Jimmy and Tatsiana Barberan (“Plaintiffs”), proceeding pro se, bring this action against Nationpoint, a Division of National City Bank (“Nationpoint”), Mortgage Electronic Registration Systems, Inc., Atima (“MERS”), Home Loan Services, Inc. d.b.a. Nationpoint Loan Services (“HLS”), LaSalle Bank National Association as Trustee for First Franklin Loan Trust 2006-FF-18, Mortgage Loan Asset-Backed Certificates, Series 2006-FF18 (“LaSalle”), First Franklin Mortgage Loan Trust Mortgage Loan Asset-Backed Certificates, Series 2006-FF18 (“Franklin Certificates”), and “unknown owners of the evidence of the debt and/or owners of the note,” asserting claims to quiet title to the property located at 15 Woodlake Drive, Middletown, N.Y. 10940 (“the Property”); for violations of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq.; and for breach of contract, breach of fiduciary duty, negligence, and wrongful foreclosure. Defendants move to dismiss all of Plaintiffs’ claims pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated herein, Defendants’ motion is granted in part and denied in part.
I. Background
For purposes of deciding Defendants’ motion, the Court accepts as true the allegations contained in Plaintiffs’ Amended Verified Complaint (“Amended Complaint”), described below, and construes them in the light most favorable to Plaintiffs.
A. Factual Background
Plaintiffs own a condominium, located at 15 Woodlake Drive, Middletown, New York. (Am. Compl. ¶ 47.) Defendant Nationpoint is characterized by Plaintiffs as a “Lender.” (Id. ¶ 9.) Defendant HLS does business under the name First Franklin Loan Services. (Id. ¶ 45.) Defendant MERS is a Delaware corporation involved in the mortgage industry (id. ¶¶ 19-20), which has contracts with one or more Defendants (id. ¶ 30), and acts as a nominee for owners of loans, (id. ¶¶ 32-33). Defendant LaSalle is a banking corporation acting as trustee for First Franklin Mortgage Loan Trust 2006-FF18. (Id. ¶ 37.)
“Defendants claim that on or about October 18, 2006, Plaintiffs signed a Promissory Note” (“Note”) with Nationpoint and “entered into a consumer mortgage transaction” (“Mortgage”) with Nationpoint.
(Id.
¶ 52.) Plaintiffs deny signing “that Promissory Note and that alleged [mortgage] contract”
(id.
¶ 54), and assert that there “was never a meeting of the minds,”
(id.
¶ 55). “The alleged obligation was secured by the” Property.
(Id.
¶ 58.) Plaintiffs also claim that Nationpoint inserted false and conclusory statements into the Note and Mortgage documents.
(Id.
Plaintiffs allege that MERS concealed the identity of the party for which it acted as a nominee and “falsely representad] that MERS is still nominee.” (Id. ¶ 31.) Plaintiffs further allege that MERS “recorded, or intends to record, a false assignment of the alleged loan” to unknown owners of the Note. (Id. ¶ 77.) According to Plaintiffs, LaSalle is “not the holder of any note [or] mortgage relevant to Plaintiffs,” despite LaSalle’s claims to the contrary. (Id. ¶¶ 38-39.) Plaintiffs also claim that LaSalle and HLS “started foreclosure proceedings” on the Property in New York state court (id. ¶ 126), and that HLS reported the foreclosure proceedings to credit bureaus, (id. ¶ 127.) As a result, Plaintiffs allege that some of their credit cards were canceled and that their credit limit was decreased. (Id. ¶ 128.)
