Delgado et al v. Ocwen Loan Servicing, LLC et al

Filing 359

MEMORANDUM & ORDER, Defendants' 324 Motion to Dismiss for Failure to State a Claim is GRANTED IN PART and DENIED IN PART. Plaintiffs' claims for violations of the Alabama Deceptive Trade Practices Act, the Georgia Fair Business Practic es Act, and the Tennessee Consumer Protection Act are DISMISSED WITHOUT PREJUDICE. Defendants' motion to dismiss Plaintiffs' claims under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, the Arizona Consumer Fraud Act, t he Indiana Deceptive Consumer Sales Act, Plaintiffs' claim for unjust enrichment under the laws of Alabama, Arizona, Colorado, Georgia, Indiana, Maryland, Michigan, New Mexico, Ohio, Pennsylvania, Tennessee, Texas, Virginia, and Washington, and Plaintiff's breach of fiduciary duty claims under the laws of Alabama, Arizona, Georgia, Indiana, Michigan, New Jersey, New Mexico, Ohio, Virginia, and Washington is DENIED. So Ordered by Judge Nicholas G. Garaufis on 11/8/2017. (Lee, Tiffeny)

P/F

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

MARGARITA DELGADO,WILLIAM

SHEPPARD,GERALDINE MAHOOD,KEVIN
CROWNING,LYA CROWNING,PAUL
EMMERT,CAROLYN TOTR,BRIAN
RAFACZ,JENNIFER RENDRICKS,CYNTRIA
BENIWAL,KIMBERLY KAYES,JUSTIN
WISNEWSKI,LAURIE CREAMITRU,DALE
ZIMMER,MICRAEL BENRAMU,MEGHAN
FOX,DAN WILKINSON,KENT COLLIER,
THERESA MCCULLOUGR,BEN ELLIOTT,
JASON ABT,CAMIPELOZA,and TERRY

MEMORANDUM & ORDER

13-CV-4427(NGG)
(ST)

OLIVER,

Individually and on Behalf of All Others Similarly
Situated,

Plaintiffs,

-againstOCWEN LOAN SERVICING,LLC, CROSS
COUNTRY ROME SERVICES,INC., SANDRA
FINN,and "JOHN DOES 1-10,"

Defendants.
-X

NICHOLAS G. GARAUFIS,United States District Judge.

Plaintiffs bring this putative class action' against Defendants Ocwen Loan Servicing,
LLC("Ocwen"), Cross Country Rome Services, Inc.("Cross Country"), Cross Country's
President Sandra Finn ("Finn"), and John Does 1-10 (collectively,"Defendants"). (4th Am.

Compl.("FAC")(Dkt. 293).) Plaintiffs claim that Defendants engaged in a deceptive check

^ Plaintiffs' Motion for Class Certification is pending before the court. (See Mot. for Class Cert.(Dkt. 152).)
1

solicitation scheme that led Plaintiffs and other consumers unknowingly to enroll in, and pay

monthly fees for, Cross Country's warranty plans.
Before the court is Defendants' motion for partial dismissal ofthe claims asserted in

Plaintiffs' Fourth Amended Complaint(the "Motion"). (Defs. Mot. to Dismiss and Strike Class

Allegations ("Mot.")(Dkt. 324).) For the reasons stated below,the Motion is GRANTED IN
PART and DENIED IN PART.
I.

BACKGROUND

While the court has previously detailed Plaintiffs' essential allegations as they appeared

in prior iterations ofthe Complaint(see Sept. 23,2014, Mem.& Order(Dkt. 42)), it reviews the
allegations as presented in the challenged pleading. Unless otherwise indicated, the following
factual allegations are drawn from the Fourth Amended Complaint(the "Complaint"). (FAC.)
A.

The Parties

Defendant Ocwen is "the largest servicer ofsubprime mortgage loans in the country" and
"the nation's largest non-bank mortgage servicer." (FAC K 55.) In that role, Ocwen "collect[s]

mortgage payments and handle[s] escrow accounts, delinquencies, loan modifications, and
foreclosures" on behalf ofthe mortgage holders (id,), and services more than 600,000 residential

home loans(id ^ 44). The plaintiffs in this case are customers of Ocwen who reside in New
York, California, Alabama, Arizona, Colorado, Georgia, Indiana, Maryland, Michigan, New

Jersey, New Mexico, Ohio, Pennsylvania, Tennessee, Texas, Virginia, and Washington. (Id
11118-43.)

