Battle v. American Home Mortgage Servicing, Inc.

MOTION to dismiss for failure to state a claim , MOTION to Strike 68 Amended Complaint Prayer for Relief with Memorandum of Law

M.D. Fla.September 26, 2016

140383.03252/103479264v.2 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION CASE NO. 2:15-cv-00563-SPC-CM BERNICE BATTLE, WILLIE BATTLE, Plaintiffs, v. AMERICAN HOME MORTGAGE SERVICING, INC. D/B/A HOMEWARD RESIDENTIAL, INC., Defendant. / DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ THIRD AMENDED COMPLAINT WITH PREJUDICE AND MOTION TO STRIKE PRAYER FOR RELIEF WITH MEMORANDUM OF LAW Defendant, AMERICAN HOME MORTGAGE SERVICING, INC. D/B/A HOMEWARD RESIDENTIAL, INC. (hereinafter “Defendant”), by and through its undersigned counsel, hereby files this Motion to Dismiss Plaintiffs’ Third Amended Complaint in its entirety with prejudice pursuant to Fed. R. Civ. P. 8, 9(b), 12(b)(6) and Motion to Strike Prayer for Relief pursuant to Fed. R. Civ. P. 12(f)(2), and in support thereof states as follows: I. BACKGROUND Plaintiffs BERNICE BATTLE and WILLIE BATTLE (hereinafter “Plaintiffs”), executed a mortgage on or about May 14, 2004 in favor of Ameriquest Mortgage Company (hereinafter “Ameriquest”) for the amount of Seventy-Two Thousand dollars and Zero cents ($72,000.00) to purchase the property located at 1924 Fountain Street, Fort Myers, FL 33916. The subject mortgage was subsequently assigned from Ameriquest to Deutsche Bank National Trust Company, Case 2:15-cv-00563-SPC-CM Document 71 Filed 09/26/16 Page 1 of 13 PageID 1718 140383.03252/103479264v.2 as Trustee for, Ameriquest Mortgage Securities Inc. Asset-Backed Pass-Through Certificates, Series 2004-R7. Pursuant to the terms of the subject mortgage, and based upon a failure to make the periodic payments required by the contract provisions, Deutsche filed an action for foreclosure on or about April 13, 2011 in Lee County case 11-CA-051152 (hereinafter the “Foreclosure Action”). In response, Plaintiffs filed a Motion to Dismiss, and upon the denial of that motion, an Answer and Affirmative Defenses to the foreclosure. Ultimately, that court entered a Final Judgment in favor of Deutsche on or about March 3, 2014, and the subject property was set for sale. Plaintiffs then filed a Notice of Appeal with the Second District Court of Appeal on or about March 25, 2014 (case number 2D14-1433). However, Plaintiffs failed to actually file their Initial Brief, and the appeal was dismissed by the Appellate Court on or about May 8, 2014. The subject property was then sold as a result of the foreclosure, with a Certificate of Sale and a Certificate of Title being issued on or about April 2, 2014 and September 4, 2014 respectively. On or about August 11, 2015, Plaintiffs filed the instant action against multiple defendants alleging seven counts as follows: I) Negligence; II) Fraud; III) Action to Void or Cancel Certificate of Title; IV) Wrongful Foreclosure; V) Breach of Contract; VI) Breach of the Implied Covenant of Good Faith and Fair Dealing; and, VII) Action to Quiet Title. [D.E. 2]. Defendant filed a Motion to Dismiss the original Complaint and this Court issued an Order dismissing all but three of the counts with prejudice in the original Complaint against Defendant and providing Plaintiffs an opportunity to re-plead their remaining three as to Defendant. [D.E. 24]. Further, the Court dismissed Deutsche Bank National Trust Company, as Trustee for Ameriquest mortgage Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2004-R7 and Ameriquest Mortgage Company with prejudice from the instant action. Case 2:15-cv-00563-SPC-CM Document 71 Filed 09/26/16 Page 2 of 13 PageID 1719 140383.03252/103479264v.2 Despite the Court’s previous Order, on or about November 18, 2015, Plaintiffs filed their Amended Complaint against Defendant and the other two defendants previously dismissed with prejudice from the instant litigation. [D.E. 30]. Plaintiffs’ Amended Complaint alleged two counts: I) Negligence and II) Fraud. Pursuant to Defendant’s Motion to Dismiss Plaintiffs’ Amended Complaint, this Court entered an Order on February 19, 2016 dismissing both counts of the Amended Complaint without prejudice and granting Plaintiffs until March 4, 2016 to file their Second Amended Complaint. [D.E. 44]. On March 4, 2016, Plaintiffs filed a