Dynott v. Nationstar Mortgage, LLC et al

Filing 21

OPINION AND ORDER ADOPTING the 16 Final Report and Recommendation. IT IS FURTHER ORDERED that Defendants' Motions to Dismiss 3 and 9 are GRANTED IN PART AND DENIED IN PART. The Motions to Dismiss are GRANTED as to Plaintiff's cla ims under the FDCPA and RESPA, and those claims are DISMISSED. The Motions to Dismiss are DENIED as to Plaintiff's state law claims, and those claims are REMANDED to the Superior Court of Cobb County. Signed by Judge William S. Duffey, Jr on 3/17/2014. (anc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GEORGE DYNOTT,
Plaintiff,
v.

1:13-cv-1474-WSD

NATIONSTAR MORTGAGE, LLC,
and MCCALLA RAYMER, LLC,
Defendants.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Justin S. Anand’s Final
Report and Recommendation (“R&R”) [16] recommending that Defendants’
Motions to Dismiss [3, 9] be granted in part and denied in part.
I.

BACKGROUND1
On April 1, 2013, Plaintiff George Dynott (“Plaintiff”), proceeding pro se,

filed his Complaint [1.1] in the Superior Court of Cobb County. On May 1, 2013,
Nationstar Mortgage, LLC (“Nationstar”) removed the action to this Court with the
consent of McCalla Raymer, LLC (“McCalla”) (together, “Defendants”).

1

The parties have not objected to any facts set out in the R&R, and finding no
plain error in the Magistrate Judge’s factual findings, the Court adopts them. See
Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993).

Plaintiff alleges that on August 31, 1999, he entered into an FHA loan
agreement with Home Banc Mortgage Corporation. After Home Banc Mortgage
Corporation became insolvent on or about August 21, 2007, EMC Mortgage
Corporation was awarded certain servicing rights under an Asset Purchase
Agreement. Notwithstanding the Asset Purchase Agreement, Metlife Home Loans
began servicing Plaintiff’s loan on an unspecified date. Plaintiff alleges that he
then received foreclosure notices from McCalla dated February 22, 2013. Plaintiff
also alleges that Nationstar acquired the mortgage servicing rights from Metlife
Bank, N.A.
Plaintiff asserts claims arising under both federal and state law. The
Magistrate Judge determined that Plaintiff’s Complaint asserted two claims under
federal statutes. In Count Four of his “Damage Claims,” Plaintiff asserts a claim
“for damages under FDCPA statute violation for actual damages $1,000.00 per
defendant, compensatory and punitive. MCCALLA failed to provide a clear and
concise information with respect to the validation of the debt when called upon.”
(Compl. at 15). Plaintiff further asserts, in Count Five, a claim “for damages under
RESPA statute violation for actual damages of $1,000.00 for failure to provide,
compensatory and punitive. Nationstar failed to provide a bona fide servicing
notice with no evidence of an agreement to service Mr. Dynott’s loan.” (Id.).

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The remainder of Plaintiff’s claims arise under Georgia law. Plaintiff asserts
claims (1) for “breach of duty and breach of negligence per se due to legal duties
under the FHA Contract,” (2) “under Georgia Statutes for attempted Wrongful
foreclosure by both Defendants,” and (3) for “libel damages and restoration of his
name.” (Id.). He seeks to recover “punitive and compensatory damages and
negligence attributable to actions by Defendants under O.C.G.A. § 44-14-160
through §§ 162.4,” “a set aside of any foreclosure sale . . . [and] appropriate
damages to unwind such sale,” and other damages “deemed appropriate by the
court at trial.” (Id.).
On May 8, 2013, Nationstar and McCalla filed their Motions to Dismiss for
Failure to State a Claim [3, 9]. On December 18, 2013, Magistrate Judge Anand
issued his R&R recommending that the motions be granted in part and denied in
part. The Magistrate Judge recommends that Plaintiff’s claims under federal law
be dismissed, and that Plaintiff’s claims under state law be remanded to the
Superior Court of Cobb County. The parties do not object to the R&R.
II.

DISCUSSION
A.

Legal Standard

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate

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judge’s report and recommendation. 28 U.S.C. § 636(b)(1) (Supp. V 2011);
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A
district judge “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). If no party has objected to the report and recommendation,
a court conducts only a plain error review of the record. United States v. Slay,
714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). Because no objections were
asserted, the Court reviews the R&R for plain error.
B.

