Rainge v. Fay Servicing Center, LLC

Filing 33

ORDER granting in part and denying in part 21 Motion to Dismiss. Signed by Judge J. Randal Hall on 11/17/16. (cmr)

IN THE UNITED

STATES DISTRICT

COURT

FOR THE

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
*

LOUVENIA ANNETTE RAINGE,

*

Plaintiff,
*
*

v.

FAY SERVICING CENTER,

CV

116-016

*

LLC,

*

*

Defendant.

*
*

ORDER

Presently

before

dismiss.

(Doc.

21.)

personal

residence

first-priority
Center,

LLC,

believes

Procedures

believes
of

that

secured by

the

Louvenia

loan

in

Rainge,

which

agent

for

GMFS,

and

bankruptcy

her

complaint

Court

believes

is

Real

to

lives

in

a

LLC

has

a

Fay

Servicing

LLC.

Plaintiff

Estate

Settlement

stay.

deficient

this

motion

GMFS,

Defendant,

the

Plaintiff's
The

Defendant's

violated

("RESPA")

reasons.

a

is

interest.

servicing

Defendant

Act

Court

Plaintiff,

security

is

that

the

case

Defendant

for

a

variety

should

proceed

further.

I. Background

Plaintiff's

complaint

contains

two

counts.

Plaintiff's

first count alleges that Defendant violated RESPA by failing to

respond to

5,

2015,

two Qualified Written Requests

and August 13, 2015,

evidence

of

her

the two QWRs

that

that

rather

harassing

result

attorney' s

entitled

Fay's
fees

automatic
§

the

her

three

QWRs,

times

"began

without

Plaintiff further alleges that she

actual

and

statutory
as

actions,

damages

well

as

relief as

and

as

a

penalties,
this

Court

(Id. If 13.)
count

triggered

(Doc.

petition debt."

complaint

month

a result of Defendant's

to

second

stay

her

Defendant

per

and such other and further

stay

to

As

Plaintiff also asserts

noncompliance with RESPA,

362.

violated

least

anguish as

Plaintiff s

U.S.C.

to

sent on June

(Doc. 1 | 6.)

attached

sent to Defendant.

at

deems appropriate."

the

Plaintiff

(Doc. 1 | 10.)

"is

of

respectively.

responding

[her]

suffered mental

she

she

than

explanation."

that

attempts,

("QWRs")

by

1

alleges

by

at

her

4.)

Defendant

bankruptcy

Plaintiff

"'continually

(Id. | 16.)

that

violated

case

under

claims

harass [ing]

11

Defendant

her

for

pre-

Plaintiff further claims that she

suffered "significant emotional harm" as well as "actual damages
in

the

form

emotional

of

out-of-pocket

distress."

"entitled to

(Id.

^

expenses,

19.)

compensation damages,

attorney's

She

argues

In
motion

response
to

to

dismiss.

Defendant argues that

Plaintiff's
(Doc.

21.)

that

punitive damages,

attorney's fees pursuant to 11 U.S.C. § 362(k)."
complaint,
In

its

fees

and

she

costs,

is
and

(Id. ^ 20.)

Defendant
motion

to

filed

a

dismiss,

Plaintiff's complaint fails to adequately

plead

a

violation

regard to

of

either

the RESPA claim,

RESPA

or

11

U.S.C.

Defendant argues that

§

362.

With

Plaintiff:

(1)

failed to specifically allege that her loan met the requirements
of

a "federally related mortgage

loan";

(2)

Defendant's designated address for QWRs;

and

actual

by

or

statutory

violations.

claim,
the

(Id.

at

damages

5-8.)

caused

stay,

(3)

and

(1)

identify

failed to plead

the

With regard to

Defendant argues that:

automatic

failed to

alleged

the

11

RESPA

U.S.C § 362

Fay Servicing did not violate

(2)

Plaintiff

failed

to

allege

sufficient facts to support her alleged emotional harm.

(Id. at

8-10.)