Motion for Extension of Time to file their Second Amended Complaint. This Court granted the motion and on March 21, 2016, Plaintiffs filed their Second Amended Complaint and also a Motion for Leave to Add Additional Counts to the Amended Complaint. [D.E. 50, 51]. On March 22, 2016, this Court entered an Order denying without prejudice Plaintiffs’ Motion for Leave to Add Additional Counts to Amended Complaint. [D.E. 52]. In its Order, this Court identified two deficiencies in Plaintiffs’ Motion: a) failure to comply with Local rule 3.01(g) requiring parties to confer with opposing counsel prior to filing a motion in a civil case and certifying whether opposing counsel agrees to the requested relief; and, b) failure to comply with Local rule 4.01 requiring parties seeking to amend a complaint to attach a copy of the proposed amended complaint to the motion. On March 30, 2016, Plaintiffs filed their Amended Motion for Leave to Add Additional Counts to Amended Complaint (“Amended Motion for Leave”). [D.E. 53]. Plaintiffs’ Amended Motion for Leave to Add Additional Counts again failed to comply with Local rule 4.01 as there was no attachment to the Amended Motion for Leave. Defendant then filed its Response in Opposition to Plaintiffs’ Amended Motion for Leave to Add Additional Counts to Amended Complaint. [D.E. 55]. In response to the multiple pending motions, this Court entered an Order on April 29, 2016 which disposed of the following: Case 2:15-cv-00563-SPC-CM Document 71 Filed 09/26/16 Page 3 of 13 PageID 1720 140383.03252/103479264v.2 • Plaintiffs’ Amended Motion for Leave to Add Additional Counts to Amended Complaint [D.E. 53] - Denied as moot. • Defendant’s Motion to Dismiss Plaintiffs’ Second Amended Complaint with Prejudice with Memorandum of Law and Motion to Strike with Prejudice [D.E. 54] - Denied as moot. • Plaintiffs’ Motion for Extension of Time to Respond to Defendant’s Motion to Dismiss Plaintiffs’ Amended Complaint [D.E. 56] - Denied as moot. • Plaintiffs’ Second Amended Motion for Leave to Add Additional Counts to Second Amended Complaint [D.E. 57] - Denied without prejudice. • Plaintiffs’ Second Amended Complaint [D.E. 50] - Struck. • Plaintiffs’ Reply to Defendant’s Response in Opposition to Plaintiffs’ Amended Motion for Leave to Add Additional Counts to Amended Complaint [D.E. 58] - Struck. [D.E. 59] On September 6, 2016, Magistrate Judge Mirando filed her Report and Recommendation recommending that the Third Amended Motion for Leave to Add Additional Counts to Second Amended Complaint be denied, and that Plaintiffs be directed to file a Third Amended Complaint which alleges two counts for negligence and fraud as previously permitted [D.E. 67]. Prior to this Court ruling on the Report and Recommendation, on September 12, 2016 Plaintiffs filed their Third Amended Complaint which contains one count for negligence and one count for fraud [D.E. 68]. Plaintiffs’ Third Amended Complaint contains the same pleading deficiencies that appeared in each of the previous versions of the Complaint, despite this Court providing Plaintiffs approximately one year to properly plead their allegations. Accordingly, this Court should dismiss Plaintiffs’ Third Amended Complaint with prejudice as it appears that Plaintiffs cannot remedy the fatal deficiencies that have persisted since the initial Complaint was filed on August 11, 2015. II. ARGUMENT A. Legal Standard for Motion to Dismiss In deciding a Rule 12(b)(6) motion to dismiss, the Court limits its consideration to well- pleaded factual allegations, documents central to, or referenced in, the complaint, and matters Case 2:15-cv-00563-SPC-CM Document 71 Filed 09/26/16 Page 4 of 13 PageID 1721 140383.03252/103479264v.2 judicially noticed. La Grasta v. First Union Sec., Inc., 358 F. 3d 840, 845 (11th Cir. 2004). The Court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff. Pielage v. McConnell, 516 F. 3d 1282, 1284 (11th Cir. 2008); Powers v. SunTrust Bank, No. 2011 WL 397656, at *1 (M.D. Fla. Feb. 4, 2011) (citing Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197 (2007)). Conclusory allegations, however, are not entitled to a presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, (2009); Marsh v. Butler County, Ala., 268 F. 3d 1014, 1036 n. 16 (11th Cir. 2001). “To survive dismissal, the complaint’s allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level; if they do not, the plaintiff’s complaint should be dismissed. James River Ins. Co. v. Ground Down Eng’g, Inc., 540 F. 3d 1270, 1274 (11th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550, U.S. 544, 555-56, 127 S. Ct. 1955 (2007)). If, after accepting all factual allegations in the complaint as true, and viewing them in the light most favorable to the plaintiff, there exists a dispositive legal issue which precludes relief, then the action is ripe for dismissal under Fed. R. Civ. P. 12(b)(6). Neitzke v. Williams, 490 U.S. 319, 326, 109 S. Ct. 1827(1989). In reviewing a complaint subject to a motion to dismiss, the Court employs the Twombly- Iqbal plausibility standard. Randall v. Scott, 610 F. 3d 701, 708 N. 2 (11th Cir. 2010). A claim is plausible if the plaintiff alleges facts that “allow [] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The plausibility standard requires that a plaintiff allege sufficient facts “to raise a reasonable expectation that discovery will reveal evidence” that supports plaintiff’s claim. Bell Atlantic Corp. v. Twombly 550 U.S. 544, 556 (2007). Thus, “the defendant unlawfully harmed me accusation” is insufficient. Iqbal, 556 U.S. at 677. “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (internal modifications omitted). Case 2:15-cv-00563-SPC-CM Document 71 Filed 09/26/16 Page 5 of 13 PageID 1722 140383.03252/103479264v.2 B. Plaintiffs’ Third Amended Complaint Should be Dismissed for Failure to Comply with the Federal Rules of Civil Procedure The Federal Rules of Civil Procedure mandate that a pleading stating a claim for relief must contain the following: 1) A short and plaint statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; 2) A short and plain statement of the claim showing that the pleader is entitled to relief; and 3) A demand for the relief sought, which may include relief in the alternative or difference types of relief. Plaintiffs’ Third Amended Complaint begins with the heading “GENERAL ALLEGATIONS,” and contains no indication of how this Court, or any court, has jurisdiction of the instant action, nor any identification of the parties’ and their respective interests in the action. Plaintiffs’ Complaint fails to comply with the rudimentary requirements set forth in Federal Rule of Civil Procedure 8 and therefore should be dismissed. C. Plaintiffs’ Count I for Negligence Should be Dismissed for Failing to State a Cause of Action and for Being Outside the Statute of Limitations Count I of Plaintiffs’ Third Amended Complaint is so similar to Count I of Plaintiffs’ Amended Complaint as to be virtually identical. As Plaintiffs have failed to adequately plead a cause of action for Negligence despite being given over a year to do so, Count I of the Third Amended Complaint should be dismissed with prejudice. Count I of the Third Amended Complaint alleges that there were negligent acts on the part of Defendant that resulted in inaccurate loan records. There are four elements to a negligence claim under Florida law: 1) duty; 2) breach; 3) causation; and 4) damages. Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216 (Fla. 2010). Plaintiffs allege that Defendant had a duty “to exercise Case 2:15-cv-00563-SPC-CM Document 71 Filed 09/26/16 Page 6 of 13 PageID 1723 140383.03252/103479264v.2 reasonable care and skill to maintain proper and accurate loan records and to discharge and fulfill the other incidents attendant to the maintenance, accounting and servicing of loan records.” However, Plaintiffs fail to indicate the basis for any duty owed to them by the Defendant in the allegations. Additionally, Plaintiffs allege that Defendant breached the aforementioned duty by “failing to properly and accurately credit payments made by Plaintiffs toward the loan.” [D.E. 68 at para.16] Other than the conclusory allegations that some “duty” was owed by Defendant to Plaintiffs and that “duty” was somehow “breached”, Plaintiffs still have not pled a prima facie case for negligence. The remainder of Count I is completely devoid of any reference as to how the alleged breach resulted in damage to the Plaintiffs, or how the Defendant’s alleged actions were the direct cause of any damages. Plaintiffs allege that “[a]s a direct and proximate result of the negligence and carelessness