Smith et al v. Bank of America Home Loans et al
Filing
81
OPINION AND ORDER granting Fannie Mae's Motion to Dismiss Plaintiffs' Second Amended Complaint 66 . All counts asserted against this defendant are dismissed without prejudice. Further granting defendant Bank of America, N.A. and Mortgage and Electronic Registration Systems, Inc.'s Motion to Dismiss to the extent it seeks to dismiss Counts II and V. Counts II and V are dismissed without prejudice. The motion is denied in all other respects. Signed by Judge John E. Steele on 8/13/2013. (SVC)
Smith et al v. Bank of America Home Loans et al
Doc. 81
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRIAN T. SMITH, JONATHAN C. CALIANOS
Plaintiffs,
vs.
Case No.
2:11-cv-676-FtM-29DNF
BANK OF AMERICA HOME LOANS a
subsidiary of Bank of America, N.A.,
MORTGAGE ELECTRONIC
REGISTRATION
SYSTEMS, INC.,
Defendants.
______________________________________
OPINION AND ORDER
This matter comes before the Court on Defendants’ Bank of
America, N.A. and Mortgage Electronic Registration Systems, Inc.
Motion to Dismiss Plaintiff’s Second Amended Verified and Sworn
Complaint
(Doc. #59) filed on February 1, 2013.
Also before the
Court is defendant Fannie Mae’s Motion to Dismiss Plaintiffs’
Second Amended Verified & Sworn Complaint filed on February 21,
2013.
(Doc. #66.)
to both motions.
On March 12, 20131, plaintiffs filed a response
(Doc. #69.)
For the reasons set forth below,
Fannie Mae’s motion is granted and Bank of America, N.A. and
Mortgage Electronic Registration Systems, Inc.’s motion is granted
in part and denied in part.
1
On February 20, 2012, the Court granted the plaintiffs an
extension of time to file their response to Bank of America, N.A.’s
and Mortgage Electronic Registration Systems, Inc.’s motion to
dismiss. (Doc. #65.) Therefore, the response is timely.
Dockets.Justia.com
I.
The Second Amended Complaint (Doc. #53) alleges the following:
On August 4, 2005, plaintiffs Brian T. Smith and Jonathan C.
Calianos (collectively, plaintiffs) purchased a condominium located
at 28111 Tamberine Court, Unit 1321 (the property), Bonita Springs,
Florida for the sum of $399,900.00.
To finance the property,
plaintiffs obtained a $240,000.00 loan from MLD Mortgage, Inc.
(MLD). Plaintiffs executed a promissory note in favor of MLD which
gave MLD a first mortgage on the Property.
The promissory note is
dated August 4, 2005 (the Original Note).
Within a month of
closing, the plaintiffs were directed to make all payments to
Countrywide Home Loans (Countrywide).
payments to MLD Mortgage.
Plaintiffs never made any
Plaintiffs made payments to Countrywide
until Countrywide mailed the original note to the plaintiffs.2
Original Note was marked with a “void” stamp.
The
The Original Note,
bearing the “void” stamp, is in the possession of Callianos, and it
is plaintiffs’ position that the note is not enforceable.
Thereafter, on October 11, 2005, an assignment of mortgage was
recorded in the Lee County land evidence records showing that MLD
Mortgage,
Inc.
assigned
the
mortgage
to
defendant
Mortgage
Electronic Registration System (MERS). On February 10, 2012, MERS,
2
Plaintiffs do not allege the date that the Original Note was
mailed to them.
-2-
at the direction of Bank of America, assigned the mortgage to Bank
of America.
On an undisclosed date, but sometime after receiving the
voided note from Countrywide, Calianos began to receive payment
requests from Bank of America.
Both plaintiffs questioned Bank of
America’s authority to collect on the void note, but were told by
the Bank that the Original Note was in its possession.
Plaintiffs
requested a copy of the Original Note that was alleged to be in
Bank of America’s possession, and were provided with a copy of a
note that was identical to the Original Note except it was not
stamped “void”, did not contain an “allonge”,
had “Generated by
PDFKit.NET Evaluation” and “Account No. 104153740" printed on it,
and contained a stamp which stated “We hereby certify that this is
a true and exact copy of the original.
