GRAY v. LAW OFFICES OF PEGGY L BROWN PC et al

Filing 36

ORDER granting in part and denying in part 24 Motion to Dismiss for Failure to State a Claim; denying 34 Motion to Strike. Ordered by US DISTRICT JUDGE CLAY D LAND on 04/23/2018. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
SANDRA GRAY, individually and
as executrix of the estate of
Nathan Gray,
Plaintiff,

*
*
*

vs.
PEGGY L. BROWN, et al.,

CASE NO. 3:17-CV-153 (CDL)

*
*

Defendants.

*
O R D E R

Presently pending before the Court is the motion to dismiss
of Defendants Ocwen Loan Servicing, LLC (“Ocwen”), The Bank of
New

York

Interest

Mellon
to

f/k/a

JPMorgan

The

Bank

Chase

of

Bank,

New
as

York,

Trustee

Successor
for

in

Novastar

Mortgage Funding Trust, Series 2005-2, Novastar Home Equity LOA
Asset-Backed

Certificates,

Chase

as

Series

Bank,

Trustee

2005-2,

Series

for

Novastar

2005-2

Novastar
Home

(“Mellon”),

Mortgage

Equity

JPMorgan

Funding

LOA

Trust,

Asset-Backed

Certificates, Series 2005-2 (“Chase”), and Mortgage Electronic
Registration Systems, Inc. (“MERS”).

These Defendants contend

that Plaintiff’s First Amended Complaint fails to state a claim
against them.

As discussed below, their motion to dismiss (ECF

No. 24) is granted in part and denied in part.
also seek to strike Plaintiff’s

These Defendants

response to their

motion to

dismiss because Plaintiff filed it a week late without leave to
do so.

But they also argue that the Court should consider the

content of the response and deem certain claims to be abandoned.
The motion to strike (ECF No. 34) is denied.
MOTION TO DISMISS STANDARD
“To survive a

motion to dismiss” under Federal Rule of

Civil Procedure 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).

The complaint must include sufficient factual

allegations “to raise a right to relief above the speculative
level.”

Twombly, 550 U.S. at 555.

In other words, the factual

allegations must “raise a reasonable expectation that discovery
will reveal evidence of” the plaintiff’s claims.

Id. at 556.

But “Rule 12(b)(6) does not permit dismissal of a well-pleaded
complaint simply because ‘it strikes a savvy judge that actual
proof

of

those

facts

is

improbable.’”

Watts

v.

Fla.

Int’l

Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly,
550 U.S. at 556).
FACTUAL ALLEGATIONS
Plaintiff alleges the following facts in support of her
claims.

The Court must accept these allegations as true for

purposes of the pending motion.

2

In 1987, Plaintiff and her husband Nathan Gray purchased a
house located at 1540 Old Athens Highway, Monroe, Georgia 30656
(“Property”).
Countrywide

They

financed

Funding

the

purchase

Corporation.

The

with
next

a

loan

year,

from

Nathan

transferred all of his interest in the Property to Plaintiff.
The year after that, Plaintiff executed a new security deed with
Countrywide,

and

she

signatory for the

was

listed

$69,505.72

as

loan.

the

sole

Nathan

borrower

and

made the monthly

Countrywide loan payment from his individual bank account.
In 2005, Nathan applied for a refinance loan from Emmco,
LLC.

The loan application listed both Plaintiff and Nathan as

joint titleholders of the Property.
as a borrower or co-borrower.

It did not list Plaintiff

Plaintiff asserts that she did

not know about this loan application.

Emmco knew that Plaintiff

was the sole owner of the Property, but it accepted the loan
application and originated a loan for $112,500.00 to be secured
by the Property “despite knowing that Nathan Gray had no legal
interest in the Property.”

1st Am. Compl. ¶ 24, ECF No. 20.

At

the closing of the loan on May 27, 2005, Nathan executed a
promissory

note

to

Emmco.

He

also

signed

a

finalized

loan

application similar to the one he initially submitted to Emmco.
Plaintiff was not present at the closing and did not sign the
promissory note.

