Farson v. Carrington Mortgage Services, LLC et al

Filing 11

ORDER: Defendant Carrington Mortgage Services, LLC's Motion to Dismiss Complaint 7 is granted in part and denied in part as detailed herein. Plaintiff may file an amended complaint on or before November 6, 2013. Signed by Judge Virginia M. Hernandez Covington on 10/18/2013. (CH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANNE FARSON,
Plaintiff,
v.

Case No. 8:13-cv-2289-T-33TGW

CARRINGTON MORTGAGE SERVICES,
LLC and JOHN DOE LOAN OWNER,
INC.,
Defendants.
_____________________________/
ORDER
This matter comes before the Court in consideration of
Defendant

Carrington

Mortgage

Services,

LLC’s

Motion

to

Dismiss Complaint (Doc. # 7), filed on September 25, 2013.
Plaintiff Anne Farson filed a response in opposition to the
Motion (Doc. # 10) on September 30, 2013.

For the reasons

that follow, the Motion is granted in part and denied in
part.

Farson may file an amended complaint on or before

November 6, 2013.
I.

Background
Carrington

Mortgage

is

the

loan

servicer

mortgage on certain real property owned by Farson.
2 at ¶¶ 3-4).

for

a

(Doc. #

Farson’s property is located in Hillsborough

County, Florida.

(Id. at ¶ 3).

Farson alleges in the

alternative

that

Carrington

Mortgage

“owns

the

Note

and

Mortgage on Plaintiff’s property and . . . is not servicing
the loan for a third party.”

(Id. at ¶ 5).

Farson claims to be “without knowledge as to whether
[Carrington Mortgage] is the owner . . . [or] merely a
third party servicer because [Carrington Mortgage] failed
to provide such information” in response to a Qualified
Written

Request

(QWR)

sent

by

Farson’s

Carrington Mortgage in May of 2013.

(Id.).

counsel

to

Farson alleges

that the QWR, dated May 8, 2013, was received by Carrington
Mortgage on May 13, 2013.

(Id. at ¶ 9; Doc. # 2-1 at 1).

Farson’s QWR requested, among other information, (1)
“A

complete

payment

history

which

lists

the

dates

and

amounts of all the payments [Farson has] made on the loan
to

date,

and

shows

how

each

payment

was

applied

or

credited”; (2) “The name and address of the owner of the
promissory

note

secured

by

the

deed

of

trust

in

the

mortgage loan”; (3) “The names of all entities to which the
promissory

note

transferred

at

.
any

.

.

time”;

has
and

been

sold

(4)

“The

or

otherwise

names

of

all

entities to which this mortgage or deed of trust has been
assigned . . . .”

(Doc. # 2-1 at 1-2).

2

Farson intiated the present action on July 31, 2013,
by filing a two-count Complaint in the County Court in and
for Hillsborough County, Florida.

(Doc. # 1 at 1).

On

September 4, 2013, Carrington Mortgage removed the case to
this Court, stating as grounds for removal this Court’s
original jurisdiction pursuant to 28 U.S.C. § 1331.
Within

the

Complaint,

Farson

alleges

(Id.).

(1)

that

Carrington Mortgage has violated the Real Estate Settlement
Procedures

Act

(RESPA)

by

failing

to

timely

respond

to

Farson’s QWR within thirty days as required by 12 U.S.C. §
2605(e)(2), and by failing to acknowledge receipt of the
QWR

within

five

days

2605(e)(1)(A);

and

violated

Truth

the

as

(2)
in

required

that

by

12

Carrington

Lending

Act

U.S.C.

Mortgage

by

failing

§
has
to

sufficiently disclose the identity of the owner of the Note
and Mortgage as required by 15 U.S.C. § 1641(f)(2), and by
failing to provide a timely “Notice of Sale, Transfer, or
Assignment” as required by 15 U.S.C. § 1641(g). (Doc. # 2).
On September 25, 2013, Carrington Mortgage filed the
instant Motion to Dismiss.

(Doc. # 7).

Farson filed a

response in opposition to the Motion on September 30, 2013.
(Doc. # 10).

The Court has reviewed the Motion as well as

3

the

response

and

is

otherwise

fully

advised

in

the

premises.
II.

Legal Standard
In reviewing a motion to dismiss for failure to state

a

claim,

a

trial

court

accepts

as

true

all

factual

allegations in the complaint and construes the facts in the
light most favorable to the plaintiff. Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).

However,

courts are not “bound to accept as true a legal conclusion
couched as a factual allegation.”