B. Procedural Background
Plaintiffs, proceeding pro se, filed an initial complaint on December 27, 2007 against Nationpoint, MERS, HLS, and “Unknown Owners of the Evidence of the Debt and/or Owners of the Note.” (Dkt. No. 1.) Pursuant to this Court’s Order, dated December 12, 2008 (Dkt. No. 35), Plaintiffs filed their Amended Complaint on January 29, 2009. (Dkt. No. 38.) 1 Plaintiffs’ Amended Complaint added LaSalle and the Franklin Certificates as Defendants. (Am. Compl. 1.) 2 On March 2, 2009, Defendants filed the instant motion to dismiss all of Plaintiffs’ claims in the Amended Complaint. (Defs.’ Mem. of Law in Supp. of Their Mot. to Dismiss the Am. Compl. (“Defs.’ Mem.”) 1-2.) Pursuant to this Court’s Order, dated December 21, 2009 (Dkt. No. 55), the Parties submitted supplemental briefing on January 4, 2010, regarding preemption under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. On November 19, 2009, the Court set the matter down for oral argument on January 13, 2010. (Dkt. No. 54.) On January 8, 2010, Plaintiffs wrote the Court to advise that they would be “out of state” on January 13, while Defendants wrote to the Court on January 11, 2010, stating that they would “prefer” another argument date. The Court canceled the oral argument and decides the instant motion on the papers. (Dkt. No. 59.)
II. Discussion
A. Standard of Review
1. General Standards
“On a Rule 12(b)(6) motion to dismiss a complaint, the court must accept a plaintiffs factual allegations as true and draw all reasonable inferences in [the plaintiffs] favor.”
Gonzalez v. Caballero,
572
However, mere “conclusions of law or unwarranted deductions” need not be accepted.
First Nationwide Bank v. Gelt Funding Corp.,
Here, the Court is faced with factual assertions by Plaintiffs that are often facially contradictory, making it difficult for Plaintiffs to adequately support their claims “by showing any set of facts
consistent
with the allegations in the complaint.”
See Bell Atl. Corp. v. Twombly,
The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly,
550 U.S. at
555,
Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.”
Leonard F. v. Isr. Disc. Bank of N.Y.,
The Second Circuit has emphasized that “before materials outside the record may become the basis for a dismissal, several conditions must be met.”
Faulkner v. Beer,
Here, Defendants have submitted to the Court, inter alia, the Note and Mortgage purportedly signed by Plaintiffs (Deck of Jordan W. Siev in Supp. of Defs.’ Mot. to Dismiss the Am. Compl. (“Siev Deck”) Exs. B, C); Notices of Right to Cancel (“NRCs”) sent to Plaintiffs (id. Ex. E); a model NRC form (“Form H-8”) (id. Ex. I); letters sent by Plaintiffs to LaSalle attempting to rescind a loan (id. Ex. G); and an Orange County Clerk’s Office recording page showing an assignment of a mortgage executed by Plaintiffs from MERS, as nominee for “First Franklin a Division of National City Bank” to LaSalle, (id. Ex. H). Defendants argue that most of the submitted documents may be considered by the Court in ruling on their Motion to Dismiss because the documents are referenced in Plaintiffs’ Amended Complaint, integral to Plaintiffs’ claims, or subject to judicial notice. (Defs.’ Mem. 7-8; Defs.’ Reply Mem. of Law in Further Supp. of Their Mot. to Dismiss the Am. Compl. (“Defs.’ Reply Mem.”) 3-4.) Plaintiffs object to the authenticity of all of the documents submitted by Defendants (Pis.’ Response in Opp. to Defs.’ Mot. to Dismiss (“Pis.’ Response”) 4), and argue that these documents are not properly before the Court on the Motion to Dismiss, (id. at 3). In response, Defendants argue that Plaintiffs cannot object to the authenticity of judicially-noticed documents and that Plaintiffs cannot use the documents “as both shield and sword by disputing the authenticity of the very documents alleged in the Amended Complaint to have been breached or to contain misrepresentations .... ” (Defs.’ Reply Mem. 3-5.)
The Court will not consider those documents submitted by Defendants that are not subject to judicial notice because there are disputes, even if of questionable viability, regarding the authenticity of these documents.
See Faulkner,
In contrast, the Court is not required to accept Plaintiffs’ objections to the authenticity of publicly filed documents subject to judicial notice because a court may take judicial notice of public records “as facts ‘capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.’ ”
See Kramer,
B. Quiet Title Claim
Plaintiffs’ first claim is for a decree quieting title, rescission of the loan, or “in the alternative a money judgment in an amount sufficient to retire the alleged contract.” (Am. Compl. ¶ 94.) In New York, “[t]he function of the equitable action to quiet title is now largely replaced by the procedures under Real Property Actions
Whether a quiet title action is commenced in equity or under RPAPL Article 15, the result is almost the same — although RPAPL Article 15 is a statutory action, “it has been described as a hybrid one in which the relief awarded is in large measure equitable in nature.”