Nathan also executed a security deed, which

listed him and Plaintiff as the borrowers, Emmco as the lender,

3

and MERS as the grantee “as a nominee for Lender and Lender’s
successors and assigns.”
ECF

No.

“Sandra

20-6.
Gray,”

authentic

The
but

signature

1st Am. Compl. Ex. 6, Security Deed 1,

security

deed

Plaintiff
and

that

contains

asserts
she

did

that
not

a

signature

it

is

sign

any

not

for
her

closing

documents, authorize the loan, or attend the closing.
Defendant Peggy L. Brown was the closing attorney for the
2005 refinance loan.

Defendant Ellen McDorman and Brown both

notarized the documents that contained Plaintiff’s signature,
including the security deed and an acknowledgement and waiver of
borrower’s rights.

According to Plaintiff, her signature is

forged, and neither Brown nor McDorman verified the identity of
the person who signed the documents.1

Plaintiff alleges that

Brown knew that Nathan did not hold title to the Property and
was not authorized to sign the closing documents on behalf of
Plaintiff.

She further alleges that Emmco and Brown knew or

should have known (by conducting a title search) that Plaintiff
was

the

sole

titleholder

of

the

1

property

but

closed

the

Plaintiff further alleges that she did not present her driver’s
license to any of the Defendants.
Defendants submitted a copy of
Plaintiff’s and Nathan’s driver’s licenses.
Mot. to Dismiss Ex. C,
Driver’s Licenses, ECF No. 24-4.
Defendants did not provide any
context for this exhibit, such as where it came from.
Even if they
had, the Court cannot consider this disputed evidence without
converting a motion to dismiss into a summary judgment motion.
See
Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary judgment under
Rule 56.”).

4

refinance loan to Nathan anyway.
that

there

were

irregularities

Finally, Plaintiff contends
with

the

closing

documents—

including two documents purporting to be the original security
deeds

and

two

documents

purporting

to

be

acknowledgment and waiver of borrower’s rights.
the security deed on behalf of Emmco.

the

original

Brown recorded

Plaintiff believes that

Emmco assigned the loan to Mellon through MERS.

At some point,

Ocwen became the loan servicer for the 2005 refinance loan.
Plaintiff alleges that she did not know about or receive
any benefit from the 2005 refinance loan, although she does
acknowledge that part of the loan proceeds were used to pay off
the original Countrywide loan.

Nathan paid the monthly payments

from his individual checking account, and Plaintiff did not have
access

to

that

account.

Nathan

also

received

the

mortgage

statements at his private post office box, so Plaintiff did not
see them.

Nathan died in February 2016, and Plaintiff was named

executor of his estate on March 1, 2016.

At that time, she

discovered the 2005 refinance loan.
On March 2, 2016, Plaintiff wrote a letter to Ocwen asking
for proof of its right to service a loan associated with the
Property.

In response, on March 10, 2016, Ocwen sent Plaintiff

copies of the security deed, a commitment for title insurance,
and

an

acknowledgment

and

waiver

contained only Nathan’s signature.

5

of

borrower’s

rights

that

On March 30, 2016, Ocwen

sent

Plaintiff

copies

of

an

allonge

listing

Nathan

as

the

borrower for the loan, the note executed by Nathan, two Forms
4506-T (Request for Tax Return) signed by Nathan, and the loan
applications listing Nathan as the borrower for the loan.

Ocwen

also informed Plaintiff that Mellon “currently owns the loan and
holds the Note.”

1st Am. Compl. Ex. 7, Letter from Ocwen to S.

Gray (Mar. 29, 2016), ECF No. 20-7 at 2.

On April 11, 2016,

Ocwen sent Plaintiff additional copies of these documents.
Plaintiff
although

she

resumed
asserts

paying

that

accepted her payments.

the

in

did

she

mortgage
so

protest.

under

April

2016,
Ocwen

Later in 2016, Plaintiff retained a

lawyer to help her investigate the loan issue and notified Ocwen
of

a

potential

communicating
mortgage

lawsuit.

directly

statements

At

with

and

that

Plaintiff

other

point,
and

documents

Ocwen

began
to

stopped

sending

her

her

attorney.

