# Williams v. Ocwen Loan Servicing, LLC

> District Court, E.D. New York · September 27, 2020

URL: https://www.frixlaw.com/law-library/cases/10304901

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 27, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10304901

## How later opinions describe it (automated extraction)

- Finding standing since “a Massachusetts real property mortgagor finds herself in an unusual position because... Massachusetts law permits foreclosure without prior judicial authorization”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------,
CHERYLE WILLIAMS,

Plaintiff, Memorandum & Order

-against- 19-CV-2187 (KAM)(LB)

OCWEN LOAN SERVICING, LLC,

Defendant.
--------------------------------------X
MATSUMOTO, United States District Judge:

On April 15, 2019, pro se plaintiff Cheryle Williams
(“plaintiff”) commenced this action against Ocwen Loan
Servicing, LLC, an entity succeeded through merger by PHH
Mortgage Corporation (“defendant” or “Ocwen”), alleging
violations of the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. § 1692, et seq., and Regulation Z of the Truth-in-
Lending Act (“TILA”), 15 U.S.C. § 1601, et seq. (Compl., ECF
No. 1.) On November 15, 2019, plaintiff filed a motion for
leave to amend her complaint, requesting permission to add a new
defendant, Deutsche Bank, and asserting causes of action
sounding in common law fraud and alleged violations of due
process related to an allegedly fraudulent mortgage and mortgage
assignment. (Id.; Pl. Mem. in Support of Mot. to Amend (“Pl.
Mot. to Am.”), ECF No. 31; Am. Compl., ECF No. 32.)
Presently before the court are two motions. The first
is a motion by defendant, seeking dismissal of the complaint
under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim. (Def. Mot. to Dis., ECF No. 26; Def. Mem. in
Support of Mot. to Dis. (“Def. Mem.”), ECF No. 27.) The second
is a motion by plaintiff, seeking leave to amend under Federal
Rule of Civil Procedure 15(a). (Pl. Mot. to Am., ECF No. 30.)
For the reasons detailed below, defendant’s motion to dismiss

this action is GRANTED and plaintiff’s motion to amend is
respectfully DENIED.
Background

I. Factual Background

a. Relevant Actors and Entities
On February 7, 2005, Plaintiff Cheryle Williams, a New
York State resident, and non-party Dolores Williams, executed a
mortgage on 124 Skiff Avenue, Unit G-11, Vineyard Haven, MA
02557 (“plaintiff’s property”). (See Compl. ¶¶ 12-13; Compl.,
Ex. A (the “mortgage assignment”).) On December 3, 2010, the
mortgage on the property was assigned from the original
mortgagee, Sand Canyon f/k/a Option One Mortgage Corporation
(“Sand Canyon”), to Deutsche Bank. (Compl. ¶ 12-13; Compl., Ex.
A.) A judgment was entered in a case before the Massachusetts
Land Court, allowing Deutsche Bank to foreclose on that same
property. (Id.; Pl. Aff., ECF No. 5; Pl. Mot. to Am. ¶¶ 9-14;
Deutsche Bank Nat. Trust Co. v. Williams, 18-SM-6098 (Mass. Land
Ct. 2018).)
Although plaintiff named Ocwen as the sole defendant
in her initial complaint, the proposed amended complaint seeks
to add Deutsche Bank Trust Company (“Deutsche Bank”) as Trustee
for Carrington Mortgage Loan Trust, Series 2005-OPT2, Asset-

Backed Pass-Through Certificate Series 2D05-OPT. (Am. Compl. ¶
3.) Deutsche Bank brought a successful suit in Massachusetts
Land Court to foreclose plaintiff’s property. (Compl. ¶ 13; Pl.
Mot. to Am. ¶ 10; Deutsche Bank Nat. Trust Co., 18-SM-006098.)
Deutsche Bank is also the assignee in the mortgage assignment
attached to plaintiff’s complaint. (Compl., Ex. A.) Ocwen is
the “non-bank servicer” of the loan. (Id. ¶ 10.)1
b. The Original and the Proposed Amended Complaint
The original complaint alleges that Ocwen attempted to
collect on a mortgage debt owed to plaintiff in violation of the
Fair Debt Collection Practices Act (“FDCPA”) and the Truth in

Lending Act (“TILA”). (Compl. ¶ 17.) The complaint attaches a
copy of a mortgage assignment, dated December 3, 2010, from Sand
Canyon to Deutsche Bank. (Compl., Ex. A.) Also attached is a
“cease and desist” letter from plaintiff, dated August 17, 2018,

1 The pleadings and the state court docket further demonstrate that
Deutsche Bank is the purported holder of the mortgage and the plaintiff in
Massachusetts Land Court, with Ocwen acting as a servicer of the debt. (Id.
at ¶¶ 10, 12-13; Pl. Mot. to Am. ¶¶ 9-14; Deutsche Bank Nat. Trust Co., 18-
SM-006098.)
alleging that the mortgage or mortgage assignment is fraudulent
and disputing the validity of the debt. (Compl., Ex. B.) The
complaint also attaches documents sent between Ocwen and
plaintiff in the months prior to the May 1, 2019 foreclosure
auction, including a “payoff quote” letter sent by Ocwen
summarizing the outstanding balance. (See Pl. Aff.; Pl. Aff.,

Ex. A.) Finally, the complaint includes a “Commercial
Affidavit,” arguing that: “Banks can not Lend Credit;” the
mortgage contract was without consideration; and that if
defendant Ocwen does not respond within 30 days it must “agree
to take no action against [plaintiff].” (Compl., Ex. C.)
In her proposed amended complaint, plaintiff alleges
that the assignment of the mortgage from the original mortgagee,
Sand Canyon, to Deutsche Bank, was invalid or “fraudulent.”
(See generally Am. Compl.; Pl. Mot. to Am.; Compl., Ex. A).
Plaintiff mentions various regulatory actions taken by
government agencies against Ocwen and Deutsche Bank in the past.