Analysis
1.

Plaintiff’s FDCPA and RESPA Claims

The Magistrate Judge determined that Plaintiff’s pro se Complaint,
construed liberally, attempts to assert claims against both Nationstar and McCalla
under the Fair Debt Collection Practices Act (“FDCPA”) 15 U.S.C. § 1692 et seq.,
and under the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C.
§ 2600 et seq.2 The Magistrate Judge concluded that Plaintiff filed a shotgun
2

Complaints filed pro se are to be liberally construed and “held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007)(citations and internal quotation marks omitted). Nevertheless, a pro
se plaintiff must comply with the threshold requirements of the Federal Rules of
Civil Procedure. “Even though a pro se complaint should be construed liberally, a
pro se complaint still must state a claim upon which the Court can grant relief.”
Grigsby v. Thomas, 506 F. Supp. 2d 26, 28 (D.D.C. 2007).
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pleading in respect to his FDCPA and RESPA claims, including because he does
not allege sufficiently specific actions that Defendants took to violate the statutes.
Plaintiff offers an Indiana Court of Appeals case to support his claim, but fails to
explain how it is relevant to his case. The Magistrate Judge recommended that
Plaintiff’s claims under the FDCPA and RESPA be dismissed because his
Complaint is a shotgun pleading. The Court does not find any plain error in these
findings, conclusions, or recommendations. See Davis v. Coca-Cola Bottling Co.
Consol., 516 F.3d 955, 979 (11th Cir. 2008) (explaining that shotgun pleadings are
“roundly, repeatedly, and consistently condemn[ed]” in the Eleventh Circuit);
Strategic Income Fund, LLC v. Spear, Leeds, & Kellog Corp., 305 F.3d 1293,
1295 (11th Cir. 2002) (“The typical shotgun complaint contains several counts,
each one incorporating by reference the allegations of its predecessors, leading to a
situation where most of the counts (i.e., all but the first) contain irrelevant factual
allegations and legal conclusions.”). Plaintiff’s shotgun pleading in respect to his
FDCPA and RESPA claims is required to be dismissed.
The Magistrate Judge further concluded that even if it were not a shotgun
pleading, Plaintiff’s Complaint fails to state a claim for relief under the FDCPA or
RESPA. The Magistrate Judge recommended that Plaintiff’s FDCPA claim

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against Nationstar3 be dismissed because the FDCPA applies only to statutorily
defined “debt collectors,” and Plaintiff does not allege sufficient facts that
Nationstar qualifies as a “debt collector” or engaged in any activities other than as
servicer of Plaintiff’s loan. The Court finds no plain error in these findings or
recommendations. See Stroman v. Bank of Am. Corp., 852 F. Supp. 2d 1366,
1375 (N.D. Ga. 2012) (explaining that 15 U.S.C. § 1692a(6)(f) has been
interpreted to mean that “mortgage servicers are not covered by the FDCPA if they
began servicing the loan at a time when it was not in default.”). Plaintiff’s FDCPA
claim against Nationstar is required to be dismissed.
The Magistrate Judge concluded that McCalla did act as a “debt collector”
under the FDCPA, but that Plaintiff failed to establish that McCalla engaged in
activity that violated the statute. Plaintiff alleges that McCalla violated the
FDCPA by failing to respond to his request to validate the debt. Plaintiff’s
validation notices, however, were inadequate, and even if they were adequate,
Plaintiff fails to allege that McCalla continued the debt collection activities after
receiving the alleged debt verification request. Plaintiff further alleged that
McCalla violated the FDCPA by sending him “intentionally confusing and
3

