Diop v. BSI Financial Services, Inc

Filing 10

ORDER granting 6 Defendant's Motion to Dismiss, Plaintiff to submit amended complaint alleging RESPA and FCRA claims by 2/1/2013. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BERNICE DIOP,
Plaintiff,
Case No. 12-14377

v.
BSI FINANCIAL SERVICES, INC.,
Defendant.
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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
Plaintiff Bernice Diop submitted an eight-count complaint against Defendant BSI
Financial Services, Inc., alleging wrongs arising from the servicing of a mortgage. In
response to Defendant’s motion to dismiss, Plaintiff agrees to the dismissal of each
count except a count under the Real Estate Settlement Procedures Act (RESPA) and a
count under the Fair Credit Reporting Act (FCRA).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
According to the case filing system, Plaintiff’s attorney has begun 602 actions in
this district. Plaintiff’s complaint is among the many complaints in these actions that
assert form RESPA and FCRA claims. Only the name of the defendant changes. See,
e.g., Lenhard v. Citimortgage, Inc., 11-11810 (Dkt. # 1 at 4-5, 10-11) (RESPA and
FCRA), 2012 WL 760918, *3 (dismissing both claims) (E.D. Mich. 2012); Vitti-Carlesimo
v. Bank of America N.A., 12-14902 (Dkt. # 1 at 8-9) (E.D. Mich.) (RESPA); McDonald v.

Huntington National Bank, 11-15066 (Dkt. # 1 at 4-5) (E.D. Mich.) (RESPA); Armstrong
v. Resurgent Capital Servs. L.P., 12-11655 (Dkt. # 1 at 4-5) (E.D. Mich.) (FCRA);
Cleveland v. Santander Consumer USA, Inc., 12-11302 (Dkt. # 1 at 3-5) (E.D. Mich.)
(FCRA). Like the other complaints, Plaintiff’s complaint recites the bare elements of a
claim but states no supporting facts. As a result, several allegations in the complaint
remain implausible.
RESPA requires a loan servicer to respond promptly to a letter from a borrower
that includes, among other things, either “reasons for [the] borrower’s belief that [an]
account is in error or . . . detail [about] other information sought by the borrower.” 12
U.S.C. § 2605(e)(1)(B)(i)-(ii). The complaint says that Plaintiff sent Defendant a writing
that “indicated a statement of the reason for the belief that there was an error; and
requested in sufficient detail that the Defendant provide specific information[,]” (Dkt. # 1
at 3), but the complaint states neither the reason nor the detail to which it alludes. In
addition, Plaintiff fails to allege facts supporting her allegation that a violation of RESPA
damaged her. See Battah v. Resmae Mortgage Corp., 746 F.Supp.2d 869, 876 (E.D.
Mich. 2010).
In defense of the FCRA claim, Plaintiff cites the following paragraph in the
complaint:
[Defendant] was required under 15 U.S.C. § 1681s-2(b), to respond to the
request for reinvestigation initiated by Plaintiff through one or more credit
reporting agencies by completing an inquiry into the facts underlying the
trade-line and providing accurate information to the credit reporting agencies
regarding that trade-line.

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(Dkt. # 7 at 6.) This paragraph contains no supporting facts. Further, Plaintiff offers no
legal analysis showing that the elements stated in the paragraph would, if supported by
facts, state a claim for legal relief.
Defendant seeks dismissal with prejudice, but “where a more carefully drafted
complaint might state a claim, a plaintiff must be given at least one chance to amend
the complaint[.]” Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565, 573 (6th Cir.
2008). Accordingly,
IT IS ORDERED that the motion to dismiss [Dkt. # 6] is GRANTED, that
counts II-III and V-VIII are DISMISSED WITH PREJUDICE, and that counts I and IV
(the RESPA and FCRA claims) are DISMISSED WITHOUT PREJUDICE. Plaintiff may
submit an amended complaint alleging claims under RESPA and FCRA by February 1,
2013.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: January 17, 2013

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, January 17, 2013, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\12-14377.DIOP.DismissComplaint.ckb.wpd

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