of the Foreclosing Defendants as set forth above, Plaintiffs suffered general and special damages in an amount to be determined at trial.” This is the same allegation that appeared in the original Complaint, the Amended Complaint, and the Second Amended Complaint, and remains insufficient to establish the element of either causation or damages. Where the underlying allegations for the Negligence Count have not been corrected, supplemented, or otherwise substantively amended, the Count for Negligence should be dismissed as this Court has consistently done in the past. The allegations of Count I fail to allege the necessary elements of causation and damages sufficiently to even establish a prima facie case for negligence. Accordingly, Count I should be dismissed for failure to state a cause of action. However, as this is Plaintiffs’ third attempt at this cause of action, and as Plaintiffs appear unable to further support its allegations, Defendant requests that this Court dismiss Count I with prejudice. Case 2:15-cv-00563-SPC-CM Document 71 Filed 09/26/16 Page 7 of 13 PageID 1724 140383.03252/103479264v.2 Additionally, the allegations contained in Count I involve the communication between Defendant and Plaintiffs between February 22, 2010 and March 23, 2011. The last correspondence dated March 23, 2011 is the date upon which the Plaintiffs knew or should have known of the alleged negligence upon which Plaintiffs now base Count I of the Third Amended Complaint. Federal law is clear that a court may grant a motion to dismiss on a statute of limitations grounds “only if it is apparent from the fact of the complaint that the claim is time-barred.” La Grasta v. First Union Sec., Inc., 358 F. 3d 840 (11th Cir. 2004). The claim for negligence asserted against Defendant is based on events that took place between February 22, 2010 and March 23, 2011. Florida law dictates that an action founded on negligence has a four year statute of limitation. Fla. Stat. § 95.11(3)(a). Accordingly, any alleged negligent act committed by Defendant as stated by Plaintiffs are time-barred and Count I of the instant action must be dismissed with prejudice. D. Plaintiffs’ Count II for Fraud Should Likewise be Dismissed for Failure to State a Cause of Action Count II of Plaintiffs’ Third Amended Complaint mirrors the allegations of Count II of the Amended Complaint in all ways. Plaintiffs have taken no care to remedy or otherwise correct the failings that have been previously identified by this Court, and as Plaintiffs have failed to cure the defect in over a year, Count II of the Third Amended Complaint should be dismissed with prejudice. A cause of action alleging fraud requires that the party state with particularity the circumstances constituting fraud or mistake. Fed. R. Civ. P. 9(b). Therefore, Plaintiffs “must plead facts as to time, place and substance of the defendant’s alleged fraud, specifically the details of the defendant’s allegedly fraudulent acts, when they occurred, and who engaged in them.” United States v. McInteer, 470 F. 3d 1273 (11th Cir. 2006). Count II of Plaintiffs’ Third Amended Complaint alleges generally that Defendant engaged in a pattern and practice of defrauding Case 2:15-cv-00563-SPC-CM Document 71 Filed 09/26/16 Page 8 of 13 PageID 1725 140383.03252/103479264v.2 Plaintiffs by failing to properly credit payments allegedly made by Plaintiffs. However, despite the requirements of Fed. R. Civ. P. 9(b), Plaintiffs fail to provide the required level of specificity. There is no indication of which payments were misapplied or unapplied. There is no allegation regarding any amount of money which should have been applied or when. Plaintiffs attach a handwritten ledger of payments and alleged records reflecting cancelled checks as Exhibit “M” to the Amended Complaint. [D.E. 30, Ex. 13]. Also attached to the Third Amended Complaint, as Exhibit “G,” are unauthenticated records of the activity for the subject loan. [D.E. 30, Ex. 7]. The payments alleged in Exhibit “M” appear in Exhibit “G” as credits to the account along with penalties for late payments, and other charges associated with the subject loan. Additionally, Plaintiffs’ arguments and allegations are refuted by the very documents they attach to the Third Amended Complaint as Exhibit “G” reflects numerous payments made