Fleming et al v. U.S. Bank National Association et al

Filing 24

ORDER granting 16 Motion to Dismiss(Written Opinion). Signed by Senior Judge David S. Doty on 2/6/2015. (PJM) cc: Brian J. Fleming; Stacy A. Fleming. Modified on 2/6/2015 (lmb).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 14-3446(DSD/JSM)
Stacy A. Fleming and
Brian J. Fleming,
Plaintiffs,
ORDER

v.
U.S. Bank National Association
as Trustee for CitiGroup Mortgage
Loan Trust Inc., Mortgage PassThrough Certificates Series 2006-AR3,
Wells Fargo Bank, N.A. and John Does
1-10,
Defendants.

Stacy A. Fleming, 3975 Cardinal Court, Rosemount, MN
55068, pro se.
Jessica Z. Savran, Esq. and Faegre, Baker, Daniels, LLP,
90 South Seventh Street, Suite 2200, Minneapolis, MN
55402, counsel for defendants.

This matter is before the court upon the motion to dismiss by
defendants U.S. Bank National Association, as Trustee for Citigroup
Mortgage Loan

Trust

Inc.,

Mortgage

Pass-Through

Certificates,

Series 2006-AR3 (US Bank), and Wells Fargo Bank, N.A. (Wells
Fargo).

Based on a review of the file, record, and proceedings

herein, and for the following reasons, the court grants the motion.

BACKGROUND
This mortgage dispute arises out of the proposed foreclosure
on property owned by plaintiffs Stacy and Brian Fleming.

On

February 23, 2006, the Flemings executed a $390,000 promissory note
with Gopher State Management Corporation (Gopher State) for the
purpose of buying real property located at 3975 Cardinal Court,
Rosemount, Minnesota 55068 (the Property).
No. 19-1, at 1-5.

Am. Compl. at 2; ECF

The Flemings also executed a mortgage in favor

of Gopher State, which Gopher State assigned to Wells Fargo on the
same day.

ECF No. 19-1, at 6-21.

a power of sale.

Id. at 18.

The mortgage agreement included

The mortgage and assignment were

recorded in the Dakota County Recorder’s Office on March 20, 2006.
Am. Compl. at 2; ECF No. 19-1, at 6, 21.

On February 26, 2014,

Wells Fargo assigned the mortgage to US Bank, and the assignment
was recorded the next day.

ECF No. 19-1, at 22.

On July 18, 2014, the Flemings sent US Bank a document
entitled “Qualified Written Request” (QWR). Id. at 31-35. The QWR
requested thirty-five different categories of information related
to the “use and proper application of payments on the account” and
other aspects of the note and mortgage.

Id.

US Bank forwarded the

QWR to Wells Fargo, the loan servicer, on August 5, 2014.
78.

Wells

Fargo

sent

the

Flemings

acknowledging receipt of the QWR.
2014, Wells Fargo sent a response.
included information

and

a

letter

Id. at 36.

next

day

On September 2,

Id. at 38-91.

documentation

the

Id. at

regarding

The response
loan

status,

payment history, loan validation, insurance, assessment of fees,
estimated payoff date, and other aspects of the note and mortgage.

2

Id.

The response also stated that Wells Fargo could not provide

additional information because it could not reasonably determine
what the Flemings were requesting.

Id. at 40.

The Flemings eventually defaulted on the note.

Id. at 43.

On

August 14, 2014, US Bank published and served the Flemings with a
Notice of Foreclosure Sale.

Id. at 23-24.

The foreclosure sale

was scheduled for October 2, 2014, but the Flemings filed a
petition for bankruptcy before the sale occurred.

Id. at 23, 25-

30. The Flemings filed an amended pro se complaint on November 24,
2014, alleging violations of the Fair Debt Collection Practices Act
(FDCPA) and the Real Estate Settlement Procedures Act (RESPA).1
The amended complaint also asserts state law claims to vacate or
set aside the foreclosure sale and for replevin.

Defendants move

to dismiss.2

1

The Flemings also bring claims against “John Does 1-10.”
Because the complaint does not contain any facts sufficient to
identify these defendants or state a claim against them, those
claims will be dismissed. See Estate of Rosenberg by Rosenberg v.
Crandall, 56 F.3d 35, 37 (8th Cir. 1995) (allowing dismissal where
a complaint fails to make “allegations specific enough to permit
the identity of the party to be ascertained after reasonable
discovery”).
2

At oral argument, the Flemings stated that they did not
receive defendants’ briefing in support of the motion to dismiss.
The record shows that the Flemings were properly served with these
materials. See ECF Nos. 20, 22-2.
3

DISCUSSION
I.

Standard of Review
To survive a motion to dismiss for failure to state a claim,

“a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“A claim

has facial plausibility when the plaintiff [has pleaded] factual
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”

Iqbal, 556

U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)).