Papasan v. Allain, 478

U.S. 265, 286 (1986).
In Bell Atlantic Corp. v. Twombly, the Supreme Court
articulated

the

standard

by

which

claims

should

be

evaluated on a motion to dismiss:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough
to raise a right to relief above the speculative
level.
550 U.S. 544, 555 (2007) (internal citations omitted).
In

accordance

Procedure
accepted

8(a)
as

with

calls

true,

to

Twombly,
“for

Federal

sufficient

‘state
4

a

claim

to

Rule
factual
relief

of

Civil

matter,
that

is

plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662,

663 (2009) (quoting Twombly, 550 U.S. at 570).
claim

for

relief

must

include

“factual

A plausible

content

[that]

allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Id.

III. Discussion
As

a

preliminary

matter,

the

Court

notes

that

the

present Motion to Dismiss has not been converted into a
motion for summary judgment in accordance with Federal Rule
of

Civil

considered

Procedure

12(c)

matters

outside

because
the

the

Court

pleadings.

has
Rule

not
7(a)

defines “pleadings” to include both the complaint and the
answer, and Rule 10(c) provides that “[a] copy of a written
instrument that is an exhibit to a pleading is a part of
the pleading for all purposes.”

Fed. R. Civ. P. 7(a),

10(c); see also Horsley v. Feldt, 304 F.3d 1125, 1134 (11th
Cir. 2002).
In the Motion to Dismiss, Carrington Mortgage urges
the

Court

to

consider

its

“acknowledgement

and

complete

response” to Farson’s QWR, which Carrington Mortgage has
attached as an exhibit to the Motion.

(Doc. # 7 at 2).

However, “a document attached to a motion to dismiss may be
considered by the court without converting the motion into
5

one for summary judgment only if the attached document is:
(1) central to the plaintiff’s claim and (2) undisputed.”
Horsley, 304 F.3d at 1134.
means

that

challenged.”
2005).

the

“In this context, ‘undisputed’

authenticity

of

the

document

is

not

Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir.

Thus, “if the document’s contents are alleged in a

complaint and no party questions those contents, we may
consider such a document provided it meets the centrality
requirement . . . .”
Although

Id.

Farson

does

not

directly

challenge

the

authenticity of Carrington Mortgage’s responses attached to
the Motion to Dismiss, Farson does argue in response to the
Motion that “Defendant has not provided Anne Farson with
admissible evidence to establish or prove it is neither the
owner nor assignee of the loan.”

(Doc. # 10 at 6).

The

Court need not determine the extent to which this argument
effectively disputes the authenticity of those documents,
however, because the Court determines that the responses
are not central to Farson’s Complaint.
Crucial

to

this

determination

is

the

distinction

between a document that is central to a plaintiff’s claim
and a document that is central to a defendant’s affirmative
defense.

As the Eleventh Circuit explained in Lockwood v.
6

Beasley, 211 F. App’x 873, 877 (11th Cir. 2006), “[a]s to
whether a document is central to the plaintiff’s case, . .
. we consider[ ] whether the plaintiff would have to offer
the document to prove his case.”
Circuit

determined

that

the

In Lockwood, the Eleventh

district

court

converted

a

motion to dismiss into a motion for summary judgment by
consulting certain documents that “[did] not need to be
offered by Lockwood in order to prove his case; [rather,]
they are relevant to the defendants’ affirmative defense.”
Id.
In this case, viewing the Complaint in the light most
favorable to Farson, the Court does not consider Carrington
Mortgage’s acknowledgement and response to the QWR to be
central to Farson’s case, since Farson could have brought
the

same

claims

under

RESPA

and

TILA

regardless

as

whether Carrington Mortgage had responded at all.
the

Court

attached

declines

to

acknowledgement

consider
and

Carrington

response

in

to

Thus,

Mortgage’s

resolving

the

present Motion.
A. RESPA
Farson’s RESPA claims are derived from two separate
statutory
(e)(2).

provisions:

12

U.S.C.

§§

2605(e)(1)(A)

and

Section 2605(e)(1)(A) provides that, if a servicer
7

of a federally related mortgage loan receives a QWR from
the borrower (or an agent of the borrower) for information
relating to the servicing of the loan, the servicer must
provide

a

written

response

acknowledging

receipt

correspondence within a certain number of days.
U.S.C.

§

of

the

See 12

2605(e)(1)(A).

