Streza v Federal National Mortgage Association, et al
Filing
38
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 8/19/2015. Copy mailed to Pro Se Plaintiff. (jsmi, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
ELIZABETH STREZA,
Plaintiff,
v.
Action No. 3:15-CV-168
FEDERAL NATIONAL MORTGAGE
ASSOCIATION, et al.,
Defendants.
MEMORANDUM OPINION
THIS MATTER is before the Court on a Motion to Dismiss, ECF No. 13, filed by
Defendants Commonwealth Trustees, LLC (“CT”), ECF No. 13, a Motion to Dismiss, ECF No. 15
filed by Rosenberg & Associates, LLC (“Rosenberg”), and a Motion to Dismiss, ECF No. 18, filed
by Federal National Mortgage Association (“Fannie Mae”) (collectively, “Defendants”). Also
before the Court is a Motion for Leave of Court in Order to Amend Complaint (“Motion to
Amend”) filed by pro se Plaintiff Elizabeth Streza (“Streza”). ECF No. 35. For the reasons set
forth below, the Court will GRANT CT’s Motion to Dismiss, ECF No. 13, GRANT Rosenberg’s
Motion to Dismiss, ECF No, 15, GRANT Fannie Mae’s Motion to Dismiss, ECF No. 18 and DENY
Streza’s Motion to Amend, ECF No. 35.
I.
PROCEDURAL BACKGROUND
Streza previously filed several lawsuits, all related to the foreclosure of the property at
issue in the instant matter and the attempt to obtain a loan modification.
Streza’s first
complaint was filed in 2012 against Bank of America, N.A. (“BANA”), which was dismissed by
demurrer in the Henrico County Circuit Court. Streza filed her second complaint in this Court,
which issued an opinion in August 2014 dismissing the case. See Streza v. Bank of America,
2014 WL 3810363 at *1 (E.D. Va. 2014). Streza filed a third complaint in the Henrico County
Circuit Court in October 2014. However, Streza agreed to a dismissal without prejudice in that
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matter.
On March 20, 2015, Streza filed a Complaint alleging that three named Defendants
violated 15 U.S.C. 1681(a)(1) of the Fair Credit Reporting Act (“FCRA”) in handling the
foreclosure of her home. On April 28, 2015, CT filed a Motion to Dismiss, which included a
Roseboro notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). ECF No. 13.
Streza has not filed a response and has missed her deadline to do so. On April 28, 2015,
Rosenberg filed a Motion to Dismiss, which included a Roseboro notice. ECF No. 15. Streza has
not filed a response and has missed her deadline to do so. Finally, On April 30, 2015, Fannie
Mae filed a Motion to Dismiss, which also included a Roseboro notice. ECF No. 18. Here too,
Streza declined to file a response and has missed her deadline to do so.
This Court has since issued an Order, granting Streza additional time until June 8,
2015—i.e., the day before the previously scheduled motions hearing—to file her responses to the
aforementioned motions.
On May 5, 2014, Defendants submitted an electronic request for oral argument. A
motions hearing was conducted on August 18, 2015.
II.
FACTUAL BACKGROUND1
On January 24, 2006, Streza entered into a mortgage loan transaction by executing a
note (the “Note”) payable to Countrywide Home Loans, Inc., (“CHL”) in the amount of $176,000
to purchase property located at 2244 Orion Road, Jarratt, Virginia 23867 (“Property”).2 The
Note was secured by a Deed of Trust recorded as Instrument Number 06000127 in Greensville
County, Virginia. See Complaint (“Compl.”) ¶ 7. Streza’s mortgage was originally serviced by
Countrywide Home Loans Servicing, LP, which became known as BAC Home Loans Servicing,
The Court assumes all of Streza’s well-pleaded allegations to be true, and views all facts in the
light most favorable to Streza. T.G. Slater & Son v. Donald P. & Patricia A. Brennan, LLC, 385
F.3d 836, 841 (4th Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.
1993)).
2 Streza additionally describes her mortgage as being “backed” by Fannie Mae. See Complaint
(“Compl.”) at ¶ 15.
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LP, in 2009. Both of these entities as well as Countrywide Bank, FSB, merged with and into
Bank of America, N.A. (“BANA”), prior to the initiation of this lawsuit.
Streza describes herself as a “distressed” home owner; however, she does not allege
whether, or the extent to which, she is in arrears on her mortgage. Id. ¶ 20. Streza does allege
that in 2010, she travelled with her mother to an event sponsored by the Neighborhood
Assistance Corporation of America (“NACA”) event in Atlanta, Georgia for the purpose of
obtaining a home loan modification.3 Id. ¶¶ 14-15. Streza alleges that by 2010, the Property was
significantly overvalued, as was the tax-assessment of the Property. At the NACA event on June
13, 2010, Streza met with a representative of BANA to discuss the possibility of a home loan
modification based on the current value of her home. Id. ¶ 14.
