).

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II.

LEGAL STANDARDS
A.

Federal Rule of Civil Procedure 12(b)(6) 3

To survive a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), a plaintiff must provide grounds upon which his claim rests through
“factual allegations sufficient ‘to raise a right to relief above the speculative level.’”

ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, the complaint
must allege “enough facts to state a claim to relief that is plausible on its face.”

Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir. 2010) (quoting
Twombly, 550 U.S. at 570). “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).
In applying this standard, the Court accepts as true all well-pled factual
allegations, but does not credit “mere conclusory statements” or “[t]hreadbare
recitals of the elements of a cause of action.” Id. The Court will give “no effect to
legal conclusions couched as factual allegations.” Port Dock & Stone Corp. v.

Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Twombly, 550 U.S. at
555). A plaintiff may plead facts alleged upon information and belief “where the
facts are peculiarly within the possession and control of the defendant.” Arista

Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010). But, if the Court can infer

Because the Court dismisses the AC for failure to state a claim under Rule 12(b)(6), it need not
address defendants’ arguments under Rule 12(b)(3).

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no more than the mere possibility of misconduct from the factual averments—in
other words, if the well-pled allegations of the complaint have not “nudged
[plaintiff’s] claims across the line from conceivable to plausible”—dismissal is
appropriate. Twombly, 550 U.S. at 570; Starr, 592 F.3d at 321 (quoting Iqbal, 556
U.S. at 679).
In deciding a motion to dismiss under Rule 12(b)(6), the Court may
supplement the allegations in the complaint with facts from documents either
referenced in the complaint or relied upon in framing the complaint. See DiFolco,
622 F.3d at 111 (“In considering a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the
complaint, documents attached to the complaint as exhibits, and documents
incorporated by reference in the complaint.”); Chambers v. Time Warner, Inc., 282
F.3d 147, 153 (2d Cir. 2002) (“[W]here plaintiff has actual notice of all the
information in the movant’s papers and has relied upon these documents in framing
the complaint[,] the necessity of translating a Rule 12(b)(6) motion into one under
Rule 56 is largely dissipated.” (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949
F.2d 42, 48 (2d Cir. 1991))). The Court has done so here with the Note, Deed, and
Assignment attached to defendants’ motion.
III.

DISCUSSION
The AC includes two federal causes of action—under TILA and RESPA—that

invoke this Court’s original jurisdiction under 28 U.S.C. § 1331, and a list of state
law claims that invoke the Court’s supplemental jurisdiction under 28 U.S.C. §

6

1367. 4 As an initial matter, it is not clear from the AC what role, if any, each
defendant played in the assignment of Dins’s loan to the Trust or any foreclosure of
Dins’s property. On that basis alone, the AC could be dismissed. Even assuming,
however, that both defendants can be held liable for any wrongdoing alleged,
plaintiff’s federal causes of action fail to state a claim and the Court declines to
exercise its supplemental jurisdiction over her state law claims.
A.

TILA

In counts three and five, 5 Dins alleges that defendants violated TILA by
failing to disclose every assignment or transfer of the Note and Deed, and that Dins
accordingly wasted time negotiating the loan with the wrong party or parties. (AC
¶¶ 75, 76, 80, 89.)
TILA 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.” 15 U.S.C. § 1641(g)(1). The “statute of limitations for
causes of action brought under TILA . . . is one year from the date of the alleged
violation.” Obal v. Deutsche Bank Nat’l Trust Co., No. 14 Civ. 2463, 2015 WL
631404, at *10 (S.D.N.Y. Feb. 13, 2015); see 15 U.S.C. § 1640(e).

In the AC, Dins asserts original jurisdiction pursuant to various federal statutes other than TILA
and RESPA, including “the Securities Act of 33, the Wire Act, the Mail Fraud Act, Bank Fraud,” and
the Fair Debt Collection Practices Act. (AC ¶¶ 1, 45.) Dins, however, includes no causes of action
with respect to those statutes. Accordingly, the Court does not address them. See Gonzalez v. J.P.
Morgan Chase Bank, N.A., 16 Civ. 2611, 2017 WL 122993, at *11 (S.D.N.Y. Jan. 12, 2017).
5 Dins brings her fifth cause of action under the Consumer Credit Protection Act (“CCPA”), 15 U.S.C.
§ 1641(g). TILA is part of Title I of CCPA, and 15 U.S.C. § 1641(g) is part of TILA. See Stein v. JP
Morgan Chase Bank, 279 F. Supp. 2d 286, 290 n.2 (S.D.N.Y. 2003). Accordingly, the Court will treat
both counts as having been brought under TILA.
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Construing the pleading liberally, the last assignment occurred on February
8, 2013 when MERS, as nominee for Countrywide, assigned the Deed to BANA. 6
Dins brought this lawsuit in 2016, far outside TILA’s one-year statute of
limitations. Dins has not provided any grounds for equitable tolling. See Grimes v.

