Perison v. OCWEN Loan Servicing, LLC

Filing 23

ORDER ON MOTION TO DISMISS; granting 7 Defendant's MOTION to Dismiss the State Court Complaint contained within the Notice of Removal 1 Notice of Removal (State Court Complaint), filed by OCWEN Loan Servicing, LLC. Signed by Judge Beth Bloom on 2/15/2017. (ail) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-cv-62840-BLOOM/Valle

MAXINE PIERSON,
Plaintiff,
v.
OCWEN LOAN SERVICING, LLC,
Defendant.
_______________________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court on Defendant Ocwen Loan Servicing, LLC’s
(“Defendant”) Motion to Dismiss, ECF No. [7] (the “Motion”), seeking dismissal of Plaintiff
Maxine Pierson’s (“Plaintiff”) Complaint, ECF No. [1-2]. The Court has carefully reviewed the
record, the parties’ briefs, and the applicable law. For the reasons set forth below, the Motion is
granted.
I.

BACKGROUND
Plaintiffs initially filed this action on October 18, 2016 in the Seventeenth Judicial

Circuit, in and for Broward County, Florida, seeking relief for Defendant’s alleged violation of
the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601, et. seq. (“RESPA”), and its
implementing regulation 12 C.F.R. § 1024, et. seq. (“Regulation X”). See ECF No. [1-2] at ¶¶ 12. Specifically, Plaintiff seeks damages as a result of Defendant’s alleged failure to comply with
§ 2605(k) of RESPA and § 1024.36 of Regulation X. Id. at ¶ 3. Defendant timely removed the
matter to this Court, and now moves to dismiss the Complaint with prejudice.

Case No. 16-cv-62840-BLOOM/Valle
Plaintiff’s claim stems from Plaintiff’s mailing of a written request for information
(“RFI”) to Defendant pursuant to Regulation X. Id. at ¶ 15; see also id. at Exh. A. Plaintiff sent
her RFI by Certified Mail on September 22, 2016, which Plaintiff and her counsel tracked
through a certified tracking number. Id. at Exh. A. The RFI was delivered to Defendant on
September 26, 2016. See ECF No. [7] at 3; ECF No. [8] at 2. Plaintiff’s attorney did not receive
a written acknowledgment to the Plaintiff’s RFI within the required statutory timeframe and,
consequently, sent a follow-up Notice of Error Letter (“NOE”) to Defendant on October 3, 2016.
ECF No. [1-2] at ¶ 15; see also id. at Exh. B.
Plaintiff brings one count against Defendant for Defendants’ alleged violation of 12
U.S.C § 2605(k), under which Plaintiff alleges that Defendant violated RESPA § 2605(k)
through violation of Regulation X, 12 C.F.R. §1024.36(c), by failing to acknowledge receipt of
the RFI within five days. See ECF No. [1-2] at ¶¶ 22-23. As to damages, Plaintiff claims that as
“a direct and proximate result of Defendant’s failure to comply with Regulation X and RESPA,”
Plaintiff has incurred actual damages in the amount of $6.45 for postage for mailing the NOE
along with other related costs.” Id. at ¶¶ 24-25. Defendant filed the instant Motion to Dismiss
on December 08, 2016. Plaintiffs Response and Defendant’s Reply timely followed. See ECF
Nos. [7], [16].
II.

LEGAL STANDARD
Rule 8 of the Federal Rules requires that a pleading contain “a short and plain statement

of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a
complaint “does not need detailed factual allegations,” it must provide “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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Case No. 16-cv-62840-BLOOM/Valle
(explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation”). In the same vein, a complaint may not rest on
“‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557 (alteration in original)). “Factual allegations must be enough to raise a
right to relieve above the speculative level.”

Twombly, 550 U.S. at 555. These elements are

required to survive a motion brought under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, which request dismissal for “failure to state a claim upon which relief can be
granted.”
When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the
plaintiff’s allegations as true and evaluate all plausible interferences derived from those facts in
favor of the Plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration
Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp.,
LLC, 608 F. Supp. 2d 1349, 1353 (S.D Fla. 2009). However, this tenet does not apply to legal
conclusions, and courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cnty.
Sheriff’s Office, 449 F. 3d 1342, 1352 (11th Cir. 2006). Moreover, “courts may infer from the
factual allegations in the complaint ‘obvious alternative explanations,’ which suffers lawful
conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Am. Dental
Ass’n v. Signa Corp., 605 F. ed 1283, 1290 ( 11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682). A
court considering a Rule 12(b) motion is generally limited to the facts continued in the complaint
and attached exhibits, including documents referred to in the complaint that re central to the
claim. See Wilchombe v. TeeVee Toons, Inc., 55 F.3d 1337, 1340 (11th Circuit. 2005) (“[A]
document outside the four corners of the complaint may still be considered if it is central to the