Southwest Florida.” (Compl, Exh. C.)
By
Rm
First Title
Plaintiffs allege that this
is not a copy of the true Original Note, and instead, the true
Original
Note
is
the
voided
copy
in
Callianos’s
possession.
Nonetheless, plaintiffs made the requested payments to Bank of
America “under protest” to avoid adverse action to their credit.
In order to stop Bank of America from seeking payment on the
note, plaintiffs initiated this action by filing a Complaint on
November 30, 2011.
(Doc. #1.)
Plaintiffs stopped making payments
to Bank of America after this action was initiated, and instead
placed the alleged monies owed in an escrow account.
-3-
Plaintiffs
allege that in retaliation for this action, Bank of America began
to make negative reports to plaintiff’s credit bureaus resulting in
decreased credit scores to both plaintiffs. These decreased credit
scores are alleged to have caused financial damages including
increased interest rates for plaintiffs. In addition, after this
action was initiated, Bank of America produced a “Superceding
Promissory Note” (the Superceding Note) and alleged that it was
seeking payment from plaintiffs under this note.
The plaintiffs
allege that the Superceding Note is forged and unenforceable.
As a result, plaintiffs filed an Amended Complaint on February
21, 2012.
(Doc. #17.)
The Amended Complaint was dismissed with
leave to amend on December 19, 2012 (Doc. #51) and a Second Amended
Complaint was filed on January 9, 2013.
(Doc. #53.)
The Second
Amended Complaint seeks declaratory judgment (Count I) and asserts
violations of the Fair Credit Reporting Act (FCRA)(Count II), civil
fraud (Count III), federal civil Racketeer Influenced and Corrupt
Organizations Act (RICO) (Count IV), and the Real Estate Settlement
Procedures Act (RESPA) (Count V).
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
This
obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
-4-
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citation
omitted).
To survive dismissal, the factual allegations must be
“plausible” and “must be enough to raise a right to relief above
the speculative level.”
Id. at 555.
See also Edwards v. Prime
Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
This requires “more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take them
in the light most favorable to plaintiff, Erickson v. Pardus, 551
U.S. 89 (2007), but “[l]egal conclusions without adequate factual
support are entitled to no assumption of truth,”
Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011)(citations omitted).
“Threadbare
recitals
of
the
elements
of
a
cause
of
action,
supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.
with
a
“Factual allegations that are merely consistent
defendant’s
plausible.”
liability
fall
short
of
being
facially
Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th
Cir. 2012)(internal quotation marks and citations omitted).
Thus,
the Court engages in a two-step approach: “When there are wellpleaded factual allegations, a court should assume their veracity
and
then
determine
whether
entitlement to relief.”
they
plausibly
give
Iqbal, 556 U.S. at 679.
-5-
rise
to
an
III.
A.
Claims Against Fannie Mae
Fannie Mae seeks to dismiss the Complaint because it alleges
that the counts do not specifically assert which defendant each
count is asserted against.
Further, the Second Amended Complaint
lacks any factual allegations that implicate it for any wrongdoing.
Therefore, it has no notice as to which claims, if any, are
asserted against it.
The Court agrees.
With respect to Fannie Mae, the only
allegations in the Amended Complaint that relate to this defendant
are that Fannie Mae is the current holder of the Superceding Note
and
does
not
have
a
legal
right
plaintiffs. (Doc. #53, ¶65, 66.)
to
collect
money
from
the
There are no allegations that
Fannie Mae has, at any point, tried to collect money from the
plaintiffs or otherwise attempted to enforce the Superceding Note.
Because it cannot be ascertained from the allegations in the Second
Amended Complaint what claims are brought against Fannie Mae, or
the
nature
of
their
alleged
wrongdoing,
the
Second
Amended
Complaint fails to meet Fed. R. Civ. P. 8, and all claims against
this party are dismissed without prejudice.
B. Count One-Declaratory Relief
Count I does not specifically identify which defendant this
count is asserted against, but the factual allegations contained
therein make it clear that this count is asserted solely against
-6-
Bank of America.