See Dowd v. Ahr,
Even though equitable remedies available under the common law and under the statutory scheme are mostly the same, only actions brought pursuant to RPAPL Article 15 are triable by jury as of right.
See
N.Y. C.P.L.R. § 4101(2); 2-24 Warren’s Weed New York Real Property § 24.36. New York courts have deemed claims seeking equitable quiet title relief to be pursuant to RPAPL Article 15, so long as the complaint adequately pleads a cause
Construing Plaintiffs’ pro se claims liberally, the Court deems Plaintiffs’ claim to “quiet title” as including a claim pursuant to RPAPL Article 15 to determine the rights of any claims adverse to Plaintiffs’ claims to the Property.
6
As explained above, an RPAPL Article 15 action can provide Plaintiffs with all of their requested “equitable” remedies, as well as monetary damages,
see
N.Y. R.P.A.P.L. § 1521(1), and will ensure that these pro se Plaintiffs do not inadvertently waive their right to a jury trial,
cf. Noto v. Headley,
To maintain an equitable quiet title claim, a plaintiff must allege actual or constructive possession of the property and the existence of a removable “cloud” on the property, which is an apparent title, such as in a deed or other instrument, that is actually invalid or inoperative.
See
90 N.Y. Jur.2d Real Property, Possessory and Related Actions §§ 512, 516;
see also Piedra v. Vanover,
Here, Plaintiffs allege that they are in actual possession of the Property. (Am. Compl. ¶ 85.) Plaintiffs further claim that the Mortgage and Note, documents that Defendants believe are valid on their face, are actually invalid clouds on Plaintiffs’ title to the Property because Plaintiffs never signed these documents. (Id. ¶¶ 53-54.) Plaintiffs also allege that Defendants inserted false statements or fraudulently altered the mortgage documents (id. ¶¶ 60, 81), and that LaSalle’s purported assignment is fraudulent, (id. ¶¶ 77, 82, 92). Thus, Plaintiffs have alleged facts sufficient to establish a plausible equitable quiet title claim against Nationpoint, MERS, and LaSalle.
RPAPL Article 15 requires a complainant to adequately describe the property and to allege: (I) the nature of the plaintiffs interest in the real property and the source of this interest; (ii) that the defendant claims or appears to claim an interest in the property adverse to the plaintiffs interest, and the nature of the defendant’s interest; (iii) whether any defendant is known or unknown and whether any defendant is incompetent; and (iv) whether all interested parties are named and whether the judgment will or might affect other persons not ascertained at the commencement of the action. N.Y. R.P.A.P.L. § 1515(1). “Essential to the maintenance of an action to determine a claim to real property is that the complaint state a claim, by the defendant, of an estate or interest in the real property, adverse to that of the plaintiff.”
E. 41st St. Assocs. v. 18 E. 42nd St., L.P.,
Here, Plaintiffs have sufficiently stated a claim under RPAPL Article 15 against LaSalle. Plaintiffs adequately describe the Property, including its address. (Am. Compl. ¶ 47.) Plaintiffs also claim absolute ownership of the Property, describing their interest as “superior and legal title” to the Property.
(Id.
¶ 87.) Plaintiffs further allege that LaSalle currently claims an interest in the Property adverse to their interest through the alleged mortgage, note, and assignment.
(Id.
¶38.) Thus, Plaintiffs have.adequately alleged facts supporting an RPAPL Article 15 claim against LaSalle.
See Hurley v. Hurley,
Although somewhat unclear, Plaintiffs also appear to assert that Nationpoint, or MERS as its nominee, may claim an interest in the Property adverse to their own interest by stating that “[n]one of the Defendants” are owners or holders of the Note
(id.
¶ 78), that “[t]he Holder, or a previous holder, has discharged the Promissory Note by materially and fraudulently altering it, and/or cancelling and/or renouncing it”
(id.
¶ 81), and that “the alleged Mortgage has never been assigned by the Lender,”
(id.