2605(e)(2)

requires

in

servicer

Section
a

“to

appropriate

receipt

of

QWR

make

a

corrections to the account, provide a written explanation
or clarification to the borrower regarding why the servicer
believes

the

requested
person.”

account

by

the

is

correct,

borrower

and

or
the

provide
name

information

of

a

contact

Whittaker v. Wells Fargo Bank, N.A., No. 6:12-cv-

98-Orl-28GJK, 2013 WL 5442270, at *2 (M.D. Fla. Sept. 27,
2013) (citing 12 U.S.C. § 2605(e)(2)).
Without

elaboration,

Farson

alleges

that

Carrington

Mortgage has violated section 2605(e)(1)(A) by failing to
“acknowledge

receipt

days,”

that

and

of

[Farson’s]

Carrington

QWR

Mortgage

within
has

five

(5)

additionally

violated section 2605(e)(2) by failing to “properly respond
to the QWR within thirty (30) days.”
21).

However,

specifying

five

Carrington
days

and

(Doc. # 2 at ¶¶ 20,

Mortgage
thirty

days

argues
as

the

that,

by

statutory

deadlines for a servicer’s acknowledgement and response,
8

Farson

“incorrectly

references

a

version

that has not yet even gone into effect.”
Indeed,
times

Farson’s

specified

in

allegations

the

Dodd-Frank

rely

of

the

statute

(Doc. # 7 at 2).
on

the

amendments

response
to

RESPA,

which, according to Carrington Mortgage, have not yet taken
effect.

The Tenth Circuit recently explained the relevant

legislative history as follows:
In implementing RESPA pursuant to § 2617, the
Secretary of the Department of Housing and Urban
Development
(HUD)
promulgated
24
C.F.R.
§
3500.21.
On July 21, 2011, the Bureau of
Consumer Financial Protection (Bureau) assumed
HUD’s consumer-protection function under RESPA
pursuant to the Dodd–Frank Wall Street Reform and
Consumer Protection Act, Pub. L. No. 111–203, 124
Stat. 1376. Thereafter, the Bureau adopted HUD's
previous regulation, including Regulation X[,]
[RESPA’s implementing regulation]. See 12 C.F.R.
1024.21.
The Dodd–Frank Act, among other
changes, decreased the response time in § 2605(e)
from twenty days to five and from sixty days to
thirty days, but has not yet taken effect.
See
Pub. L. 111–203 §§ 1400(c), 1463, 124 Stat. 1376,
2183–84 (stating that “a section, or provision
thereof, of this title shall take effect on the
date on which the final regulations implementing
such section, or provision, take effect” or, if
no regulations have been issued, “on the date
that is 18 months after the designated transfer
date,” July 21, 2011, which would be January 21,
2013). On January 17, 2013, the Bureau issued a
final rule implementing the Dodd–Frank amendments
to RESPA and amending Regulation X, with an
effective date of January 10, 2014.
Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1145 n.3
(10th Cir. 2013).
9

Although

the

Tenth

Circuit

appears

to

have

conclusively decided the effective date of the Dodd-Frank
amendments

as

they

apply

to

RESPA,

the

parties

in

the

instant case offer no Eleventh Circuit precedent on point,
and this Court has found none.
have

considered

this

matter

However, many other courts
and

have

come

to

the

same

conclusion articulated in Berneike; that is, the reduced
response times have not yet taken effect.
Wells

Fargo

Bank,

N.A.,

No.

See Henderson v.

3:12-cv-3935-L,

2013

WL

5433498, at *19 (N.D. Tex. Sept. 30, 2013) (“In July of
2010, RESPA was amended by Congress to reduce the time
period under section 2605(e)(1)(A) from twenty days to five
days . . . .
effective

The Dodd-Frank amendments, however, are not

until

January

10,

2014.”);

Steele

v.

Quantum

Serv. Corp., No. 3:12-cv-2897-L, 2013 WL 3196544, at *6
(N.D. Tex. June 25, 2013) (same);

Brown v. Wells Fargo

Bank, No. 6:12-cv-1663-AA, 2013 WL 1900629, at *2 n.1 (D.
Or. May 4, 2013) (“[P]laintiffs do not allege that the
amendment was in effect in March 2012, and it likely was
not.”) (citing Berneike, 708 F.3d at 1145 n.3); Smith v.
Bank of Am. Home Loans, No. 2:11-cv-676-FtM-29DNF, 2013 WL
4080325, at *8 (M.D. Fla. Aug. 13, 2013) (referring to the
response times as “the 20/60 day statutory period”).
10

Still other courts, however, have presumed the reduced
response times to apply in recent RESPA cases.