by Plaintiffs and credited by Defendant, despite the allegations of a “pattern and practice of defrauding Plaintiffs in that, during the life of the mortgage loans, Defendant failed to properly credit payments made.” Again, as in the original Complaint and the Amended Complaint, Plaintiffs make their allegations in generalities, citing to “material facts known to [Defendant] but not to Plaintiffs,” but fail to identify those material facts. Plaintiffs allege that they relied upon the undefined and unexplained “concealments and non-disclosures” but never identify any such concealment or non-disclosure. Plaintiffs take no effort to explain the “pattern and practice” alleged to have been in place. The Federal Rules and the related case law require pleading with specificity in order to maintain a cause of action for fraud. Clearly, Plaintiffs have failed to plead this Count with the specificity required by the Rules. Despite these failings which were contained in the original Complaint and the Amended Complaint, Plaintiffs fail to add any factual allegations or specificity to their claim for fraud in the Case 2:15-cv-00563-SPC-CM Document 71 Filed 09/26/16 Page 9 of 13 PageID 1726 140383.03252/103479264v.2 Third Amended Complaint. Accordingly, Count II should be dismissed for failure to state a cause of action. However, as this is Plaintiffs’ third attempt at this cause of action, and as Plaintiffs appear unable to properly allege the cause of action, Defendant requests that this Court dismiss Count II with prejudice. As with Count I, the allegations contained in Count II are also time barred pursuant to Florida Statute 95.11. While Plaintiffs provide no specifics as to time and date of the alleged fraud, all of the documents provided as exhibits to the Third Amended Complaint reference payments allegedly made in 2009, while the statute of limitations for fraud is four years. Federal law is clear that a court may grant a motion to dismiss on a statute of limitations grounds “only if it is apparent from the fact of the complaint that the claim is time-barred.” La Grasta v. First Union Sec., Inc., 358 F. 3d 840 (11th Cir. 2004). The claim for fraud asserted against Defendant is based on payments allegedly made in 2009. Florida law dictates that an action founded on fraud has a four year statute of limitation. Fla. Stat. § 95.11(3)(j). Accordingly, any alleged fraud committed by Defendant as stated by Plaintiffs is time-barred and Count II of the instant action must be dismissed with prejudice. III. MOTION TO STRIKE PLAINTIFFS’ PRAYER FOR RELIEF Plaintiffs’ Third Amended Complaint also includes a Prayer for Relief wherein Plaintiffs pray for the following relief: • For a declaration of the rights and duties of the parties, specifically that the foreclosure of Plaintiffs’ property was due to the negligence of the Defendant; • For issuance of an Order setting aside the sale of the Property and cancelling the Certificate of Title; • To quiet title in favor of Plaintiffs; • For compensatory, special, general and punitive damages subject to proof against the Defendant; Case 2:15-cv-00563-SPC-CM Document 71 Filed 09/26/16 Page 10 of 13 PageID 1727 140383.03252/103479264v.2 • A refund of all wrongfully made mortgage payments to Defendant and improperly collected fees and charges to Defendant to which it had no right; • Pre and post judgment interest at the maximum rate allowed by law; • Attorneys’ fees; • Monetary relief in the amount of the value of the Property over $100,000.00 but not more than $2,000,000.00; • For reasonable costs of suit and such other and further relief as the Court deems proper The Plaintiffs are not entitled to the bulk of the relief that they have requested in the Third Amended Complaint. Plaintiffs seek a declaration of their rights and duties of the parties, but have not pled a count for Declaratory Relief. The Plaintiffs then request an Order setting aside the sale of the Property and cancelling the Certificate of Title issued in the underlying Foreclosure Action. However, Plaintiffs fail to identify any basis for the relief requested as there has been no attack on the Foreclosure Action proceedings. Plaintiffs failed to seek relief from the Final Judgment in the Foreclosure Action, and while they filed an Appeal, that Appeal was dismissed for failure to