Although Plaintiff’s FDCPA claim does not specifically mention Nationstar, it
does request “damages of $1,000.00 per defendant.” The Magistrate Judge
interpreted Plaintiff’s claims liberally and assumed that Plaintiff asserted his
FDCPA claim against both Nationstar and McCalla.
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deceptive” letters and “failed to provide the complete information about the
Secured Creditor which includes their address, telephone number.” The Magistrate
Judge concluded that, under the “least-sophisticated consumer” standard,
McCalla’s failure to include the address and telephone number of the secured
creditor does not violate the FDCPA, and Plaintiff fails to explain any other way in
which the letters were either confusing or deceptive. The Court finds no plain
error in these findings or recommendations. See LeBlanc v. Unifund CCR
Partners, 601 F.3d 1185, 1194 (11th Cir. 2010) (citing Colman v. Jackson,
988 F.2d 1314, 1319 (2d Cir. 1993)) (The “least-sophisticated consumer” standard
presumes a person “to possess a rudimentary amount of information about the
world and a willingness to read a collector’s notice with some care.”). Plaintiff’s
FDCPA claim against McCalla is required to be dismissed.
The Magistrate Judge concluded that Plaintiff alleged a RESPA claim
against Nationstar for failure to notify him when it became his mortgage loan
servicer, but that Plaintiff failed to allege facts to show that he suffered any actual
damages or that Nationstar has a pattern or practice of noncompliance with
RESPA.4 Plaintiff’s claim that Nationstar failed to respond to his Qualified
4

It appears that Plaintiff asserted his RESPA claim against only Nationstar, failing
to allege any facts indicating that McCalla violated RESPA in any way. The
Magistrate Judge recommended that McCalla’s Motion to Dismiss be granted with
7

Written Request (“QWR”) also does not allege actual damages, and the Magistrate
Judge further recommends dismissal because the letter that Plaintiff allegedly sent
does not qualify as a QWR because it requests information about matters well
beyond the mere servicing of Plaintiff’s individual loan. The Court does not find
plain error in these findings or recommendations. See 12 U.S.C. § 2605(f)
(liability under RESPA is limited to “actual damages to the borrower” and, “in the
case of a pattern or practice of noncompliance with the requirements of this
section, in an amount not to exceed $2,000.00”); Liggion v. Branch Banking and
Trust, No. 1:11-cv-1133-WSD, 2011 WL 3759832 at *3 (N.D. Ga. Aug. 24, 2011)
(“Plaintiff's information document requests are not a proper qualified written
request under RESPA because they do not relate to the servicing of the loan.”).
Plaintiff’s RESPA claim against Nationstar is required to be dismissed.
2.

Plaintiff’s State Law Claims

Plaintiff’s FDCPA and RESPA claims, now dismissed, were the only claims
in this action over which the Court had original subject matter jurisdiction. The
Magistrate Judge recommended that the Court decline to exercise supplemental
jurisdiction over Plaintiff’s remaining claims, which involve only state law causes
of action. The Magistrate Judge determined that concerns of comity, judicial
respect to Plaintiff’s RESPA claim against it. This Court does not find plain error
in this recommendation.
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economy, convenience, and fairness to the parties weigh in favor of remanding the
state law claims. The state court will be able to decide Defendants’ motions to
dismiss more efficiently and with the benefit of more expertise. The Court does
not find any plain error in these findings or recommendations. See 28 U.S.C.
§ 1367(c) (“The district court may decline to exercise supplemental jurisdiction
over a claim . . . if . . . the district court has dismissed all claims over which it had
supplemental jurisdiction[.]”); Ingram v. School Bd. Of Miami-Dade Cnty.,
167 F. App’x 107, 108 (11th Cir. 2006) (“State courts, not federal courts, should be
the final arbiters of state law.”); Murray v. Marks, No. 4:10-cv-126 (CDL),
2012 WL 359702, at *3 (M.D. Ga. Feb. 2, 2012) (“Although dispositive motions
are currently pending before the Court, district courts are encouraged to dismiss
any remaining state claims when, as here, the federal claims have been dismissed
prior to trial.’”) (quoting Murphy v. City of Aventura, 383 F. App’x 915, 919
(11th Cir. 2010)). Plaintiff’s state law claims are remanded to the Superior Court
of Cobb County.
III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Justin S. Anand’s Final

Report and Recommendation [16] is ADOPTED.

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IT IS FURTHER ORDERED that Defendants’ Motions to Dismiss [3, 9]
are GRANTED IN PART AND DENIED IN PART. The Motions to Dismiss
are GRANTED as to Plaintiff’s claims under the FDCPA and RESPA, and those
claims are DISMISSED. The Motions to Dismiss are DENIED as to Plaintiff’s
state law claims, and those claims are REMANDED to the Superior Court of Cobb
County.

SO ORDERED this 17th day of March, 2014.

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