¶ 82). Construing Plaintiffs’ pro se Amended Complaint liberally, the Court finds that these claims adequately allege that Nationpoint and MERS may claim an interest in the Property on the theory that the mortgage and note were never assigned to LaSalle. However, because Plaintiffs have failed to allege any facts regarding HLS’s interest in the Property, Plaintiffs have failed to sufficiently plead a quiet title or RPAPL Article 15 claim against this Defendant.
See McGahey v. Topping,
Defendants’ arguments are not to the contrary. Defendants contend that Plaintiffs’ claims must fail because the mortgage, note, and assignment are valid and enforceable. (Defs.’ Mem. 8-10.) However, the fact that a plaintiff “executed the mortgage which he now seeks to remove as a cloud on title does not deprive him of the right to maintain [a quiet title] action.”
Greenberg v. Schwartz,
Accordingly, Defendants’ Motion to Dismiss is denied as to LaSalle, Nationpoint, and MERS, but is granted as to HLS.
C. TILA Claim
Plaintiffs claim that all Defendants violated TILA, 15 U.S.C. § 1601
et seq.,
by failing to provide required disclosures (Am. Compl. ¶ 63), and seek monetary damages
(id.
¶ 99), and rescission,
(id.
¶ 3). TILA was enacted by Congress “to assure a meaningful disclosure of credit terms” to consumers.
See
15 U.S.C. § 1601;
see also Beach v. Ocwen Fed. Bank,
Under TILA, consumers entering certain credit transactions involving security interests in their principal dwelling have a right to rescind the transaction until midnight on the third business day after the credit transaction, delivery of the rescission notice, or delivery of all material disclosures, whichever is latest.
See
15 U.S.C. § 1635(a). Creditors must supply a rescission notice “clearly and conspicuously” disclosing the security interest in the principle dwelling, the right to rescind, how to exercise rescission (with a form to exercise rescission designating the creditor’s address), the effects of rescission, and the expiration date of rescission.
See id.;
12 C.F.R. § 226.23(b)(1);
see also Aubin v. Residential Funding Co., LLC,
“Creditors who do not comply with the mandated duty to disclose are subject to civil liability.”
Fiorenza,
Here, Plaintiffs admit that they received the NRCs, contending only that the rescission disclosure notice was inadequate. (Am. Compl. ¶¶ 64-69.) Plaintiffs assert that the NRCs provided the incorrect rescission expiration date
(id.
¶ 69), did not match the model notice form
(id.
¶ 65), and were generally misleading and ambiguous,
(id.
¶¶ 67-68). Accepting these facts as true, as the Court must, Plaintiffs have sufficiently alleged a TILA violation. First, the failure to provide the correct rescission expiration date, if proven, would alone support a claim for violation of the notice requirements, triggering the three-year rescission time limit.
See
12 C.F.R. § 226.23(b)(1);
see also Jackson v. Grant,
Plaintiffs properly bring their TILA claims against Nationpoint and MERS as “creditors.” The Court construes Plaintiffs’ characterization of Nationpoint as “the Lender”
(id.
¶ 9) to mean that Nation-point was the entity to which the loan was initially payable. The Court also construes Plaintiffs’ statements that MERS had “contracts” with Defendants
(id.
¶ 30), and that MERS was “acting as nominee”
(id.
¶ 31), to mean that MERS was the nominee of Nationpoint. This makes
Accordingly, Defendants’ Motion to Dismiss the TILA violation claim is denied as to Nationpoint, MERS, and LaSalle, but is granted as to HLS.
D. Breach of Contract Claims
Although Plaintiffs generally deny the existence and validity of the Mortgage and Note, they simultaneously allege that enforceable contracts existed, “consisting of a mortgage, Pooling and Servicing Agreement, Subservicing Agreement, [and] other document(s),” which were breached by Defendants. 9 (Id. ¶ 103.)
The Parties appear to agree that New York law governs the contracts at
1. Breach of Mortgage
“A mortgage is merely security for a debt or other obligation and cannot exist independently of the debt or obligation.”
FGB Realty Advisors, Inc. v. Parisi,
Plaintiffs first assert that Nationpoint breached “the agreement” because the “terms of the agreement called for Defendant to make a loan” and “Defendant did not make a loan.”
(Id.