Streza alleges that the BANA representative promised Streza that the desired loan
modification would be offered and, thereby, created an enforceable contract. Id. Specifically,
Streza alleges that the BANA representative signed a document indicating that BANA would
provide a home appraisal. Id. Streza alleges that the BANA representative promised that after
the appraisal was complete and Streza submitted certain documents, BANA would reduce the
principle owed on Streza’s loan. Id.
Streza alleges that shortly after meeting with the BANA representative on June 13, 2010,
she provided the requested documents and waited for BANA to provide a home appraisal. Streza
alleges that no home appraisal ever occurred despite her repeated attempts to contact
Defendants. Id. In July of 2010, Streza was offered a loan modification; however, the proposed
loan modification did not reduce the principal of the loan and carried a forty-year term, to which
Streza objected. Id. ¶ 15. Streza alleges that she never accepted the offered loan modification
because BANA would not respond to her requests for an explanation of the modification loan’s
Streza indicates that this trip was costly and that contributed to her mother’s death in April
2013. However, she does not appear to assert a claim for promissory estoppel and, even
construing the Complaint liberally, does not plausibly allege that Defendants’ representations
caused her to attend the NACA event. See id. ¶¶ 14-15.
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terms. Id. ¶12.
The servicing of the Note was eventually transferred to Green Tree, and Green Tree
foreclosed on the Property because of Streza’s default on the Note. See id. at 2. Streza alleges
that she received notice of an impending foreclosure sale on September 15, 2014. Id. ¶ 21. The
Property was sold at a foreclosure sale held on October 7, 2014 (the “Foreclosure Sale”). Fannie
Mae owns the Note and now has title to the Property. Id. ¶¶ 13, 21. Fannie Mae has filed a
complaint for unlawful detainer against Streza in the Greensville County General District Court
(“the Unlawful Detainer case”) and has obtained a judgment of possession against Streza.
From before the collapse of the real estate market in 2008 until approximately August
2011, Streza was employed as a real estate agent. The Complaint includes many broad
allegations regarding BANA and Fannie Mae’s participation in events and practices that
ultimately led to the collapse of the real estate market. On the basis of these allegations, Streza
claims that the Fannie Mae “eliminated [Streza’s] career” and, by destroying her career as a real
estate agent, “took away her ability to pay her mortgage.” Id. ¶ 40.
III.
LEGAL STANDARD4
a. Rule 12(b)(1)
Federal Rule of Civil Procedure 12 allows for a number of defenses to be raised to a
complaint at the pleading stage. Among these are the defenses that a Court lacks subject matter
jurisdiction over the case, see Fed. R. Civ. P. 12(b)(1), and that the pleadings fail to state a claim
upon which relief can be granted, see Fed. R. Civ. P. 12(b)(6). Once subject matter jurisdiction
has been challenged, it is the plaintiff’s “burden of proving that subject matter jurisdiction
exists.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).
The Court assumes all of Streza’s well-pleaded allegations to be true, and views all facts in the
light most favorable to Streza. T.G. Slater & Son v. Donald P. & Patricia A. Brennan, LLC, 385
F.3d 836, 841 (4th Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.
1993)).
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When considering a Rule 12(b)(1) motion to dismiss, unlike a motion to dismiss
pursuant to Rule 12(b)(6), “the district court may regard the pleadings as mere evidence on the
issue and may consider evidence outside the pleadings without converting the proceeding to one
for summary judgment.”
Velasco v. Government of Indonesia, 370 F.3d 392, 398 (4th
Cir.2004) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982)). Therefore, this Court may
weigh the evidence and resolve factual disputes regarding jurisdiction by considering evidence
outside the Complaint. Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995). Even
though such a Rule 12(b)(1) motion to dismiss is not converted into a motion for summary
judgment, district courts “should apply the standard applicable to a motion for summary
judgment, under which the nonmoving party must set forth specific facts beyond the pleadings
to show that a genuine issue of material fact exists.” Richmond, Fredericksburg & Potomac
R.R. Co., 945 F.2d at 768. Only when “the material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of law” should the Court grant the motion. Id.
b. Rule 12(b)(6)
A motion to dismiss for failure to state a claim upon which relief can be granted
challenges the legal sufficiency of a claim, rather than the facts supporting it. Fed. R. Civ. P.
