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Chistoni v. HSBC Bank USA, N.A.

United States District Court, E.D. Virginia, Alexandria Division

May 11, 2017

CRISTIAN CHISTONI, Plaintiff,
v.
HSBC BANK USA, N.A. AS TRUSTEE FOR WELSS FARGO ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH SERIES 2006-11,, Defendants.

          MEMORANDUM OPINION AND ORDER

          GERALD BRUCE LEE UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Defendant Samuel I. White, P.C.'s ("SIWPC") Motion to Dismiss (Dkt. No. 11) and Defendant HSBC Bank USA, N.A. as Trustee for Wells Fargo Asset Securities Corporation Mortgage Pass-Through Certificates Series 2006-11 's ("HSBC") Motion to Dismiss (Dkt. No. 3). This case concerns pro se Plaintiff Cristian Chistoni's claims against Defendants seeking monetary damages, seeking declaratory and injunctive relief, challenging Defendants' authority to foreclose on the property at issue, and alleging that Defendants violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.

         The key issue is whether, under Federal Rule of Civil Procedure 12(b)(6), Plaintiffs Complaint fails to state a claim upon which relief can be granted, where the Complaint seeks injunctive relief and asserts the following twelve counts: (I) declaratory judgment, (II) civil conspiracy, (III) negligence versus SIWPC, (IV) illegal substitution of trustee, (V) failure to provide proof of standing to collect, (VI-XI) violations of the FDCPA, and (XII) fraud.[1] The Court grants Defendants' Motions to Dismiss Plaintiffs Complaint because the conclusory allegations concerning nine of the claims fail to satisfy the pleading standard, two of counts allege claims that are not cognizable claims, and the allegations concerning the fraud claim do not satisfy the heightened pleading standard. Further, because Plaintiff has not shown a likelihood of success on the merits as to any of these claims, the Court grants Defendants' Motions to Dismiss Plaintiffs request for injunctive relief.

         I. BACKGROUND

         On or about January 27, 2017, Plaintiff filed a Complaint against HSBC and SIWPC in the Circuit Court of Fairfax County, Virginia in the action styled as Case No. CL 2017-01286. (Compl., Dkt. No. 1-1.) The Complaint involves claims stemming from a postponed foreclosure sale of real property located in Northern Virginia (the "Property").[2] (Compl. ¶¶ 23, 27.) Within thirty days of being served with the Complaint, HSBC removed the case to this Court on March 20, 2017. (Not. Removal, Dkt. No. 1.) HSBC removed the case to this Court based upon its federal question jurisdiction under 28 U.S.C. § 1331. (Id. at 3.)

         Plaintiff denies a debt is due based on Defendants purportedly failing to validate the debt pursuant to the FDCPA. (See Compl. ¶ 12.) The Complaint alleges that "[o]nce Plaintiff refused to pay, Defendants threatened with acceleration and foreclosure of Plaintiffs Property." (Compl. ¶ 14.) SIWPC stated, and Plaintiff has not contested, that a foreclosure sale was scheduled for April 3, 2017 but was postponed. (Dkt. No. 11 at 2.)

         The Complaint sets forth twelve counts. It appears that much of the Complaint was copied from a different pleading filed in this Court, and therefore some of the information is not relevant to this action-including allegations against "BOA, " which appears to be an abbreviation for Bank of America. Plaintiffs Complaint asserts the following counts: (I) declaratory judgment; (II) civil conspiracy; (III) negligence versus SIWPC; (IV) illegal substitution of trustee: (V) failure to provide proof of standing to collect; (VI-XI) violations of the FDCPA; and (XII) fraud.

         HSBC filed a Motion to Dismiss on March 27, 2017 (Dkt. No. 3), and SIWPC filed a Motion to Dismiss on April 4, 2017 (Dkt. No. 9). HSBC moves to dismiss primarily based on five grounds. First, HSBC argues that the Complaint fails to allege facts with sufficient specificity to inform HSBC of what it is being accused of so that it can respond to the allegations. Second, HSBC argues that Plaintiffs "show me the note" claims are contrary to Virginia's non-judicial foreclosure process and caselaw interpreting Virginia law. Third, HSBC argues that Plaintiff lacks standing to contest the appointment of a substitute trustee or assignment of the deed of trust because Plaintiff is not a party or beneficiary of those agreements. Fourth, HSBC describes why it believes Plaintiff fails to allege a plausible claim- for example, because the allegations do not support each element of the claim, or because die claim is not cognizable. Fifth, HSBC argues that Plaintiff is not entitled to injunctive relief because he is unlikely to succeed on the merits. SIWPC moves to dismiss largely based on the same grounds, and SIWPC's brief expressly incorporates the arguments made in HSBC's brief. Both Defendants seek to dismiss Plaintiffs Complaint with prejudice.

         Because Plaintiff is proceeding pro se, both Defendants filed a notice pursuant to Roseboro V. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Civil Rule 7(K). (See HSBC's Roseboro Not., Dkt. No. 3 at 3; SIWPC's Roseboro Not., Dkt. No. 10.) As stated in those notices, Local Civil Rule 7(K) required Plaintiff to file his response within twenty-one days of when Defendants filed the motions to dismiss. More than twenty-one days passed since Defendants moved to dismiss the Complaint, and Plaintiff did not file a response. In addition, Plaintiff did not attend the motion hearing on May 5, 2017, and therefore did not contest Defendants' Motions to Dismiss.

         II. DISCUSSION

         A. Standard of Review

         A motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) should be granted unless the complaint "states a plausible claim for relief under Rule 8(a). Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The complaint must contain sufficient factual allegations "to raise a right to relief above the speculative level" and "nudge [the] claims across the line from conceivable to plausible." Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 543 (4th Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). In considering a Rule 12(b)(6) motion, the Court "must accept as true all of the factual allegations contained in the complaint, " drawing "all reasonable inferences" in the plaintiffs favor. E.I. du Pont de Nemours and Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted). No such assumption of truth is afforded to those "naked assertions" and "unadorned conclusory allegations" devoid of "factual enhancement." Vitol, 708 F.3d at 543 (citations omitted). Thus, the court's review involves the separation of factual allegations from legal conclusions. Burnette v. Fahey, 698 F.3d 171, 180 (4th Cir. 2012). Although, courts construe pro se complaints liberally. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Beaudett v. City of Hampton, 775 F.2d 1274, 1277-78 (4th Cir. 1985).

         Apart from the pleading requirement under Rule 8(a), a heightened pleading standard applies to allegations of fraud pursuant to Rule 9(b). Rule 9(b) requires that claimants plead fraud with particularity. Harrison v. Westinghouse Savannah River Co.,176 F.3d 776, 783-84 (4th Cir. 1999). The circumstances required to be alleged with particularity under Rule 9(b) are "the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby." Id. (citation and internal quotation marks omitted). Failure to ...


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