(See Am. Compl. ¶¶ 8-27; Am. Compl., Ex. A.) Plaintiff also
attaches a cease and desist letter from the Federal Reserve
Board of Governors identifying certain compliance and risk
management violations by Deutsche Bank and its affiliates. (See
Am. Compl., Ex. A.) Plaintiff does not describe how this letter
relates to the allegations or factual pleadings in the proposed
amended complaint. (Id.) Plaintiff also attaches a 2010 letter
from a Florida attorney claiming that a number of parties,
especially employees of an entity called Lender Processing
Services, Inc., allegedly produced hundreds of thousands of
fraudulent mortgage assignments for use in foreclosure actions.
(See Pl. Mot. to Am., Ex. A.) Plaintiff does not specify if or
how the letter relates to the specific mortgage assignment

challenged by the defendant that transferred the interest in the
property from Sand Canyon to Deutsche Bank. (See Compl., Ex.
A.)
II. Procedural History
Plaintiff filed this action pro se on April 15, 2019.
(See Compl.) Plaintiff filed a motion for a temporary
restraining order and preliminary injunction, seeking a stay on
a foreclosure auction scheduled for May 1, 2019, of the property
located at 124 Skiff Avenue, Unit G-11, Vineyard Haven, MA
02557. (Mot. for T. R. O. and Preliminary Injunction, ECF No.
4.) This court subsequently denied the motion for injunctive

relief. (Notice of Proposed Order, ECF No. 6; see ECF Docket
Order dated April 24, 2019.) On November 5, 2019, defendant
Ocwen filed the instant motion to dismiss for failure to state a
claim. (Def. Mot. to Dis., ECF No. 26.) On that same day,
plaintiff filed a motion for leave to amend the original
complaint. (Pl. Mot. to Am., ECF No. 30; Am. Compl., ECF No.
32.)
Legal Standard

I. Motion to Dismiss
On a motion to dismiss pursuant to Rule 12(b)(6), the
court accepts all well pleaded factual allegations in the
complaint as true and draws all reasonable inferences in favor
of the plaintiff. Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2002). The court is not obligated to accept any
legal conclusions as correct. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). In order to survive a motion to dismiss, the
complaint must include “sufficient factual matter...to ‘state a
claim to relief that is plausible on its face,’” Id. at 663
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id.
For the purposes of deciding a 12(b)(6) motion the

court may consider not only the pleadings themselves, but also
“(1) documents attached to the complaint as an exhibit or
incorporated in it by reference, . . . (2) matters of which
judicial notice may be taken, or . . . (3) documents either in
plaintiffs’ possession or of which plaintiffs had knowledge and
relied on in bringing suit,” assuming these documents are
“integral to the Complaint.” Chambers., 282 F.3d at 153; see
Int’l Audiotext Network, Inc. v. Am. Tel. and Tel. Co., 62 F.3d
69, 72 (2d Cir. 1995). These documents “include[e] documents
filed in a related state court foreclosure proceeding.”
Harriott v. Nationstar Mortg. LLC, 2018 U.S. Dist. LEXIS 141120,
at *2 (E.D.N.Y. Aug. 17, 2018); see Global Network Commc’ns,
Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006) (“A

court may take judicial notice of a document filed in another
court not for the truth of the matters asserted in the other
litigation but rather to establish the fact of such litigation
and related filings.”)
II. Motion to Amend
When considering a Rule 15 Motion to Amend, “[t]he
court should freely give leave when justice so requires.” Fed.
R. Civ. P. 15(a)(2). “Notwithstanding the liberality of the
general rule, it is within the sound discretion of the court
whether to grant leave to amend.” Copantitla v. Fiskardo
Estiatorio, Inc., 2010 U.S. Dist. LEXIS 33430, at *9 (S.D.N.Y.

Apr. 5, 2010) (citing John Hancock Mutual Life Insurance Co. v.
Amerford International Corp., 22 F.3d 458, 462 (2d Cir. 1994).
“[A] pro se plaintiff’s proposed amended complaint should be
construed to raise the strongest arguments it suggests.”
Grullon v. City of New Haven, 720 F.3d 133, 140 (2d Cir. 2013).
“Although district judges should, as a general matter,
liberally permit pro se litigants to amend their pleadings,
leave to amend need not be granted when amendment would be
futile.” Terry v. Inc. Vill. Of Patchogue, 826 F.3d 631, 633
(2d Cir. 2016) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000)). A proposed amendment is futile as a matter of law
when it “fail[s] to state a claim on which relief could be
granted.” Schmidt v. Stone, No. 14-CV-2519 (RJD) (CLP), 2018

U.S. Dist. LEXIS 15048, at *17 (E.D.N.Y. Jan. 29, 2018). As a
result, in determining whether a proposed amended complaint
would be futile, “[t]he court applies the same standard as that
for a motion to dismiss under Rule 12(b)(6)...when deciding
whether to grant leave to amend.” Id. (citing Konrad v. Epley,
No. 12-CV-4021, 2013 U.S. Dist. LEXIS 169091, 2013 WL 6200009,
at *20 (E.D.N.Y. Nov. 25, 2013); see Balintulo v. Ford Motor
Co., 796 F.3d 160, 164–65 (2d Cir. 2015) (“A proposed amendment
to a complaint is futile when it could not withstand a motion to
dismiss.”)
Discussion

The operative complaint charges that (1) Ocwen is a
debt collector that violated the FDCPA; and (2) Ocwen also
violated Regulation Z of the Truth-in-Lending Act. Plaintiff
seeks to amend the complaint to add Deutsche Bank as a defendant
and allege that Deutsche Bank: (1) fraudulently assigned her
mortgage; and violated her (2) “due process” rights for which
she demands a five million dollar remedy. For the foregoing
reasons, the court agrees with defendant that plaintiff’s
proposed amendment would be futile and thus denies plaintiff’s
motion to amend her complaint.
Plaintiff alleges that the assignment of the mortgage
was invalid or otherwise fraudulent and, as a result, neither
Ocwen nor Deutsche Bank had a right to collect on the loan.