12(b)(6); Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007); Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). A court ruling on a Rule 12(b)(6) motion
must accept all of the factual allegations in the complaint as true, see Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Warner v. Buck Creek Nursery, Inc., 149 F. Supp.
2d 246, 254-55 (W.D. Va. 2001), in addition to any provable facts consistent with those
allegations, Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), and must view these facts in the
light most favorable to the plaintiff, Christopher v. Harbury, 536 U.S. 403, 406 (2002).
To survive a motion to dismiss, a complaint must contain factual allegations sufficient to
provide the defendant with “notice of what the . . . claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
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(1957)). Rule 8(a)(2) requires the complaint to allege facts showing that the plaintiff’s claim is
plausible, and these “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 & n.3. The Court need not accept legal conclusions
that are presented as factual allegations, id. at 555, or “unwarranted inferences, unreasonable
conclusions, or arguments,” E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180
(4th Cir. 2000).
IV.
ANALYSIS
Because Streza brings this action pro se, the Court has liberally construed the
Complaint. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
a. CT and Rosenberg
As to CT and Rosenberg, the Complaint fails due to lack of subject matter jurisdiction.
Streza’s Complaint does not concern a federal question, nor is there diversity between the
parties. Therefore, there is no subject matter jurisdiction for this Court to hear the instant
matter.
Even if subject matter jurisdiction existed, which it does not, the Complaint still fails to
state a claim upon which relief can be granted. The Federal Rules of Civil Procedure require that
a complaint contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). Courts must liberally construe pro se complaints.
Gordon, 574 F.2d at 1151. Nevertheless, “[p]rinciples requiring generous construction of pro se
complaints are not . . . without limits.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th
Cir. 1985). Streza’s allegations fail to provide CT and Rosenberg with fair notice of the facts
upon which their liability rests. See Twombly, 550 U.S. at 544. The Complaint alleges that
Defendants’ conduct violated the FCRA with regard to loan servicing, foreclosure proceedings,
and loan origination. As a general matter, most of the allegations contained in the Complaint
include a significant number of legal conclusions and claims insufficiently supported by facts to
be nudged “across the line from conceivable to plausible.” Id. at 570. From the face of the
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Complaint, it is entirely unclear what cause of action is being asserted against CT and
Rosenberg. Streza’s allegations are unsupported by facts specific to Streza, herself, or to CT and
Rosenberg’s interactions with her regarding her mortgage loan. In fact, the Complaint does not
discuss CT or Rosenberg whatsoever. Therefore, as to CT and Rosenberg, Streza’s Complaint
fails to state a claim and must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).
Fed. R. Civ. P. 12(b)(6).
b. Fannie Mae
In Streza’s Complaint, she essentially alleges that Fannie Mae breached the provisions of
the FCRA by causing her real estate business to decline and her default on the note.
The text of Rule 8(a)(2) requires only a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). However, the Supreme Court
explained in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), that a complaint must
contain more than a formulaic recitation of the elements or bare legal conclusions in order to
survive a challenge under Federal Rule of Civil Procedure 12(b)(6). Twombly, 550 U.S. at 55556 (citing Fed. R. Civ. P. 12(b)(6)). Although detailed factual allegations are not needed, the
complaint must contain sufficient factual allegations to create more than a mere suspicion that
the plaintiff is entitled to relief. Id. at 555 (citing 5 C. Wright & A. Miller, Fed. Prac. & Proc. §
1216, pp. 235–236 (3d ed. 2004)). In other words, a complaint must contain plausible, rather
than merely speculative, grounds to infer the existence of each element of the cause of action.
See id. at 556.
Many of Streza’s allegations fail this standard either because they are undermined by
contradictory information in the Complaint or because they are merely bare legal conclusions.
For example, Streza admits that she was “very behind” on her mortgage. Compl. ¶ 28. Although
she admits that she refused an offered loan modification in 2010 because, she claims, the offered
modification was not reasonable, see id. ¶ 12 (admitting she was offered a modification and
elected not to accept it), she blames Fannie Mae in particular and the mortgage industry in
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general for creating the conditions that lead to the recession, which in turned caused her real
estate business to suffer. See e.g., id. ¶ 23 (stating, without further explanation, that Fannie Mae
“cook[s] its books, smooth[es] out earnings, and violat[es] 30 generally accepted accounting
principles”). The Complaint lodges many conclusory allegations against Fannie Mae, including,
without limitation, claims that Fannie Mae failed to properly gather loan documentation. Id. 15,
23-24. These allegations are simply unsupported by any additional factual material in the
Complaint and, to be taken as true, would require the Court to draw unsupported legal
conclusions regarding the adequacy of Fannie Mae’s conduct.
