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Fortin v. Ocwen Loan Servicing, LLC

United States District Court, D. New Hampshire

September 28, 2015

Jarret Lenice Fortin et al.
v.
Ocwen Loan Servicing, LLC et al. Opinion No. 2015 DNH 185

CORRECTED MEMORANDUM ORDER

JOSEPH N. LaPLANTE, District Judge.

In this mortgage case, a third party to the mortgage challenges a foreclosure by raising claims under several federal statutes. Plaintiff Jarret Lenice Fortin, proceeding pro se, has brought a complaint against Ocwen Loan Servicing, LLC, the servicer of a mortgage loan on an Epping, New Hampshire residence; Sand Canyon Corporation, the successor-in-interest to Option One Mortgage, the original mortgagee; and Deutsche Bank National Trust Company, as trustee for Soundview Home Loan Trust 2005-OPT4, Asset-Backed Certificates, Series 2005-OPT4 ("Deutsche Bank"), the putative mortgagee. Defendants Deutsche Bank and Ocwen removed the action to this court, see 28 U.S.C. § 1441, which has jurisdiction under 28 U.S.C. § 1332 (diversity).

Through his Amended Complaint, [1] Fortin asserts claims against Ocwen and Deutsche Bank for (1) violation of the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1601 et seq.; (2) violation of the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601 et seq.; (3) a variety of fraudulent behavior, including racketeering, mail fraud, securities counterfeiting, and record falsification; (4) a declaratory judgment that the defendants may not foreclose; and (5) a petition to quiet title. Fortin also challenges the assignment of the mortgage from Sand Canyon to Deutsche Bank. Finally, he seeks damages in an amount equal to or exceeding the value of the property and improvements thereto.

Defendants Ocwen and Deutsche Bank have moved to dismiss, arguing that Fortin's Amended Complaint fails to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). Defendant Sand Canyon has moved for judgment on the pleadings, arguing that Fortin has not stated a cognizable claim against Sand Canyon. See Fed.R.Civ.P. 12(c). As explained in more detail below, Fortin lacks standing to bring claims for relief under the FDCPA and RESPA and to challenge the validity of the mortgage assignment. Fortin has failed to state a claim for fraud or other fraudulent activity, or to quiet title, upon which this court can grant relief. Thus, after hearing oral argument, the court grants defendants' motions.

I. Applicable legal standard

For plaintiff's complaint to survive a motion to dismiss under Rule 12(b)(6), the plaintiff must allege facts sufficient to "state a claim to relief" by pleading "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) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court evaluates a motion for judgment on the pleadings under Rule 12(c) under essentially the same standard. See Simmons v. Galvin, 575 F.3d 24, 30 (1st Cir. 2009).

In ruling on such motions, the court must accept as true all well-pleaded facts set forth in the complaint and must draw all reasonable inferences in the plaintiff's favor. See, e.g., Martino v. Forward Air, Inc., 609 F.3d 1, 2 (1st Cir. 2010). The court "may consider not only the complaint but also facts extractable from documentation annexed to or incorporated by reference in the complaint and matters susceptible to judicial notice." Rederford v. U.S. Airways, Inc., 589 F.3d 30, 35 (1st Cir. 2009). The court "need not, however, credit bald assertions, subjective characterizations, optimistic predictions, or problematic suppositions, " and "[e]mpirically unverifiable conclusions, not logically compelled, or at least supported, by the stated facts, deserve no deference." Sea Shore Corp. v. Sullivan, 158 F.3d 51, 54 (1st Cir. 1998) (internal quotations omitted). With the facts so construed, "questions of law [are] ripe for resolution at the pleadings stage." Simmons, 575 F.3d at 30.

II. Background

The following factual summary adopts the approach described above. On August 31, 2005, Virginia Bacon obtained a loan from Option One Mortgage Corporation, executing (1) a promissory note payable to Option One and (2) a mortgage granting to Option One a security interest in her home at 162 Old Hedding Road in Epping, New Hampshire. The mortgage was recorded at the Rockingham County Registry of Deeds shortly thereafter.

Bacon then conveyed the property to herself and Fortin as joint tenants with rights of survivorship on August 22, 2008. This conveyance was also recorded in the Rockingham County Registry of Deeds. Over the years, Fortin invested time, labor, and money to improve the property. Bacon ultimately discharged the debt associated with the property through Chapter 7 bankruptcy in 2011.

The mortgage was subsequently conveyed to defendant Deutsche Bank. On March 3, 2013, defendant Ocwen began servicing the loan. The next day, Ocwen sent Bacon a letter, advising her of the amount remaining unpaid on the loan, including interest and late charges. On March 28, 2013, Fortin responded in writing on Bacon's behalf, demanding that Ocwen cease and desist collection activities until it verified and validated the loan pursuant to the Fair Debt Collection Practices Act. See 15 U.S.C. § 1692g(a)(4). Ocwen did not respond.

Instead, on June 12, 2013, Ocwen wrote to Bacon that it had begun the foreclosure process and offered information about foreclosure alternatives. After Fortin got Ocwen's attention by sending his response to Ocwen's CEO, Ocwen informed Bacon that it had received "[her] correspondence requesting research to be performed for the... loan." Complaint (document no. 1-1) at 21. Ocwen then followed up on July 8, 2013, with another letter to Bacon explaining how the loan originated and that Ocwen acquired servicing rights on March 3, 2013. This letter also detailed the loan's outstanding principal, interest, late charges, and collection costs.

But this did not satisfy Fortin. On July 25, 2013, Fortin asked Ocwen, for a third time, for validation of "the alleged so-called debt." Complaint (document no. 1-1) at 28. Ocwen's prior communications did not validate or verify the debt, Fortin explained, because "[v]alidation requires a sworn deposition or oath, or [a]ffidavit sworn by a competent witness, " a requirement that Ocwen's prior communications did not satisfy.

On July 31, 2013, Ocwen sent yet another letter to Bacon enclosing a copy of the mortgage and note "for validation purposes" and informing her, among other things, that it had initiated foreclosure proceedings on June 11, 2013. Complaint (document no. 1-1) at 29. Though acknowledging that Bacon had discharged the debt through Chapter 7 Bankruptcy in 2011 and therefore was no longer personally liable for repaying the loan, Ocwen offered to allow her to retain the property by voluntarily submitting the scheduled payments and further offered to ...


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