(Am. Compl. ¶¶ 30-35.) Plaintiff alleges that Deutsche Bank
failed to abide by the closing date in the Pooling and Service
Agreement (“PSA”) and that consequently, the mortgage assignment
was invalid. (Am. Compl. ¶¶ 37-43.) Plaintiff also asserts the
assignment she attached to her original complaint was forged.
(Compl., Ex. A.; Am. Compl. ¶¶ 5-29; Pl. Mot. to Am., Ex. A.)
The documents plaintiff attaches, however, largely fail to
relate to the assignment of her mortgage and relate instead to
regulatory and compliance deficiencies at Ocwen and Deutsche
Bank. (Id., Exhs. A, B.) Finally, plaintiff asks for five
million dollars in damages for an unspecified harm. (Id. at ¶

36.) The court assumes the request for monetary damages is
related to the alleged error in the assignments, fraud, or the
unspecified violation of plaintiff’s due process rights under
the Fifth and Fourteenth Amendments, as alleged in the
complaint. (Id. ¶¶ 2-3.) Defendants argue that plaintiff lacks
standing to challenge the validity of a mortgage assignment,
that the court lacks subject matter jurisdiction to disturb the
state court judgment pursuant to the Rooker-Feldman doctrine,
and that plaintiff cannot sustain a fraud claim against
defendant. The court addresses each argument in turn.
I. Futility of the Proposed Amendment
a. Plaintiff Lacks Standing to Challenge the Validity
of a Mortgage Assignment

Defendant argues that plaintiff lacks standing to
bring a third-party challenge to the validity of an assignment,
given that assignments are agreements to transfer a debt between
two creditors that do not affect the obligation of plaintiff,
the mortgagor, to pay. (See Def. Reply, ECF No. 34 at 5-7.)
The court agrees. The only specific allegations plaintiff
levels regarding the assignment’s validity is that Deutsche Bank
violated the closing date mandated by the Pooling Services
Agreement (“PSA”). (Am. Compl. ¶¶ 37-43.)
Plaintiff does not have standing to allege violations
of the PSA2. See Rajamin v. Deutsche Bank Nat. Tr. Co., 757 F.3d

2 The property that is the subject of the assignment lies in
Massachusetts. (Compl. ¶ 13.) The law in the First Circuit occasionally
allows for third-party challenges to assignments. See Culhane v. Aurora Loan
Servs. of Nebraska, 708 F.3d 282, 290 (1st Cir. 2013) (Finding standing since
“a Massachusetts real property mortgagor finds herself in an unusual position
because... Massachusetts law permits foreclosure without prior judicial
authorization”). However, even the Culhane exception does not support
standing for the instant plaintiff, because it is limited to cases where the
mortgagor alleges the assignment is void. Id. “[A] void mortgage assignment
is one in which the putative assignor ‘never properly held the mortgage and,
thus, had no interest to assign.’” Wilson v. HSBC Mortg. Servs., Inc., 744
F.3d 1, 10 (1st Cir. 2014) (quoting Culhane, 708 F.3d at 291). The exception
does not apply when the plaintiff merely alleges that the assignment of the
mortgage is “voidable.” Woods v. Wells Fargo Bank, N.A., 733 F.3d 349, 354
(1st Cir. 2013) (Voidable claims are “claims that merely assert procedural
infirmities in the assignment of a mortgage, such as a failure to abide by
the terms of a governing trust agreement”).
79, 84 (2d Cir. 2014) (noting that “[t]he weight of caselaw
throughout the country holds that a non-party to a PSA
lacks standing to assert noncompliance with the PSA as a claim
or defense unless the non-party is an intended...third party
beneficiary of the PSA”)(citing Rajamin v. Deutsche Bank
National Trust Co., No. 10-CV-7531, 2013 WL 1285160, at *3–4

(S.D.N.Y. Mar. 28, 2013)); Karamath v. U.S. Bank, N.A., 2012 WL
4327613, at *7 (E.D.N.Y. Aug. 29, 2012), adopted by 2012 WL
4327502 (E.D.N.Y. Sept.20, 2012) (“[P]laintiff is not a party to
the PSA or to the Assignment of Mortgage, and is not a third-
party beneficiary of either, and therefore has no standing to
challenge the validity of that agreement or the assignment”);
Boco v. Argent Mortg. Co, LLC, No. 13-CV-1165 (DLI)(CLP), 2014
WL 1312101, at *3 (E.D.N.Y. Mar. 31, 2014); Berezovskaya v.
Deutsche Bank Nat. Tr. Co., No. 12-CV-6055 (KAM), 2014 WL
4471560, at *8 (E.D.N.Y. Aug. 1, 2014) (“[E]ven assuming that