Plaintiff and her attorney have both asked that these documents
be sent directly to Plaintiff instead.

In early 2017, Plaintiff

sent Ocwen an affidavit of identity theft.

In response, Ocwen

stated that it compared the signature on the affidavit to the
account
suggested

documents
that

if

and

determined

Plaintiff

that

wished

to

they
pursue

matched;
her

Ocwen

claim

of

identity theft, she should file a court case.
In June 2017, Ocwen returned a payment made by Plaintiff
and later sent her a default notice.

6

Plaintiff then demanded

that Ocwen return all the money she had paid on the refinance
loan since April 2016.

Later that summer, Plaintiff filed this

action.
Plaintiff asserts the following claims:
1.

Count I: Negligence against Emmco, Brown, McDorman,
Chase, Mellon, and Ocwen. 1st Am. Compl. ¶¶ 61-72.

2.

Count II: Slander of Title against Emmco, Chase, and
Mellon. Id. ¶¶ 73-81.

3.

Count III: Declaratory Relief against
Mellon, and Ocwen. Id. ¶¶ 82-88.

4.

Count IV: Bad Faith against Emmco and Ocwen.
101.

Id. ¶¶ 89-

5.

Count V: Money Had and
Mellon. Id. ¶¶ 102-111.

Ocwen

6.

Count VI: Fraud and Deceit against Emmco, Brown, and
McDorman. Id. ¶¶ 112-125.

7.

Count VII: Violations of the Real Estate Settlement
Procedures Act (“RESPA”) against Ocwen. Id. ¶¶ 126-132.

8.

Count VIII: Missing Statements Violation against Emmco.
Id. ¶¶ 133-138.

9.

Count IX: Missing Disclsure Statement Violation against
Emmco. Id. ¶¶ 139-144.

10. Count X: Disclosure
¶¶ 145-153.2

Received

Violation

Emmco,

against

against

Emmco.

Chase,

and

Id.

DISCUSSION
Mellon, Ocwen, Chase, and MERS seek dismissal of all of the
claims against them.

These

Defendants

first

argue that the

Court should conclude that Plaintiff abandoned her negligence,
2

In her original Complaint, Gray brought claims against Law Offices of
Peggy L. Brown, P.C., but she did not assert any claims against that
entity in her First Amended Complaint.

7

slander of title, and RESPA claims by failing to address those
claims in her response to Defendants’ motion to dismiss.

In

support of this argument, these Defendants point to cases from
the Northern District of Georgia, which has a local rule stating
that a party’s failure to respond to a motion “shall indicate
that there is no opposition to the motion.”

N.D. Ga. R. 7.1(B).

This Court has no such local rule.

Defendants also point to a

number

which

because

of

summary

the

judgment

standard

of

cases,

review

is

do

not

different.

apply
At

here

summary

judgment, the non-moving party must come forward with evidence
to show that there is a genuine fact dispute.

In contrast, “at

the motion to dismiss stage, the scope of a court’s review must
be limited to the four corners of the complaint.”

Boyd v. Peet,

249 F. App’x 155, 157 (11th Cir. 2007) (per curiam) (finding
that the district court erred by concluding that the plaintiff
abandoned certain claims “by failing to adequately address them
in his response brief”).

Therefore, the Court declines to find

that Plaintiff abandoned these claims by failing to respond to
Defendants’ motion to dismiss them.

The Court now turns to the

merits of each claim.
I.

Negligence Claims
Plaintiff’s

negligence

claims

are

against

Emmco,

Brown,

McDorman, Chase, Mellon, and Ocwen.

Mellon, Ocwen, and Chase

contend

claims

that

Plaintiff’s

negligence

8

against

them

are

“negligent

loan

servicing”

claims.

Such

claims

are

not

recognized under Georgia law because the duties a bank owes to
its

borrowers

generally

arise

contractual relationship.

solely

out

of

the

parties’

See, e.g., Fielbon Dev. Co., LLC v.