Following

motion
and

to

dismiss,

Defendant

brief

Defendant's

contends

initial

Plaintiff

filed

a

that

she

filed

reply
did

in

Plaintiff's

a

(doc.

in

support

response
30).

allege

plausible claim on both counts,

argument

brief

brief

of

its

(doc.

28)

Plaintiff's

sufficient

facts

response
to

make

a

but it does not respond to every

motion

to

dismiss.

Defendant's

reply

argues that Plaintiff abandoned any issue to which she failed to

respond.

Specifically,

Defendant

argues that because Plaintiff

did not assert that she did use a correct address,

abandoned any argument on that issue.
II.

"To

survive

sufficient

LEGAL

a motion to

factual matter,

Plaintiff has

(Doc. 30 at 2.)

STANDARD

dismiss,

a complaint must

accepted as true,

to

^state

contain

a claim

to

relief

that

is

plausible

556

U.S.

662,

678

(2009)

556

U.S.

544,

570

on

(2007)).

two-part

the

test.

plaintiff

rather

than

whether

mere

Id.

The
plead

has

those

relief.

id.

679.

plausibly

Corp.

v.

v.

standard

the

Court

facts

conclusions.

might

Atl.

this

First,

specific

Ashcroft

Twombly,

requires

asks

supporting

Id.

give

to

claim

it

a

a

whether

a

Second,

rise

Iqbal,

asks

right

to

680.

"factual

as

complaint,"

it

"true
must

all
not

allows

the

Iqbal,

allegations"

556 U.S.
of

the

the

of

discovery."

not
See

facts

that

"show" the

the

Court

separates

court

at

is

678.

as

true

Id.

draw

the

for

the

While

the Court

contained
legal

in

a

conclusion

Generalized conclusions

allow the
id.

a

to

liable

allegations

"accept

will

the

defendant

a factual allegation."

and "bare
doors

that

that

alleged."

accept

couched as

content

inference

misconduct

specific

Bell

Applying

stated

facts

at

(quoting

at

legal

face.'"

first prong of the inquiry requires that the plaintiff

reasonable

must

See

its

The

plaintiff
plaintiff

defendant's

to
must

misconduct.

"unlock
assert

Id.

at

679.

Once

from mere legal conclusions,
and

"determine

entitlement to

whether

a
[is]

whether

relief."

complaint

the

factual

allegations

it must accept those facts as true

they

plausibly

Iqbal,

states

specific

556

a

U.S.

give

at

plausible

679.

claim

rise

to

an

"Determining

for

a context specific task that requires the

relief

reviewing

court to draw on its judicial experience and common sense."

Id.

Well-pleaded facts cannot be merely consistent with the alleged
misconduct;

they

misconduct was

only the

must

allow

plausible.

possibility

of

the

Id.

Court

at

678.

misconduct

to

infer

Thus,

are

not

that

such

facts which show

enough.

Id.

The

complaint must allege facts that push the claim "across the line
from conceivable to plausible."

Finally,

while

a

plaintiff

have

complaint

^contain

or

the

under

some

Inc.

Stephens,

v.

material
viable
Inc.,

elements

legal
500

683

(11th Cir.

dismiss

Plaintiff

three main

Plaintiff's

complaint.

Plaintiff

violated
Plaintiff

the
has

Sec.

1282-83

for Choice,

to

plead

arguments
First,

sufficient

plausible Defendant violated RESPA.
that

sustain

a

Assur.,

(11th

Cir.

Inc.,

253 F.3d

this

Court

DISCUSSION

makes

failed

allegations

to

Fin.

^with

2001) ) .

III.

Defendant

necessary

1276,

2007)(quoting Roe v. Aware Woman Ctr.
678,

inferential

theory.'"

F.3d

allege

a

it is still necessary that a

direct

or

"allege

each element of a claim,
either

element

to

precision'

recovery

every

not

fact'

all

cover

does

^specific

respecting

to

Id. at 683.

has

failed

bankruptcy
conceded

to

stay.
she

Defendant

facts

Second,

state

Third,
sent

asking

her

a

such

argues

that

to

that

it

is

Defendant contends

claim

that

Defendant

Defendant

asserts

QWRs

an

to

that

incorrect

address.