In Count I, plaintiffs seek declaratory judgment
that the Original Note is void and ineffective, the Superceding
Note is forged and ineffective, and Bank of America is required to
release and discharge the mortgage it holds on the property.
Finally, Count I seeks an order requiring Bank of America to refund
all sums paid to Bank of America under the Original Note, plus
interest.
Bank of America seeks to dismiss Count I because it asserts
that plaintiffs have failed to allege an actual controversy that
merits review.
In support, plaintiffs cite to Perez v. Indymac
FSB, 2012 U.S. Dist. Lexis 158403 (M.D. Fla. Nov. 5, 2012) for the
proposition that there is not actual controversy until foreclosure
proceedings have been initiated.
Furthermore, Bank of America
asserts that to the extent the Superceding Note is forged, the
Original Note is clearly enforceable because it would have been
unintentionally or mistakenly cancelled, given that plaintiffs have
failed to allege that they have made a full payment. Finally, Bank
of America alleges that plaintiffs cannot maintain a claim because
they ratified the debt by making payments to Bank of America.
The
Court
finds
that,
at
this
stage
of
the
litigation,
plaintiffs have stated a plausible claim for declaratory relief.
If jurisdiction otherwise exists, a federal district
court may issue declaratory relief pursuant to the
-7-
Declaratory Judgment Act.3 To establish the existence of
an actual controversy within the meaning of the
Declaratory Judgment Act, the party invoking a federal
court’s authority must show: (1) that they personally
have suffered some actual or threatened injury as a
result of the alleged conduct of the defendant; (2) that
the injury fairly can be traced to the challenged action;
and (3) that it is likely to be redressed by a favorable
decision.
State Farm Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr.,
Inc., 427 F. App’x 714, 721 (11th Cir. 2011)(citations and internal
quotations omitted).
Perez is distinguishable.
challenge
the
underlying
Therein, the plaintiff did not
debt.
Rather,
plaintiff
challenged
various transfers of the debt which plaintiffs alleged were void
under New York law, not that the underlying debt itself was void.
Here, plaintiffs allege that their debt has been extinguished, yet
Bank of America continues to try to collect on the debt under a
purported Superceding Note which is forged.
Plaintiffs have
clearly alleged that they have suffered actual harm by making
unnecessary payments, and when payments were not made, they have
suffered
adverse
financial harm.
credit
consequences
which
have
resulted
in
Plaintiffs have also alleged that this injury can
be fairly traced to Bank of America, and that it is likely to be
3
“In a case of actual controversy within its jurisdiction . .
. any court of the United States . . . may declare the rights and
other legal relations of any interested party seeking such
declaration, whether or not further relif is or could be sought.”
28 U.S.C. § 2201(a).
-8-
redressed by a favorable decision.
See State Farm Mut. Auto. Ins.
Co., 427 F. App’x at 721.
Bank of America’s argument that the Original Note must have
been mistakenly voided is not appropriate at the Motion to Dismiss
stage.
The Court must accept the plaintiffs’ allegations as true,
and to conclude that the Original Note was accidentally voided
would be to insert allegations in the Second Amended complaint
which were not alleged by plaintiffs.
It is sufficient that
plaintiffs have alleged that Countrywide voided the note, whatever
the reason.
Finally, the Court is also not persuaded that plaintiffs have
alleged that they ratified the note by making payments to Bank of
America.
The Second Amended Complaint specifically alleges that
the payments were made “under protest.” The motion to dismiss this
claim is denied.
C.
Count Two- Fair Credit Reporting Act
Count II alleges that Bank of America failed to comply with 15
U.S.C. § 1681 s-2(b), a provision of the Fair Credit Reporting Act.
Bank of America seeks to dismiss this Count because it asserts that
the allegations are too sparse and do not provide sufficient notice
of, or a plausible case for, a violation of the FCRA.
Further,
Bank of America asserts that plaintiffs acknowledge that they
stopped making payments in 2011, and therefore, the account was
-9-
delinquent.