Defendant Cross Country "market[s] and sell[s] appliance warranty plans, homeowner

repair/referral plans, and related maintenance plans," and purports to be one ofthe largest

providers ofsuch plans in the United States. (Id 158.) At all relevant times, Finn was the

president of Cross Country. (Id.^ 46.) Cross Country operates subsidiaries and affiliates under
different names in various states. (Id ft 48, 50.) Cross Country operates through these
subsidiaries and affiliates to enroll customers in plans and policies provided by Cross Country.

(Id 147.) Plaintiffs allege that these subsidiaries and affiliate companies are controlled and
directed by Cross Country and Finn.^ (Id f 49.)
B.

The Alleged Scheme

Plaintiffs allege that Cross Country markets its plans and policies in part through lists of
customers obtained from mortgage servicing companies,including Ocwen. (Id ft 59-60.)

Cross Country approaches these companies about providing their customers with Cross
Country's plans as "add-on products" for the mortgage-related services those customers are
already receiving. (Id f 59.) At an unspecified point prior to the events described in the

Complaint, Cross Country and Ocwen entered into such an agreement, and Ocwen provided
Cross Country with a list ofits customers. (Id f 60.)

The gravamen ofthe Complaint is that Cross Country uses misleading and fraudulent
mailings to Ocwen customers in order to trick them into enrolling in Cross Country-provided
plans. According to Plaintiffs, Cross Country sends Ocwen customers mailings that are
addressed to the individual customer, display the Ocwen logo, and list Ocwen as a return

addressee on the outside ofthe envelope. (Id ft 62,68.) The outside ofthe envelope is also

prominently marked with a label that says"CHECK ENCLOSED." (Id ft 62,66.) The
envelope does not state that it contains any "solicitation" or "marketing material." (Id f 65.)

2 The Complaint also names ten "John Doe" Defendants, identified only as "currently unknown participants, actors,
and/or co-conspirators in Defendants' check solicitation scheme and enterprise, who will be identified and added as
Defendants if discovery warrants it." (Id ^ 54.)

Contained within the envelopes are checks for a small amount(examples provided in the

Complaint show amounts of$2.50 and $3.50). (Id H 69.) The fronts ofthe checks state in small
print that they are from "CCHS"and provide an address similar to that of Ocwen. (Id,H 70.)
The checks themselves are valid and may be deposited. (Id f 71.) However,the checks state in

small print that "[b]y cashing or depositing this check, you are purchasing the annual Systems
MD Gold Home Warranty" or a similarly named plan. (Id HH 69, 71.) The backs ofthe checks
contain signature lines for the recipient, which read simply "[s]ignature of payee required for

processing." (Id ^ 76.) Above these lines, the checks contain a statement, again in small print,
one iteration of which reads:

By cashing or depositing this check, I understand that I am

purchasing an annual Systems MD Gold Home Warranty Plan and
understand that $44.95 per month will automatically be charged to

my Ocwen Loan Servicing mortgage payment unless I cancel my
Plan by calling toll free 1.800.474.4047 within 30 days from the date
this check is cashed or deposited. I understand that this is an
annually renewable plan and the monthly cost of $44.95 will
continue to be collected along with my monthly mortgage payment
until I cancel the plan.
04178.)

Also contained within the envelopes is a "solicitation pitch" that "promote[s] the savings

and benefits customers [would] supposedly receive by cashing the checks." (Id 180.) Plaintiffs

allege that these solicitations do not "disclose the hidden cost ofaccepting the checks, or the way
to avoid the hidden costs," and instead "proclaim[] that the checks' purpose is to 'pay you' and

create 'savings' for customers." (Id.) In some cases,these solicitations are attached to the
checks along a perforated line and direct the recipient by name to "Sign and Deposit the

Enclosed Check." (Id 1 81.) In other cases, the solicitations contain language encouraging the
recipient to "cash or deposit your check to get $2.50 instantly and activate the benefits of the
Cross Country plan. (Id 184.) Plaintiffs contend that these solicitations are "presented upside
4

down, have confusing and barely legible tiny footnotes which contain or refer to various
disclaimers and limitations, and are designed to be overlooked." (Id. ^ 85.) Moreover, in some

cases, the "terms, conditions, and limitations" referenced in the solicitations are not contained in
the same mailing, but were promised in separate "service agreements" or "membership
materials" that never in fact arrived. (Id K 86.)

