BATES v. J P MORGAN CHASE BANK N A
Filing
25
ORDER granting in part and denying in part 5 Motion to Dismiss for Failure to State a Claim. Ordered by Judge Clay D. Land on 08/27/2012. (CGC)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
SHAWNA BATES, a.k.a.
SHAWNA SMITH,
*
*
Plaintiff,
*
vs.
CASE NO. 4:12-CV-43 (CDL)
*
JPMORGAN CHASE BANK, N.A.,
*
Defendant.
*
O R D E R
Plaintiff
Defendant
Shawna
JPMorgan
Bates
Chase
(“Bates”)
Bank,
N.A.
asserts
claims
(“Chase”)
for
against
attempted
wrongful foreclosure, conversion, breach of contract, trespass,
and
violations
of
the
Real
Estate
(“RESPA”), 12 U.S.C. §§ 2601-2617.
Settlement
Procedures
Act
Chase seeks dismissal of all
claims except the conversion claim.
For the reasons set forth
below, Chase’s partial motion to dismiss (ECF No. 5) is granted
in part and denied in part.
The Court dismisses Bates’s RESPA
claim based on 12 U.S.C. § 2605(k) because that section of RESPA
was not in effect at the time of the conduct alleged here.
The
Court declines to dismiss Bates’s remaining claims, including
her RESPA claim asserted pursuant to 12 U.S.C. § 2605(e).
MOTION TO DISMISS STANDARD
When considering a 12(b)(6) motion to dismiss, the Court
must
accept
as
true
all
facts
set
forth
in
the
plaintiff=s
complaint
and
limit
its
consideration
exhibits attached thereto.
to
the
pleadings
and
Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,
959
(11th
Cir.
2009).
“To
survive
a
motion
to
dismiss,
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 (quoting Twombly,
550 U.S. at 570).
The complaint must include sufficient factual
allegations “to raise a right to relief above the speculative
level.”
Twombly, 550 U.S. at 555.
“[A] formulaic recitation of
the elements of a cause of action will not do[.]”
Id.
Although
the complaint must contain factual allegations that “raise a
reasonable expectation that discovery will reveal evidence of”
the
plaintiff=s
claims,
id.
at
556,
“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).
Bates attached various documents, including correspondence
between her and Chase, to the Complaint.
Chase attached the
security deed, which is central to Bates’s claims, to its Motion
to
Dismiss.
challenged.
The
authenticity
of
these
documents
is
not
The Court may consider the documents in ruling on
the pending motion to dismiss.
Cf. Speaker v. U.S. Dep’t of
2
Health & Human Servs., 623 F.3d 1371, 1379-80 (11th Cir. 2010)
(recognizing
that
a
district
court
may
consider
a
document
outside the pleadings in ruling on a motion to dismiss if the
document is “(1) central to the plaintiff’s claim, and (2) its
authenticity
is
not
challenged”)
(internal
quotation
marks
omitted).
FACTUAL ALLEGATIONS
Bates
makes
Complaint.
the
Bates
following
obtained
a
factual
home
allegations
loan
in
May
in
2008.
her
She
executed a promissory note to Synovus Mortgage Corporation in
the amount of $151,092.00, and she also signed a security deed
conveying a security interest in her home to Synovus.
The note
and security deed were later assigned to Chase.
Bates fell behind on her payments in 2011.
She paid her
June, July and August 2011 payments in September 2011; Bates’s
payment in the amount of $3,495.00 was transferred out of her
bank
account
on
September
15,
2011.
That
payment
was
not
credited to Bates’s account and was not returned to Bates.
In
November 2011, Bates attempted to pay her September, October,
November and December 2011 payments by sending Chase a check for
$4,660.00.
Chase returned Bates’s check on November 9, 2011,
stating that the amount tendered was insufficient to cure a
default on the loan.
Later in November, Bates again sent Chase
a check for $4,660.00, and Chase returned the check on December
3
1, 2011, because certified funds were required.
On December 15,
2011, Bates again tried to make her payment of $4,660.00—this
time by electronic payment.
Chase electronically returned the
payment on December 21, 2011.