Although a complaint need not contain detailed factual

allegations, it must raise a right to relief above the speculative
level.

Twombly, 550 U.S. at 555.

“[L]abels and conclusions or a

formulaic recitation of the elements of a cause of action” are not
sufficient to state a claim.

Iqbal, 556 U.S. at 678 (citation and

internal quotation marks omitted).
The court does not consider matters outside of the pleadings
under Rule 12(b)(6).

Fed. R. Civ. P. 12(d).

The court, however,

may consider matters of public record and materials that do not
contradict

the

complaint,

as

well

as

“necessarily embraced by the pleadings.”

materials

that

are

Porous Media Corp. v.

Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (citation and
internal quotation marks omitted).

4

Here, the court relies on

documents pertaining to the promissory note and mortgage, the
foreclosure process, and the QWR.

All materials are either of

public record or are necessarily embraced by the pleadings.
II.

FDCPA Claim
Congress enacted the FDCPA to protect consumers “in response

to abusive, deceptive, and unfair debt collection practices.”
Schmitt v. FMA Alliance, Ltd., 398 F.3d 995, 997 (8th Cir. 2005).
The Flemings first argue that defendants violated the FDCPA by
attempting to foreclose on the Property and by engaging in other
alleged conduct in pursuit of the foreclosure.

Defendants argue

that they are exempt from the FDCPA because foreclosure activities
undertaken by mortgagors and mortgage servicing companies do not
constitute “debt collection.”
The FDCPA applies to activity by debt collectors that is done
“in connection with the collection of any debt.”
U.S.C. §§ 1692e, 1692g.

See, e.g., 15

This court has previously concluded that

foreclosure activities do not constitute debt collection under the
FDCPA.

See DeMoss v. Peterson, Fram & Bergman, No. 12-2197, 2013

WL 1881058, at *2 (D. Minn. May 6, 2013); accord Warren v.
Countrywide Home Loans, Inc., 342 Fed. App’x 458, 460 (11th Cir.
2009); Chomillo v. Shapiro, Nordmeyer & Zielke, LLP, No. 06-3103,
2007 WL 2695795, at *4 (D. Minn. Sept. 12, 2007).
disagree.

Other courts

See Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 461

(6th Cir. 2013) (“[M]ortgage foreclosure is debt collection under

5

the FDCPA.”); Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373,
376 (4th Cir. 2006).
Even if defendants’ conduct were subject to the FDCPA, the
court finds that the Flemings are not entitled to relief.

The

complaint alleges that defendants attempted to foreclose on the
Property without possessing both the mortgage and promissory note.
Am. Compl. at 2, 5.

The Flemings rely on the “show-me-the-note”

theory, “which posits that the holder of legal title to a mortgage
must also hold the promissory note in order to foreclose on a
mortgage.”

Dunbar v. Wells Fargo Bank, N.A., 709 F.3d 1254, 1257

(8th Cir. 2013).

“[T]his theory has been repudiated.”

Id.

The

holder of the recorded mortgage is entitled to foreclose and need
not

be

a

note

holder

to

do

so.

Jackson

v.

Mortg.

Elec.

Registration Sys., Inc., 770 N.W.2d 487, 501 (Minn. 2009). US Bank
was entitled to foreclose on the property as the assignee of the
mortgage.

As a result, the attempted foreclosure cannot be an

abusive or deceptive practice prohibited by the FDCPA.
The

court

also

finds

that

the

Flemings

fail

to

allege

sufficient factual content to support the remainder of their FDCPA
claim.

The Flemings allege that defendants - in pursuit of the

foreclosure - (1) threatened to sue and take possession of the
property; (2) asked the location of their employment and threatened
to garnish their wages; (3) failed to provide validation of their
debt within five days of being contacted; (4) intimidated them by

6

trespassing on the property, taking photographs without permission,
and looking through windows; and (5) acquired their personal and
banking information without a permissible purpose.
at 2-3, 5-6, 15-16.

See Am. Compl.

The complaint does not include any additional

facts to support these general and conclusory allegations.3

As a

result, the complaint fails to create a reasonable inference that
defendants violated the FDCPA, and dismissal is warranted.
III.

RESPA
The Flemings next argue that defendants violated RESPA by

failing to properly respond to their QWR. RESPA requires servicers
to

provide

a

written

response

to

a

QWR

seeking

“information

relating to the servicing of [a] loan.” 12 U.S.C. § 2605(e)(1)(A).
Defendants respond that the July 18, 2014, request was not a valid
QWR, that they complied with the request, and that the Flemings did
not sufficiently allege damages.

The court agrees.

A QWR is a written correspondence that “includes a statement
of the reasons for the belief of the borrower, to the extent
applicable, that the account is in error or provides sufficient
detail to the servicer regarding other information sought by the
borrower.” Id. § 2605(e)(1)(B)(ii). The Flemings’ letter does not
identify any purported errors in their account.