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Case No. 16-cv-62840-BLOOM/Valle
plaintiff’s claims and is undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d
1125, 1135 (11th Cir. 2002)).
III. DISCUSSION
Defendant moves the Court to dismiss the Complaint on two separate grounds: (1)
Plaintiff cannot adequately plead the very premise of her claim—i.e., that Defendant did not
provide written receipt of the RFI within the permitted timeframe—because Defendant did in
fact timely respond to Plaintiff’s RFI with a letter of acknowledgment that was sent to Plaintiff’s
address, see ECF No. [7-1] (“Acknowledgment Letter”); and (2) Defendant cured any alleged
failure to acknowledge the RFI in accordance with the pre-suit notice-and-cure requirement
provided in the underlying mortgage.
Plaintiff claims that Defendant violated RESPA § 2605(k) through its violation of
Regulation X. See ECF No. [1-2] at ¶¶ 22-23.1 Section 2605 of RESPA governs the “serving of
mortgage loans and administration of escrow accounts,” and implicates Regulation X by
providing in relevant part that “[a] servicer of a federally related mortgage shall not . . . fail to
comply with any other obligation found by the Bureau of Consumer Financial Protection, by
regulation, to be appropriate to carry out the consumer protection purposes of this chapter.” See
12 U.S.C. § 2605(k)(1)(E).

Section 1024.36(c) of Regulation X, under the title

“Acknowledgement of receipt,” provides that
Within five days (excluding legal public holidays, Saturdays, and Sundays) of a
servicer receiving an information request from a borrower, the servicer shall
provide to the borrower a written response acknowledging receipt of the
information request.

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Both parties urge the Court to review the RFI and NOE attached to the Complaint, as well as the
Acknowledgment Letter attached to the Motion, all of which the Court finds central to Plaintiff’s claim.
Accordingly, the court will review the attachments as appropriate in adjudicating the motion. See
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009).

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Case No. 16-cv-62840-BLOOM/Valle
Defendant argues that Plaintiff’s claim must fail because Defendant indeed responded
timely and adequately to Plaintiff’s RFI. According to Defendant, after receiving Plaintiff’s RFI
on September 26, 2016, Defendant sent a timely Acknowledgement Letter to Plaintiff’s mailing
address three days later, on September 29, 2016. That letter, dated September 29, 2016, is
attached to Defendant’s Motion. See ECF No. [7-1]. In response, Plaintiff neither concedes nor
refutes that the Acknowledgment Letter was sent by Defendant or that the Acknowledgment
Letter was sent on the date indicated. See ECF No. [8] at 5. Instead, Plaintiff directs the Court’s
attention to what she characterizes as “proof issues” related to the Acknowledgment Letter:
“The letter attached . . . contains no proof of mailing, nor does the letter itself provide any frame
of reference for the ‘correspondence on the above referenced loan’ to which it refers.” Id.
(quoting ECF No. [7-1]). Plaintiff seems to imply that consideration of the Acknowledgment
Letter requires conversion of Defendant’s Motion into a motion for summary judgment,
contending that Defendant “cannot rely on mere fiat to prove that this letter was generated in
response to the [RFI], that it was mailed directly to the Plaintiff and that this mailing occurred on
the date set forth in the letter.”2 Id.
“Generally, the district court must convert a motion to dismiss into a motion for summary
judgment if it considers materials outside the complaint. Fed. R. Civ. P. 12(b). A court may,
however, consider documents attached to a motion to dismiss without converting the motion into
one for summary judgment if the documents are (1) central to the plaintiff's claim and (2)
undisputed.” Weiss v. 2100 Condo. Ass'n, Inc. @ Sloan's Curve, 2012 WL 8751122, at *1 (S.D.
Fla. Oct. 17, 2012) (citing Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005)). Here, the
Acknowledgment Letter is undoubtedly central to Plaintiff’s claim. Furthermore, the Court finds

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Plaintiff nonetheless clarifies that she “is not making any accusations against the Defendant with respect
to the specific date of mailing . . . .” Id. at 5 n.2.