Within each main argument,

arguments.

The

Court

now

Defendant makes several sub-

addresses

each

argument

and

its

alleges

the

relevant sub-arguments.

A. Did Plaintiff Sufficiently Plead a RESPA Violation?

Plaintiff's

first

count

Defendant violated RESPA.

in

her

complaint

RESPA provides procedural protections

to borrowers seeking to assert errors or request information on

their

mortgage.

procedural

12

protections

Qualified Written

§

U.S.C.
allow

Requests

2605 (e) (1) (A)-(B) .

mortgage

fulfill
U.S.C.

request
for

the
§

of

request

to

the

stated in

the

"any

actual

If

its

damages

the

the

portion
send

of

a

servicer

the

federally

within

fails

to

as

a

that

to respond to her QWRs.

of

Defendant's

damages

because

failure

Defendant

She

to

Defendant's

the

liable
of

the

the Court may allow,

. . . in

in

an

§ 2605 (f) (a)-(b) .

violated

seeks

actual

respond,

and

failure

or
12

fulfill

noncompliance

claims

days

result

the case of a pattern or

Plaintiff

related

thirty days.

as

12 U.S.C.

U.S.C.

a written

five

failure" and "any additional damages,

amount not to exceed $2,000."

called

servicer may be

borrower

practice of

these

12

either provide

QWR within

of

letters

servicers.

sender

receipt,

to

to

loan

it must

to

acknowledge

A

servicer

a QWR,

2605(e) (l)-(2) .

or

their

a

receipt

2601.

borrowers

When

loan receives

acknowledgement

§

to

RESPA

damages

she

failing

on the basis

seeks

respond

by

to

additional
two

QWRs

constituted a "pattern or practice of noncompliance."
argues

that

Plaintiff

allegations that:
mortgage

loan";

(1)
(2)

failed

to

make

Defendant

sufficient

factual

the loan at issue is a "federally related
she

sent

a

valid

QWR;

or

(3)

she

suffered

actual or statutory damages

1. Did Plaintiff Adequately Plead a "Federally Related Mortgage
Loan"?

Defendant's

sufficiently
related

first

allege

mortgage

argument

that

loan

states

the

as

loan

defined

subordinate

lien

on

principally

for

residential

the

at

by

federally related mortgage loan as

of

including any such secured loan,

Plaintiff

issue

is

RESPA.

a

did

not

federally

RESPA

defines

a

a loan "secured by a first or
real

occupancy

that

property

from

one

.

to

.

.

four

designed

families,

the proceeds of which are used

to prepay or pay off an existing loan secured by the same party"
and which meets

statute.

12

to

motion to dismiss.

than
does

§

additional

2602(1).

Defendant

evidence of

establish

a

criteria

claim'

have

to

argument

"allege

[of a claim]
.

.

.

."

forth

believes

in the

that

the

RESPA

argument

and

survive

of
a

The Court disagrees.

Defendant's

not

set

every particular element

requires

more

is necessary at the motion-to-dismiss

element
a

four

provide

definition

The

of

U.S.C.

Plaintiff must
this

one

a

or allege
500

F.3d

"specific

of

stage.

fact'

'with precision'
at

1282-83.

the

She

to

Plaintiff

A plaintiff
cover

every

each element of
need

only

make

"direct or

inferential allegations of each element of a claim."

Id.

Plaintiff's

loan

is

a

complaint

federally

Plaintiff

alleged

makes

adequate

related mortgage
that

she

was

allegations

loan.

a

In

her

qualified

Defendant a qualified servicer under RESPA,

that

her

complaint,

borrower

and

and she alleged with

specificity her attempts to assert her rights under RESPA.

She

also specifically referenced the fact that the security interest
at

issue

is

priority

"her

security

Defendant

is

an

documentation

or

that

favor

personal

it

of

interest
agent.

proving

is

residence

interest

is

speak

an

as

true

mortgage

to

at

the

loan,

.