3

The court must
liberally. See Voytik
Cir. 1985). The court
based on conclusory or

Moreover, many of

construe the Flemings’ pro se pleadings
v. United States, 778 F.2d 1306, 1308 (8th
cannot, however, accept pleadings that are
non-specific factual allegations. Id.
7

the requests do not pertain to the servicing of the note.

Under

RESPA, servicing “means receiving any scheduled periodic payments
from a borrower ... and making the payments of principal and
interest and such other payments with respect to the amounts
received from the borrower as may be required pursuant to the terms
of the loan.”

Id. § 2605(i)(3).

The letter exceeds this scope by

seeking, in part, information related to insurance, property taxes,
third party fees, property inspection and appraisals, and pooling
and service agreements.

See ECF No. 19-1, at 31-34; see also

Dietz. v. Beneficial Loan & Thrift Co., No. 10-3752, 2011 WL
2412738, at *5 (D. Minn. June 10, 2011) (dismissing RESPA claim in
part because plaintiff “identified a laundry list of requests for
documents and information, most of which are completely unrelated
to the servicing of the loan”).
As for the requests related to the servicing of the note, the
court finds that defendants adequately responded to the letter.4
When responding to a valid QWR, a servicer must “provide the
borrower with a written explanation or clarification that includes
... information requested by the borrower or an explanation of why
the information requested is unavailable or cannot be obtained by

4

The response was also timely, despite the Flemings’ argument
to the contrary.
Servicers must acknowledge receipt of a QWR
within five days, and must respond within thirty days. 12 U.S.C.
§§ 2605(e)(1)(A), (2). Wells Fargo received the QWR on August 5,
2014. ECF No. 19-1, at 78. It acknowledged receipt the next day
and responded on September 2, 2014. Id. at 36, 38.
8

the servicer.”
provided

a

12 U.S.C. § 2605(e)(2)(C).
lengthy

documentation.

response

which

Here, Wells Fargo

included

supporting

The response addressed each of the Flemings’

requests and noted that Wells Fargo could not comply in some
instances because it could not reasonably understand what was being
sought.

ECF No. 19-1, at 38-91.

Finally, the complaint seeks actual damages under RESPA “if
any be proven.”

Compl. at 8, 10.

“[A] RESPA plaintiff must plead

and prove, as an element of the claim, that he or she suffered some
actual damage as a result of the alleged RESPA violation.”

Hintz

v. JPMorgan Chase Bank, N.A., No. 10-2825, 2011 WL 579339, at *9
(D. Minn. Feb. 8, 2011) (citation and internal quotation marks
omitted).

The Flemings have not alleged any facts to show that

defendants’ alleged failure to comply with RESPA caused them harm.
See Dietz, 2011 WL 2412738, at *5 (dismissing RESPA claim in part
because

the

complaint

failed

to

show

that

attributable to defendants’ lack of response).

any

damages

were

As a result, the

Flemings fail to sufficiently plead a claim under RESPA, and
dismissal is warranted.5

5

The complaint also alleges a violation of 12 U.S.C.
§ 2605(k)(1)(D), which requires a servicer to “respond within 10
business days to a request from a borrower to provide the identify,
address, and other relevant contact information about the owner or
assignee of the loan.” See Compl. at 8, 10. The Flemings made
such a request in their QWR. See ECF No. 19-1, at 32. This claim
similarly fails because, as stated, the Flemings do not
sufficiently plead damages.
See Bever v. Cal-W. Reconveyance
(continued...)
9

IV.

State Law Claims
The Flemings next allege state law claims to vacate or set

aside the foreclosure sale and for replevin.

These claims are

premature, however, because the Flemings stalled the foreclosure
proceedings by filing for bankruptcy.

See Minn. Public Utils.

Comm’n v. F.C.C., 483 F.3d 570, 582 (8th Cir. 2007) (“A claim is
not ripe for adjudication if it rests upon contingent future events
that may not occur as anticipated, or indeed may not occur at all.”
(citation

and

internal

quotation

marks

omitted)).

Moreover,

replevin is used to “recover possession of personal property” and
does not pertain to real property.

Minn. Stat. § 565.21; Storms v.

Schneider, 802 N.W.2d 824, 827 (Minn. Ct. App. 2011).

As a result,

dismissal is warranted on the Flemings’ state law claims.

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that
defendants’ motion to dismiss [ECF No. 16] is granted.
LET JUDGEMENT BE ENTERED ACCORDINGLY.
Dated:

February 6, 2015
s/David S. Doty
David S. Doty, Judge
United States District Court

5

(...continued)
Corp., No. 1:11-CV-1584, 2012 WL 2522563, at *4 (E.D. Cal. June 28,
2012) (stating that actual damages are a necessary element of a
§ 2605(k) claim).
10