Therefore, the negative reporting by Bank of America
was accurate.
Plaintiff’s
furnisher
of
only
FCRA
information,
claim
is
failed
that
to
Bank
of
conduct
a
America,
a
reasonable
investigation pursuant to 15 U.S.C. § 1681s-2(b). To be successful
on
this
claim,
plaintiffs
must
allege
that
a
furnisher
of
information:
(1) failed to conduct an investigation with respect to
the disputed information; (2) failed to review all
relevant information provided by the consumer reporting
agency pursuant to § 1681i(a)(2) of the FCRA; (3) failed
to report the results of the investigation to the
consumer reporting agency; or, (4) if an item of
information disputed by a consumer is found to be
inaccurate, incomplete, or cannot be verified after any
reinvestigation, failed to modify, delete, or permanently
block the reporting of that item of information.
Howard v. DirecTV Grp., Inc., No. CV 109–156, 2012 WL 1850922, at
*4 (S.D. Ga. May 21, 2012) (discussing § 1681s–2(b) in the motion
to dismiss context).
The Court finds that plaintiffs have failed to place Bank of
America on notice as to the basis of this claim.
Plaintiffs have
alleged that Bank of America has reported to Experian, TransUnion,
and Equifax that plaintiffs were past due for the December 2011 and
January 2012 loan payments.
with knowledge
that
the
Plaintiffs allege that this was done
validity
of the
debt
was
contested.
Plaintiffs further allege that February 15, 2012, Calianos sent a
letter to Experian, TransUnion, and Equifax explaining the dispute
-10-
and asking the credit reporting agency to reverse the negative
credit report during the pendency of the litigation.
2012, Smith did the same.
On June 25,
After receiving the letters, Experian,
TransUnion, and Equifax notified Bank of America about the dispute.
Plaintiffs then conclusorly allege that Bank of America failed to
comply with its duties under 15 U.S.C. § 1681s-2(b).
In essence, plaintiffs allege how a duty arose for Bank of
America to comply with section 1681s-2(b), but fail to adequately
allege how Bank of America breached these duties.
It is unclear
whether plaintiffs allege that Bank of America failed to conduct
any investigation.
To the extent an investigation was conducted,
it is unclear how the investigation failed to meet the requirements
of the statute.
Therefore, plaintiffs have failed to put Bank of
America on notice as to the nature of their alleged violation of 15
U.S.C. § 1681s-2(b).
Accordingly, this Count fails to meet the
standards set forth in Fed. R. Civ. P. 8, and the motion to dismiss
this count is granted without prejudice.
C.
Count Three: Fraud
Count III asserts a cause of action against Bank of America
for fraud.
Count III alleges that Bank of America made fraudulent
statements to plaintiffs that it held the Original Note, that it
could commence foreclosure proceedings if plaintiffs failed to make
payments, and that it had the authority to report delinquent
payments to the credit bureaus, and charge late fees and other
-11-
charges.
(Doc. #53, ¶109.)
These statements are alleged to be
false because Bank of America “only justified its actions by
reference to a copy of the Void Note in its file, and as such, it
had no legal right to do any of the actions contained in the
(Id. at ¶110.)
[false] statements.”
Fed. R. Civ. P. 9(b) requires fraud allegations to be plead
“with particularity.”
“In a complaint subject to Rule 9(b)’s
particularity requirement, plaintiffs retain the dual burden of
providing
sufficient
particularity
as
to
the
fraud
while
maintaining a sense of brevity and clarity in the drafting of the
claim, in accord with Rule 8.”
Wagner v. First Horizon Pharm.
Corp., 464 F.3d 1273, 1278 (11th Cir. 2006).
“Particularity means
that a plaintiff 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 ex rel. Atkins v. McInteer,
470 F.3d 1350, 1357 (11th Cir. 2006) (internal quotation marks and
citations omitted).
See also Ziemba v. Cascade Int’l, Inc., 256
F.3d 1194, 1202 (11th Cir. 2001) (citation omitted); Garfield v.
NDC Health Corp., 466 F.3d 1255, 1262 (11th Cir. 2006).
