United States District Court, D. Delaware
Genrette, New Castle, Delaware, Pro Se Plaintiff.
NOREIKA, U.S. DISTRICT JUDGE
Andrea Genrette (“Plaintiff), filed this action for
“a declaratory judgment, reapplication of debt
forgiveness, ” and pursuant to the False Claims Act, 31
U.S.C. § 3729. (D.I. 2). She appears pro se and
has been granted leave to proceed in forma pauperis.
(D.I. 4). Plaintiff asserts jurisdiction by reason of
diversity, 28 U.S.C. § 1332. The Court proceeds to
review and screen the matter pursuant to 28 U.S.C. §
owns real property in New Castle, Delaware. As alleged,
Defendant Bank of New York Mellon Trust, NA. (“Bank of
NY Mellon”) is a nationally chartered trust company
with offices throughout the United States that is
headquartered in Los Angeles, California, operates as a
subsidiary of The Bank of New York Mellon Corporation, and
acts as the Trustee for Residential Asset Mortgage Products,
Inc., Mortgage Asset-Backed Pass-Through Certificates Series
2004-RS8. (D.I. 2 ¶¶ 4, 5). Defendant Ocwen Loan
Servicing, LLC (“Ocwen”) is a for-profit entity
that offers residential mortgage loans and its loan servicing
includes customer service, collections, investor accounting,
escrow, loss mitigation, foreclosure, and property
disposition. (Id. ¶ 6). Ocwen is based in West
Palm Beach, Florida, and operates as a subsidiary of Ocwen
Financial Corp. (Id.).
purchased the real property at issue in 2004. (Id.
¶ 17). Plaintiff sought, and was granted, a loan
modification with previous servicer GMAC, but it was never
recorded. (Id. ¶¶ 19-20). Plaintiff
alleges that the debt forgiveness was removed by GMAC upon
approval of the 2010 loan modification and that GMAC reported
the deduction to the IRS in 2010. (Id. ¶ 59).
alleges that when Ocwen obtained servicing rights of the
underlying loan in February 2013, it acknowledged the
principal debt forgiveness, yet reapplied the $23, 954.82
and, without reason or justification, placed the amount back
on Plaintiff's outstanding balance. (Id.
¶¶ 31, 60). When the loan was transferred in 2013,
there was no verification or recordation of the balance,
terms, and conditions. (Id. ¶ 21). Plaintiff
alleges the amount - distinguishable from the 2010 principal
forgiveness amount of $23, 954.82 - was to be removed from
Bank of NY Mellon and Ocwen shortly after the transfer from
GMAC. (Id. ¶ 22). In 2014, the loan was
reinstated through settlement with the Delaware Housing
Authority due to a change in Plaintiff's employment and a
decrease in annual income. (Id. ¶ 23). In June
2014, settlement funds were paid to Ocwen on behalf of
Plaintiff's account. (Id. ¶ 23).
August 19, 2015, Plaintiff filed a Chapter 13 bankruptcy
petition. (Id. ¶ 27). On October 1,
2015, Bank of NY Mellon prepared, filed, and recorded an
assignment of mortgage transferring an interest in the real
property at issue to Bank of NY Mellon as trustee.
(Id. ¶ 24). Plaintiff contests the validity of
the assignment of mortgage. (Id. ¶ 25).
Plaintiff alleges that she tendered payments to Ocwen well
before the October 1, 2015 assignment, and it is impossible
for Bank of NY Mellon to have standing or an interest in the
property as of 2015 if Ocwen had been accepting payments.
(Id. ¶¶ 32-33). Plaintiff alleges that
Bank of NY Mellon, as trustee, was never properly assigned an
interest in the property and that the assignment is void as
being in contravention of the terms and conditions delineated
in the Pooling and Servicing Agreement. (Id.
¶¶ 34, 38). Plaintiff alleges that an actual
controversy exists between Plaintiff and Bank of NY Mellon as
to any rights or interests Bank of NY Mellon may have in the
subject property. (Id. ¶ 43).
Complaint alleges that Bank of NY Mellon filed a void
assignment of mortgage with the County Recorder's Office
and asserted an unlawful interest in the property at issue
knowing that it had no legal interest in the property.
(Id. ¶¶ 46-48). The Complaint alleges that
Bank of NY Mellon knew that the assignment was fraudulent as
a matter of law, knew at the time of recordation of the
assignment that Plaintiff was under Chapter 13 bankruptcy
protection, and attempted to perfect a post-petition title to
the property. (Id. ¶¶ 52-55).
I, raised against Bank of NY Mellon, seeks declaratory
judgment to deem the assignment of mortgage void as a matter
of law; Count II, raised against Bank of NY Mellon, alleges
violation of the False Claims Act, 31 U.S.C. § 3728; and
Count III, appears to be raised against Ocwen, and seeks
reapplication of the loan forgiveness amount.
federal court may properly dismiss an action sua
sponte under the screening provisions of 28 U.S.C.
§ 1915(e)(2)(B) if “the action is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief.” Ball v. Famiglio,
726 F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C.
§ 1915(e)(2) (in forma pauperis actions). The
Court must accept all factual allegations in a complaint as
true and take them in the light most favorable to a pro
se plaintiff. See Phillips v. County of
Allegheny, 515 F.3d 224, 229 (3d Cir. 2008);
Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because
Plaintiff proceeds pro se, her pleading is liberally
construed and her Complaint, “however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson, 551
U.S. at 94 (citations omitted).
action is frivolous if it “lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C.
§ 1915(e)(2)(B)(i), a court may dismiss a complaint as
frivolous if it is “based on an indisputably meritless
legal theory” or a “clearly baseless” or
“fantastic or delusional” factual scenario.
Neitzke, 490 U.S. at 327-28; see also Wilson v.
Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); Deutsch
v. United States, 67 ...