LaPorta v. Bank Of America et al
Filing
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ORDER Granting 8 Motion to Dismiss. Signed by Judge Kent J. Dawson on 3/20/2012. (Copies have been distributed pursuant to the NEF - SLR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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GREGORY LAPORTA,
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Plaintiff,
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v.
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Case No. 2:11-CV-01094-KJD-CWH
BANK OF AMERICA, et al.,
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ORDER
Defendants.
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Presently before the Court is Defendants’ Motion to Dismiss (#8). Plaintiff filed a response
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in opposition (#11) to which Defendants replied (#12).
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I. Background
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Plaintiff obtained a mortgage loan on or about February 27, 2008. On or about July 14, 2008,
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the beneficial interest in the loan was transferred from the original lender to Countrywide Bank.
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Countrywide Bank was subsequently purchased by Bank of America. Thereafter the loan was
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serviced by Bank of America. On or about July 24, 2010, Plaintiff drafted and mailed to Bank of
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America a document he titled “Qualified Written Request – Dispute of Debt/Validation of Debt.”
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(“the Letter”). Bank of America’s customer service center acknowledged receipt of the Letter on
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July 27, 2010. On July 28, 2010, Bank of America sent all available loan documents and payment
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history to Plaintiff. On August 20, 2010, Bank of America provided a more detailed response to the
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Letter, but also declined to respond to every request in the Letter, calling it overbroad.
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Plaintiff alleges that while it serviced the loan Bank of America failed to report any of his
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mortgage payments to credit reporting agencies. Plaintiff alleges that this affected his credit rating
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and that he was declined for two credit cards for lack of credit history and current accounts. On July
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1, 2011, Plaintiff filed the present complaint asserting a cause of action for violations of the Real
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Estate Settlement Procedures Act and a cause of action for violation of the Fair Credit Reporting Act
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(“FCRA”). Defendants have now moved to dismiss both causes of action.
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II. Standard for a Motion to Dismiss
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In considering a motion to dismiss, “all well-pleaded allegations of material fact are taken as
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true and construed in a light most favorable to the non-moving party.” Wyler Summit Partnership v.
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Turner Broadcasting System, Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).
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Consequently, there is a strong presumption against dismissing an action for failure to state a claim.
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See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted).
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“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
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as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,
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1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the
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context of a motion to dismiss, means that the plaintiff has pleaded facts which allow “the court to
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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
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The Iqbal evaluation illustrates a two prong analysis. First, the Court identifies “the
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allegations in the complaint that are not entitled to the assumption of truth,” that is, those allegations
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which are legal conclusions, bare assertions, or merely conclusory. Id. at 1949-51. Second, the
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Court considers the factual allegations “to determine if they plausibly suggest an entitlement to
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relief.” Id. at 1951. If the allegations state plausible claims for relief, such claims survive the motion
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to dismiss. Id. at 1950.
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III. Analysis
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A. RESPA
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12 U.S.C. § 2605(e)(1) imposes an obligation on loan servicers to respond to written
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correspondence that includes enough information for the servicer to identify the name and account of
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the borrower. The request must also include a statement of the reasons the borrower believes that the
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account is in error. Here, the Court finds that Plaintiff has not stated a claim for relief, because
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Plaintiff’s six (6) page request does not include a statement that puts the servicer on notice of what
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reasons the account might be in error. While the Letter does state that Plaintiff disputes the validity
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of the debt he owes because Defendants and other servicers and lenders had been accused of
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predatory lending, Plaintiff identified no specific reason that he believed that his account was in
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error. He included a list of seven reasons that he believed his account could be in error, but did not
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specifically state that it was his belief that anything in the account was actually in error. Most
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significantly, the Letter fails to assert that Defendants had failed to report his mortgage payments on
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LaPorta’s credit report as alleged in the complaint.
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Furthermore, even if the overbroad letter was sufficient, Plaintiff has not stated a claim for
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actual or statutory damages. Plaintiff asserts that he was denied credit and that the failure to report
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hurt his credit rating. However, this statement of damages is too speculative and tangential to the
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QWR to state a claim. Plaintiff’s credit rating and denial of credit may or may not be related to the
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alleged failure to accurately report Plaintiff’s payments. However, the damage is not related at all to
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the alleged failure to respond to the QWR, because the QWR does not reference this issue at all.
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Finally, Plaintiff’s allegation that Defendants failed to respond to his sole QWR is
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insufficient to establish a “pattern or practice” of RESPA violations supporting statutory damages.
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See Morris v. Bank of America, 2011 WL 250325, *5, n.9 (N.D. Cal. Jan. 26, 2011). Accordingly,
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the Court dismiss Plaintiff’s claims for violation of RESPA.
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B. FCRA
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In response to the motion to dismiss, Plaintiff failed to file any points and authorities in
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opposition to Defendants’ motion. Therefore, good cause being found and in accordance with Local
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Rule 7-2(d), the Court dismisses Plaintiff’s claims under the FCRA. Furthermore, on the merits, the
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Court finds that Plaintiff has failed to state a claim. Section 1681s-2(a) of the FCRA may not be
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privately enforced. See Nelson v. Chase Manhattan Mortgage Corp., 282 F.3d 1057, 1059-60 (9th
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Cir. 2002)(furnishers’ duties do not arise until a credit reporting agency notifies them of a
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consumer’s dispute). Accordingly, Plaintiff’s claims arising under the FCRA are denied.
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IV. Conclusion
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Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (#8) is
GRANTED;
IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for Defendants
and against Plaintiff.
DATED this 20th day of March 2012.
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_____________________________
Kent J. Dawson
United States District Judge
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