. subject
GMFS,

does

house

of

not

is

her

assertion

subject
of

to

fact,

this

stage.

statutory

they

the

definition

qualify

as

residence

of

is

in
her

security

takes

her

direct

provide

house

Court

Because

which

interest

first-priority

and

first

to

personal

the

a

for

have

that

a

to

LLC"

a first-priority mortgage

allegation

directly

related

to

and

favor

the

Plaintiff's

personal

allegations

in

.

Plaintiff

that

subject

GMFS.

residence

such

allegations

a

federally

allegations

of

this element, and her complaint is not deficient on this issue.
2.

Did

Plaintiff

Plead

Sufficient

Facts

to

Make

Plausible

Her

Claim That She Sent a Valid QWR?

Defendant's
claim

is

second argument

deficient

because

claims
she

that

has

establishing that" she sent a valid QWR.

"Plaintiff's RESPA

not

alleged

facts

RESPA defines a valid

QWR as

(1)

a written correspondence

(2)

that allows the servicer

to identify the name and account of the borrower,
the

reasons

the

borrower

the specific request of
U.S.C.

§

however,

requirement.

must

the

account

If

allows

the

to

be

(3)

in

states

error

information sought by the borrower.

2605(e) (1) (B) (i)-(ii) .

Regulations,

borrower,

believes

and

servicer

The

servicers

Code

to

provides

add

of

an

written

or

12

Federal

additional

notice

to

the

the servicer may "establish an address that a borrower

use

to

request

information."

§ 1024.36(b)(emphasis added).

12

C.F.R.

If the borrower fails to send the

QWR to the designated address,

then the servicer has no duty to

respond

v.

1141,

to

1149

it.
(10th

See

Berneike

Cir.

2013).

CitiMortgage,
Defendant

Plaintiff's complaint "never identifies

Inc.,

argues

708

that

[Defendant's]

F.3d

because

designated

address for QWRs," and never alleges that Plaintiff sent the two

letters to Defendant's designated address,
is

Plaintiff's complaint

deficient.

Defendant places more weight on the motion to dismiss than
it was meant

to

bear.

Defendant's

argument

boils

down to

the

idea that because Plaintiff did not specifically identify a sub-

element of her claim and explicitly point it out

her complaint was deficient.

require

such

specificity.

Modern pleadings,

Charles Alan

Wright

to the Court,

however, do not

and Arthur

R.

Miller, Federal Practice and Procedure § 1202 (3d ed. 2016); see
Johnson v. City of Shelby, Miss.,

135 S. Ct.

346 (2014)

(noting

that

the

Federal

discourage
U.S.

at

Rules

battles

573-76

of

2010

A

1,

designed

statement");

dissenting).

Twombly,

Rather,

550

the Federal

sought

R.

Miller,

From Conley to

Twombly to

Federal

Rules

Procedure,

(noting that the

to

to

the

on

3-10

"are

explicitly

Arthur
Play

Procedure

form of

J.,

Procedure

Double

Civil

over mere

traps.

Duke L.J.

of

(Ginsberg,

Civil

procedural
Iqbal:

Rules

of

eliminate

Civil

Federal

Rules

of

such

Civil

Procedure were designed to "minimize procedural traps" and allow

more claims to proceed on the merits).
Rule

8 requires

showing that

Proc.

only "a short and plain

the

pleader

8(a) (2).

As
for

technicalities

between

135

S.

is

a

opportunities

Johnson,

To accomplish this goal,

result,

Ct.

at

to

plaintiff

347

of the

relief."

entitled to

defendants
a

statement

Fed.

pleadings

are

insert

mine

and

a

her

day

in

(citing with approval

claim

R.

no

longer

field
court.

the

Civ.

of
See

idea that

"a basic objective of the rules is to avoid civil cases turning
on

technicalities");

Twombly,

550

U.S.

at

575

(Ginsberg,

J.,

dissenting)("Under the relaxed pleading standards of the Federal
Rules,

the

idea

was

not

to

keep

litigants

rather to keep them in.");

see also Iqbal,

8

generous

marks

a

notable

and

out

departure

from

QWRS

and

alleged

but

the

hyper-

. . .").