Colony Bank of Houston Cty., 660 S.E.2d 801, 808–09 (Ga. Ct.
App. 2008) (concluding that the trial court erred in denying
directed verdict on a negligent loan servicing claim because
there was no evidence that the bank owed the borrower any duty
independent of the parties’ contract).

So to the extent that

Plaintiff

loan

attempts

to

assert

negligent

servicing

claims

against Mellon, Chase, and Ocwen, those claims are dismissed.
Plaintiff did not respond to Defendants’ motion to dismiss
her negligence claims against Mellon, Chase, and Ocwen.

She did

not seek to clarify her negligence allegations against them.
But, based on the Court’s review of Plaintiff’s First Amended
Complaint,

Plaintiff’s

negligence

negligent loan servicing.

claims

are

clearly

not

for

Rather, her negligence claim against

these Defendants appears to be that although these Defendants
had

enough

security

information

deed

assignment

of

to

was

forged,

the

note

and

undertook servicing the loan.

know
Chase

that

her

and/or

security

signature
Mellon

deed

on

accepted

anyway

and

the
an

Ocwen

In other words, Plaintiff appears

to assert that these Defendants were negligent in failing to
recognize

that

there

was

no

9

legitimate

borrower-lender

relationship between Plaintiff and Emmco.

Thus, according to

Plaintiff, there is no basis for Mellon and/or Chase to assert a
security interest in her home and no basis for Ocwen to demand
loan

payments

under

a

forged

security

deed.

Contrary

to

Defendants’ argument, this claim is not based on duties that
arise out of a contract or out of a legitimate lender-borrower
relationship.

Plaintiff

alleges

that

no

existed between her and these Defendants.

such

relationship

Defendants did not

move to dismiss such a claim, and the Court declines to dismiss
it sua sponte.
II.

Slander of Title Claim
Plaintiff asserts slander of title claims against Emmco,

Chase, and Mellon.
of

Plaintiff’s

Defendants Mellon and Chase seek dismissal

slander

of

title

claim

against

them

because

Plaintiff did not plead facts to support all of the elements of
such

a

claim

against

these

Defendants.

Plaintiff

did

not

respond to Defendants’ motion to dismiss her slander of title
claim against these Defendants.
“The owner of any estate in lands may bring an action for
libelous
impugn

or

his

slanderous
title

O.C.G.A. § 51-9-11.

if

words

any

which

damage

falsely

accrues

to

and

maliciously

him

therefrom.”

To state a slander of title claim under

Georgia law, the plaintiff must allege “[1] possession of an
estate in the subject property; [2] publication of defamatory

10

words against the property; [3] that the words were false and
malicious; and [4] that the plaintiff thereby sustained special
damages by loss in the value of the slandered property.”

M & M

Mortg. Co. v. Grantville Mill, LLC, 690 S.E.2d 630, 633 (Ga. Ct.
App.

2010).
First, although Plaintiff alleges that Brown recorded the

security deed on behalf of Emmco in 2005, she did not allege any
facts

to

action.

suggest

that

Mellon

or

Chase

was

involved

she

that

Second, even if she had, she did not allege any facts

to suggest that Mellon or Chase acted with malice.
if

in

had

alleged

facts

to

suggest

that

Third, even

Mellon

or

Chase

maliciously published defamatory words against the property, she
did not allege any special damages caused “by loss in the value”
of her property that flowed from that act.
(explaining

that

special

damages

for

See id. at 633-34

purposes

of

slander

of

title claim do not include attorney’s fees incurred to remove a
lien and also do not include general evidence that the allegedly
defamatory

words

hindered

a

plaintiff’s

ability

to

obtain

a

loan); cf. Sanders v. Brown, 571 S.E.2d 532, 536 (Ga. Ct. App.
2002) (finding sufficient evidence of special damages because
landowner proved that she lost two contracts for sale of land
due to slander of title, that she had to refund earnest money,
and that she had to pay a real estate commission).

11

For these

reasons, Plaintiff’s First Amended Complaint fails to state a
slander of title claim against Mellon and Chase.
III. Declaratory Judgment Claim
Plaintiff

seeks

a

declaratory

Chase, Mellon, and Ocwen.

judgment

against

Emmco,

She seeks a declaration that these

Defendants have no legal or equitable rights in the note and
security deed and no legal standing to institute foreclosure
proceedings.

