United States District Court, D. Delaware
ELISHA L. GRESHAM, Plaintiff,
OCWEN LOAN SERVICING, LLC, et al., Defendants.
L. Gresham - Pro Se
Plaintiff David A. Dorey, Craig N. Haring, Blank Rome, LLP,
Wilmington, DE - attorneys for Defendants
NOREIKA, U.S. DISTRICT JUDGE
the Court is Defendant Ocwen Loan Servicing, LLC's
("Ocwen") motion to dismiss (D.I. 50) Plaintiff
Elisha Gresham's Amended Complaint (D.I. 49) pursuant to
Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Plaintiff opposes the
motion. (D.I. 52). For the reasons set forth below, the Court
grants Defendant's motion to dismiss with respect to all
claims but one - the claim alleging violation of the Fair
Debt Collection Practices Act.
filed this action against Ocwen, Atlantic Law Group, LLC
("Atlantic"), and Deutsche Bank (Germany) Regional
Office ("Deutsche Bank") on February
28, 2017, alleging inter alia that Defendants
"intentionally and knowingly manipulate[ed] and
coerc[ed] [Plaintiff and her husband] to sign a 2nd set of
mortgage documents under duress" and then
"violate[d] and disregard[ed] all federal laws that
warrants orders for them to cease and desist all collection
and foreclosure efforts with regards to the property at
stake." (D.I. 2 at 8). Atlantic filed a motion to
dismiss on August 21, 2017. (D.I. 15). Defendants Ocwen and
Deutsche Bank jointly moved to dismiss on the same date.
(D.I. 16). Plaintiff filed a "Motion to Remove the
Defendant, Atlantic Law Group, LLC from this Case" on
September 18, 2017. (D.I. 24). The Court accepted the filing
as a "motion to voluntarily dismiss defendant" and
dismissed Atlantic from the case without prejudice on October
5, 2017. (D.I. 26). On February 5, 2018, the Court granted
the joint motion to dismiss filed by Ocwen and Deutsche Bank
pursuant to Fed.R.Civ.P. 12(b)(6) and provided Plaintiff with
leave to amend her pleadings. (D.I. 28). The Court reasoned
that Plaintiffs Complaint, listing "numerous statutes
and UCC documents," failed to state a claim upon which
relief could be granted because it: "[did] not identify
a particular defendant taking specific actions;"
"contain[ed] no facts to plead a cause of action under
any [of the statues of UCC documents];" sought to
improperly "impose criminal liability upon the
defendants" despite a lack of standing to do so; raised
several claims that were either time-barred or did not
include a private right of action; and failed to meet the
pleading standards for allegations of fraud. (Id. at
filed an Amended Complaint on July 30, 2018. (D.I. 49).
Plaintiffs Amended Complaint alleges that she was
"unknowingly schemed and tricked into a fictitious
mortgage by the defendants." (Id. at 1). The
caption of the Amended Complaint refers to "OCWEN LOAN
SERVICING, LLC, et al" but does not name any other
defendant. Similarly, the text of the Amended Complaint
states "Defendant is Ocwen Loan Servicing, LLC, et
al," and does not name or identify any actions taken by
any other purported defendant with respect to
Plaintiff. Plaintiff alleges that: "[b]etween
2006 and 2009 the defendants telephoned the plaintiffs
[sic];" defendants "gave a false impression"
that they were a representative of Plaintiffs mortgage
company; told Plaintiff she needed "to quickly sign some
papers which would validate the completion of plaintiffs
mortgage;" Defendant knew of and exploited
"plaintiffs ignorance" to get her to sign a new
mortgage; and Plaintiff contacted Defendant on numerous
occasions in an attempt to discuss and rectify the situation
but was given "the run a around [sic];"
(Id. at 3). The Amended Complaint adds that it is
"important to note that, the mortgage company during
that time was Saxon Loan Servicing Company which, is who the
current defendants say they obtained the plaintiffs property
loan from." (Id. at 4).