Plaintiff's complaint adequately alleges that

her

court

556 U.S at 678 ("Rule

technical, code pleading regime of a prior era.

QWR to a correct address.

of

she sent her

Plaintiff asserted the dates she sent

that

Defendant
10

failed

to

respond.

Plaintiff

then

attached

alleged

QWRs.

number,

her name,

to

which

she

specifically
address.

address

is

the

obligations.

allege,

each

Court

QWRs

contain

letter.

and

infers

which

address

complaint

two
a

copies

date,

the substance of her request,

identify

to

her

alleged

sent

The

the

and

The

to

she

label
from

sent

Plaintiff

Thus,

even

Plaintiff

it

does

inclusion

that

alleges

the

account

not

have

to

designated
in

each

address

triggers

her

the

and the address

Defendant's

the

of

in

QWR

letter

of

the

letter

Defendant's

RESPA

this Court finds that Plaintiff did identify

if

indirectly,

that

she

sent

the

QWRs

to

the

correct address for purposes of RESPA.

Additionally,

disputed

fact

inappropriate

dismiss.

Under

only

at

look

Defendant's

the

the

argument

for

determination

motion-to-dismiss

"four

corners

of

623

F.3d

1371,

1379

Ctr.

an

issue

of

a

on

standard,

the

documents attached to the complaint.
Health and Human Servs.

presents

motion

to

the

complaint"

Court

and

Speaker v. U.S.

may

limited

Dep't.

of

for Disease Control and Prevention,

(11th Cir.

2010).

It

must

then

take

all

allegations of fact and reasonable inferences in the complaint
to be true.

(11th Cir.

the

Bickley v.

2006) .

complaint

Caremark RX,

It cannot

without

Inc.,

461 F.3d 1325,

look outside the

converting the motion

to

four

one

1328

corners of

of

summary

judgment or taking judicial notice of facts mentioned in the
complaint itself.

Speaker, 623 F.3d at 1379.

11

Whether Defendant properly established a designated address

is,

at this point in the litigation,

For

a

servicer

properly

to
the

notify

establish

a

borrower.

still a question of

designated
Only

after

address,
proper

fact.

it

must

notification

can it demand that QWRs be sent to its designated address.
four corners of

contain

the

address

in

Plaintiff's complaint and the documents attached

required

nothing

Court to
Thus,

trigger

complaint

determine that

requires

Defendant

at

than

to

allegation

she

Defendant's

or

she

that

the

sent

RESPA

documents

a

QWR

to

the

obligations,

and

attached

sent the QWR to

allow

this

the wrong address.

determining whether Plaintiff mailed the QWR to the proper

address

so

factual

the

The

wishes

further

inquiry

to challenge

facilitated

Plaintiff's

a later stage of litigation,
a

motion

to

by

discovery.

assertion,

it

If

must

do

using procedural tools other

dismiss.

3. Did Plaintiff Sufficiently Plead Statutory or Actual Damages?

Defendant's

complaint

is

final

deficient

any statutory or

RESPA

argument

because

it

actual damages

does

alleges

not

Plaintiff's

sufficiently

caused by the

plead

RESPA violation.

RESPA grants actual damages for failure to respond to a QWR.

obtain

statutory

damages,

however,

a

Plaintiff

must

show

To

that

the servicer engaged in a "pattern or practice of noncompliance"
with

RESPA.

12

Defendant

argues

that

Plaintiff

did not

allege

sufficient

facts to make plausible a claim for actual or statutory damages
under

RESPA.

sufficiently

Defendant

pled

in

a

the

that

damages

statutory

sufficiently pled
engaged

argues

because

prerequisite

"pattern

or

for

practice

Plaintiff

not

Plaintiff

has

damages

such

of

has

that

-

noncompliance."

not
it

First,

Defendant argues that it could not have engaged in a "pattern or
practice

of

noncompliance"

valid QWRs.

Second,

alleged

used

QWRs

a

because

Defendant
valid

Plaintiff

argues

address,

that

never

even

Plaintiff

if

sent

one

cannot

two

of

have

the
sent

two valid QWRs because she sent each QWR to a different address.