See, e.g.,

Mernatti v. Nationstar Mortg., LLC, No. 12-14580, 2013 WL
5587821,

at

*7

n.2

(E.D.

Mich.

Oct.

10,

2013)

(“Both

parties rely on an old version of § 2605(e)(1), which was
amended in 2010 and became effective on July 21, 2011.”);
Whittaker, 2013 WL 5442270, at *2 n.1 (“The statute has
been amended and now provides for a five-day response time
instead of a twenty-day response period.”).
In response to the Motion to Dismiss, Farson neglects
to

address

Carrington

Mortgage’s

argument

that

the

decreased response times imposed by the Dodd-Frank Act are
inapplicable here.

Instead, Farson argues in conclusory

fashion that “Defendant has not properly addressed the[ ]
RESPA

violations,”

and

thus

that

Defendant’s Motion to Dismiss.”

they

should

“survive

(Doc. # 10 at 3).

At this juncture, the Court need not determine whether
the

Dodd-Frank

amendments

have

taken

effect,

Farson’s RESPA claims fail on other grounds.

because

“To state a

RESPA claim for failure to respond to a written request, a
plaintiff must allege: (1) the defendant is a loan servicer
under

the

written

statute;

request

(2)

the

consistent

plaintiff

with
11

the

sent

a

qualified

requirements

of

the

statute;

(3)

the

defendant

failed

to

respond

adequately

within the statutorily required days; and (4) the plaintiff
has suffered actual or statutory damages.”

Correa v. BAC

Home Loans Serv. LP, No. 6:11-cv-1197-Orl-22DAB, 2012 WL
1176701, at *6 (M.D. Fla. Apr. 9, 2012) (citing Frazile v.
EMC Mortg. Corp., 382 F. App’x 833, 836 (11th Cir. 2010)).
In the present case, Farson fails to allege sufficient
facts to show that she has suffered actual or statutory
damages.
states

With
that

Defendant[’s]

regard
“[t]he
failure

to

damages,

Plaintiff
to

the

was

comply

Complaint
damaged

and

merely

by

contends

the
that

Defendant[’s] actions are typical and exhibit a pattern or
practice
RESPA.”

of

noncompliance

with

the

requirements

of

[

]

(Doc. # 2 at ¶ 22).

“To seek statutory damages under § 2605, [a] Plaintiff
must

allege

practice

of

section.”

facts

showing

noncompliance

that
with

there
the

is

pattern

requirements

Correa, 2012 WL 1176701, at *8.

failed to plead such facts.

a

of

or
the

Farson has

The Complaint is similarly

devoid of facts supporting any actual damages Farson has
incurred as a result of the alleged RESPA violation.
Court

thus

finds

that

Farson

has

failed

to

plead

The
a

plausible claim for either actual or statutory damages, and
12

accordingly grants Carrington Mortgage’s Motion to Dismiss
with regard to Farson’s claims under RESPA.
B. TILA
Farson premises Carrington Mortgage’s violation of the
Truth

in

Lending

distinct

statutory

provisions: 15 U.S.C. §§ 1641(f)(2) and 1641(g).

(Doc. # 2

at ¶¶ 24, 34).

Act

upon

two

Section 1641(f)(2) provides, in relevant

part: “Upon written request by the obligor, the servicer
shall provide the obligor, to the best knowledge of the
servicer, with the name, address, and telephone number of
the owner of the obligation or the master servicer of the
obligation.”

15

U.S.C.

§

1641(f)(2).

Section

1641(g)

provides that a creditor “that is the new owner or assignee
of [a] debt shall notify the borrower in writing” no later
than 30 days after the mortgage loan is sold or otherwise
transferred.

15 U.S.C. § 1641(g).

Farson fails to allege any facts relating to the sale,
transfer, or assignment of her mortgage loan. The Complaint
merely

reproduces

the

statutory

requirements

of

section

1641(g). (See Doc. # 2 at ¶ 34). Thus, the Court grants
Carrington

Mortgage’s

Motion

claim under section 1641(g).

13

to

Dismiss

as

to

Farson’s

As for Farson’s claim under section 1641(f)(2), the
Complaint

contains

ample

factual

allegations.

consist

of

Farson’s

legal

The

conclusions

facts

brief

but

supporting

assertions

that

limited

this
(1)

claim

the

QWR

requested that Carrington Mortgage disclose the identity of
the

current

owner

of

the

note

and

mortgage,

and

(2)

Carrington Mortgage “failed to, or refused to sufficiently
disclose”

the

identity

of

the

owner

mortgage.