Amended Complaint itself, Plaintiff alleges violations of 18
U.S.C. § 1341 (wire fraud) and 18 U.S.C. § 1001
(false statements) and notes that the charges are continued
in one of her attachments. (Id. at 2). Plaintiff
also attaches, and incorporates by reference, a letter sent
to the Court on February 13, 2018 identifying the following
claims: (1) 18 U.S.C. § 1961, et seq., RICO;
(2) 15 U.S.C. § 2301, et seq., Magnuson-Moss
Warranty Act ("MWWA"); (3) 18 U.S.C. § 1341,
et seq., mail and wire fraud; (4) 15 U.S.C. §
1601, et seq., Truth In Lending Act
("TILA"); (5) 15 U.S.C. § 1681, et
seq., Fair Credit Reporting Act ("FCRA"); (6)
15 U.S.C. § 1692, et seq., Fair Debt Collection
Practices Act ("FDCPA"); (7) 12 U.S.C. § 2605,
Real Estate Settlement Procedures Act ("RESPA");
(8) 15 U.S.C. § 1639, Home Ownership Equity Protection
Act ("HOEPA"); (9) 15 U.S.C. § 1666, et
seq., Fair Credit Billing Act ("FCBA"); (10)
15 U.S.C. § 45(a), Federal Trade Commission Act
("FTC Act"); and (11) a number of UCC
Documents. (Id. at 10-19). In the letter,
Plaintiff also alleges facts purporting to show how the
Defendant violated each of the statutes and UCC documents.
Court takes judicial notice of Plaintiffs chronological
mortgage history from the publicly available New Castle
County Recorder of Deeds (1) on August 26, 1997 Plaintiff and
Gregory L Gresham ("Husband") entered into a
mortgage on the property at issue for $80, 930.00 with
Wilmington Trust Company ("WTC"); (2) on August 30,
1997, Plaintiff and Husband entered into a second mortgage on
the same property for $5, 000.00 with the New Castle County
Department of Community Development and Housing ("New
Castle"); (3) on August 4, 2005, Plaintiff and Husband
entered into another mortgage on the same property for $101,
289.12 with Beneficial Delaware, Inc.
("Beneficial"); (4) on August 24, 2005, Plaintiff
and Husband satisfied their mortgage with WTC; (5) on August
30, 2005, Plaintiff and Husband satisfied their mortgage with
New Castle; (6) on June 12, 2006, Plaintiff in Husband signed
a "Mortgage Subordination Agreement" with New
Castle Department of Community Services to subordinate a
current debt whereas the Plaintiff and Husband "[were]
about to borrow an additional sum . . ., secured by a
mortgage on and covering" the property at issue; (7) on
June 20, 2006, Plaintiff and Husband entered into a new
mortgage with Mortgage Electronic Registration Systems, Inc.
("MERS") for $149, 580.00 on behalf of EquiFirst
Corporation; (8) on July 7, 2006, Plaintiff and Husband
satisfied their mortgage with Beneficial; and (9) on March 2,
2009, MERS assigned its rights, for value, to Deutsche Bank
National Trust Company, as Trustee for Soundview Home Loan
complaint must contain "a short and plain statement of
the claim showing that the pleader is entitled to
relief." Fed.R.Civ.P. 8(a)(2). A well-pleaded complaint
must contain more than mere labels and conclusions. See
Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Ail.
Corp. v. Twombly, 550 U.S. 544 (2007). Given Plaintiffs
pro se status, her complaint is to be liberally
construed and "however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. 89, 94
(2007) (internal citation and quotation omitted).
reviewing a motion to dismiss pursuant to Rule 12(b)(6), the
Court conducts a two-part analysis. Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the
Court separates the factual and legal elements of a claim,
accepting "all of the complaint's well-pleaded facts
as true, but [disregarding] any legal conclusions."
Id. at 210-11. Second, the Court determines
"whether the facts alleged in the complaint are
sufficient to show... a 'plausible claim for relief"
Id. at 211 (quoting Iqbal, 556 U.S. at
679). A claim is facially plausible where "plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Iqbal, 556 U.S. at 678.
issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support
the claims." In re Burlington Coat Factory Sec.
Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The
Court may grant a motion to dismiss only if, after
"accepting all well pleaded allegations in the complaint
as true and viewing them in the light most favorable to
plaintiff, [the] plaintiff is not entitled to relief."
Id. "In deciding a Rule 12(b)(6) motion, a
court must consider only the complaint, exhibits attached to
the complaint, matters of public record, as well as
undisputed authentic documents if the complainant's
claims are based upon these documents." Mayer v.
Belichick, 605 F.3d 223, 230 (3d Cir. 2010).