Bates spent hours trying to straighten out her account via
telephone.
that
her
In late December 2011, Bates learned from a friend
home
was
advertised
Tuesday in January, 2012.
Chase
a
letter
for
foreclosure
on
the
first
On December 22, 2011, Bates wrote
explaining
that
her
September
payment
of
$3,495.00 had never been credited to her account and that she
had called Chase about the issue “numerous times” and faxed her
bank statement to Chase “four different times.”
Compl. Ex. 3,
Letter from S. Smith to Chase (Dec. 22, 2011), ECF No. 1-4.
Bates
also
recounted
her
attempts
to
send
the
payment
of
$4,660.00 three separate times, as well as her attempts to get
answers from Chase’s personnel via telephone.
On
December
24,
2011,
Bates
Id.
received
a
letter
dated
December 21, 2011 from Chase’s foreclosure attorney stating that
her home would be foreclosed on at a foreclosure sale to be held
on February 7, 2012.
in
the
February
newspaper
7,
telephone,
2012.
and
a
She also saw another notice of foreclosure
advertising
In
Chase
her
January,
home
Bates
representative
4
for
foreclosure
contacted
told
Bates
on
Chase
via
that
the
February 7, 2012 sale would likely be postponed so Chase could
research the matter.
Chase sent Bates a letter dated January 25, 2012.
The
latter was “in response to [Bates’s] recent inquiry regarding
the
status
of”
her
loan.
Compl.
Ex.
4,
Letter
from
Chase
Foreclosure Research Dep’t to S. Smith (Jan. 25, 2012), ECF No.
1-5.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
The letter stated, in pertinent part:
Chase received Bates’s check for $3,495.00 in September
2011, but the funds were returned because they were
insufficient to cure the default.
Chase received Bates’s check for $4,660.00 on November 8,
2011, but the funds were returned because they were
insufficient to cure the default or bring the account
within 60 days delinquent.
Chase received Bates’s check for $4,660.00 on November 30,
2011, but the funds were returned because they were
insufficient to cure the default or bring the account
within 60 days delinquent.
Bates was “currently due for the June 2011 payment.” Id.
The property was referred to foreclosure on September 8,
2011.
Bates could contact Chase’s foreclosure attorney to obtain
a reinstatement quote.
Bates could contact Chase’s Loss Mitigation department for
possible workout options.
Id.
Bates contacted Chase’s foreclosure attorney, who provided
her with a reinstatement quote.
The reinstatement quote stated
that Bates owed $12,170.18 by February 6, 2012 to reinstate the
loan.
Compl. Ex. 5, Letter from Barrett Daffin Frappier Levine
& Block, LLP to S. Smith (Jan. 31, 2012) Attach., Reinstatement
Quote, ECF No. 1-6 at 3.
The reinstatement quote did not credit
5
Bates
for
2011.
the
$3,495.00
payment
Chase
received
in
September
The reinstatement quote included “Late Charges” in the
amount of $232.20, “Corporate Advance Charges” in the amount of
$190.00, and attorney’s fees in the amount of $1,299.07.
Id.
Bates received another letter from Chase’s attorneys, this
one dated February 3, 2012.
about
to
days.”
be
foreclosed,
The letter stated that her home was
“probably
within
the
next
60
to
90
Compl. Ex. 6, Letter from Barrett Daffin Frappier Levine
& Block, LLP to Occupant (Feb. 3, 2012), ECF No. 1-7.
Chase did
not attempt to have a face-to-face meeting with Bates regarding
her mortgage.
After the foreclosure ads began running in the newspaper,
“a lot of people” have ridden by Bates’s house and stared at her
home.
Compl. ¶ 53, ECF No. 1.
sign.
On
February
19,
Bates put up a “no trespassing”
2012,
Chase
sent
a
man
to
take
photographs of the house, and he came on the property to do so.
Bates
asserts
the
following
substantive
claims
against
Chase:
(1)
Claims under RESPA based on the letter Bates sent to
Chase on December 22, 2011. Compl. ¶¶ 59-61.
(2)
A conversion claim based on Chase’s alleged refusal to
credit $3,495.00 it accepted from Bates to Bates’s
account. Id. ¶¶ 62-64.