Plaintiffs allege that the nature ofthese mailings is such that a reasonable customer would
assume that both the mailing and the check were sent by Ocwen and that they mislead Ocwen's
customers "into believing that they are receiving some kind ofrefund or rebate from their

mortgage company." Qd. H 70.) Instead, by signing and depositing the checks, Ocwen's
customers are enrolled into a Cross Country plan that causes them to incur a recurring monthly
fee. (Id1|78.)

In those cases in which check recipients cash or deposit the checks and are thereby

enrolled in a Cross Country-provided plan. Plaintiffs allege that the charges were intentionally

obscured to prevent detection by the "customer." (Id ^88.) Specifically, Plaintiffs contend that
subsequent mortgage billing statements by Ocwen—^who collects the payments for Cross

Country Qd \89)—arrive after the 30-day cancellation window and omit any mention that
Ocwen splits receipts with Cross Country,that customers might be charged more than the
amount listed on the initial check, or that the charges are attributable to Cross Country(id

88

(i),(ii),(iv), 91). Ocwen also allegedly "mask[s] the new charge under vague names," including
the payments as line items on mortgage and escrow statements labeled as, inter alia,"optional
insurance,""Systems MD Gold,""Membership,""Referral Assistant," and "Optional Products."
(Id nil 90-91.)

The Complaint alleges that Defendants were aware that Ocwen customers enrolled in
Cross Country memberships did not use those plans and, in many cases, complained about being
enrolled. Qd.^ 95.) In support ofthis claim. Plaintiffs provide excerpts from consumer

protection websites in which Ocwen customers described being billed by Cross Country for
unwanted plans. (Id f 96.)

According to Plaintiffs, Defendants have mailed "hundreds ofthousands,if not millions,
of solicitation checks in Ocwen's name." (Id 79.) As a result ofthese mailings, the Complaint

alleges that more than 55,000 homeowners were "victimized by the scheme" and that they made
payments totaling more than $35 million. (Id f 1.)
In addition to their factual allegations about Defendants' practices in general, the

Complaint details how, between 2011 and 2014,the named Plaintiffs entered into Cross Country
plans and made payments through their Ocwen-provided mortgage billing and escrow
statements. (Id

98-237.) Each ofthese allegations follows a similar pattern: Plaintiffs

received a mailing in an envelope marked "Ocwen," deposited the enclosed check, and, several
months later, realized they had been paying for a Cross Country plan of which they were

previously unaware. (Id

98-110.) In some instances,the Complaint also details particular

Plaintiffs' efforts to extricate themselves from those plans. (See, e.g., id
C.

107-110.)

Class Allegations

Based on the claims described above. Plaintiffs bring class actions for both a nationwide

class and classes corresponding to each ofthe named Plaintiffs' states ofresidence.^ (Id
nil 239-241.) Plaintiffs allege that the conduct of which they complain was part ofa "uniform

^ Those states, noted supra in Section I.A., are New York, California, Alabama, Arizona, Colorado, Georgia,
Indiana, Maryland, Michigan, New Jersey, New Mexico, Ohio,Pennsylvania, Tennessee, Texas, Virginia, and
Washington.

and standardized" course ofconduct by Defendants that "did not meaningfully differentiate
among individual Class members." (Id. 1238.)

With respect to the putative nationwide class, Plaintiffs define the class as consisting of
all Ocwen customers who(1)enrolled in a Cross Country plan through a check solicitation

during the statutory period;(2)paid a plan premium; and(3)never placed a claim under the plan.

(Id. 1240.) Plaintiffs define the putative state classes in much the same way, adding in the
additional limitation that the class extends only to Ocwen customers in each ofthe states

represented in this action."* (Id. K 241.)
Plaintiffs argue that "[qjuestions oflaw and fact are common to the Class and

predominate over any questions affecting only individual class members," specifically pointing
to the following questions:

a. Whether Defendants participated in and pursued the common
Check Solicitation Scheme;

b. Whether Defendants' scheme is likely to mislead Ocwen's
customers;

c. Whether Defendants used the mails and/or wires through

interstate commerce in a Racketeering Enterprise to accomplish
their Check Solicitation Scheme;

d. Whether Defendants' conduct constitutes unfair, unlawful

and/or j&audulent practices prohibited by the laws of New York
and California;

e. Whether Defendant Ocwen breached its fiduciary duty to
Plaintiffs and the Class;

f. Whether Defendants were unjustly enriched as a result of their
conduct;

^ Both sets of classes exclude Defendants' officers and directors, as well as the immediate family members, legal

representatives, and heirs, successors, and assigns ofDefendants' officers and directors and any entities in which the
officers and directors have or previously had a controlling interest. (Id If 242.) It also excludes federal, state, and
local entities,judicial officers presiding over the action, and the immediate families and judicial staff ofsuch judicial
officers. (Id.)

g. Whether, and to what extent. Defendants are liable to Plaintiffs
and the Class for damages; and

h. Whether,and to what extent, equitable relief should be imposed
on Defendants to prevent such conduct in the future.
0411247.)
D.