Essentially, she seeks a declaration that the 2005

promissory note and security deed must be canceled due to fraud
because Nathan had no authority to authorize the refinance loan
secured by the Property of which she was the sole owner.
Plaintiff alleges that Emmco knew that it did not hold a
legitimate security interest in her home because it knew that
her signature on the security deed was forged.

She alleges that

Emmco assigned the security deed to Mellon and/or Chase.

She

further alleges that the assignment was invalid because Emmco
knew that it did not hold a legitimate security interest and
Mellon and/or Chase had enough information to know that Emmco
did not hold a legitimate security interest.

Defendants contend

that these allegations are not sufficient to support Plaintiff’s
declaratory

judgment

claim

because

Plaintiff

did

evidence of an assignment to Mellon and/or Chase.

not

submit

But Plaintiff

does not have the burden to produce evidence at this stage in
the litigation.

12

Defendants

also

argue

that

Plaintiff

cannot

pursue

the

remedy of a declaratory judgment if she does not have a valid
claim on the merits.

That is true, but the Court has not

concluded that Plaintiff lacks a claim on the merits.

Even if

the Court dismissed all of Plaintiff’s claims against Mellon,
Chase, Ocwen, and MERS (which the Court declines to do at this
time), she still asserts fraud and negligence claims against
Emmco, Brown, and McDorman.

If Plaintiff were to prove these

allegations and establish that the security deed should be set
aside as void due to fraud, then that could affect any interest
Mellon, Chase, Ocwen, and MERS may have in the security deed.
Accordingly,

the

Court

declines

to

dismiss

Plaintiff’s

declaratory judgment claim at this time.3
IV.

“Bad Faith” Claim
Plaintiff makes two “bad faith” claims against Ocwen.

first

bad

faith

claim

against

Ocwen

appears

to

be

Her

based

on

Ocwen’s decision to stop communicating directly with Plaintiff
and

begin

Plaintiff’s

communicating
lawyer

only

notified

with
Ocwen

3

Plaintiff’s
of

a

lawyer

potential

after

lawsuit.

MERS is listed as a Defendant in Plaintiff’s Complaint and is
mentioned in the factual allegations.
But MERS is not listed as a
defendant in any of the counts of Plaintiff’s First Amended Complaint,
and Defendants moved to dismiss MERS on that ground.
The 2005
security deed does list MERS as the grantee as a nominee for Emmco,
and Plaintiff contends that MERS is a necessary party for that reason.
The Court concludes that Plaintiff’s sole claim against MERS is her
claim for declaratory relief and that MERS should be included as a
Defendant to the extent that it retains some interest in the
promissory note or security deed.

13

Plaintiff did not respond to Ocwen’s motion to dismiss this
claim.

It is not clear to the Court how Ocwen’s decision to

communicate with Plaintiff’s lawyer rather than directly with
Plaintiff

constitutes

bad

potential litigation.

faith

in

light

of

the

notice

of

And, there are no allegations regarding

how this decision resulted in any damages.

Accordingly, this

claim is dismissed.
Plaintiff’s other “bad faith” claim against Ocwen is based
on the fact that Ocwen returned Plaintiff’s June 2017 payment
and sent a default notice.

Plaintiff’s Complaint does not offer

any clues regarding the legal basis for this claim, and the
Court is unable to divine one from the factual allegations.
her
Inc.

response
v.

Carte,

definition
expenses

brief,

of

of

Plaintiff

481

bad

S.E.2d

faith.

litigation

party’s bad faith.

did

541

(Ga.

That

under

cite

case

Jennings

Ct.

App.

involved

O.C.G.A. §

In

Enterprises,
1997)
a

13-6-11

for

claim
based

a

for
on

a

Jennings Enters., 481 S.E.2d at 545. It did

not recognize an independent claim for “bad faith.”
The Court has not found any authority for the type of “bad
faith” claim Plaintiff asserts in this action.
that

normally,

a

claim

borrower’s

properly

apply

a

contract

claim

for

that

failure

the

mortgage

payments
to

accordance with the security deed.