“This
means the who, what, when [,] where, and how: the first paragraph
of any newspaper story.”
omitted).
Garfield, 466 F.3d at 1262 (citations
“Failure to satisfy Rule 9(b) is a ground for dismissal
of a complaint.”
Corsello v. Lincare, Inc., 428 F.3d 1008, 1012
-12-
(11th Cir. 2005), cert. denied, 549 U.S. 810, 127 S.Ct. 42, 166
L.Ed.2d 18 (2006).
The Court finds that Count III meets the heightened pleading
standards set forth in Fed. R. Civ. P. 9(b).
Although the Amended
Complaint
as
does
not
allege
precise
dates
to
when
alleged
fraudulent statements were made, plaintiffs allege the substance of
the fradulent statements, the Bank of America representatives who
made
the
statements,
telephone extensions.
and
even
provide
the
statement
maker’s
(See Doc. #53, ¶¶96-99, 103, 104.)
The
Court is also not persuaded that Count III fails because Bank of
America’s statements were truthful.
Accepting the allegations as
true, Bank of America knew the Original Note was void and the
Superceding Note was forged.
Nonetheless, Bank of America stated
to both plaintiffs that it had a legal right to collect on these
documents.
D.
The motion to dismiss on this ground is denied.
Count Four: Civil Rico
Count IV asserts a claim against MERS and Bank of America
pursuant to the federal civil the Racketeer Influenced and Corrupt
Organizations (RICO) statute which
makes it unlawful “for any
person employed by or associated with any enterprise engaged in, or
the activities of which affect interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct of
such
enterprise’s
affairs
through
a
activity. . . .” 18 U.S.C. § 1962(c).
-13-
pattern
of
racketeering
In particular, plaintiffs
allege that MERS and Bank of America were engaged in an enterprise
which conducted a pattern of racketeering activity including mail
and wire fraud.
Bank of America and MERS allege that this count should be
dismissed because the essential elements of a RICO claim have not
been pled with particularity as required by Rule 9, and otherwise
fail to plead the elements of a RICO violation.
Bank of America
and MERS asserts that plaintiffs have failed to plead the existence
of an “enterprise” within the meaning of the statute. Further,Bank
of America and MERS allege that they held a “presumptively valid
note which shields it from any allegation that it knowingly made
any false demand for payment”.
Defendants further assert that no
fraudulent scheme has been alleged because no false statements were
made.
The pleading requirements of a civil RICO action have been
discussed at some length in Williams v. Mohawk Indus., 465 F.3d
1277, 1282-1291 (11th Cir. 2006), cert. denied, --- U.S. ---- ----,
127 S.Ct. 1381 (2007), 167 L.Ed.2d 174 (2007).
In addition to an
impact on interstate or foreign commerce, a civil RICO claim is
required to set forth the four requirements of 18 U.S.C. § 1962(c)4
and the two requirements of 18 U.S.C. § 1964(c).5
Id.
The Amended
4
(1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity.
5
(1) the requisite injury in plaintiff's business or property,
(continued...)
-14-
Complaint must allege the “conduct of an enterprise” and that the
enterprise had a common goal, and that defendants participated in
the operation or management of the enterprise itself.
465 F.3d at 1283-84.
Williams,
The “pattern of racketeering activity”
element requires that a civil RICO plaintiff establish “at least
two acts of racketeering activity.” 18 U.S.C. § 1961(5). Congress
has defined “racketeering activity” to mean the violation of any of
the criminal statutes listed in 18 U.S.C. § 1961(1), which includes
wire fraud and mail fraud.
Section 1961 requires that a RICO
plaintiff
defendant
establish
that
a
could
violating the charged predicate statutes.
be
convicted
for
Sedima, S.P.R.L. v.
Imrex Co., 473 U.S. 479, 486-88, 105 S.Ct. 3275, 87 L.Ed.2d 346
(1985); 18 U.S.C. § 1961 (defining racketeering activity to include
conduct that is “chargeable” or “indictable” and “offenses” that
are “punishable” under various criminal statutes).