Here, plaintiff alleges the assignment is invalid because
Deutsche Bank failed to abide by the closing date in the Pooling and Service
Agreement. (Am. Compl. ¶¶ 37-43; Pl. Mot. to Am., Ex. A.) Plaintiff,
however, does not allege that Sand Canyon, the original holder of the note
and assignor to Deutsche Bank, never held the mortgage. (Id.) Though this
court does not purport to issue a ruling on law in the First Circuit, on the
facts alleged, plaintiff would likely not have a basis for standing even in
Massachusetts. See Halacy v. Wells Fargo Bank, N.A., No. CIV.A. 12-11447-TSH,
2013 WL 6152351, at *3 (D. Mass. Nov. 21, 2013) (“while a mortgagor
has standing in limited circumstances to challenge an assignment of his
mortgage, he cannot invoke the terms of PSA to challenge an otherwise
valid assignment”); Orellana v. Deutsche Bank Nat. Tr. Co., No. CIV.A. 12-
11982-NMG, 2013 WL 5348596, at *5 (D. Mass. Aug. 30, 2013) (“[C]ourts have
held that a plaintiff lacks standing to challenge an assignment to a trust
that occurred after its closing date.”) (internal quotation omitted).
Moreover, Plaintiff has not explained whether her current allegation
regarding the assignment was raised in the Massachusetts foreclosure action.
the transfer of the CEMA to the Trust took place after
the closing date set forth in the PSA, this would render the
transfer merely voidable at the election of either party to
the PSA, not void. Most importantly, this transfer is not
subject to a challenge by plaintiff, who is not a party to
the PSA.”); In re Lake Charles Retail Dev. LLC, No. 13-44093

(NHL), 2014 WL 4948234, at *9 (Bankr. E.D.N.Y. Sept. 30, 2014)
(Finding that “because the Debtor predicates its claims for
relief on an alleged failure to comply with the PSA, the
Complaint is dismissed”).
The court agrees with defendant that plaintiff lacks
standing to bring a claim alleging a violation of the PSA, and
thus her motion to amend would be futile.
c. The Court Lacks Subject Matter Jurisdiction Pursuant
to the Rooker-Feldman Doctrine

Plaintiff argues in her proposed amended complaint
that Deutsche Bank lacked standing to bring the Massachusetts
foreclosure action and asks this court to effectively invalidate
the state court proceeding. (Compl. ¶ 13; Am. Compl. ¶¶ 29, 36,
48.) A judgment was entered against plaintiff in Massachusetts
Land Court on December 14, 2018, about five months before the
commencement of this action. (See Deutsche Bank Nat. Trust Co.,
18-SM-006098; Compl. ¶ 13; Pl. Mot. to Am. ¶ 10.) To the extent
that plaintiff requests that this court exercise jurisdiction
over any issue in the Massachusetts Land Court adjudication,
this court lacks subject matter jurisdiction pursuant to the
Rooker-Feldman doctrine. “Four requirements must be met for the
doctrine to apply: (i) the federal court plaintiff must have
lost in state court, (ii) the plaintiff must complain of
injuries caused by a state court judgment, (iii) the plaintiff

must invite district court review and rejection of that
judgment, and (iv) the state court judgment must have been
rendered before the district court proceedings commenced.”
Pennicott v. JPMorgan Chase Bank, N.A., No. 16 CV 3044 (VB),
2018 WL 1891312, at *3 (S.D.N.Y. Apr. 18, 2018). All of the
foregoing factors are satisfied here.
The court must dismiss plaintiff’s claim that Deutsche
Bank lacked standing or was otherwise ineligible to bring the
state court foreclosure action. See Rockwood v. Cenlar FSB, No.
17-CV-10153 (VB), 2018 WL 2122820, at *3 (S.D.N.Y. May 8, 2018)
(“Rooker-Feldman bars claims that ask a court to find a

defendant lacked standing to pursue foreclosure in a prior state
court action, because such claims require a court to sit in
review of the state court judgment.”). The allegations of fraud
in relation to allegedly forged documents are also the exact
type of collateral attack prohibited by Rooker-Feldman. Gifford
v. United N. Mortg. Bankers, Ltd., No. 18-CV-6324(PAE)(HBP),
2019 WL 2912489, at *8 (S.D.N.Y. July 8, 2019) (“[P]laintiff’s
allegation that defendants engaged in fraudulent conduct by
presenting the state court with allegedly ‘void’ and ‘forged’
documents does not save her proposed fraud claims because ‘if
the court were to accept the plaintiff’s claim that the loan
documents were forged, the court’s ruling would necessitate a
finding that the judgment of foreclosure and sale was

erroneously entered, and thus, void which ... is precisely the
result that the Rooker-Feldman doctrine seeks to avoid.’”)
(quoting Ashworth v. Boggio, 15-CV-948 (JFB)(ARL), 2016 WL
4398956 at *5 (E.D.N.Y. July 26, 2016) (Report &
Recommendation), adopted at, 2016 WL 4399311 (E.D.N.Y. Aug. 15,
2016)). Because this court lacks jurisdiction to consider and
rule on matters that were decided by an earlier state court
proceeding, plaintiff’s claims are futile and her motion to
amend is denied.
c. Fraud Claims
Plaintiff makes a series of fraud claims throughout

her proposed amended complaint against both Deutsche Bank and
Ocwen. (See generally Am. Compl.) Plaintiff alleges that the
signatures on the mortgage assignment to Deutsche Bank were
“forged” and alleges in conclusory language that Deutsche Bank
has engaged in fraud. (Am. Compl. ¶¶ 30-32.) In support of her
claim, plaintiff references a series of regulatory actions
against the original and proposed defendants. These include an
investigation by the Multi-State Mortgage Committee, which found
deficiencies in Ocwen’s management and regulatory compliance
systems. (Am. Compl. ¶¶ 7-24.) Plaintiff also references a
lawsuit filed by the Consumer Financial Protection Bureau
against Ocwen. (Id. ¶¶ 25-28.) Plaintiff does not explain the
connection between these government actions and the instant case