Procedural History

Plaintiffs filed their initial complaint in this court on August 6,2013. (Compl.(Dkt. 1).)

The operative complaint is the Fourth Amended Complaint, filed on April 14, 2017. (FAC.)
From the foregoing allegations. Plaintiffs bring putative class claims against all Defendants for
violations ofthe Racketeer Influenced and Corrupt Organizations Act("RICO"), 18 U.S.C.

§ 1961, based on predicate acts of mail and wire fraud, 18 U.S.C. §§ 1341 and 1343, and RICO
conspiracy in violation of 18 U.S.C. § 1962. (Id. HH 251-81.) Plaintiffs also bring the following
state-law-based claims against all Defendants:

•

Unjust enrichment under the laws ofNew York, Alabama, Arizona, Colorado,
Georgia, Indiana, Maryland, Michigan,New Mexico, Ohio,Pennsylvania,
Tennessee, Texas, Virginia, and Washington.^ (Id. HH 282-91).

o

Breach of fiduciary duty under the laws of Alabama, Arizona, California,
Georgia, Indiana, Michigan,New Jersey, New Mexico, Ohio, Virginia, and
Washington, fid. Iffl 292-300.)

•

Violation of New York General Business Law § 349. (Id HH 301-09.)

•

Violation ofthe California Unfair Competition Law, Cal. Bus. & Prof. Code
SS 17200 etseq. (Id HI 310-20.)

•

Violation ofthe Alabama Deceptive Trade Practices Act, Ala. Code §§ 8-19-1 M
seq. (Id 1111321-31.)

•

Violation ofthe Arizona Consumer Fraud Act, Ariz. Rev. Stat. Ann. §§44-1521
etseq. (Id HH332-41.)

^ Plaintiffs also bring an unjust enrichment claim on behalf ofthe putative nationwide class under New York law or,
alternatively, the laws ofthe states to which Defendants sent checks. (Id f 283.)
8

Violation ofthe Colorado Consumer Protection Act, Colo. Rev. Stat. Ann.
§§ 6-1-101 ets^. 041111342-51.)

Violation ofthe Georgia Fair Business Practices Act, Ga. Code Ann. §§101-1390 etseq. Cld. UK 352-60.)

Violation ofthe Georgia Uniform Deceptive Trade Practices Act, Ga. Code Ann.
§§ 10-1-370 ets^. (Id 111361-67.)

Violation ofthe Indiana Deceptive Consumer Sales Act,Ind. Code Ann.
§§ 24-5-0.5 et^. (1411379-89.)

Violation ofthe Maryland Consumer Protection Act, Md. Code Com.Law
§§ 13-101 et seq. (1411390-97.)

Violation ofthe Michigan Consumer Protection Act, Mich. Comp. Laws Ann.
§8 445.901 etseq. (1411398-407.)

Violation ofthe New Jersey Consumer Fraud Act, N.J. Stat. Ann. §§ 56:8-1
et seq. 0411408-18.)

Violation ofthe New Jersey Truth-In Consumer Contract, Warranty, and Notice
Act, N.J. Stat. Ann. §§ 56:12-14 et seq. (1411418-21.)
Violation ofthe New Mexico Unfair Practices Act, N.M. Stat. Ann. §§ 57-12-1
0411422-29.)
Violation ofthe Ohio Consumer Sales Practices Act, Ohio Rev. Code Ann.

§§ 1345.01 etseq. 0411430-38.)

Violation ofthe Pennsylvania Unfair Trade Practices and Consumer Protection
Law,73 Pa. Stat. and Cons. Stat. Ann. §§ 201-1 et seq. 0411439-47.)
Violation ofthe Tennessee Consumer Protection Act, Tenn. Code Ann. §§ 47-18104 et seq. (1411448-57.)

