Levin v. American Document Services, LLCLevin v. American Document Services, LLC
- Reporters:
- , ,
- Before:
- John M. Walker Jr., Guido Calabresi, Susan L. Carney
Plaintiffs-Appellants Ofra and Isaac Levin, proceeding pro se, sued Wells Fargo Bank; Lender Processing Services, Inc. (“LPS”) (n/k/a Black Knight InfoServ, LLC), and two of its subsidiaries, American Document Services, LLC (“ADS”), and DocX, LLC; Black Knight Financial Services, an entity that acquired LPS and its subsidiaries in 2014 (collectively, the “ADS
Adopting the Report & Recommendation of the magistrate judge, the district court (1) dismissed for lack of standing the Levins’ claims for declaratory relief related to the validity of the mortgage assignments; (2) dismissed for failure to state a claim the Levins’ fraudulent misrepresentation and IIED claims; (3) denied as moot the Levins’ cross-motion for declaratory judgment; and (4) denied the Levins leave to amend the complaint, concluding that amendment would be futile. The Levins now appeal. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal, to which we refer only as necessary to explain our decision to affirm the judgment of the district court.
I. Standing
We review de novo the district court’s dismissal of a complaint for lack of standing. Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 417 (2d Cir. 2015). At the pleading stage, courts must accept as true all factual allegations in a complaint and consider standing in the light most favorable to the plaintiff. Pennell v. City of San Jose, 485 U.S. 1, 7 (1988). A plaintiff must establish both constitutional and prudential standing to proceed on a complaint. Rajamin v. Deutsche Bank Nat’l Trust Co., 757 F.3d 79, 84 (2d Cir. 2014).
To have constitutional standing, a plaintiff must show (1) that he has suffered an injury-in-fact—“an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical”; (2) a causal connection between the injury and the conduct he complains of; and (3) that “it [is] likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (internal quotation marks and citations omitted). For prudential standing, a plaintiff “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975).
In Rajamin v. Deutsche Bank National Trust Co., the plaintiff mortgagors challenged allegedly defective assignments of their mortgages by their original mortgagee to various trusts. 757 F.3d at 81–82. We held that none of the plaintiffs suffered a cognizable injury-in-fact such as would establish constitutional standing because, first, they did not dispute that they took out the loans, secured them by mortgages on their homes, and were obligated to repay them; and second, they had not pleaded that they paid more than the amounts due, that they received any demand for a duplicative or excess payment, or that any entity other than the defendants had demanded payment or instituted foreclosure proceedings against their properties. Id. at 85. Consequently, the injuries that plaintiffs alleged were hypothetical and conjectural, not actual or imminent. Id. at 85–86. We further held that the plaintiffs did not have prudential standing to challenge the assignments because they were neither parties to nor intended third-party beneficiaries of the assignments. Id. at 86–87.
II. Failure to State a Claim
We review de novo the dismissal of a complaint for failure to state a claim. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). On such review, we “accept[] as true all
The Levins alleged that the defendants committed fraudulent misrepresentation by working in concert with each other to execute the purportedly fraudulent assignments. To state a fraudulent misrepresentation claim under New York law, a plaintiff must plausibly allege that “(1) the defendant made a material false representation, (2) the defendant intended to defraud the plaintiff thereby, (3) the plaintiff reasonably relied upon the representation, and (4) the plaintiff suffered damage as a result of such reliance.” Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 186–87 (2d Cir. 2004) (internal quotation marks omitted).
The Levins failed to allege that they reasonably relied on the alleged fraud. The purportedly fraudulent assignments were executed in 2008 and 2009, well after Ofra Levin executed the mortgage in 2006. The Levins advance no argument on appeal that they properly pleaded their reliance—reasonable or otherwise—on the relevant misrepresentations.
As for their IIED claim, the Levins alleged that the defendants’ fraudulent conduct was “extreme and outrageous,” and that their fear of imminent foreclosure caused them emotional
The Levins failed to meet this standard. First, absent the pleading of more specific and severe emotional harm, their alleged emotional injury—fear of a pending foreclosure—is likely not sufficiently severe to trigger liability. Even if it were, however, the defendants’ alleged conduct—fraudulently assigning the Levins’ debt, while subjecting the Levins to no additional debt than that they initially undertook—was not “extreme” or “outrageous.” See Bender, 78 F.3d at 790.
III. Denial of Leave to Amend
We review de novo the district court’s denial of leave to amend based on futility. Gorman v. Consol. Edison Corp., 488 F.3d 586, 592 (2d Cir. 2007). For the reasons discussed above, the district court did not err in denying, based on futility, the Levins’ request to file an amended
We have reviewed the Levins’ remaining arguments and conclude that they have no merit.
For the foregoing reasons, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court