other than to allege that they “go[] to the credibility of
Defendant Ocwen.” (Id. ¶ 27.) Plaintiff attaches a cease and
desist order filed by the Federal Reserve Board of Governors
identifying shortcomings in Deutsche Bank’s risk management
practices. (Am. Compl., Ex. A.) In plaintiff’s memorandum in
support of her amendment, she includes a letter written by one
Lynn E. Szymoniak, Esq. to the Securities and Exchange
Commission in 2010. (Pl. Mot. to Am., Ex. A.) This letter
alleges that a mortgage default management company had its
employees masquerade as employees of lenders, including Deutsche
Bank and Sand Canyon, in order to fraudulently recreate lost or

invalid assignments. (Id.) The letter does not allege that the
lenders themselves committed fraud, but instead that companies
they hired to process assignments conducted the fraud by
creating documents that were not “in recordable form.” (Id.)
The letter claims the Trusts would have to incur millions of
dollars replacing fraudulent assignments or litigating
foreclosure cases where there were missing assignments. (Id.)
The letter also makes legal arguments that these assignments
would be insufficient to enforce a foreclosure action. (Id.)
There is no discernable, specific connection between the 2010
letter and the instant case.
Plaintiff’s proposed amended pleading is insufficient
to state a fraud claim under New York law. The elements of a

common law fraud claim are: “(1) a material, false
representation, (2) an intent to defraud thereby, and (3)
reasonable reliance on the representation, (4) causing damage to
the plaintiff.” Knox v. Countrywide Bank, 4 F. Supp. 3d 499,
509 (E.D.N.Y. 2014) (quoting Chanayil v. Gulati, 169 F.3d 168,
171 (2d Cir.1999)); see also Woods v. Wells Fargo Bank, N.A.,
733 F.3d 349, 357 (1st Cir. 2013). Reading the proposed
pleading in the light most favorable to the pro se plaintiff,
plaintiff argues that the assignment of the mortgage was
fraudulent or that the mortgage itself was fraudulent, and
supports that assertion with the “false representation” of the

assignment document. (See Compl., Ex. A.) Plaintiff has not,
however, presented particularized facts that could support a
claim that Ocwen or Deutsche Bank made material false
representations to her, had “intent to defraud” her, or that she
“reasonably relied” on their representations, and provides no
specific explanation of what damage she suffered other than the
foreclosure action in state court. (Am. Compl. ¶ 29.)
Furthermore, plaintiff has not pled the elements of a
fraud claim with sufficient particularity. “Federal Rule of
Civil Procedure 9(b) imposes a heightened pleading
standard...requiring that ... [p]laintiffs’ allegations must (1)
specify the statements that the plaintiff contends were
fraudulent, (2) identify the speaker, (3) state where and when

the statements were made, and (4) explain why the statements
were fraudulent” for each element of the fraud claim. Zutel v.
Wells Fargo Bank, N.A., No. 12-CV-3656 (RRM)(VMS), 2014 WL
4700022, at *6 (E.D.N.Y. Sept. 22, 2014) (internal quotation
omitted); see Fed. R. Civ. P. 9(b). Plaintiff has failed to
meet this standard in her current and proposed amended
complaints. See Ocampo v. JP Morgan Chase Bank, N.A., 93 F.
Supp. 3d 109, 119 (E.D.N.Y. 2015) (“Plaintiffs...merely assert
in a conclusory fashion that the copies of the documents sought
to be recorded...were forgeries. Thus...Plaintiffs fail to state
a claims [sic] for forgery, and [the court] grants Defendant's

motion to dismiss...”); Levin v. Am. Document Servs., LLC, No.
17-CV-1285 (JMA)(AYS), 2019 WL 3883640, at *8 (E.D.N.Y. June 25,
2019), Report and Recommendation adopted, No. 17-CV-1285
(JMA)(AYS), 2019 WL 3859402 (E.D.N.Y. Aug. 16, 2019)
(“Plaintiffs base their claim of fraud on their contention that
the assignment ‘bears false signature.’ However, Plaintiffs are
not parties or beneficiaries to the assignment...Thus,
misrepresentations as to the manner of assignment would not make
any difference.”).
Plaintiff’s motion to amend to include claims of fraud
and is futile and therefore denied.
II. Defendant’s Motion to Dismiss FDCPA and TILA Claims in
the Operative Complaint

Having denied plaintiff’s motion to amend for
futility, the court next evaluates defendant’s motion to dismiss
plaintiff’s operative complaint. Because plaintiff fails to
state a claim for reasons to be discussed, defendant’s motion to
dismiss is granted.
a. Fair Debt Collection Practices Act Claim
In the context of the FDCPA, the court evaluates debt
collection communications from the perspective of the “least
sophisticated consumer.” See Russell v. Equifax A.R.S., 74 F.3d
30, 34 (2d Cir. 1996) (“[T]he test is how the least
sophisticated consumer — one not having the astuteness of a
‘Philadelphia lawyer’ or even the sophistication of the average,
everyday, common consumer — understands the notice he or she
receives”); Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d
85, 90 (2d Cir. 2008) (“The purpose of the least-sophisticated-
consumer standard, here as in other areas of consumer law, is to
ensure that the statute protects the gullible as well as the
shrewd.”).
Debt collectors may be liable for failing to meet the
statutory requirements for debt collection letters or for
sending “false or misleading” communications to the debtor. 15
U.S.C. § 1692g(a)-(b); 15 U.S.C. § 1692e. Liberally construing
plaintiff’s pleadings as the law requires, plaintiff appears to
attempt to allege violations of 15 U.S.C. § 1692g and 15 U.S.C.