¶¶ 109-110.) However, Plaintiffs blatantly contradict this factual assertion by simultaneously stating that they “kept the loan paid current, up until they rescinded it.”
(Id.
¶ 70.) As explained above, although the Court accepts Plaintiffs’ factual allegations as true, the Court is not required to accept as true pleadings that are directly contradicted by other factual statements in the Amended Complaint.
See In re Livent,
Similarly, Plaintiffs’ assertion that the mortgage was unconscionable because it “called for performance by Plaintiffs, but did not call for any performance by Defendant” (Am. Compl. ¶¶ 107-08), is directly contradicted by them own factual assertions. This appears to be an argument that the mortgage was not supported by valid consideration. As discussed above, Plaintiffs admit that Defendants were required to make a loan under the agreement.
(Id.
¶¶ 109-110). Plaintiffs have, therefore, admitted that the mortgage was supported by valid consideration — the underlying loan.
See Hathaway v. Tompkins,
2. Breach of Pooling and Servicing Agreement, Subservicing Agreement, and Other Contracts
Plaintiffs also appear to allege a breach of contract claim based on a “Pooling and Servicing Agreement, Subservicing Agreement, [and on] other doeument(s).” (Am. Compl. ¶ 103). Plaintiffs also allege that the Pooling and Servicing Agreement was among Merrill Lynch Mortgage Investors, Inc., LaSalle, and HLS.
(Id.
¶ 104). Plaintiffs then allege that they are beneficiaries “or are otherwise directly or indirectly party to the Pooling and Servicing Agreement, Subservicing Agreement, and other contract(s).”
(Id.
¶ 105.) First, Plaintiffs plead no facts to support their bare legal conclusion that they are beneficiaries or parties to these agreements.
See First Nationwide Bank, 27
F.3d at 771 (noting that mere “conclusions of law or unwarranted deductions” need not be accepted by the court);
Alessi v. Monroe County,
No. 07-CV-6163,
Accordingly, Defendants’ Motion to Dismiss the breach of contract claims is granted.
E. Preemption of State Law Tort Claims by Fair Credit Reporting Act
Plaintiffs allege that Defendant HLS was negligent or breached a fiduciary duty to Plaintiffs by making false statements or failing to make true statements to credit bureaus. (Am. Compl. ¶¶ 117-25.) Plaintiffs also allege that Defendants LaSalle and HLS improperly reported to credit bureaus that a foreclosure process had been initiated against Plaintiffs. (Id. ¶¶ 126-30.) As a result, according to Plaintiffs, some of Plaintiffs credit cards were cancelled, Plaintiffs’ credit limit was decreased, Plaintiffs’ credit was damaged (id. ¶¶ 123, 128), and Plaintiffs faced a wrongful foreclosure action, (id. ¶ 130). On December 21, 2009, the Court ordered all Parties to submit supplemental briefing regarding preemption under the FCRA. (Dkt. No. 55.) All Parties timely submitted a supplemental brief on January 4, 2010. (Dkt. Nos. 56, 58.)
In evaluating statutory preemption provisions, courts begin the “analysis with the assumption that the historic police powers of the States are not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”
Altria Group, Inc. v. Good,
— U.S.-,
Section 1681s-2 of the FCRA imposes duties upon furnishers of information to credit reporting agencies.
11
See
15 U.S.C. § 1681s-2. Specifically, for example, § 1681s-2(a) states that persons “shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate.” 15 U.S.C. § 1681s-2(a)(l)(A). Section 1681s-2(a) also prohibits furnishing inaccurate information after notification of the inaccuracy, and imposes specific duties on furnishers of information, such as a duty to correct and update information and to provide notice of disputes. 15 U.S.C. § 1681s-2(a)(l)(B), (a)(2)-(9);
see also Kane,
The FCRA contains two provisions arguably relating to preemption of state tort claims brought against furnishers of credit information. The first provision, § 1681h(e) provides:
Except as provided in sections 1681n and 1681o of this title, no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against ... any person who furnishes information to a consumer reporting agency, based on information disclosed pursuant to section 1681g, 1681h, or 1681m of this title, or based on information disclosed by a user of a consumer report to or for a consumer against whom the user has taken adverse action, based in whole or in part on the report except as to false information furnished with malice or willful intent to injure such consumer.