For these reasons, such
allegations raise only a speculative, rather than a plausible right to relief and, therefore, fail as a
matter of law.
To the extent that the Complaint includes allegations sufficient to meet the pleading
standard of Rule 8, the Court will now address those claims below.
i. Res Judicata
The bulk of the Complaint’s allegations center around Streza’s attempt to obtain a home
loan modification based on the appraised value of the Property. Fannie Mae characterizes these
allegations as a claim for violation of the Home Affordable Modification Program (“HAMP”) and
argues that Streza’s lawsuit against Fannie Mae is barred by res judicata. In sum, Fannie Mae
moves to dismiss the Complaint, arguing that Streza’s claims are barred because she brought
substantially similar allegations against parties in privity with one another before, which were
previously adjudicated.
“Motion to dismiss under the doctrine of res judicata are properly reviewed under the
standard for dismissal set forth in Federal Rule of Civil Procedure 12(b)(6). Walls v. Wells
Fargo Bank, N.A., No. 1:13CV623, 2013 WL 3199675, at *2 (E.D. Va. June 20, 2013).
Therefore, the court should assume that the facts alleged in the complaint are true and draw all
reasonable inferences in the plaintiff's favor. Id. Res judicata bars allegations which were
brought, and allegations which could have been brought, in the previous suit. Pueschel v.
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United States, 369 F.3d 345, 354 (4th Cir. 2004).
Res judicata applies when the following three elements are satisfied: “(1) a judgment on
the merits in a prior suit resolving (2) claims by the same parties or their privies and (3) a
subsequent suit based on the same cause of action.” Feliciano v. Reger Grp., No. 1:14CV1670,
2015 WL 1539617, at *2 (E.D. Va. Apr. 7, 2015) (quoting Aliff v. Joy Mfg. Co., 914 F.2d 39, 42
(4th Cir. 1990)). The Fourth Circuit has stated that “[T]he test for deciding ‘whether the causes
of action are identical for claim preclusion purposes is whether the claim presented in the new
litigation ‘arises out of the same transaction or series of transactions as the claim resolved by the
prior judgment.’” Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, (4th Cir. 2008) (quoting
Pittston Co. v. United States, 199 F.3d 694, 704 (4th Cir. 1999)) (internal quotations omitted).
“Newly articulated claims based on the same [transactional] nucleus of facts may still be subject
to a res judicata finding if the claims could have been brought in the earlier action.” Id. (quoting
Tahoe Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1078 (9th Cir.
2003)).
Regarding the first and third elements of res judicata, in Streza I, the majority of
Streza’s allegations centered on her attempt to obtain a loan modification. See Streza I, 2014
WL 3810363 at *6. Likewise, the instant suit raises claims regarding Streza’s attempt to obtain a
loan modification. As to the first element in particular, the Court, in Streza I, concluded that
Streza provided no legitimate basis on which to bring a claim for violation of HAMP and,
accordingly, dismissed the complaint with prejudice to the extent that it sought to bring such a
claim. Further, the Court also found that there is no guarantee in HAMP that a borrower will
receive a loan modification. See Streza I, 2014 WL 3810363 at *6. Additionally, the Court
confirmed that there is no private right of action under HAMP. Id. The alleged violations in the
instant matter emerge from the same conduct that gave rise to her other previously alleged
injuries, and therefore could have been brought in the previous suit. See Laurel Sand, 519 F.3d
at 163. Therefore, the first and third elements of res judicata are satisfied.
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As to the second element, to establish privity, some relationship must exist between the
parties so as to permit one party to assert the legal rights of the other in the original suit. Blick
v. Soundview Home Loan Trust 2006-WF1, No. 3:12CV062, 2013 WL 139191, at *4 (W.D. Va.
Jan. 10, 2013) aff'd, 521 F. App'x 207 (4th Cir. 2013). Fannie Mae, the owner of the loan, see
Compl. at ¶ 21, is in privity with BANA, the prior loan servicer because Fannie Mae would have
been able to assert its rights to enforce the Note in Streza I. “Virginia courts typically find
privity when the parties share a contractual relationship, owe some kind of legal duty to each
other, or have another legal relationship such as co-ownership.” Id. (quoting Columbia Gas
Transmission, LLC v. David N. Martin Revocable Trust, 833 F. Supp.2d 552, 558 (E.D. Va.
2011)). Privity exists in this case as Fannie Mae had a contractual relationship with BANA (now
Green Tree) regarding the servicing of the Note. See Compl. ¶ 21 (admitting that Fannie Mae
owns the Note).