§ 1692e in her complaint. (See Compl. ¶¶ 14, 18.)
“To state a claim under the FDCPA, a plaintiff must
allege that (1) plaintiff is a consumer, (2) defendant is a debt
collector, and (3) the defendant has engaged in any
act or omission in violation of FDCPA requirements.” Fraser v.
Aames Funding Corp., No. 16-CV-448 (AMD)(LB), 2017 U.S. Dist.
LEXIS 10491, at *11 (E.D.N.Y. Jan. 23, 2017). First, the
parties agree that plaintiff is a “consumer” under the meaning
of the statute. (Compl. ¶ 1; Def. Mem. at 5.) “The term
‘consumer’ means any natural person obligated or allegedly
obligated to pay any debt.” (15 U.S.C. § 1692(a).

Second, typically the owner of a mortgage cannot be
considered a debt collector under the FDCPA because
“the FDCPA limits its reach to those collecting the dues ‘of
another’ and does not restrict the activities of creditors
seeking to collect their own debts.” Somin v. Total Cmty. Mgmt.
Corp., 494 F. Supp. 2d 153, 159 (E.D.N.Y. 2007) (citing Maguire
v. Citicorp Retail Services, Inc., 147 F.3d 232, 235 (2d Cir.
1998)). Ocwen could be considered a debt collector if it was
servicing a debt that was not its own and if that debt was in
default at the time it was assigned. In re Jacques, 416 B.R.
63, 75 (Bankr. E.D.N.Y. 2009) ("[T]he FDCPA does not apply to
mortgage servicing companies unless the mortgage at issue was
already in default at the time when servicing began") (emphasis

added); Cummins v. Select Portfolio Servicing, Inc., No. 14-CV-
5121 (MKB)(LB), 2016 U.S. Dist. LEXIS 113565, at *17 (E.D.N.Y.
Aug. 23, 2016) (“[A]n entity collecting or attempting to collect
any debt owed to another is treated as a debt collector if the
debt sought to be collected was in default at the time the debt
was obtained.”). The pleadings allege that Ocwen serviced the
debt on behalf of Deutsche Bank. (Compl. ¶ 10; see generally
Am. Compl.) The original complaint alleges that the mortgage
was in default on the date Ocwen attempted to collect on it.
(Compl. ¶¶ 12-13.) Although the complaint claims that defendant
“attempted to collect...after default,” plaintiff does not

specify when plaintiff defaulted or when Ocwen attempted to
collect. (Id. ¶ 12.) While unclear, plaintiff may be
referencing a debt collection letter not provided in the
pleadings, which she references in an August 17, 2018 cease and
desist letter. (Compl., Ex. B.)3 Construing the complaint in

3 Plaintiff may also be referencing a letter dated February 19, 2019, sent
by Ocwen shortly before the foreclosure auction, summarizing her outstanding
mortgage balance in a “payoff quote” letter with language in the footer
the light most favorable to the plaintiff, it is “plausible”
that Ocwen is a debt collector under the definition of the act.
See, e.g., Pereira v. Ocwen Loan Servicing, LLC., No. 11-CV-2672
(SJF) (ETB), 2012 U.S. Dist. LEXIS 56044, at *7 (E.D.N.Y. Mar.
12, 2012) (given a dearth of information about the status and
ownership of the debt, the court found it “plausible that Ocwen

was servicing the mortgage loan and is therefore considered a
debt collector within the meaning of the FDCPA.”).
Third, drawing all favorable inferences that plaintiff
is a consumer, and that Ocwen may be considered a debt
collector, plaintiff has failed to sufficiently plead that “the
defendant has engaged in any act or omission in violation of
FDCPA requirements” under 15 U.S.C. § 1692g. See Fraser, LEXIS
10491, at *11. Section 1692g “was enacted to eliminate the
recurring problem of debt collectors dunning the wrong person or
attempting to collect debts which the consumer has already
paid.” Ellis v. Solomon & Solomon, P.C., 591 F.3d 130, 134 (2d

Cir. 2010) (internal quotations omitted). In order to prevent
such errors, Section 1692g(a) requires that a proper debt
collection notice include the following information:
(1) the amount of the debt; (2) the name of the
creditor to whom the debt is owed; (3) a statement
that unless the consumer, within thirty days after
receipt of the notice, disputes the validity of the

indicating that Ocwen is attempting to collect on the debt. (See Pl. Aff.,
Ex. C.)
debt, or any portion thereof, the debt will be assumed
to be valid by the debt collector; (4) a statement
that if the consumer notifies the debt collector in
writing within the thirty-day period that the debt, or
any portion thereof, is disputed, the debt collector
will obtain verification of the debt or a copy
of a judgment against the consumer and a copy of such
verification or judgment will be mailed to the
consumer by the debt collector; and (5) a statement
that, upon the consumer's written request within the
thirty-day period, the debt collector will provide the
consumer with the name and address of the original
creditor, if different from the current creditor.