15 U.S.C. § 1681(h)(e). The second provision relates to the duties of furnishers of information regulated by § 1681s-2, stating that “no requirement or prohibition may be imposed under the laws of any State ... with respect to any subject matter regulated under ... section 1681s-2 ... relating to the responsibilities of persons who furnish information to consumer reporting agencies.” 15 U.S.C. § 1681t(b)(1)(F). Two specific state statutes, neither of which are applicable here, are exempted from preemption under § 1681t(b)(1)(F).
13
Id.
District courts have
In
Premium Mortgage,
the Second Circuit recently analyzed a parallel preemption provision of § 1681t(b)(l), which states that “no requirement or prohibition may be imposed under the laws of any State ... with respect to any subject matter regulated under ... subsection (c) or (e) of section 1681b ... relating to the prescreening of consumer reports.... ”
Here, Plaintiffs claim that HLS “furnishes information to credit reporting agencies” (Am. Compl. ¶ 117), and assert state tort claims of breach of fiduciary duty and negligence based on HLS allegedly making “false statements to credit bureaus” and “neglecting] to make true statements to credit bureaus.”
(Id.
¶¶ 121-22.) Plaintiffs also assert a claim for “wrongful foreclosure” against HLS and LaSalle based on those entities reporting “[floreclosure process started” to credit bureaus.
(Id.
¶ 127.) Although it is unclear exactly what legal theory Plaintiffs’ “wrongful foreclosure” claim asserts, it appears to be a tort claim in the nature of slander of title or defamation.
See Markowitz v. Republic Nat’l Bank of N.Y.,
As pled, Plaintiffs’ tort claims fall squarely within the subject matter regulated under § 1681s-2, which governs the furnishing of information to credit agencies. See 15 U.S.C. § 1681s-2; see
also Holtman,
III Conclusion
For the reasons stated herein, Defendants’ Motion to Dismiss is granted in part and denied in part. Plaintiffs’ quiet title
SO ORDERED.
Notes
. The Court’s order also denied, with leave to re-file, Plaintiffs’ and Defendants’ motions for judgment on the pleadings. (Dkt. No. 35.)
. In a related case, LaSalle, as a plaintiff, brought an action on February 21, 2008 in the Supreme Court of New York, Orange County, to foreclose on the mortgage it claims on the Property. Plaintiffs removed LaSalle's case to this Court pursuant to 28 U.S.C. § 1441(a) (Case No. 08-CV-2904, Dkt. No. 1), and moved to dismiss the foreclosure, (Case No. 08-CV-2904, Dkt. No. 2). On May 21, 2008, this Court consolidated LaSalle's foreclosure claim with the instant case. (Dkt. No. 13.) On September 15, 2009, the Court denied Plaintiffs’ motion to dismiss LaSalle’s foreclosure action. (Dkt. No. 53.)
. In
In re Livent,
the court explained that Fed.R.Civ.P. 8(e)(2), which allows a complaint to incorporate alternative claims regardless of consistency, "cannot be construed as an invitation to incoherent, self-contradictory pleadings.”
. The Court notes that Plaintiffs' objections appear less than genuine, especially considering, as Defendants point out, that Plaintiffs object to the authenticity of even their own Amended Complaint. However, Plaintiffs consistently maintain in their Amended Complaint that they did not sign the Note and Mortgage submitted by Defendants to the Court. (Am. Compl. ¶¶ 53, 56.) Plaintiffs also allege that any purported assignment of a mortgage or note to LaSalle was false and may have been recorded falsely by MERS. {Id. ¶¶ 76-77, 82.) However untrue Defendants believe Plaintiffs' factual statements to be, the Court will not decide factual disputes regarding the authenticity of the Note, Mortgage, or other documents on a motion to dismiss. Thus, while Plaintiffs' attempt to slalom their way through these documents may not be well-founded, and while Plaintiffs may face a rocky road in thwarting Defendants’ inevitable summary judgment motion, the Court will apply Faulkner and decline to consider these documents at this time.