Defendant
facts

argues

alleging

factual

damages

that
actual

allegations

alleged.

Plaintiff

Plaintiff
damages

that

The

insufficiently

noncompliance,

but

it

to

failure

rejects

pleaded

sufficiently

it

because

its

Court

failed

failed

to

respond

Defendant's

a

pattern

agrees with Defendant

to

plead

provide

caused

assertion

and

that

the

that

practice

of

Plaintiff must

plead her claim for actual damages with more specificity.

The

Court

rejects

Defendant's

argument

that

Plaintiff

has

not pleaded sufficient facts to assert a "pattern or practice of
noncompliance."
QWRs

to

an

Defendant's argument that

incorrect

address

is

an

Plaintiff mailed her

affirmative

defense,

but

an

affirmative defense only allows for dismissal if the allegations

in

the

complaint

definitively

establish

that

the

defense applies and no grounds for the claim exist.
13

affirmative
See Jones

v.

Bock,

549 U.S.

199,

215

(2007).

The

fact that the Plaintiff

sent her letters to two separate addresses does not,
of the

is

complaint,

possible

must

be

June

and

Moreover,

its

in

August
both

she

Defendant

that

sent

accepted

show that

changed

between

the

letters.

addresses

not

entitled to relief.

the

time

in

is

also

It
at

is

the

address

which

time

possible
the

development,

the

address

two

for a QWR.

differing

to

which

Plaintiff

Defendant

were

further

alone,

do

Jones,

at

her

Thus,

Plaintiff

may

proceed

sent.

with

factual

not

that "the Plaintiff is not entitled to relief."

215.

the

considers to be

Without

addresses,

It

QWRs

sent

that

letters

Defendant has not yet declared what it

proper mailing

on the face

show

549 U.S.

claim

for

statutory damages.

The

has

not

Court

agrees

adequately

with

alleged

Defendant's failure to
U.S.C.

§

2605,

Defendant,

facts

a plaintiff may recover

caused the

that

because

making

damages

of

that

it

Thus,

alleged.

"Fay's

pattern

actual

damages

that

Under 12
that

are

the RESPA violation must

Plaintiff's

of

Plaintiff

plausible

respond caused actual damages.

"a result of" a RESPA violation.

have

however,

complaint

non-compliance

states

[she]

has

experienced mental anguish," and that she is "entitled to actual
and

statutory damages

as

a result

RESPA, as well as penalties,

of

Fay's

noncompliance

attorney's fees and such other and

further relief as this Court deems appropriate."
These

allegations

are

not

with

factual
14

allegations.

(Doc. 1 If 13.)
They

are

a

recitation of elements.

this stage,
that

but she must provide details specific enough to show

Defendant's

Plaintiff
must

Plaintiff must not prove her damages at

violation

plausibly

cannot merely assert

show,

with

a

minimum

that

level

caused

she

actual

damages.

suffered damages.

factual

specificity,

She

what

her

damages are and how they are related to Defendant's violation.
B.

Plaintiff's

The

Court

violated
failed

her

to

forward

11 U.S.C.

now

362 Claim

addresses

bankruptcy

Plaintiff's

stay.

sufficiently

three

§

a

(1)

that

Defendant

argues

Defendant

allege

arguments:

claim

that

Plaintiff

violation.

Defendant

Defendant

never

bankruptcy stay because the bankruptcy stay was

the

time

Plaintiff

Plaintiff
claim

failed

that

to

alleges
allege

Defendant

the

facts

harassed

specific

her;

and

(3)

violated

not

harassment

puts

in place at

occurred;

enough

the

to

Plaintiff

(2)

plausibly
failed

to

allege sufficient facts to show a plausible claim for emotional
harm.

The Court disagrees with Defendant's arguments.

Defendant's
U.S.C.

case

2014,

§

is

first

argument proceeds

362(c)(2)(A),

closed,

the

bankruptcy

dismissed,

bankruptcy

closing the case.

a

court

or

stay

follows.
continues

discharged.

issued

In re Rainge,

S.D. Ga.)(ECF No. 2014).

as

an

On

order

Case No.