(3)
A breach of contract claim based on Chase’s alleged
breach of “the terms of its contracts with [Bates] – note
and security deed.” Id. ¶ 65.
6
(4)
An attempted wrongful foreclosure claim based on Chase’s
foreclosure notices in the newspaper. Id. ¶¶ 66-68.
(5)
A trespass claim based on Chase’s agent’s
trespass on Bates’s property. Id. ¶ 69.
alleged
DISCUSSION
Chase
contends
that
all
of
Bates’s
claims
except
the
conversion claim must be dismissed for failure to state a claim.
The Court addresses each claim in turn.
I.
RESPA Claims
A.
Claims Under 12 U.S.C. § 2605(e)
Bates
alleges
that
Chase
failed
to
comply
with
RESPA’s
provisions that require a loan servicer to respond to borrower
inquiries.
servicer
Under
a
RESPA,
“qualified
corrections
or
if
a
borrower
written
account
sends
information,
the
mortgage
seeking
request”
her
account
servicer
must
acknowledge receipt of the request and respond to the request by
correcting
the
account
or
conducting
an
investigation
and
providing the borrower with a written explanation of why the
servicer
believes
2605(e)(1)-(2).
the
account
is
correct.
12
U.S.C. §
If a servicer fails to comply with RESPA, the
borrower may recover “any actual damages to the borrower as a
result of the failure.”
In
this
case,
12 U.S.C. § 2605(f)(1)(A).
Bates
alleges
that
she
sent
written request to Chase on December 22, 2011.
“qualified
written
request”
is
7
a
written
a
qualified
Under RESPA, a
correspondence
that
enables the servicer to identify the name and account of the
borrower and explains why the borrower believes that her account
is in error.
12 U.S.C. § 2605(e)(1)(B).
Chase cannot seriously
dispute that Bates’s December 22, 2011 letter was a qualified
written
request
within
the
meaning
of
RESPA.
The
letter
identified the borrower by name and account number, it contained
a detailed list of issues with the account, and it included
exhibits in support of Bates’s belief that her account was in
error.
Chase
contends,
however,
that
Bates’s
claim
under
12
U.S.C. § 2605(e) (“§ 2605(e)”) fails as a matter of law because
Chase responded to Bates’s letter on January 24, 2012.
Chase
emphasizes that Bates alleged in paragraph 28 of her Complaint
that she had never received a response to her December 22, 2011
letter, even though Bates attached the January 24, 2012 letter
to
her
Complaint.
Bates,
however,
also
alleges
that
Chase
failed to comply with § 2605(e) because it “failed to proper[l]y
respond”
to
Bates’s
qualified
written
requests
adverse credit information to the credit bureaus.”
and
“reported
Compl. ¶ 59.
Based on a plain reading of the Complaint, it is clear that
Bates alleges that Chase accepted a payment of $3,495.00 from
her in September 2011 but never credited that amount to her
account.
E.g., Compl. ¶¶ 12, 37; Compl. Ex. 3, Letter from S.
Smith to Chase (Dec. 22, 2011) (“On September 15, 2011 I paid
8
$3,495.00
to
you
for
my
June,
July,
and
August
payments.
Enclosed as Exhibit 1 is a copy of my bank statement showing
this. I have never received credit for this amount which was
paid to you by electronic transfer.”).
Therefore, according to
Bates, Chase’s January 24, 2012 letter was not a proper response
under RESPA because it did not correct her account by crediting
the $3,495.00 to her account.
Rather, the January 24, 2012
letter stated that the $3,495.00 had been returned to Bates even
though Bates alleges that it had not.
For these reasons, the
Court concludes that Bates adequately alleged that Chase did not
properly
respond
to
her
December
22,
2011
qualified
written
request, and Chase’s motion to dismiss her § 2605(e) RESPA claim
is therefore denied.
B.
Bates
Claims Under 12 U.S.C. § 2605(k)
also
attempts
U.S.C. § 2605(k) (“§2605(k)”).
to
assert
claims
under
12
Though both parties appear to be
under the impression that § 2605(k) went into effect on January
12, 2012, that provision was not in effect on January 12, 2012
and has not yet taken effect.