Violation ofthe Texas Deceptive Trade Practices-Consumer Protection Act, Tex.
Bus. & Com. Code Ann. §§ 17.41 et seq. (Id. H 458-70.)

Violation ofthe Virginia Consumer Protection Act, Va. Code Ann. §§ 59.1-196
et seq. (Id. H 471-80.)

Violation ofthe Washington Consumer Protection Act, Wash. Rev. Code Ann.
§8 19.86 etseq. (1411481-89.)

With respect to the state-law-based claims. Plaintiffs bring those actions on their own behalf and
on behalf of each member ofthe putative state classes within the relevant states(L^ the states
under whose laws each ofthose claims is brought). (Id.

284,294, 302, 311, 322, 333, 343,

353,366, 380,391, 399,409,419,423,431,440,449,459,472,482.) Finally, Plaintiffs bring
claims for common law fraud on their own behalf and on behalfofthe putative nationwide class,

or, in the alternative, on behalf ofthe individual putative state class.^ (Id, 490-96.)
On August 31,2015, Defendants filed a motion to dismiss the Third Amended Complaint
(Mot. to Dismiss 3d Am. Compl(Dkt. 92)), and Cross Country and Sandra Finn filed a motion to
compel arbitration(Mot. to Compel Arbitration(Dkt. 94)). The court denied both motions
without prejudice on September 2,2016. (Sept. 2,2016, Mem.& Order(Dkt. 136).) With

respect to the motion to dismiss, the court concluded that the motion was "premature"in light of
the dispute over arbitration and the then-pending "mini-trial" on the issue of contract formation.
(Id. at 28-29.) On March 20,2017, Defendants Cross Country and Sandra Finn withdrew their

motion to compel arbitration, mooting the need for hearings on the issue ofcontract formation.

(Mar. 20,2017, Stipulation(Dkt. 264).) Following this withdrawal, the court granted Plaintiffs
leave to file a fourth amended complaint and granted Defendants leave to renew their motion to
dismiss. (March 31,2017, Order(Dkt. 289).)
II.

DISCUSSION

Before the court is Defendants' motion for partial dismissal ofthe Complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6).'^ (Mot.) The Motion contains several subparts. First,

^ As to the putative nationwide class, Plaintiffs bring the common law fraud claim under the laws of each state to
which Defendants sent a check solicitation. Qd, 491.) In the alternative, with respect to the putative individual
state classes. Plaintiffs bring common law fraud claims under the law ofeach individual state represented by a
named plaintiff Qd.)

' Motion also seeks to strike class allegations in the Complaint. (Mot. at 6-18.) As noted above, however,the
The

court only granted Defendants leave to move to dismiss the Complaint, and stated explicitly that it would only
10

Defendants argue that the claims brought under six ofthe state consumer protection statutes
listed in Section I.D., supra, are deficient under the terms ofthose statutes. (Id at 18-22.)

Second,the Motion contends that Plaintiffs' unjust enrichment and breach offiduciary duty
claims fail under the laws offourteen and ten ofthe states cited in the Complaint, respectively.
(Id at 22-28.)

The court considers these arguments separately. For the following reasons, the court

grants the motion to dismiss claims brought under the Alabama,Tennessee, and Georgia
consumer protection statutes, and denies the motion with respect to the remaining consumer

protection statutes as well as the common law claims for unjust enrichment and breach of
fiduciary duty.
A.

Legal Standard

The purpose of a motion to dismiss for failure to state a claim under Rule 12(b)(6) is to
test the legal sufficiency of a plaintiff's claims for relief. Patane v. Clark, 508 F.3d 106,112-13

(2d Cir. 2007). A complaint will survive a motion to dismiss if it contains "sufficient factual

matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v.
labal, 556 U.S. 662,678(2009)rouoting Bell Atl. Corn, v. Twomblv,550 U.S. 544,570(2007)).
"Threadbare recitals ofthe elements of a cause of action, supported by mere conclusory
statements, do not suffice." Iqbal, 556 U.S. at 678.

address the pending motion for class certification after it decided the motion to dismiss. (March 31,2017, Order.)
Following service ofthe Motion, Plaintiffs wrote to draw the court's attention to the expanded motion and requested
that the court deny the motion to strike without prejudice, considering those arguments only after ruling on the
motion to dismiss. (Pis. May 26,2017, Ltr.(Dkt. 304).) The court held a hearing on the issue, at which time it
informed the Defendants that the court would address class certification issues after ruling on the motion to dismiss.