14

apply

The Court notes
servicer

would

be

the

loan

a

did

not

breach

of

payments

in

But Plaintiff contends that

there is no contractual basis for Ocwen to service the mortgage
loan associated with her property, so her “bad faith” claim is
not in the nature of a breach of contract claim.

And, while a

borrower may generally bring a wrongful attempted foreclosure
action against a loan servicer if the loan servicer improperly
attempts to pursue a foreclosure sale, Plaintiff does not allege
that Ocwen initiated foreclosure proceedings, so the “bad faith”
claim is not in the nature of a wrongful attempted foreclosure
claim.

For these reasons, Plaintiff’s “bad faith” claim based

on Ocwen’s return of her June 2017 payment is also dismissed.
V.

Money Had and Received Claim
Plaintiff asserts a money had and received claim against

Ocwen and Mellon.

An action for money had and received “is the

appropriate remedy where one wrongfully receives and retains the
money of another.” J. C. Penney Co. v. West, 230 S.E.2d 66, 68
(Ga.

Ct.

App.

1976).

Such

an

action

“is

founded

on

the

equitable principle that no one ought to unjustly enrich himself
at the expense of another.”

Id.

Plaintiff alleges that there

is no legal contract between Plaintiff and Mellon/Ocwen that
would allow them to collect payments from her.

She also alleges

that she has paid nearly $10,000 to Ocwen and Mellon “under the
threat that failure to do so would lead to the acceleration of
the promissory note and/or a non-judicial foreclosure of her
home.”

1st Am. Compl. ¶ 104.

15

Defendants argue that Plaintiff’s money had and received
claim is barred by the voluntary payment doctrine, which is
codified

at

O.C.G.A. §

13-1-13.

“Payments

of

claims

made

through ignorance of the law or where all the facts are known
and there is no misplaced confidence and no artifice, deception,
or

fraudulent

practice

used

by

the

other

party

are

deemed

voluntary and cannot be recovered unless made under an urgent
and

immediate

necessity

therefor

or

to

release

person

or

property from detention or to prevent an immediate seizure of
person or property.”

O.C.G.A. § 13-1-13.

Plaintiff has the

burden to show that the voluntary payment doctrine does not
apply.

Pew v. One Buckhead Loop Condo. Ass'n, Inc., 700 S.E.2d

831, 835 (Ga. Ct. App. 2010).
Plaintiff does not contend that she made payments to Ocwen
based on misplaced confidence or Ocwen’s artifice, deception, or
fraudulent practice.

Rather, she alleges that she knew she did

not take out a loan secured by the Property but decided to stay
current on the loan payments when she discovered the refinance
loan after Nathan died.
made

under

compulsion

Under Georgia law, “a payment is not
or

duress,

but

will

be

treated

as

voluntary, unless the party making payment does so to prevent
the immediate seizure of his goods or the arrest of his person.”
Id. (quoting Darby v. City of Vidalia, 149 S.E. 223, 223 (Ga.
1929)).

“Furthermore, the doctrine appears to be that if the

16

law affords to the person from whom the payment is exacted an
immediate and adequate remedy to resist payment, he can not be
said to have acted under compulsion, if, neglecting to avail
himself of such remedy, he elects to make the payment demanded
of him.” Id. (quoting Darby, 149 S.E. at 223).

In Pew, for

example, a condominium association filed three lawsuits against
a condominium owner to collect unpaid assessments—one in 2006,
one in 2007, and one in 2008.

The owner settled the 2006 and

2007

full

lawsuits

association.

by

paying

the

amounts

he

owed

to

the

In the 2008 lawsuit, the owner counterclaimed for

a set-off for alleged overpayments in connection with the 2007
case.

The Georgia Court of Appeals, however, determined that

the owner had “made the payments in issue voluntarily in lieu of
pursuing the 2006 and 2007 cases.”

Id.

Here, Plaintiff asserts that she made the payments in 2016
and 2017 “to prevent an immediate seizure” of her property.