Fremont Gen. Corp., 785 F. Supp. 2d 269, 286 (S.D.N.Y. 2011) (“Equitable tolling is
available [only] 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.” (internal quotation marks and citation omitted)). 7 Accordingly,
plaintiff’s TILA claims are dismissed.
B.

RESPA

In count six of the AC, Dins brings a claim for violation of “Regulation X, 12
C.F.R. § 1024.41(b).” In particular, she alleges that defendants “did not conduct a
review to determine whether the Plaintiff’s submitted loan modification application
represented a complete or an incomplete loan modification application,” (AC ¶ 92),
and “did not act affirmatively to complete the Plaintiff’s loan modification
application” or “exercise reasonable diligence to obtain any documents/information
to complete the application,” (id. ¶ 95). Dins alleges that, as a result, defendants

Although Dins did not actually include this date in her AC, she arguably referenced it and
defendants attached a copy of the Assignment to their motion to dismiss.
7 Plaintiff claims that defendants’ alleged TILA violations “[were] concealed by Defendants and
[were] not reasonably ascertainable until discovery by Plaintiff upon review of the November 5, 2015,
loan audit.” (AC ¶ 78.) Dins’s assertion is not supported by well-pled factual allegations and
therefore will not be accepted as true. See Port Dock & Stone Corp., 507 F.3d at 121. “A plaintiff
seeking to toll the applicable statute of limitations [on the grounds of fraud] must meet the
particularity standard of Rule 9(b).” S.E.C. v. Wyly, 788 F. Supp. 2d 92, 104 (S.D.N.Y.
2011) (quotation marks and alterations omitted). Plaintiff has not met that standard.
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are “attempting to foreclose on the Plaintiff’s property without any legal authority
or standing to do so.” (Id. ¶ 101.)
On January 10, 2014, amendments to Regulation X, codified at 12 C.F.R. §
1024.41 and promulgated pursuant to the Dodd-Frank Act and RESPA, took effect.

See Campbell v. Nationstar Mortg., 611 F. App’x 288, 296-97 (6th Cir. 2015).
“Section 1024.41 prohibits, among other things, a loan servicer from foreclosing on a
property in certain circumstances if the borrower has submitted a complete loan
modification, or loss mitigation, application.” Id. at 296. The AC fails to state a
claim under Regulation X. First, only loan servicers have a duty under this
regulation, (see Green v. Cent. Mortg. Co., 148 F. Supp. 3d 852, 877 (N.D. Cal.
2015)), and Dins nowhere alleges that Wilmington was a loan servicer. Second, the
AC’s lack of any factual allegations regarding her August 2016 loan modification
application is fatal. 8 In particular, the regulation requires that an initial
application “be sent ‘45 days or more before a foreclosure sale,’” Bustos v. Chase,
No. 16 Civ. 0822, 2016 WL 5930303, at *4 (S.D. Cal. Oct. 12, 2016) (quoting 12
C.F.R. § 1024.41(b)(2)(i)), and that a complete application be submitted more than
37 days before a foreclosure sale, see Gresham v. Wells Fargo Bank, N.A., 642 F.
App’x 355, 359 (5th Cir. 2016) (citing 12 C.F.R. § 1024.41(g)). The AC, however,
includes no details about when the relevant foreclosure occurred or whether and
when plaintiff submitted a complete application, precluding the Court from
determining, even assuming the truth of the AC’s allegations, that the statutory
The Court notes that the August 2016 date is nowhere to be found in the allegations supporting the
RESPA count; it is only mentioned under Dins’s causes of action for violations of the California Civil
Code. (Id. ¶ 104, 109.)
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deadlines were met. In all events, the AC does not include any concrete allegations,
such as to whom plaintiff sent the application, whether she sent a complete
application, and whether she received any sort of response or acknowledgement.
Without more, Dins does not plausibly allege a claim for a violation of Regulation X.
C.

State Law Claims

Plaintiff’s state law claims are the only remaining claims. 9 Having dismissed
all claims over which it has jurisdiction, the Court, in its discretion, declines to
exercise supplemental jurisdiction over plaintiff’s state law claim. See 28 U.S.C. §
1367(c)(3); see also Klein & Co. Futures, Inc. v. Bd. of Trade of City of N.Y., 464
F.3d 255, 262-63 (2d Cir. 2006).

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Count two, which requests “declaratory relief,” seeks recourse under California law.

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IV. CONCLUSION
For the reasons set forth above, defendants’ motion to dismiss is GRANTED.
The claims against the unnamed defendants are dismissed.
Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order would not be
taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to terminate the motion at ECF No. 12 and to
terminate this action.
SO ORDERED.
Dated:

New York, New York
February 13, 2017

_________________________________________
KATHERINE B. FORREST
United States District Judge
Copy to:
Tatiana Dins
2709 Jackson St
San Francisco, CA 94115
Tatiana Dins
1592 Union Street, Unit #90
San Francisco, CA 94115
Tatiana Dins
3045 Marina Bay Drive
Unit 4102
League City, TX 77573

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