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Brandenstein v. Pennymac Loan Services, LLC

United States District Court, N.D. Georgia, Atlanta Division

December 1, 2017




         This matter is before the Court on Magistrate Judge Janet F. King's Final Report and Recommendation [7] (“Final R&R”) granting Defendant Pennymac Loan Services, LLC's (“Defendant”) Motion to Dismiss Plaintiff's Verified Complaint [3] (the “Motion”). Plaintiff Lori G. Brandenstein (“Plaintiff”) does not oppose the Motion or object to the Final R&R. The Court finds no plain error in the Final R&R, and therefore adopts the recommendations of Magistrate Judge King.

         I. BACKGROUND[1]

         On June 19, 2017, Plaintiff, proceeding pro se, filed her Complaint [1.1] challenging Defendant's conduct relating to the July 5, 2017, foreclosure of Plaintiff's former residence, real property located at 2244 Josephine Court, Marietta, Georgia, 30062 (“Property”). Defendant was the servicer of Plaintiff's mortgage loan on the Property. ([1.1] ¶ 8).

         A. The Foreclosure of Plaintiff's Property

         On January 30, 2010, Plaintiff Brandenstein, along with Richard W. Brandenstein (“Mr. Brandenstein”), who is not a complainant or party to the instant suit, obtained a mortgage loan from First Option Mortgage, LLC (“First Option” or “Lender”), in the principal amount of $213, 776.00 (“Loan”). ([1.1] ¶ 6). In connection with and to secure payment on the Loan, Plaintiff and Mr. Brandenstein executed a Security Deed in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for First Option, and its successors and assigns. ([1.1] ¶ 7; see also Security Deed [1.3]). The Security Deed was recorded on February 15, 2010, in Deed Book 14754, Pages 4296-4307 of the Cobb County, Georgia, records. ([1.3]).

         On October 29, 2014, the Security Deed was assigned to Bank of America, N.A. (“BANA”) by MERS. (Assignment [3.2]; see also [1.1] ¶ 7). The assignment was recorded on November 19, 2014, in Deed Book 15199, Pages 4869-70 of the Cobb County, Georgia records. ([3.2])

         On or about May 2, 2017, as a result of Plaintiff's alleged default on the Loan, the law firm of Rubin Lublin, LLC, on behalf of Defendant, advertised its first Notice of Sale Under Power (“Notice”) of Plaintiff's Property to occur on July 5, 2017. ([1.1] ¶ 8). Plaintiff alleges the Notice did not identify the holder of the Security Deed and identified Defendant as the loan servicer. (Id.). On May 12, 2017, apparently operating under the assumption that Defendant still acted as the loan servicer, Plaintiff sent Defendant a request for disclosure, rescission, and validation of debt under Truth in Lending Act (“TILA”) and a “qualified written request” under Real Estate Settlement Procedures Act (“RESPA”). ([1.1] ¶ 10). According to Plaintiff, Defendant did not respond.

         On July 5, 2017, BANA exercised its power of sale in the Security Deed and foreclosed on the Property. The Property was transferred to Arch Property Holdings, LLC, under a Deed Under Power. (Deed Under Power [4.1]). On August 20, 2017, the Deed Under Power was recorded in Deed Book 15472 at Pages 3016-19 in the Cobb County, Georgia records.

         B. Procedural Posture

         On June 19, 2017, Plaintiff filed her Complaint. In it, she identifies six causes of action, which she describes as follows: (Count 1) Fraudulent Conversion; (Count 2) Mortgage Servicing Fraud; (Count 3) Declaratory Judgment (Credit Default Swap); (Count 4) Unfair and Deceptive Trade Practices/Fair Debt Collection Practices Act; (Count 5) Fraud/Attempted Fraud; and (Count 6) Intentional Infliction of Emotional Distress (“IIED”). Plaintiff also alleges, within the Fact Section of her Complaint, violations of TILA and RESPA. ([1.1] ¶ 10-12). Plaintiff also seeks prelitigation discovery and injunctive relief.

         On July 19, 2017, Defendant properly and timely removed the case pursuant to 28 U.S.C. §§ 1331, 1332, 1441, and 1446. (Notice of Removal [1]; see also [7] at 8, n.5). On July 26, 2017, Defendant moved to dismiss on multiple grounds, including under Rules 4(m), 9, 12(b)(6) of the Federal Rules of Civil Procedure. (Motion to Dismiss [3.1]).[2] Defendant further contends that the relief Plaintiff seeks is moot given that foreclosure has already occurred.

         On November 6, 2017, the Magistrate Judge issued her Final R&R recommending granting Defendant's Motion to Dismiss. No party filed objections to the Final R&R.


         A. Motion to Dismiss

         On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must “assume that the factual allegations in the complaint are true and give the plaintiff[] the benefit of reasonable factual inferences.” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010). Although reasonable inferences are made in the plaintiff's favor, “‘unwarranted deductions of fact' are not admitted as true.” Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005) (quoting S. Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (1996)). The Court also is not required to accept as true conclusory allegations and legal conclusions. See Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (construing Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)); see also White v. Bank of America, NA, 597 F. App'x 1015, 1018 (11th Cir. 2014) (“[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.”) (quoting Oxford Asset Mgmt., Ltd. V. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Mere “labels and conclusions” are insufficient. Twombly, 550 U.S. at 555. “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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This requires more than the “mere possibility of misconduct.” Am. Dental, 605 F.3d at 1290 (quoting Iqbal, 556 U.S. at 679). The well-pled allegations must “nudge[] their claims across the line from conceivable to plausible.” Id. at 1289 (quoting Twombly, 550 U.S. at 570).[3]

         Plaintiff filed her Complaint pro se. “A document filed pro se is to be liberally construed, and a pro se complaint, 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). Nevertheless, a pro se plaintiff must comply with the threshold requirements of the Federal Rules of Civil Procedure. See Beckwith v. Bellsouth Telecomms. Inc., 146 F. App'x 368, 371 (11th Cir. 2005). “Even though a pro se complaint should be construed liberally, a pro se complaint still must state a claim upon which the Court can grant relief.” Grigsby v. Thomas, 506 F.Supp.2d 26, 28 (D.D.C. 2007). “[A] district court does not have license to rewrite a deficient pleading.” Osahar v. U.S. Postal Serv., 297 F. App'x 863, 864 (11th Cir. 2008).

         B. Magistrate Judge's ...

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