Under 12 U.S.C. § 2605(k)(1)(C),
a mortgage servicer “shall not . . . fail to take timely action
to respond to a borrower’s requests to correct errors relating
to allocation of payments, final balances for purposes of paying
off
the
loan,
or
servicer’s duties.”
avoiding
foreclosure,
or
12 U.S.C. § 2605(k)(1)(C).
9
other
standard
Section 2605(k)
was added to RESPA by the Mortgage Reform and Anti-Predatory
Lending Act, which is Title XIV of the Dodd-Frank Wall Street
Reform and Consumer Protection Act (“Dodd-Frank Act”), Pub. L.
No. 111-203, 124 Stat. 1376 (2010).
Dodd-Frank Act § 1463, 124
Stat.
Dodd-Frank
at
2182.
Title
XIV
of
the
Act,
including
§ 2605(k) of RESPA, becomes effective “on the date on which the
final regulations implementing such section, or provision, take
effect” or, if no final regulations have been issued, “18 months
after the designated transfer date.”1
Dodd-Frank Act § 1400(c),
124 Stat. at 2136; see also U.S. Gov’t Printing Office, 2011
U.S.
Code
“Effective
Title
Date
12,
Chapter
of
27,
2010
12
U.S.C. §
Amendment,”
2605
note
available
re
at
http://www.gpo.gov/fdsys/pkg/USCODE-2011-title12/html/USCODE2011-title12.htm (last visited Aug. 27, 2012).
transfer date was July 21, 2011.
Designated Transfer Date, 75
Fed. Reg. 57,252-02 (Sept. 20, 2010).
1
The designated
Therefore, § 2605(k) of
The effective date of many provisions of the Dodd-Frank Act—including
the effective date of Title XIV—is tied to the “designated transfer
date.”
On the designated transfer date, the consumer protection
functions of the Dodd-Frank Act were transferred from a variety of
different agencies to one agency: the Bureau of Consumer Financial
Protection.
Dodd-Frank Act § 1061, 124 Stat. at 2035-39.
For
purposes of Title XIV of the Dodd-Frank Act, the “designated transfer
date” means the date established in § 1062 of the Dodd-Frank Act.
Dodd-Frank Act § 1495, 124 Stat. at 2207. Though the Dodd-Frank Act
itself did not specify a particular date as the “designated transfer
date,” the Secretary of the Treasury was required to set a specific
date as the “designated transfer date.”
Dodd-Frank Act § 1062, 124
Stat. at 2040. The Secretary of the Treasury designated July 21, 2011
as the “designated transfer date.” Designated Transfer Date, 75 Fed.
Reg. 57,252-02 (Sept. 20, 2010).
10
RESPA becomes effective when the final regulations implementing
it
are
issued
or
on
January
21,
2013—whichever
is
earlier.
Based on the Court’s research, as of the date of this Order, no
final
regulations
RESPA.
have
been
issued
implementing
§ 2605(k)
of
Cf. Notice & Request for Public Comment, 76 Fed. Reg.
77,766-01 (Dec. 14, 2011) (noting that the Bureau of Consumer
Financial Protection is required to publish rules implementing
§ 1463 of the Dodd-Frank Act by January 31, 2013 and soliciting
comments
on
regulations).
the
Bureau’s
proposed
approach
to
crafting
the
Because § 2605(k) of RESPA was not yet in effect
at the time of the events giving rise to this action, Bates may
not bring a RESPA claim under that section.
Bates’s § 2605(k)
claim is therefore dismissed.
II.
Breach of Contract Claim
Bates asserts a claim for breach of contract against Chase.
Chase argues that Bates has not adequately pled a breach of
contract claim because, although she alleges that Chase breached
the note and security deed, Bates has not identified specific
provisions in the note and security deed that Chase allegedly
breached.2
2
In her response to Chase’s Motion to Dismiss and in her Sur-Reply
Brief, Bates pointed to specific provisions in the security deed and
provided a detailed explanation of her theory that Chase breached
those provisions.