. The Court does not consider publicly filed documents submitted by Defendants that bear no relevance on this case. In particular, Defendants submitted documents related to a separate matter before Judge Cathy Seibel,
Jose Barberan v. World Savings Bank, et al.,
No. 07-CV-8821 (S.D.N.Y.). (Siev Decl. Exs. L, M, N, O.) That matter has no relevance to this case; accordingly, these documents will not be considered.
See Faulkner,
. As noted, RPAPL Article 15 requires a complaint to "state that the action is brought pursuant to this title,” RPAPL § 1515(1), but several New York cases note that failure to do so is not fatal.
See, e.g., Howard v. Murray,
. The injunctive relief sought by Plaintiffs, to enjoin Defendants from transferring mortgages or from maintaining foreclosure actions, is incidental to the remedies available under the statute, as an injunction will not be necessary if Plaintiffs are successful in their claim to establish superior title to the Property.
See Decana,
. A borrower exercising the right of rescission “is not liable for any finance or other charge, and any security interest given by the obligor ... becomes void upon such rescission.” 15 U.S.C. § 1635(b).
. As noted, the Court has construed Plaintiffs pleadings to allege that Plaintiffs entered into a mortgage with Nationpoint. Despite the confusion, Plaintiffs have consistently maintained that the mortgage documents were fraudulently altered by Defendants. (Am. Compl. ¶¶ 60, 81.) Accordingly, Plaintiffs may plead in the alternative that the mortgage documents are invalid because they were fraudulently altered, but if valid contracts existed, Defendants have breached those contracts.
See
Fed.R.Civ.P. 8(e)(2);
Henry v. Daytop Village, Inc.,
. Plaintiffs have failed to raise a plausible claim that they were parties to or third-party beneficiaries of the contracts. "A party asserting rights as a third-party beneficiary must establish (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for his benefit and (3) that the benefit to him is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty” to the nonparty.
State of Cal. Pub. Employees’ Ret. Sys. v. Shearman & Sterling,
. The term "furnishers of information” is not defined in the statute,
see
15 U.S.C. § 1681a, but it has been interpreted to mean "entities that transmit, to credit reporting agencies, information relating to debts owed by consumers,”
Kane v. Guaranty Residential Lending, Inc.,
No. 04-CV-4847,
. Another provision of § 1681s-2 allows private rights of action under certain circumstances, none of which are applicable here. For example, § 1681s-2(b) imposes duties on furnishers of credit information to investigate and report alleged inaccuracies in credit information the furnisher provided, after the furnisher receives notice from a credit agency of a consumer dispute.
See
15 U.S.C. §§ 1681i(a)(2), 1681s-2(b). Plaintiffs may bring private actions for willful or negligent noncompliance with § 1681s-2(b).
See
15 U.S.C. § 1681(n)-(o). However, "unless and until a furnisher of information receives notice from a
credit reporting agency,
no private right of action exists under [§ ] 1681s — 2(b).”
Kane,
. Section 1681t(b)(l)(F) exempts § 54A(a) of chapter 93 of the Massachusetts Annotated Laws, M.G.L.A. c. 93 § 54A(a), and § 1785.25(a) of the California Civil Code, Cal. Civ.Code § 1785.25(a), which also prohibit furnishing inaccurate information to credit reporting agencies.
. Courts have generally adopted three main approaches to reconciling this perceived conflict: a "total preemption” approach; a “temporal” approach; and a "statutory” approach. Under the total preemption approach, "all state causes of action against furnishers of information are deemed preempted by the sweeping language of § 168lt(b)(1)(F).”
Kane,
. In
Premium Mortgage,
the Second Circuit noted that it did not resolve, because it did not have to, "any perceived conflict between” § 1681 (h)(e) and § 1681t(b)(l)(F).
. Because Plaintiffs’ tort claims are preempted by the plain language of § 168lt(b)(l)(F), the perceived conflict between § 1681t(b)(l)(F) and § 1681h(e) is not at issue here. In any event, § 1681h(e) does not apply to this case. The plain language of § 1681h(e) states that it applies to reporting of information
“based on
information disclosed pursuant to sections 1681g, 1681h, or 1681m ... or
based on
information disclosed
Sections 168lg and 1681h apply only to information required to be provided by consumer reporting agencies.
See
15 U.S.C. §§ 1681g, 1681h;
see also Sites v. Nationstar Mortgage LLC,