Therefore, in
order to survive a motion to dismiss, a plaintiff must allege facts
sufficient to support each of the statutory elements for at least
two of the pleaded predicate acts.
See Central Distribs. of Beer
v. Conn, 5 F.3d 181, 183-84 (6th Cir. 1993), cert. denied, 512 U.S.
1207, 114 S.Ct. 2678, 129 L.Ed.2d 812, (1994).
A “pattern” of
racketeering activity is shown when defendant commits at least two
distinct but related predicate acts.
5
Williams, 465 F.3d at 1283.
(...continued)
and (2) that such injury was “by reason of” the substantive RICO
violation.
-15-
Further, to make out a “pattern” of racketerring, plaintiffs must
plead at least two related acts of mail or wire fraud, see 18
U.S.C. § 1961(5) and–with respect to each act–to allege with
particularity
the
defendants’
intentional
participation
in
a
“scheme . . . to defraud [plaintiffs] of money or property” and
their use of either the mails or wires to execute the scheme.
Douglas Ashphalt Co. v. QORE, Inc., 657 F.3d 1146 (11th Cir. 2011)
citing United States v. Ward, 486 F.3d 1212, 1222 (11th Cir. 2007);
Fed. R. Civ. P. 9(b).
The Court finds that an enterprise has been adequately pled.
“Enterprise”, as it is used in the statute, is defined as “any
individual, partnership, corporation, association, or other legal
entity, and any union or group of individuals associated in fact
although not a legal entity.”
18 U.S.C. § 1961.
The Second
Amended Complaint alleges that Bank of America is a member of MERS
and acts at the direction of its members.
Further, it alleges that
both Bank of America and MERS are corporations and the illegal acts
threatened by Bank of America against the plaintiffs could not have
been
completed
without
the
participation
of
both
parties.
(Doc.#53, ¶138.)
The Court further finds that plaintiffs have pled a scheme to
defraud with the requisite specificity.
In Count IV, plaintiffs
allege that these defendants “were involved in a scheme to collect
payments from Plaintiffs on a promissory note they knew [Bank of
-16-
America]: (1) did not hold, and (2) was void in any event.”
#53, ¶142.)
(Doc.
This scheme is alleged to have been perpetuated by the
use of the mails and telephone.
With respect to wire fraud,
plaintiffs allege that MERS and Bank of America used the telephone
to perpetrate their fraud, and provide the names of Bank of America
representatives, their extension numbers, and the substance of
their
fraudulent
statements.
With
respect
to
mail
fraud,
plaintiffs allege that they received over 100 monthly billing
statements which required minimum monthly payments by the 15th of
the month, and threatened fees for failure to pay.
¶147.)
(Doc. #53,
Plaintiffs have further alleged an injury proximately
caused by these schemes by alleging that they made over $60,000.00
in unlawful excess payments to Bank of America.
The motion to
dismiss on this ground is denied.
E.
Count Five: RESPA
Finally, Count Five asserts a cause of action under RESPA.
Plaintiffs assert that Calianos provided Bank of America with at
least six Qualified Written Requests (QWR), but Bank of America’s
responses to these requests fail under the statute.
Bank of
America asserts that its obligations under RESPA were not triggered
because the QWRs related to the validity of the debt rather than a
servicing issue.
RESPA imposes certain disclosure obligations on loan services
who transfer
or
assume
the
servicing
-17-
of
a
federally
related
mortgage loan.
obligation
to
12 U.S.C. § 2605.
respond
submitted by a borrower.
to
a
Among those duties is the
Qualified
Written
12 U.S.C. § 2605(e).
Request
(QWR)
Under RESPA, a QWR
is defined as follows:
[A]
qualified
written
request
means
a
written
correspondence (other than notice on a payment coupon or
other payment medium supplied by the servicer) that
includes, or otherwise enables the servicer to identify,
the name and account of the borrower, and includes a
statement of the reasons that the borrower believes the
account is in error, if applicable, or that provides
sufficient detail to the servicer regarding information
relating to the servicing of the loan sought by the
borrower.