Under
until

the

September

19,

administratively

09-12990-SDB

Plaintiff's complaint,

11

however,

(Bankr.
claims

that Defendant only began harassing her after she sent the QWRs

15

in

June

order

and August

closed

Defendant
begin

the

could

of

2015,

case.

not

contacting

well

Thus,

have

after

the

the

face

on

violated

Plaintiff

the

until

stay

bankruptcy
of

the

because

almost

a

court's

complaint,
it

year

did

not

after

the

that

the

bankruptcy court lifted the stay.
The

problem

bankruptcy

stay

harassment.

did

not

U.S.C.

was

The

Defendant's

in

order

actually

§ 362.

shall not

with

place
that

close

at

argument

the

Defendant

the

is

time

of

asserts

case

for

closed

alleged
the

purposes

case

of

11

The order specifically states that "[t]his order

constitute an order closing this case

. . . 11 U.S.C.

09-12990-SDB

the

§

362(c)(2)(A)

(Bankr.

was

S.D.

in

. . . ."

Ga.)(ECF

place

at

No.

the

for purposes of

In re Rainge,

2014).

time

Case No.

Thus,

of

the

the

bankruptcy

stay

alleged

harassment,

and Plaintiff has not pleaded facts which defeat her

complaint.

Defendant's

allege

second argument asserts

sufficient

facts

to

make

because she "never identifie[d]

a

that

plausible

Plaintiff did not

harassment

claim

a specific date on which any of

the allegedly harassing conduct occurred, much less any specific
facts about how Fay Servicing violated the stay."
9.)
asks

As with the Defendant's first RESPA argument,
too

much

Under 11 U.S.C.

of

Plaintiff

§ 362(a),

at

the

motion

to

(Doc.

21 at

this argument

dismiss

during a bankruptcy stay,

stage.

a creditor

may not perform "any act to collect, assess, or recover a claim
16

against

the

debtor

that

bankruptcy action.

arose

before

commencement"

the

called her

"three times a month" and "continually" harassed her.

Plaintiff

not

expected

to

produce

a

call

that

of

Defendant

is

Plaintiff alleges

the

log

of

all

harassing

phone

calls or offer to this Court recorded phone calls evidencing the
misconduct

Defendant

of

Defendant.

Plaintiff

began

specificity

a month)

times

with

and alleges

(after

she

sent

(that

a

two

alleges

Defendant

specific date

QWRs) .

harassment

called

that

her

the

Accordingly,

by

several

harassment

Plaintiff

has

sufficiently pleaded harassment.

Defendant's
to

allege

final

sufficient

emotional harm.

"the

make

it

facts

to

show

that
a

Plaintiff

plausible

obvious

surrounding

that

emotional

a

harm."

the

continuous

reasonable

(Doc.

1

person

If

need more evidence to be proven at trial,

is

enough

17-18)

that

to

a

of

make

a

plausible

claim

harassing

creditor

violations
suffer

While

for

violating

emotional

556 U.S.
a

this

and would

the Court finds

"Judicial experience and common sense," Iqbal,
dictate

claim

would

allegation is very close to a bare bones allegation,

it

failed

she "suffered significant emotional harm" and

circumstances

significant

contends

Defendant points out that Plaintiff's complaint

alleges only that
that

argument

that

harm.

at 678,

bankruptcy

stay

could cause significant emotional harm given Plaintiff's already
tenuous circumstances.

Taking Plaintiff's

17

allegations as true,

the

Court

finds

emotional

C.

that

a plausible

claim for

Abandonment

that

she

failed

argues

mailed

to

respond

respond to
a

proposition,
43

district

a

abandoned

correct

Defendant's

dismiss,

the

(Doc.

Defendant

F.3d

587

any

address,

contrary

court

30

cites

(11th

decisions,

Dunmar,

Defendant

to

has

defense

because

assertions

she

in

her

Defendant claims that "[w]hen a party fails to

to

court

2.)

QWRs

to

abandoned."