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Case No. 16-cv-62840-BLOOM/Valle
there to be no dispute with respect to the Acknowledgment Letter, notwithstanding the “proof
issues” raised by Plaintiff. To begin with, Plaintiff in no way challenges the authenticity of the
Acknowledgment Letter and, importantly, makes no allegation that she never received the
Acknowledgment Letter at her address within the permitted timeframe.3 See Day, 400 F.3d at
1276 (“In this context, ‘undisputed’ means that the authenticity of the document is not
challenged.”); see also Sutton v. Ocwen Loan Servicing, LLC, 2016 WL 4417688, at *2 n.3 (S.D.
Fla. Aug. 19, 2016) (“The Acknowledgment Letter is undisputed because Plaintiffs do not
challenge its authenticity . . . .”). Moreover, Plaintiff is simply incorrect to assert that the
Acknowledgment Letter does not “provide any frame of reference” to the underlying mortgage it
purports to refer to. The Acknowledgment Letter is addressed specifically to Plaintiff at
Plaintiff’s address, lists the same property address that is associated with the mortgage, and is
dated only three days after the date on which Defendant received Plaintiff’s RFI. See ECF No.
[7-1], [7-2] at 3. The Court therefore finds that the Acknowledgment Letter, properly considered

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To the contrary, much of Plaintiff’s Response to the Motion takes issue with the fact that the
Acknowledgment Letter was not sent to Plaintiff’s counsel at the address designated on the RFI. See,
e.g., ECF No. [8] at 3 (acknowledging that “Defendant did acknowledge receipt of the NOE and
direct[ed] future correspondence to the Plaintiff’s designated address or such correspondence” but also
stating that “at no time . . . was undersigned counsel’s office ever provided with a copy of the alleged
September 29, 2016 acknowledgment letter”) (emphasis added). On that point, the Court rejects
Plaintiff’s argument that, in any event, Defendant violated 12 C.F.R. § 1024.36(c) by sending the
Acknowledgment Letter directly to Plaintiff rather than Plaintiff’s counsel. See id. at 6-7. This Court
rejected that very argument in Sutton v. Ocwen Loan Servicing, LLC, 2016 WL 4417688, at *3 (S.D. Fla.
Aug. 19, 2016), a case in which an acknowledgment letter was sent directly to the plaintiff despite a
request in the plaintiff’s RFI that all correspondence be directed to her attorney. This Court explained:
[T]he Court declines to read into the statute a requirement that an acknowledgment need
be sent to a borrower’s attorney in order to satisfy the statutory requirements. Indeed
under the plain meaning of 12 C.F.R. § 1024.36(c), the statue does not contain a
requirement with respect to where an acknowledgment should be sent.
Id. The Court notes that Plaintiff did not address this case or the proposition it stands for despite being
raised in Defendant’s Motion.

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within the context of Defendant’s Motion to Dismiss, conclusively shows that Plaintiff’s claim
must fail. Given that leave to amend would be futile, the Complaint is dismissed with prejudice.
Although Defendant’s first basis for dismissal is dispositive, the Court also finds that
Plaintiff’s Complaint is subject to dismissal on Defendant’s second basis—namely, that
Defendant cured any alleged failure to acknowledge the RFI in accordance with the pre-suit
notice-and-cure requirement provided in the mortgage. Plaintiff does not dispute that once she
notified Defendant of its purported failure to acknowledge her RFI by way of the NOE sent on
October 3, 2016, Defendant sent a letter acknowledging receipt of the NOE on October 13, 2016,
five days before Plaintiff subsequently filed suit. See ECF Nos. [7-3]; ECF No. [8] at 3. Under
paragraph 20 of the mortgage, Plaintiff is required to provide notice and a reasonable period of
time to take corrective action prior to filing suit. ECF No. [7-2] at 13. Contrary to the position
taken in Plaintiff’s Response, see ECF No. [8] at 8-9, the notice and cure provision of the
underlying mortgage is applicable to claims against Defendant as servicer of the loan despite
Defendant not being a party to the underlying contract. See Hill v. Nationstar Mortg. LLC, 2015
WL 4478061, at *2-3 (S.D. Fla. July 2, 2015) (dismissing all of the plaintiffs’ claims against the
mortgage loan servicer for the plaintiffs’ failure to comply with the notice and cure provision);
Charles v. Deutsche Bank Nat'l Trust Co., 2016 WL 950968, at *3-4 (S.D. Fla. Mar. 14, 2016)
(rejecting plaintiff's contention that the loan servicer, “as a non-party to the mortgage, cannot
enforce the mortgage's pre-suit notice and cure provision” and further noting that “[o]ther courts,
moreover, have permitted servicers to enforce other mortgage provisions”).

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Case No. 16-cv-62840-BLOOM/Valle
IV. Conclusion
For the reasons stated above, it is ORDERED AND ADJUDGED that Defendant’s
Motion to Dismiss, ECF No. [7], is GRANTED. As any amendment would be futile due to the
legal determinations made herein, The Complaint is DISMISSED WITH PREJUDICE. The
Clerk is instructed to CLOSE this case.
DONE AND ORDERED in Miami, Florida, this 15th day of February, 2017.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

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