Summary
finding that attorneys' fees and costs incurred in asserting a TILA action were not a substitute for the injury-in-fact requirement because "apart from pro se claims, every TILA complaint requires the expenditure of attorneys' fees" and to hold otherwise would allow a claim for attorneys' fees to "subsume the injury-in-fact requirement."
Summary of this case from Viera v. Bank of N.Y. MellonOpinion
C.A. No. 16-483 S
08-01-2017
CHRISTOPHER PEMENTAL, Plaintiff, v. THE BANK OF NEW YORK MELLON, et al., Defendants.
MEMORANDUM AND ORDER
In the aftermath of a foreclosure proceeding Christopher Pemental ("Plaintiff") brought suit against his mortgage provider, owner, and servicer ("Defendants"). The allegations in the Amended Complaint include: Count I (Breach of Contract), Count II (Violation of the Covenant of Good Faith and Fair Dealing), Count III (Violation of the Truth in Lending Act), and Count IV (Violation of the Fair Debt Collection Practices Act). (See Amended Compl., ECF No. 1-2.) Defendants moved to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. (See Mot. to Dismiss, ECF No. 2.) That matter was referred to Magistrate Judge Patricia A. Sullivan for report and recommendation.
After a thorough review of the claims and facts alleged in the Amended Complaint, Magistrate Judge Sullivan found that all four claims failed under the Rule 12(b)(6) standard. (See Report and Recommendation, ECF No. 14.) However, Magistrate Judge Sullivan also recommended that Plaintiff be provided thirty days to correct the deficiencies in the Amended Complaint. (Id.) After an independent review of this matter, the Court agrees with Magistrate Judge Sullivan's analysis and recommendation. The Report and Recommendation (ECF No. 14) is therefore ACCEPTED. Plaintiff is provided thirty days from the date of this Order to file an amended complaint that corrects the deficiencies noted in Magistrate Judge Sullivan's Report and Recommendation. IT IS SO ORDERED. /s/_________
William E. Smith
Chief Judge
Date: August 1, 2017