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Valle v. Green Tree Servicing, LLC

United States District Court, D. Connecticut

March 20, 2017

NELSON VALLE, Plaintiff,
v.
GREEN TREE SERVICING, LLC, Defendant.

          ORDER

          STEFAN R. UNDERHILL UNITED STATES DISTRICT JUDGE.

         Beginning in 2013, pro se plaintiffs Brunilda Ramos-Ayala (formerly ValleCastro) and Nelson Valle, mother and son, have sued many people and entities associated with the collection of two debts: a consumer debt that originated in 2006 and a mortgage that originated in 2005. Both of those debts are in default and have given rise to state court actions. On February 22, 2016, four days before an omnibus hearing scheduled in Valle and Ramos-Ayala's three pending federal suits, [1] Nelson Valle, acting pro se, filed a fourth case against defendant-servicer, Green Tree Servicing, LLC (now known as Ditech Financial). (doc. 1) The complaint alleges violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692, et seq., and the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen. Stat. §§ 42-110, et seq., against Green Tree arising from its collection efforts regarding the mortgage debt (the subject of two of the previously pending federal actions). On April 7, 2016, Green Tree moved to dismiss the new complaint under the principles of preclusion, and additionally challenged the viability of the complaint on substantive grounds. (doc. 13)

         For the following reasons, Green Tree's motion is granted in part with prejudice with respect to Claims One, Two, Five, and Six, as well as portions of Claims Three and Four. The motion is denied in part with respect to the portions of Claims Three and Four that relate to Green Tree's alleged misrepresentation of the owner of the debt.

         I. Standard of Review

         A. Motion to Dismiss for Failure to State a Claim Upon Which Relief May Be Granted A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) is designed “merely to assess the legal feasibility of a complaint, not to assay the weight of evidence which might be offered in support thereof.” Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)).

         When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true, draw all reasonable inferences in favor of the plaintiffs, and decide whether it is plausible that plaintiffs have a valid claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996).

         Under Twombly, “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” and assert a cause of action with enough heft to show entitlement to relief and “enough facts to state a claim to relief that is plausible on its face.” 550 U.S. at 555, 570; see also Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). The plausibility standard set forth in Twombly and Iqbal obligates the plaintiff to “provide the grounds of his entitlement to relief” through more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (quotation marks omitted). Plausibility at the pleading stage is nonetheless distinct from probability, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the claims] is improbable, and . . . recovery is very remote and unlikely.” Id. at 556 (quotation marks omitted).

         II. Background

         The mortgage debt at issue was originated by Countrywide Home Loans, Inc. in 2005. See, e.g., Def.'s Br., Exs. A and B (Mortgage Note and Deed)). On or around September 13, 2007, Countrywide informed Ramos-Ayala that the mortgage loan was in default. Compl. at ¶ 3.1. On or about October 17, 2011, the mortgage was assigned to the Bank of New York Mellon as trustee for certificate-holders of the CWABS, Inc. Asset-Backed Certificates Series 2005-4 (the “Trust”), and the assignment was recorded. Def.'s Br., Ex. C.

         In a letter to Ramos-Ayala dated September 28, 2012, Green Tree stated that it had replaced Bank of America as the servicer of the mortgage debt. Def.'s Br., Ex. D. The letter also stated that it was “from a debt collector” and “an attempt to collect a debt.” Id. On November 9, 2012, in response to Ramos-Ayala's letter disputing the debt, Green Tree identified the Bank of New York Mellon as the trustee for the Trust that owned the debt; stated that servicing had been transferred from BAC Home Loans Servicing, LP, a subsidiary of Bank of America, to Green Tree on September 16, 2012; and enclosed a copy of the original promissory note, a credit reference inquiry, and a payment history on the loan. 1796 Green Tree Defs.' Mot. to Dismiss, Ex. F (doc. 56-6).

         On July 15, 2014, an employee of Bendett & McHugh, the law firm that represented the Trust in the state foreclosure action, filed a notice of lis pendens on the mortgaged premises with Hartford County. 1081 Am. Compl., Ex. H. A Green Tree employee was listed on the notice as the contact person for Green Tree, who would receive mail for the Trust as the plaintiff in the foreclosure action. 1081 Am. Compl., Ex. I. On July 23, 2014, the Bank of New York Mellon on behalf of the Trust, represented by Bendett, filed an action to foreclose on the mortgage in Connecticut Superior Court. Def.'s Br., Ex. E (state foreclosure docket).

         On or about September 2, 2014, Valle and/or Ramos-Ayala emailed the Bank of New York Mellon to verify the ownership of the debt. 1081 Am. Compl., Ex. E. The Bank of New York Mellon informed them that it was a Trustee for the Trust, and did not itself own the debt. Id. It identified Bank of America as the servicer of the debt. Id. On the basis of that communication, Ramos-Ayala filed a motion to dismiss the state court action for lack of standing on September 19, 2014. Def.'s Br., Ex. E (entry 107.00). Ramos-Ayala's motion was denied on December 10, 2014. Id. (entry 107.86).

         A. Correspondence at Issue in the Present Complaint

         The complaint in this action is predicated on the following chain of correspondence: On April 24, 2015, in response to a letter from Valle, Green Tree stated that Bank of America was the creditor and Green Tree was the servicer and note-holder of the mortgage debt. Compl., Ex. A.[2] The April 24 letter did not include a disclosure that Green Tree was a debt collector. On May 11, 2015, Green Tree sent a monthly billing statement including Valle's name along with Ramos-Ayala's in the address line, and stating that “a first notice or filing to initiate foreclosure on your account has occurred.” Compl., Ex. A2. The letter included a return address to a P.O. Box in Rapid City, South Dakota. Id. Green Tree asserts that Valle's name was included because he requested that all correspondence be addressed to him in a letter dated February 9, 2015.[3]Def.'s Br., Ex. G.

         In response to the April 24 letter, Valle again requested validation of the debt in a letter dated May 1, 2015. Def.'s Br., Ex. I. Green Tree responded in a letter dated May 15, 2015, again stating that the “owner” of the debt was Bank of America. Def.'s Br., Ex. K.

         III. ...


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