Pl.’s Resp. to Def.’s Mot. to Dismiss 13-14, ECF
No. 12; Pl.’s Sur-Reply Br. to Def.’s Mot. to Dismiss 10, ECF No. 21.
Bates did not, however, seek to amend her Complaint to add these
11
Bates alleges that she executed a note and security deed
that were assigned to Chase.
Though Bates did not attach the
note and security deed to the Complaint, Chase did attach it to
the
Motion
to
authenticity.
Dismiss,
Bates
and
there
alleges
is
that
no
Chase
challenge
failed
to
to
its
apply
a
payment to her account even though Chase accepted the payment.3
Compl. ¶¶ 12, 37.
Bates further alleges that Chase refused to
accept another payment that she tried to send on three separate
occasions.
the
Id. ¶¶ 13-19.
reinstatement
quote,
Bates “did not owe.”
Bates also alleges that, as part of
Chase
sought
Id. ¶ 38.
fees
and
charges
that
Bates also alleges that certain
HUD regulations were made terms of her contract with Chase and
that Chase did not follow them.
Id. ¶¶ 42-48.
Finally, Bates
alleges that Chase attempted to invoke the power of sale even
though it was not authorized to do so.
E.g., id. ¶ 49.
While these allegations are not as detailed as they could
be, the Court finds that they sufficiently place Defendant on
notice
as
to
the
nature
of
her
claim
allegations in support of that claim.
and
include
factual
Here, it is obvious that
Bates is alleging that Chase breached provisions of the note and
additional allegations, and the Court is limited to the allegations in
the Complaint itself.
3
Chase contends that it returned the September 2011 payment by sending
Bates a check for the full amount of the payment. Chase supports this
contention with evidence that is outside the pleadings, and the Court
cannot consider such evidence at this stage in the litigation. Chase
may, of course, submit this evidence in support of a summary judgment
motion.
12
security
deed
regarding
(1)
application
of
payments,
(2)
permissible fees and charges, including those in connection with
reinstatement,
(3)
duties
under
certain
HUD
regulations
that
were allegedly incorporated into the note and security deed, and
(4)
invocation
of
the
power
of
sale.
The
Court
therefore
concludes that the Complaint contains “sufficient factual matter
. . . to state a claim to relief that is plausible on its face.”
Iqbal,
556
U.S.
at
678
(internal
quotation
marks
omitted).
Chase’s motion to dismiss Bates’s breach of contract claim is
therefore denied.
III. Attempted Wrongful Foreclosure Claim
Bates
alleges
that
Chase
“intentionally
attempted
to
foreclose on [Bates’s] home by running foreclosure notices in
the newspaper knowing that [Bates] was not in default on her
loan.”
Compl. ¶ 66.
Bates further alleges that Chase caused
her “extreme emotional distress, worry, and fear of losing her
home among other damages.”
Id. ¶ 67.
Bates also alleges that
Chase did not properly apply payments to her account.
¶¶ 12-19, 37.
Compl.
Based on these allegations, the Court concludes
that Bates is alleging attempted wrongful foreclosure.
To state a claim for attempted wrongful foreclosure, Bates
must
show
that
Chase
“knowingly
and
intentionally
published
‘untrue and derogatory information concerning [her] financial
condition,’”
and
that
“‘damages
13
were
sustained
as
a
direct
result of this publication.’”
Hauf v. HomeQ Servicing Corp.,
No. 4:05-CV-109 (CDL), 2007 WL 486699, at *6 (M.D. Ga. Feb. 9,
2007) (quoting Aetna Fin. Co. v. Culpepper, 171 Ga. App. 315,
319, 320 S.E.2d 228, 232 (1984)).
Complaint
fails
foreclosure
to
because
state
the
a
Chase contends that Bates’s
claim
Complaint
for
itself
attempted
wrongful
establishes
that
Bates’s loan was in default before Chase initiated foreclosure
proceedings.
Specifically, Chase asserts that Bates admits that
she did not tender her payment to cover September and October
2011 until November 2011, and Chase returned that particular
payment to Bates on three separate occasions.