But

she did not allege that an immediate seizure was imminent when
she made the payments.
August 2017.

And, she did not file this action until

Under these circumstances, the Court finds that

Plaintiff’s money had and received claims should be dismissed
under the voluntary payment doctrine.
VI.

RESPA Claim
Plaintiff

asserts

a

RESPA

claim

against

Ocwen.

Under

RESPA, if a borrower sends her mortgage servicer a “qualified

17

written

request”

seeking

account

corrections

or

account

information, the servicer must respond to the request within
thirty business days by correcting the account or providing the
borrower with a written explanation of why the servicer believes
the

account

is

correct.

12

U.S.C.

§ 2605(e)(1)-(2).

Ocwen

claims that Plaintiff does not have standing to assert a RESPA
claim because RESPA only provides for actions by “borrowers” and
Plaintiff alleges that she was not obligated on the promissory
note and should thus not be considered a “borrower” within the
meaning of RESPA.

But the security deed lists Plaintiff as a

borrower, and it is certainly Defendants’ position that she is a
borrower on the loan.
RESPA

claim.

The

Therefore, she has standing to pursue a

next

question

is

whether

she

adequately

alleged one.
Ocwen also argues that even if Plaintiff does have standing
to assert a RESPA claim, she did not adequately allege one.
Court

agrees.

written

request

information

and

Plaintiff
to

Ocwen

claims
on

documentation

that
March

from

she
2,

Ocwen

sent
2016

that

right” to service the mortgage on the Property.
¶ 48.

a
“to

The

qualified
request

supported

its

1st Am. Compl.

Plaintiff did not attach her letter to her First Amended

Complaint, and she did not allege any details about her letter,
such as where she mailed it or what, specifically, it requested.
There are no allegations in the First Amended Complaint that the

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letter included “a statement of the reasons for” Plaintiff’s
belief “that the account is in error” or provided “sufficient
detail to the servicer regarding other information sought by the
borrower” as required by RESPA.

12 U.S.C. § 2605(e)(1)(B)(ii).

Thus, Plaintiff did not adequately allege that her March 2, 2016
letter met the statutory requirements for a qualified written
request.
Even if the Court assumes that Plaintiff adequately alleged
that her March 2, 2016 letter to Ocwen was a qualified written
request, she did not allege any facts to suggest that Ocwen
failed to respond as required by RESPA.

Again, when a loan

servicer receives a qualified written request, it must respond
to the request within thirty business days by either correcting
the account or providing the borrower with a written explanation
of why the servicer believes the account is correct. 12 U.S.C.
§ 2605(e)(1)-(2).
Plaintiff’s

First

Here,

based

Amended

on

the

Complaint,

plain

Ocwen

allegations

did

the

of

latter.

Plaintiff alleges that Ocwen sent her three separate responses
within thirty workdays.

At least one of the response letters

disclosed that Mellon owns the loan and holds the note, and the
letter provided an address and telephone number for Mellon.

At

least two of the responses included a copy of the security deed
and other loan documents that Ocwen asserted were its basis for
servicing the loan.

Plaintiff now contends that these responses

19

were inadequate because none of the documents Ocwen sent her
contained her authentic signature.

But she does not allege that

her March 2, 2016 letter put Ocwen on notice of this issue or
requested

a

correction

on

this

basis.

For

these

reasons,

Plaintiff’s First Amended Complaint fails to state a RESPA claim
based on her March 2, 2016 letter.
CONCLUSION
For

the

reasons

set

forth

strike (ECF No. 34) is denied.

above,

Defendants’

motion

to

Defendants’ motion to dismiss

(ECF No. 24) is granted as to Plaintiff’s slander of title, bad
faith, money had and received, and RESPA claims against these
Defendants but is denied as to her negligence and declaratory
judgment claims against them.

All of Plaintiff’s claims against

Peggy L. Brown, Ellen W. McDorman, and Emmco, LLC also remain
pending.

Gray no longer asserts claims against Law Offices of

Peggy L. Brown, P.C., so that Defendant should be terminated.
IT IS SO ORDERED, this 23rd day of April, 2018.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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