12 U.S.C. § 2605(e)(1)(B). To state a claim for violation of RESPA
§ 2605(e), plaintiffs must allege facts showing that: (1) defendant
is a loan servicer, (2) plaintiffs sent defendant a valid QWR, (3)
defendant
failed
to
adequately
respond
within
the
20/60
day
statutory period, and (4) plaintiffs are entitled to actual or
statutory damages.
12 U.S.C. § 2605; See Frazile v. EMC Mortg.
Corp., 382 F. App’x 833, 836 (11th Cir. 2010).
By its terms, RESPA applies to requests related to loan
servicing.
RESPA defines “servicing” as “receiving any scheduled
periodic payments from a borrower pursuant to the terms of any loan
. . . and making the payments of principal and interest and such
other payments with respect to the amounts received from the
borrower as may be required pursuant to the terms of the loan.” 12
U.S.C. § 2605(i)(3).
“Not all requests that relate to the loan are
related to the servicing of the loan.”
-18-
Williams v. Wells Fargo,
No. C 10–00399 JF (HRL), 2010 WL 1463521, at *3 (N.D. Cal. Apr. 13,
2010) (citation omitted).
“A written inquiry that does not relate
to servicing is not a QWR.”
Lettenmaier v. Federal Home Loan
Mortg. Corp., No. CV–11–156–HZ, 2011 WL 3476648, at *11 (D. Or.
Aug. 8, 2011).
“A loan servicer only has a duty to respond if the
information request is related to loan servicing.”
Copeland v.
Lehman Bros. Bank, FSB, No. 09–1774–WQH–RBB, 2010 WL 2817173, at *3
(S.D. Cal. July 15, 2010).
The Eleventh Circuit has not addressed the issue of whether
RESPA requires a loan servicer to provide information concerning
loan validity, but courts that have addressed the issue almost
unanimously hold that RESPA does not require a loan servicer to do
so. See e.g., Ros v. Deutsche Bank Nat. Trust Co., 2013 WL 3288563
(June 18, 2013), Consumer Solutions Reo, LLC v. Hillery, 658 F.
Supp. 2d 1002, 1014 (N.D. Cal. 2009); Au v. Republic State Mortg.
Co., --- F. Supp.2d ----, 2013 WL 2420852 (D. Hawai’i, 2013);
Thurman v. Barclays Capital Real Estate Corp., 2011 WL 846441, at
*4 (E.D. Cal. Mar. 7, 2011); Minson v. CitiMortgage, Inc., 2013 WL
2383658 (D. Md. 2013); Ward v. Security Atlantic Mortg. Electronic
Registration Systems, Inc., 858 F. Supp.2d 561, 574-75 (D.D. N.C.
2012); Guerra v. Just Mortg., Inc., 2013 WL 1561114 (D. Nev. 2013).
The QWRs are attached to the Complaint.
(Doc. #53, Exh. N.)
Attachments to the complaint constitute a part of the pleading.
Crenshaw v. Lister, 556 F.3d 1283, 1291 (11th Cir. 2009)(citing
-19-
Fed. R. Civ. P. 10(c)).
Within the QWRs, plaintiffs dispute the
validity of the debt and allege that Bank of America is seeking to
enforce
a
voided
debt.
Because
the
QWRs
do
not
relate
to
servicing, as defined under the statute, plaintiffs have failed to
state a RESPA claim.
Accordingly, it is now
ORDERED:
1.
Fannie Mae’s Motion to Dismiss Plaintiffs’ Second Amended
Verified & Sworn Complaint (Doc. #66) is GRANTED and all counts
asserted against this defendant are DISMISSED WITHOUT PREJUDICE.
2.
Defendants’ Bank of America, N.A. and Mortgage Electronic
Registration Systems, Inc. Motion to Dismiss Plaintiff’s Second
Amended Verified and Sworn Complaint
(Doc. #59) is GRANTED to the
extent it seeks to dismiss Counts II and V and is denied in all
Counts II and V are DISMISSED WITHOUT PREJUDICE.
other respects.
DONE AND ORDERED at Fort Myers, Florida, this
August, 2013.
Copies:
Counsel of record
Pro se parties
-20-
13th
day of
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?