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Gresham v. Ocwen Loan Servicing, LLC

United States District Court, D. Delaware

December 17, 2018

ELISHA L. GRESHAM, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, et al., Defendants.

          Elisha L. Gresham - Pro Se

          Plaintiff David A. Dorey, Craig N. Haring, Blank Rome, LLP, Wilmington, DE - attorneys for Defendants

          MEMORANDUM OPINION

          NOREIKA, U.S. DISTRICT JUDGE

         Before 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.

         I. BACKGROUND

         Plaintiff filed this action against Ocwen, Atlantic Law Group, LLC ("Atlantic"), and Deutsche Bank (Germany) Regional Office[1] ("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 5-7).

         Plaintiff 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.[2] 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).

         In the 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[3]. (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. (Id.)

         The Court takes judicial notice of Plaintiffs chronological mortgage history from the publicly available New Castle County Recorder of Deeds[4] (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 Trust 2006-EQ1.

         II. LEGAL STANDARD

         A 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).

         When 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.

         "The 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).

         III. ...


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