Corp. ,

Plaintiff

an argument or otherwise address a claim in response

motion

claim

that

the

response brief.

at

made

harm.

Defendant

to

Plaintiff has

at

2.)

many

1995),

not

an

argument

support

Trust

Corp.

as

of which

does

such
In

Resolution

Cir.

however,

deems

well

cite

stand

of
v.

as

a

the

this
Dunmar

host

of

(Doc.

Dunmar.

for

or

30

proposition

asserts.

Dunmar stands for the proposition that an issue present in
the pleadings

but

not

litigated on

raised anew on appeal.

raise

on

appeal

summary judgment,
43

F.3d

at

context of

relied

599.

arguments

but

in

Dunmar,

which

the

he

Petitioner attempted to

had

failed

to

raise

on

which he had presented in his pleadings.

The

an appeal,

upon

In

summary judgment may not be

Eleventh

Circuit

stated

that,

in

the

"grounds alleged in the complaint but not

summary

judgment

18

are

abandoned."

Id.

The

present

case,

however,

It is not on appeal.

Beyond
Eleventh

the

is only at the motion-to-dismiss

Thus,

Dunmar is inapplicable.

inapplicability

Circuit

case

stage.

law

of

indicates

Dunmar,
that

however,

district

subsequent

courts

cannot

dismiss a claim based on the plaintiff's failure to respond to a
defendant's argument.
of

the

See Trustees of the Central

International

Union

of

Operating

Participating Employers v. Wolf Crane Serv.,
(11th Cir.
Eleventh

Circuit

entry of

noted

but

F.3d at

5800

S.W.

4th

Cir.

2004)).

must

a

district

consider

fact

the

Ave.,

Miami,

Florida,

374 F.3d 1035

cannot

that

merits

363

and

Pension Fund,

court

(quoting United States v.

base

the
the

the motion was
of

the

motion."

One Piece of Property
F.3d

1099,

1101

(11th

Although the Eleventh Circuit relied upon the text

of Rule 56 to arrive at
mention

"the

judgment on the mere

rather,

1039

that

Engineers

Inc.,

In Trustees of the Central

summary

unopposed

374

2004) .

Pension Fund

motion

to

its conclusion,
dismiss,

this

and did not specifically
Court

believes

that

the

prohibition extends to motions to dismiss as well.
As discussed above,

intended

to

be

the

primary

issues of law and fact.
has

alleged

motions to dismiss were not and are not

sufficient

Court

cannot

judgement stage,

dismiss

from

which

to

litigate

They merely ask whether the plaintiff
facts

which relief may be granted.
the

platform

an

to

make

a

plausible

It is only logical,
unopposed argument

at

claim

upon

then, that if
the

summary-

which occurs after ample discovery and after
19

the

issues

cannot

do

in
so

dispute
at

the

have

fully

crystalized,

motion-to-dismiss

it

stage.

A

certainly
failure

to

respond at such an early stage could result from a conservation
of

financial

litigation
respond

resources,

strategies,

to

a

or

Defendant's

a

desire

mere

argument

not

to

oversight.
at

this

reveal

Thus,

early

certain

failure

stage

does

to
not

denote an abandonment of the issue in dispute.
IV.

For
and

the

DENIES

reasons

IN

PART

The Court GRANTS

claim

for

to

discussed

above,

Defendant's

dismiss

motion

damages

with

under

respect

to

claim

for

statutory

Plaintiff's

claim

for

actual

is

Court

to

RESPA.

Plaintiff's

violations

the

GRANTS

PART

(Doc.

dismiss.

IN

21.)

Defendant's motion with respect to Plaintiff's

actual

motion

Conclusion

DISMISSED.

All

all

It

other

damages

damages
other

DENIES

claims,

under

as

a

claims

Defendant's

including

RESPA.

result
SHALL

Thus,
of

RESPA

PROCEED

to

discovery.

ORDER ENTERED at Augusta, Georgia,
November,

this

/ /^^day of

2016.

J.
PATES

RANDAL HALL
DISTRICT

JUDGE

DISTRICT OF GEORGIA

20