file their Initial Brief. The Plaintiffs then pray that this Court grant them the relief in the form of quieting title to the subject Property, but again fail to plead a count for Quiet Title. Accordingly, they are barred from requesting this relief. Plaintiffs also request the relief of attorneys’ fees, but fail to identify any mechanism under which they would be entitled to such relief. They identify no statue, nor contractual provision which would grant them the ability to seek their attorneys’ fees, and as a result, cannot recover same. Finally, the Plaintiffs also request punitive damages against Defendant both in the Prayer for Relief and in the allegations of Count II of the Third Amended Complaint. Federal law requires a plaintiff to plead specific acts of the defendant that justify a punitive damages award which can only be made after a proffer to the Court permitting them to do so. Porter v. Odgen, Case 2:15-cv-00563-SPC-CM Document 71 Filed 09/26/16 Page 11 of 13 PageID 1728 140383.03252/103479264v.2 Newell & Welch, 241 F. 3d 1334 (11th Cir. 2001) (citing Bankest Imports, Inc. v. ISCA Corp., 717 F. Supp. 1537 (S.D. Fla. 1989)). Merely setting forth conclusory allegations in a complaint is insufficient to entitle a claimant to recover punitive damages. Fields v. Mylan Pharmaceuticals, Inc., 2009 WS 7115134, at *3 (N.D. Fla. 2009). The allegations in the Third Amended Complaint generally accuse Defendant of fraud and negligence but fail to identify any specific acts or identify any basis beyond the conclusory allegations for the imposition of special or punitive damages against Defendant. The law requires that Plaintiffs plead “specific acts of the defendant that justify a punitive damage award.” Hawkins v. Condo. Owners Ass’n of Sand Cay, Inc., 2011 WL 606544, at *1 (M.D. Fla. 2011). Nowhere have Plaintiffs even attempted to allege “specific facts” that would give rise to the possible imposition of punitive damages against Defendant. Therefore, Plaintiffs’ claim for special and/or punitive damages cannot survive and must also be stricken. IV. CONCLUSION Plaintiffs have pled two counts against Defendant in the instant Third Amended Complaint. Even when viewing the factual allegations in the Third Amended Complaint in the light most favorable to Plaintiffs, each of those counts is deficient as a matter of law. Further, because the Plaintiffs have failed to properly identify the basis for this Court’s jurisdiction, the instant action should be dismissed with prejudice. As each of Plaintiffs’ Counts is time-barred by the applicable statute of limitations, the causes of action cannot be maintained and the Third Amended Complaint should be dismissed with prejudice. Additionally, as Plaintiffs have failed to allege facts establishing the necessary requirements for a special and/or punitive damages claim, they likewise must be stricken. The requested relief for a declaration of the rights of the parties and to quiet title in favor of the Plaintiffs must also be stricken as no Counts for such relief have been pled. Finally, Case 2:15-cv-00563-SPC-CM Document 71 Filed 09/26/16 Page 12 of 13 PageID 1729 140383.03252/103479264v.2 Plaintiffs have failed to identify any statutory or contractual mechanism for the recovery of their attorneys’ fees, and the prayer for same must also be stricken. WHEREFORE, Defendant, AMERICAN HOME MORTGAGE SERVICING, INC. D/B/A HOMEWARD RESIDENTIAL, INC., requests that this honorable Court grant the instant Motion to Dismiss with prejudice and Motion to Strike, and provide for any additional award as this Court deems just and proper. Date: September 26, 2016 BLANK ROME LLP 201 E. Kennedy Blvd., Ste. 520 Tampa, FL 33602 Telephone: 813-255-2321 Facsimile: 813-435-2456 /s/ Tony Perez__________ TONY PEREZ Florida Bar No. 52802 TPerez@BlankRome.com BocaEService@BlankRome.com MICHELLE M. GERVAIS Florida Bar No. 173827 MGervais@BlankRome.com JNeel@BlankRome.com Attorney for Defendant, American Home Mortgage Servicing, Inc. D/B/A Homeward Residential, Inc. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 26, 2016, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system, which will send a notice of electronic filing to all counsel of record. /s/ Tony Perez Tony Perez Case 2:15-cv-00563-SPC-CM Document 71 Filed 09/26/16 Page 13 of 13 PageID 1730