16-3685-cv
Hill v. DLJ Mortg. Capital, Inc., et al.

                                     UNITED STATES COURT OF APPEALS
                                        FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 3rd day of May, two thousand seventeen.

PRESENT:             JOSÉ A. CABRANES,
                     DEBRA ANN LIVINGSTON,
                                  Circuit Judges,
                     WILLIAM H. PAULEY III,
                                  District Judge.*


TONYA HILL,

                                Plaintiff-Appellant,                  16-3685-cv

                                v.

DLJ MORTGAGE CAPITAL, INC., DOONAN, GRAVES
AND LONGORIA, LLC, and SELENE FINANCE LP,

                                Defendants-Appellees.


FOR PLAINTIFF-APPELLANT:                                    Steven Bruce Rabitz, Massapequa, NY.

FOR DEFENDANTS-APPELLEES:                                   Brian Scott McGrath, McGlinchey
                                                            Stafford, PLLC, New York, NY, for



     *
    Judge William H. Pauley III, of the United States District Court for the Southern District of
New York, sitting by designation.

                                                        1
                                                             Defendants-Appellees DLJ Mortgage Capital,
                                                             Inc., and Selene Finance LP.

                                                             Reneau J. Longoria, Doonan, Graves and
                                                             Longoria, LLC, Beverly, MA, for Doonan,
                                                             Graves and Longoria, LLC.

        Appeal from a September 30, 2016 order of the United States District Court for the Eastern
District of New York (Sandra J. Feuerstein, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED.

         Plaintiff-appellant Tonya Hill appeals from a September 30, 2016 order dismissing her claims
against defendants-appellees DLJ Mortgage Capital, Inc. (“DLJ”), Selene Finance LP (“Selene”), and
Doonan, Graves and Longoria, LLC (“Doonan”). Hill alleged violations of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq.; the Real Estate Settlement Procedures Act
(“RESPA”), 12 U.S.C. § 2601, et seq.; and § 349 of the New York General Business Law (“GBL”).
Hill’s claims arise from her promissory note (the “Note”) in the amount of $379,200, and the
mortgage on real property that she and her husband executed and delivered as security for the Note.
Hill alleged that the defendants improperly sought to collect on her defaulted Note.1 On September
30, 2016, the District Court dismissed Hill’s FDCPA and RESPA claims with prejudice pursuant to
Federal Rule of Civil Procedure 12(b)(6), and declined to exercise jurisdiction over Hill’s GBL claim.
We assume the parties’ familiarity with the underlying facts, the procedural history of this case, and
the issues on appeal.

         We review de novo a dismissal of a complaint under Rule 12(b)(6), “construing the complaint
liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable
inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
The complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although all allegations contained in the complaint
are assumed to be true, this tenet is “inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A claim will have “facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id.




    1
      DLJ is the assignee of Hill’s Note and mortgage. Selene is the servicer of the mortgage. Hill
alleges that Doonan communicated with her on behalf of DLJ and Selene.

                                                    2
                                         A. FDCPA Claims

        Hill first contends that the District Court erred in dismissing her FDCPA claims. We
disagree. Hill’s FDCPA claims are premised on monthly statements sent to her by Selene regarding
the total amount owing under her Note. As the District Court explained, Selene sent these
statements in compliance with the Truth in Lending Act, 15 U.S.C. § 1638(f), as implemented by 12
C.F.R. § 1026.41, which requires mortgage loan servicers to transmit monthly statements to
consumers. With this in mind, the monthly statements here do not reflect attempts to collect on the
debt evidenced by the Note. Hill thus fails to state a plausible claim for relief under the FDCPA.2

        Hill’s reliance on Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir.
2012), is unavailing. The statements sent by the defendant law firm in Reese stated that “collection is
sought,” that the firm was a “debt collector attempting to collect on a debt,” and demanded “full
and immediate payment of all amounts due.” Id. at 1217 (internal quotation marks omitted). None
of the statements at issue in this case contain any similar debt-demand language.

                                          B. RESPA Claim

         Hill next argues that the District Court erred in dismissing her RESPA claim. Hill alleged
that the defendants, when purchasing force-placed insurance on her property, did not provide her
with any of the information or requests required by RESPA’s Regulation X, 12 C.F.R. § 1024.37(c),
and charged her account for the insurance in violation of 12 C.F.R. § 1024.37(h). “Force-placed
insurance,” as defined by RESPA, is “hazard insurance coverage obtained by a servicer of a federally
related mortgage when the borrower has failed to maintain or renew hazard insurance on such
property as required of the borrower under the terms of the mortgage.” 12 U.S.C. § 2605(k)(2). We
agree with the District Court that the allegations of Hill’s complaint, all conclusory in nature, failed
to state a plausible claim for relief under RESPA. Among other things, the RESPA allegations do
not specify that Hill’s mortgage was “federally related.”

        Hill also asserts that the District Court should have granted her leave to amend her
complaint to assert a specified damages amount for her RESPA claim. “We review a district court’s
denial of leave to amend for abuse of discretion.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d
87, 108 (2d Cir. 2007). Hill, however, never sought leave to replead her Amended Complaint from
the District Court. “We have described the contention that the District Court abused its discretion
in not permitting an amendment that was never requested as frivolous.” Williams v. Citigroup Inc., 659




    2
      The District Court also held that the defendants’ attempts to enforce their security interest in
Hill’s property through foreclosure proceedings were not an attempt to collect on a “debt” as
defined by the FDCPA. We do not reach that issue here.

                                                   3
F.3d 208, 212 (2d Cir. 2011) (internal quotation marks omitted). We thus see no abuse of discretion
in the District Court’s failure to grant leave to replead sua sponte.

                                        C. State-Law Claim

        Hill does not address her GBL claim on appeal, and accordingly has waived that claim. See JP
Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005)
(“[A]rguments not made in an appellant’s opening brief are waived . . . .”). Even so, because the
District Court correctly dismissed all of Hill’s federal claims, it was entitled to decline to exercise
supplemental jurisdiction over her state-law claims. See 28 U.S.C. § 1367(c)(3).

                                          CONCLUSION

        We have reviewed all of the arguments raised by Hill on appeal and find them to be without
merit. For the foregoing reasons, we AFFIRM the September 30, 2016 order of the District Court.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




                                                  4
