OPINION & ORDER
KATHERINE B. FORREST, District Judge.
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.
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 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 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,
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.)
II. LEGAL STANDARDS
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 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.
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. § 1367.
In counts three and five,
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).
Construing the pleading liberally, the last assignment occurred on February 8, 2013 when MERS, as nominee for Countrywide, assigned the Deed to BANA.
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 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.
State Law Claims
Plaintiff's state law claims are the only remaining claims.
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.