15 U.S.C. § 1692g(a). Plaintiff fails to make any specific
allegations about any alleged deficiencies in any debt
collection document(s). (See generally Compl.) Plaintiff
provides her own cease and desist letter, dated August 17, 2018,
the first sentence of which asserts “you have chosen not to
respond to my request for a valid proof of claim.” (Compl., Ex.
A.) Plaintiff also attaches a “Payoff Quote” sent by Ocwen on
February 19, 2019, that allegedly functioned as an attempt to
collect a debt against the instant property. (Pl. Aff., Ex. C.)
However, it appears that the funds to be reclaimed were against
the property itself before the foreclosure auction and after a
judgment was entered in state court in the foreclosure action.
Id. As the court previously held, the court lacks jurisdiction
to consider collateral challenges to state foreclosure
proceedings. (See ECF Docket Order dated April 24, 2019.)4

4 This is afforded more thorough treatment in this court’s discussion of
the Rooker-Feldman doctrine, supra.
Further, plaintiff has not alleged that she disputed
the debt within the thirty day window. In order to dispute the
validity of a debt under § 1692g, a plaintiff must dispute it
within thirty days of receipt of the collection letter. 15
U.S.C. § 1692g(a)(3); Ritter v. Cohen & Slamowitz, LLP, 118 F.
Supp. 3d 497, 500 (E.D.N.Y. 2015). Even drawing a favorable

inference that plaintiff in fact disputed the validity of the
debt she referenced in her August 17, 2018 letter, she supplies
no dates for defendant’s response. (Compl., Ex. B.) This
deficiency is fatal to plaintiff’s claim. See Bonner v. The
Bank of New York Mellon, No. 15-CV-3280 (SJF)(GRB), 2016 WL
1426515, at *4 (E.D.N.Y. Feb. 22, 2016) (“[A]lthough [plaintiff]
alleges that he repeatedly requested that the Collection
Defendants verify the questioned debts, he does not allege that
he made any of these requests within the thirty day time window
...Without such factual pleading, it is entirely speculative,
and not ‘plausible,’ that Plaintiff has a cognizable claim)

(quoting Agu v. Rhea, No. 09-CV-4732 (JS)(AKT), 2010 WL 5186839,
at *5 (E.D.N.Y. Dec. 15, 2010).
Plaintiff sent a “Conditional Acceptance for Value and
Counter Offer/Claim for Proof of Claim” asking for confirmation
of the validity of a claimed debt on April 1, 2019. (Pl. Aff.,
Exhs. C, D.) Plaintiff claims defendant sent her a collection
notice on March 1, 2019, exactly one month before plaintiff’s
April 1, 2019 letter. (Pl. Aff., Ex. C.) Plaintiff, however,
proffers Ocwen’s February 19, 2019 letter, assuming it can be
construed as a collection notice, informing plaintiff of her
outstanding mortgage balance. (Id.) When considering a motion
to dismiss, “[i]f a document relied on in the complaint
contradicts allegations in the complaint, the document, not the

allegations, control[s], and the court need not accept the
allegations in the complaint as true.” Roberts v. Bliss, 229 F.
Supp. 3d 240, 248 (S.D.N.Y. 2017) (quoting Poindexter v. EMI
Record Grp. Inc., No. 11-CV-559, 2012 WL 1027639, at *2
(S.D.N.Y. Mar. 27, 2012)). Consequently, the court finds that
even if the court were to construe defendant’s February 19, 2019
letter as a collection notice, plaintiff did not respond until
April 1, 2019, well outside the thirty day window.
The court also cannot find that the plaintiff
plausibly alleges “[t]he use of any false representation or
deceptive means to collect or attempt to collect any debt or to

obtain information concerning a consumer” by defendant. 15
U.S.C. § 1692e(10); Easterling v. Collecto, Inc., 692 F.3d 229,
233 (2d Cir. 2012)(under the least sophisticated consumer
standard “collection notices can be deceptive if they are open
to more than one reasonable interpretation, at least one of
which is inaccurate”). The cease and desist letter sent by
plaintiff to defendant cannot serve as the basis for a claim,
since “[t]he FDCPA's protections are not triggered by
communications initiated by someone other than the debt
collector.” Boyd v. J.E. Robert Co., No. 05-CV-2455 (KAM)(RER),
2010 WL 5772892, at *13 (E.D.N.Y. Mar. 31, 2010).
Because plaintiff cannot state a claim on which relief
can be granted, defendant’s motion to dismiss plaintiff’s FDCPA

claims is granted.
b. Truth in Lending Act Claim
Plaintiff alleges a violation of Regulation Z of the
Truth in Lending Act (“TILA”) by defendant, stemming from
defendant’s purported failure to respond to plaintiff’s letters
seeking validation of funds and other unspecified failures to
disclose information. (Compl. ¶ 17.) These are substantially
the same facts that underlie plaintiff’s FDCPA claim. (See
generally, id.) It is unclear what remedy plaintiff seeks for
the alleged violation of TILA, although the court, reading the
pleadings in the light most favorable to the plaintiff, assumes

that plaintiff is seeking to rescind the loan and/or claim
monetary damages. (Id. ¶ 17.)
First, plaintiff’s TILA claim is time barred.
Borrowers have an unconditional right to rescind particular
types of loans up to three days after the loan transaction is
consummated. 15 U.S.C. § 1635(a); see Smith v. Wells Fargo
Bank, N.A., 666 F. App'x 84, 85 (2d Cir. 2016). If plaintiff
alleges that the disclosures required by statute were never
provided, she may assert a claim for rescission within three
years after the closing. Id. at § 1635(f); Jesinoski v.
Countrywide Home Loans, Inc., 574 U.S. 259, 260 (2015). The
documents provided in the pleadings indicate that the instant
loan was closed on February 7, 2005, over 14 years before the

commencement of this suit. (Compl., Ex. A.) Plaintiff’s TILA
claim for recission is well outside of the eligible time window5.
The statute of limitations may not be tolled in this
case. “Equitable tolling is available in ‘rare and exceptional
circumstances,' where the court finds that ‘extraordinary
circumstances' prevented the party from timely performing a
required act, and that the party ‘acted with reasonable
diligence throughout the period he sought to toll.’” Williams
v. Aries Fin., LLC, No. 09-CV-1816 (JG)(RML), 2009 WL 3851675,
at *6 (E.D.N.Y. Nov. 18, 2009)(alterations omitted) (quoting
Walker v. Jastremski, 430 F.3d 560, 563 (2d Cir.2005)).

