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Yeidy Rodriguez v. Indymac Mortgage Services

March 20, 2013

YEIDY RODRIGUEZ,
PLAINTIFF,
v.
INDYMAC MORTGAGE SERVICES, FSB, A DIVISION OF ONEWEST BANK, FSB, DEFENDANT.



The opinion of the court was delivered by: Roger W. Titus United States District Judge

MEMORANDUM OPINION

On June 11, 2012, Plaintiff Yeidy Rodriguez filed a twelve-count pro se Complaint in the Circuit Court for Prince George's County, Maryland, against Defendant, IndyMac Mortgage Services, FSB, a division of OneWest Bank, FSB ("OneWest"). (Doc. No. 2). Rodriguez asserts in her Complaint that OneWest engaged in "predatory loan" and discriminatory practices with respect to a mortgage on her property located in Fairmount Heights, Maryland. Id. ¶¶ 1-81. OneWest, a national bank headquartered in California, removed the action to this Court on July 26, 2012. (Doc. Nos. 1, 9).

FACTUAL BACKGROUND

Rodriguez alleges that on or about November 13, 2006, she purchased property located at 5713 Jost Street, Fairmount Heights, Maryland 20743. (Compl., Doc. No. 2, ¶ 17). Rodriguez executed a mortgage with a "Fixed/Adjustable Rate Promissory Note" serviced by OneWest for the amount of $259,000 at an interest rate of 7.75 percent. Id. ¶ 18. Later, Rodriguez executed a "Balloon Promissory Note" serviced by OneWest for the amount of $111,000 at an interest rate of 14.75 percent. Id. Rodriguez asserts that her "income was reduced" due to a change with her employment status "sometime in 2009." Id. ¶ 19. Due to Rodriguez allegedly "being victimized" by OneWest's "predatory loan practices," and to remedy her economic situation, she sought a loan modification from OneWest pursuant to the Home Affordable Modification Program ("HAMP"). Id. ¶ 20.

Around November of 2011, Rodriguez allegedly executed a "HAMP trial plan agreement," which was never "formally consummated by signing." Id. ¶ 21. Rodriguez claims that OneWest never gave her a signed copy of the mortgage and note, and never provided her with any "Spanish Translation/Interpretation" of such documents. Id. ¶ 22. Rodriguez claims that she provided OneWest with a "litany of documents for a HAMP loan modification" as her "first choice" among foreclosure avoidance alternatives. Id. ¶ 30. She also allegedly provided all documents requested by OneWest to evidence her financial hardship, along with "all requisite authorization forms, acknowledgements, and agreements" in relation to her "Request for Modification and Affidavit ('RMA')." Id. ¶ 31.

OneWest allegedly failed to provide Rodriguez with "important documents" that would explain her "consumer rights with a 'Spanish translation,' as well as other rights," including the "right to cancel the contract and the Federal Truth in Lending Disclosures." Id. ¶¶ 22-23. Rodriguez claims that from January 2010 to June 11, 2012, OneWest "systematically acted with carelessness, recklessness, negligence, bad faith, breach of care, breach of duty, breach of good faith and fair dealing, gross negligence and with deliberate indifference in its inaction of malfeasance, misfeasance and nonfeasance in its efforts or attempt to modify" her mortgage in accordance with her financial hardship, RMA, and/or "with the provisions of the $800 million Servicer Participation Agreement that [OneWest] signed with the Federal Government." Id. ¶ 32.

PROCEDURAL HISTORY

On July 26, 2012, OneWest filed a Motion to Clarify Writ of Summons, which notes that the Writ of Summons issued by the Circuit Court for Prince George's County provided OneWest with thirty days to respond to Rodriguez's Complaint, while Maryland Rules allowed OneWest sixty days to respond. (Doc. No. 4, ¶¶ 3-7). OneWest advised that it was served on June 26, 2012. Id. ¶ 4. OneWest requested an Order granting it sixty days from the date it was served to respond to the Complaint. Id. ¶ 8. On August 16, 2012, OneWest filed a Motion to Dismiss for Failure to State a Claim. (Doc. No. 8). Now that OneWest has responded to the Complaint, the Court will deny as moot OneWest's Motion to Clarify Writ of Summons (Doc. No. 4).

On July 31, 2012, Rodriguez filed a Motion for Remand to State Court and Award of Costs. (Doc. No. 7). In a Memorandum Order dated August 21, 2012, Judge Peter J. Messitte denied Rodriguez's Motion after finding that diversity jurisdiction and federal question jurisdiction exist in this case. (Doc. No. 15). On August 27, 2012, Rodriguez filed an Opposition to OneWest's Motion Dismiss. (Doc. No. 16).

STANDARD OF REVIEW

The purpose of a motion to dismiss under Rule 12(b)(6) is "to test the sufficiency of a complaint." Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The Supreme Court has further articulated the standard applicable to Rule 12(b)(6) motions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Rule 8 "requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 556 n.3. A pro se plaintiff is held to a "'less stringent'" standard than a lawyer, and the Court must liberally construe a pro se plaintiff's complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

ANALYSIS

II. Motion to Dismiss the ...


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