Chase points out that, under the security deed, a borrower
“defaults by failing to pay in full any monthly payment required
by [the security deed] prior to or on the due date of the next
monthly payment.”
Mot. to Dismiss Ex. A, Security Deed ¶ 9(a),
ECF No. 5-2 [hereinafter Security Deed].
If a borrower defaults
by failing to make payments, the lender may “require immediate
payment in full of all sums secured by [the security deed].”
Id.
The lender may invoke the power of sale if the lender
“requires immediate payment in full of all sums under paragraph
9.”
Id. ¶ 18.
But, if the lender has accelerated the debt, the
borrower “has a right to be reinstated” by tendering “in a lump
sum all amounts required to bring [her] account current.”
10.
Id. ¶
Therefore, under the terms of the security deed, if a
14
borrower
defaults
and
the
lender
accelerates
the
debt,
the
borrower has a right to be reinstated if she tenders a payment
sufficient to bring her account current.
There is no allegation that Chase declared the loan in
default
or
attempted
to
accelerate
the
debt
before
December
2011.
As discussed above, Bates alleges that Chase did not
credit her September 2011 payment of $3,495.00 to her account
and did not return it to her.
tendered
the
amount
required
Bates also alleges that she
to
bring
her
loan
current
in
November 2011—a month before Chase notified her of its intention
to
accelerate
payment.
the
debt—but
Chase
wrongfully
rejected
that
Based on these allegations, the Court concludes that
Bates has sufficiently alleged that Chase was not permitted to
invoke the power of sale under the circumstances, that Chase
knew it could not lawfully proceed with the foreclosure, but
that it proceeded anyway.
Bates
adequately
Accordingly, the Court concludes that
alleges
an
attempted
wrongful
foreclosure
claim, and Chase’s motion to dismiss that claim is denied.
IV.
Trespass Claim
Bates
trespass
also
when
it
alleges
sent
that
an
Chase
agent
onto
committed
her
the
tort
property
to
of
take
photographs in February 2012.
Chase asserts that its agent was
not
security
trespassing
because
the
deed
permitted
it
to
inspect the property if the property is “vacant or abandoned or
15
the loan is in default.”
Security Deed ¶ 5.
Bates contends
that she was not in default, but her Complaint does allege that
she did not attempt to pay her September 2011 payment until
November 7, 2011.
Compl. ¶ 13.
Therefore, Bates does admit
that she was in default in November under the terms of the
security
deed.
See
Security
Deed
¶ 9(a)
(stating
that
a
borrower is in default if she fails “to pay in full any monthly
payment . . . prior to or on the due date of the next monthly
payment”).
Bates also alleges, however, that she attempted to
cure the default and that Chase wrongfully refused her payment.
Therefore, Bates contends that the default status of her loan as
of February 2012 was caused not by Bates’s failure to cure the
default but by Chase’s wrongful refusal of her payment.
on
these
allegations,
the
Court
declines
to
dismiss
Based
Bates’s
trespass claim at this time.
CONCLUSION
For
the
reasons
set
forth
above,
the
Bates’s RESPA claim under 12 U.S.C. § 2605(k).
Court
dismisses
The following
claims remain pending: (1) conversion claim, (2) RESPA claim
under 12 U.S.C. § 2605(e), (3) breach of contract claim, (4)
attempted wrongful foreclosure claim, and (5) trespass claim.
The Court previously stayed the discovery and other pretrial deadlines pending the Court’s ruling on Chase’s Motion to
Dismiss.
That stay is hereby lifted.
16
The Court has entered a
Scheduling and Discovery Order with deadlines tied to the filing
of
a
responsive
pleading
Order, ECF No. 16.
by
Chase.
Scheduling
&
Discovery
Chase shall file an Answer to the Complaint
within twenty-one days of the date of this Order.
The Court notes that Chase has filed a Motion for Partial
Summary Judgment as to Bates’s conversion claim.
The Court will
decide
the
that
motion
when
should Chase wish to
it
becomes
withdraw or
ripe.
In
meantime,
amend its summary judgment
motion in light of this Order, Chase may do so.
IT IS SO ORDERED, this 27th day of August, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
17
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