Because all of Streza’s allegations either were brought or could have been brought in her
complaint filed in Streza I against the same parties or their privies, and those allegations were
adjudicated on the merits, res judicata applies and Streza’s Complaint will be dismissed.
ii. The Anti-Injunction Act, 28 U.S.C § 2883
Streza requests that the Court enter an order enjoining the Unlawful Detainer case and
enjoining Defendants from “conveying, selling, mortgaging or otherwise encumbering or
disposing the Property.” Compl. ¶¶ 36-37. Fannie Mae filed a complaint for unlawful detainer
against Streza in the Greensville County General District and obtained a judgment of possession
against Streza. Therefore, this issue is now moot.
iii. Declaratory Judgment and Monetary Damages
Streza requests that the Court “[e]nter declaratory judgment that the foreclosure sale
and Trustee’s Deed were void or voidable and should be put aside.” Compl. ¶ 39. However,
Streza is not entitled to a declaratory judgment because she fails to state a claim upon which
relief can be granted. Fed. R. Civ. P. 12(b)(6).
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A federal court may properly exercise jurisdiction in a declaratory judgment proceeding
when three essential elements are met: (1) the complaint alleges an ‘actual controversy’ between
the parties ‘of sufficient immediacy and reality to warrant issuance of a declaratory judgment;’
(2) the court possesses an independent basis for jurisdiction over the parties (e.g., federal
question or diversity jurisdiction); and (3) the court does not abuse its discretion in its exercise
of jurisdiction. Luther v. Wells Fargo Bank, N.A., No. 4:13CV072, 2014 WL 6451667, at *2
(W.D. Va. Nov. 17, 2014).
Here, there is no basis for the Court to award Plaintiff a declaratory judgment because
she fails to state a cause of action. See Luther, 2014 WL 6451667, at *2 (noting that there must
be a cause of action for the court to issue a declaratory judgment). Similarly, Streza’s claim for
monetary damages in the amount of $75,000 is deficient. Compl. ¶ 40. There are no facts to
support the conclusory allegation that the foreclosure proceedings or behavior by Fannie Mae
caused Streza pecuniary loss in the amount of $75,000.
c. Motion to Amend
Under Rule 15(a)(2), a party may amend its pleading with the opposing party’s written
consent or the court’s leave. Fed. R. Civ. P. 15(a)(2). The rule suggests that courts “should freely
give leave when justice so requires.” Id. This broad rule gives effect to the “federal policy in favor
of resolving cases on their merits instead of disposing of them on technicalities.” Laber v.
Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc) (citing Conley v. Gibson, 355 U.S. 41, 48
(1957)).
The Fourth Circuit has interpreted Rule 15(a) to mean that “leave to amend should be
denied only when the amendment would be prejudicial to the opposing party, there has been
bad faith on the part of the moving party, or the amendment would have been futile.” Laber,
438 F.3d at 426 (citing Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)).
Courts should only deny leave to amend on the grounds of futility when the proposed
amendment is clearly insufficient or frivolous on its face. See Johnson, 785 F.2d at 10. If,
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however, a court determines that the amendment would be futile, leave to amend may be
properly denied. See GE Inv. Private Placement Partners II v. Parker, 247 F.3d 543, 548 (4th
Cir. 2001). In order to avoid denial on the basis of futility, a party seeking to amend must meet
the requirements for the particular cause of action by plausibly alleging facts sufficient to
survive a motion to dismiss. See Pfizer v. Teva Pharms. USA, Inc., 803 F. Supp. 2d 459, 461
(E.D. Va. 2011).
Streza seeks to amend the complaint to “include the fact that the acceleration notice
received on February 6, 2015 from [attorney] Joseph Patry [sic] was after the foreclosure
conducted on October 7, 2015.” Mot. to Amend at 1. Based on the Motion to Amend, Streza
cannot overcome any of the deficiencies noted in the foregoing analysis.
The proposed
amendment is clearly insufficient and compels the determination by this Court that said
amendment would be futile. The Motion to Amend, therefore, will be denied as futile.
V.
CONCLUSION
For the foregoing reasons, the Court will GRANT CT’s Motion to Dismiss, ECF No. 13,
GRANT Rosenberg’s Motion to Dismiss, ECF No, 15, and GRANT Fannie Mae’s Motion to
Dismiss, ECF No. 18. The Complaint, accordingly, will be DISMISSED. Further, the Motion to
Amend will be DENIED, ECF No. 35.
Let the Clerk send a copy of this Memorandum Opinion to all counsel of record and to
Streza.
An appropriate Order shall issue.
___________________/s/________________
James R. Spencer
Senior U. S. District Judge
ENTERED this
19th
day of August 2015.
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