(Doc. # 2 at ¶¶ 25, 30).

of

the

note

and

Although the factual

support for Farson’s section 1641(f)(2) claim admittedly is
sparse,

the

Court

notes

that

Federal

Rule

of

Civil

Procedure 8(a) requires only “a short and plain statement
of

the

relief.”

claim

showing

Fed.

R.

that

Civ.

the

P.

pleader

8(a).

is

“This

entitled
is

a

to

liberal

pleading requirement, one that does not require a plaintiff
to plead with particularity every element of a cause of
action.”

O’Connor & O’Connor v. Liberty Mut. Ins. Co., No.

6:13-cv-1389-Orl-31GJK, 2013 WL 5519868, at *1 (M.D. Fla.
Oct. 2, 2013).
Carrington Mortgage argues that “Farson’s allegations
related to a supposed violation of section 1641(f)(2) fail,
because
consumer

Farson

does

credit

not

allege

transaction
14

she

that

is

an

obligor

is

secured

by

of

a

her

principal

dwelling,

as

required

specifically,

Carrington

for

[this

(Doc. # 7 at 3).

provision] of TILA to apply.”

in

More

Mortgage

order

argues

that

“Farson

improperly fails to allege that she is the ‘obligor’ of the
mortgage loan on her property, or that the mortgage loan
was

‘primarily

for

personal,

family,

or

household

purposes,’” as purportedly required by 15 U.S.C. § 1602(i).
(Doc. # 7 at 8).
However, Carrington Mortgage has neglected to bolster
this argument with a single case, from this jurisdiction or
any other,

demonstrating that these specific allegations

are required to state a claim under section 1641(f)(2).
Within the Complaint and the attachments thereto, Farson
has (1) identified herself as a borrower, (2) identified
Carrington Mortgage as her mortgage servicer, (3) alleged
that

she

request
relevant

provided

for

the

Carrington

name

obligation,

and
and

Mortgage

address
(4)

of

alleged

with
the

a

owner

that

written
of

the

Carrington

Mortgage “failed to, or refused to sufficiently disclose
the identity” of the owner of the obligation.
¶¶ 9, 15, 30; Doc. # 2-1 at 1-2).

(Doc. # 2 at

Furthermore, Farson more

than once refers to the subject property as her “home.”
(Doc. # 2 at ¶¶ 5-6).

At this juncture, mindful of the
15

meager pleading requirements of Rule 8(a), the Court finds
these

factual

allegations

sufficient

Carrington Mortgage’s Motion to Dismiss.

to

withstand

Accordingly, the

Court denies Carrington Mortgage’s Motion to Dismiss as to
Farson’s section 1641(f)(2) claim.
C.

Mediation

In response to the Motion to Dismiss, Farson states:
Anne Farson was, and still is, willing to mediate
her claims.
However, before [the parties] could
mediate this case, the Defendant removed [this]
action to [ ] federal court. In this connection,
Anne Farson is requesting her case be submitted
to Mediation prior to this court ruling on
Defendant’s Motion to Dismiss.
(Doc. # 10 at 2).
The Court reminds the parties that, pursuant to Local
Rule 3.01(f), an application to the Court requesting relief
in any form must be filed as an appropriate motion pursuant
to Local Rule 1.05.

Additionally, the Court notes that the

parties are free to submit this case to mediation at any
time without an order from the Court.1

Farson’s informal

request to mediate this matter is thus immaterial to this
Court’s ruling on the present Motion to Dismiss.
1

However, the Court cautions that a mediation conducted in
the absence of a Middle District of Florida Certified
Mediator will not relieve the parties of the requirement
that they submit this case to court-annexed mediation in
accordance with Local Rules 9.01-.07.
16

IV.

Conclusion
The Court finds that Farson has sufficiently stated a

claim

under

15

U.S.C.

§

1641(f)(2),

and

thus

denies

Carrington Mortgage’s Motion to Dismiss as to that claim.
The Motion is otherwise granted.

The Court dismisses the

remaining claims without prejudice so that Farson may have
an opportunity to amend her Complaint to state a claim as
to these matters, if possible.

Farson may file an amended

complaint on or before November 6, 2013.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Carrington Mortgage Services, LLC’s Motion
to Dismiss Complaint (Doc. # 7) is granted in part and
denied in part as detailed herein.

(2)

Plaintiff may file an amended complaint on or before
November 6, 2013.
DONE and ORDERED in Chambers in Tampa, Florida, this

18th day of October, 2013.

Copies: All Counsel of Record

17