Equitable tolling is only available when: “(1) the defendant

5 The right of rescission under the Truth in Lending Act is not available
for residential mortgages. Grimes v. Fremont Gen. Corp., 785 F. Supp. 2d
269, 284 (S.D.N.Y. 2011) (citing Ng v. HSBC Mortg. Corp., No. 07–CV–5434,
2010 WL 889256, at *2 (E.D.N.Y. Mar. 10, 2010)). However, because plaintiff
does not specify whether she bought and intended to use the property as a
home, the court cannot dismiss on this ground alone. See Nembhard v.
Citibank, N.A., No. 96–CV–3330, 1996 WL 622197, at *2 (E.D.N.Y. Oct. 22,
1996) (“[S]ince the complaint itself and the loan documents submitted as
exhibits to the complaint unambiguously state that the funds were used to
finance the acquisition of the home ... to be occupied by the plaintiff,”
there is no right of rescission under TILA) (emphasis added).
wrongfully concealed material facts relating to defendant's
wrongdoing; (2) the concealment prevented plaintiff's discovery
of the nature of the claim within the limitations period; and
(3) plaintiff exercised due diligence in pursuing the discovery
of the claim during the period plaintiff seeks to have tolled.”
Corcoran v. N.Y. Power Auth., 202 F.3d 530, 543 (2d Cir. 1999).

“In cases involving TILA, ‘the courts have held uniformly that
fraudulent conduct beyond the nondisclosure itself is necessary
to equitably toll the running of the statute of limitations.’”
Cardiello v. The Money Store, Inc., 2001 WL 604007, at *5
(S.D.N.Y. June 1, 2001) (emphasis added) (quoting Pettola v.
Nissan Motor Accept. Corp., 44 F.Supp. 2d. 442, 450
(D.Conn.1999)); Grimes, 785 F. Supp. 2d at 284; Gonzalez v. J.P.
Morgan Chase Bank, N.A., 228 F. Supp. 3d 277, 291 (S.D.N.Y.
2017). Plaintiff has provided no facts showing or supporting an
inference that defendants violated the disclosure requirements
of TILA, let alone facts which show fraudulent concealment

beyond the TILA violations. (See generally Compl.)
Plaintiff also has no damages remedy. A borrower
seeking monetary damages under TILA must file suit “within one
year from the date of the occurrence of the violation.” 15
U.S.C. § 1640(e). Again, plaintiff entered into her mortgage
agreement in February 2005, over fifteen years ago. (Compl.,
Ex. A.) Although plaintiff does not specify what disclosure
violations defendant committed or when, “[i]t is well-settled
law that where a claim for damages under TILA is premised on the
failure to provide material disclosures, ‘the date of the
occurrence of the violation is no later than the date the
plaintiff enters the loan agreement or, possibly, when defendant
performs by transmitting the funds to plaintiffs.’” Midouin v.

Downey Sav. & Loan Ass'n, F.A., 834 F. Supp. 2d 95, 108
(E.D.N.Y. 2011) (citing Cardiello v. Money Store, Inc., No. 00–
CV–7332, 2001 WL 604007, at *3, aff'd, 29 Fed. App’x 780 (2d
Cir. 2002)). Plaintiff also cannot argue that the “recoupment”
exception to the statute of limitations applies because “in
order to bring a claim for damages after the one-year
limitations period has expired, plaintiff must assert her
damages claims as a defense by recoupment ‘in a collection
action brought by the lender.’” Id. (citing Beach v. Ocwen Fed.
Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 140 L.Ed.2d 566
(1998)). Here, the plaintiff borrower filed suit against the

defendant lender, and so the recoupment exception does not
apply. Id.
Again, the doctrine of equitable tolling does not
apply, as plaintiff has made no allegations of fact regarding
the required elements. See Semper v. New York Methodist Hosp.,
786 F. Supp. 2d 566, 578 (E.D.N.Y. 2011) (“[E]quitable
tolling may be appropriate where, for instance, the claimant has
actively pursued his judicial remedies by filing a defective
pleading during the statutory period, or where the complainant
has been induced or tricked by his adversary's misconduct ...’”)
(quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96
(1990); Latouche v. Well[s] Fargo Home Mortg. Inc., No. 16-CV-

1175 (ERK), 2017 WL 8776975, at *7 (E.D.N.Y. Aug. 25, 2017) (“To
survive a motion to dismiss an otherwise untimely TILA claim,
the pleading must first allege, with specificity, efforts by the
defendant, above and beyond the wrongdoing upon which the
plaintiff’s claim is founded, to prevent ... the plaintiff from
suing in time.”) (emphasis added) (internal quotation omitted).
Accordingly, defendant’s motion to dismiss plaintiff’s
TILA claims is granted.
Conclusion
For the foregoing reasons, plaintiff’s motion to amend is
respectfully DENIED. Defendant’s motion to dismiss the complaint
is GRANTED. The Clerk of the Court is respectfully directed to
enter judgment and close the case, and send a copy of the
Memorandum and Order and the judgment to the plaintiff, and note

service on the docket.
SO ORDERED.

Dated: Brooklyn, New York
September 27, 2020

_____________ /______________
Hon. Kiyo A. Matsumoto
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304901. Public record. Not legal advice.