(Tr. of June 6,2017, Hr'g(Dkt. 318) 11:13-22.) Accordingly, the court does not consider the portions ofthe Motion

hiat discuss only class certification issues at this stage.
11

In reviewing a complaint on a motion to dismiss for failure to state a claim, the court

must accept as true all allegations offact in the complaint and draw all reasonable inferences in
favor ofthe plaintiff. ATSI Commc'ns,Inc. v. Shaar Fund. Ltd.. 493 F.Sd 87, 98(2d Cir. 2007).
"In determining the adequacy ofthe complaint, the court may consider any written instrument

attached to the complaint as an exhibit or incorporated in the complaint by reference, as well as
documents upon which the complaint relies and which are integral to the complaint." Subaru
Distribs. Corp. v. Subaru of Am..Inc., 425 F.3d 119,122(2d Cir. 2005). "[WJhatever

documents may properly be considered in connection with the Rule 12(b)(6) motion,the bottomline principle is that once a claim has been stated adequately, it may be supported by showing
any set offacts consistent with the allegations in the complaint." Roth v. Jennings,489
F.3d 499,510(2d Cir. 2007)(intemal quotation marks and citation omitted).
B.

Challenges to Consumer Protection Statute-Based Claims

Defendants argue that several ofthe state consumer protection statute-based claims are

inadequately pled based on their inclusion of class claims, the absence of certain required
allegations, and the timeliness ofthe claims. The court addresses these challenges in turn,
i.

Permissibility ofPursuing Class Claims

Defendants first contend that the Alabama, Georgia, and Tennessee consumer protection

statutes explicitly prohibit class actions to enforce their terms. (Defs. Mem.in Supp. of Mot.

("Defs. Mem.")(Dkt. 325) at 18-19.) Each ofthose statutes contains language which proscribes
the use ofclass actions to enforce the substantive rights created therein. Ala. Code Ann. § 8-19-

10(f)("A... person bringing an action under [the Deceptive Trade Practices Act] may not bring
an action on behalf of a class."); Ga. Code Ann. § 10-9-399("Any person who suffers injury or

12

damages... as a result ofconsumer acts or practices in violation ofthis part^®^... may bring an
action individually, but not in a representative capacity ...."); Tenn. Code Ann. § 47-18-

109(a)(1)("Any person who suffers an ascertainable loss of money or property ... as a result of
the use or employment by another person ofan unfair or deceptive act... may bring an action
individually to recover actual damages."). Plaintiffs do not contest the meaning ofthese

statutory provisions, but instead argue that they are procedural limitations which are preempted
by Federal Rule of Civil Procedure 23 based on the United States Supreme Court's decision in
Shadv Grove Orthopedic Associates. P.A., v. Allstate Insurance Companv, 559 U.S. 393(2010).

(Pis. Opp'n to Mot.("Pis. Opp'n")(Dkt. 326)at 7-11.)
1.

The Shadv Grove Opinions

Plaintiffs' argument requires the court to briefly review the decision in Shadv Grove. In
that case, the Court reviewed a lower court's dismissal of a putative class action based on

Section 901(b)ofthe New York Civil Practice Law and Rules("CPLR Section 901"), which

prohibits suits Jfrom proceeding as class actions ifthey seek to recover a "penalty" or statutory
minimum damages. 559 U.S. at 397. Assessing which ofthe two rules applied to the case

before it required the court to address two questions: first, whether CPLR Section 901 and Rule
23, which governs class actions in federal courts, addressed the same question; and if so, whether
Rule 23 was within the statutory rulemaking power ofthe courts under the Rules Enabling Act,

28 U.S.C. § 2072. Id,at 399. A majority ofthe Court found that this class action bar conflicted
with Federal Rule of Civil Procedure 23, concluding that Rule 23 creates a "categorical rule" as

® By its terms, the cited limitation on class actions applies only to actions brought under the Fair Business Practices
Act and does not extend to Plaintiffs' claim under Georgia's Uniform Deceptive Trade Practices Act.
13

to when plaintiffs may maintain a class action, and so found that CLPR Section 901 "cannot
apply in a diversity suit unless Rule 23 is ultra vires." Id.
While the Court held that Rule 23 was validly enacted and so preempted CPLR Section

901 in the putative class action challenged in that case, no majority coalesced around a

justification for that outcome. Writing for three other justices. Justice Scalia concluded that Rule
23's regulation of which actions can and cannot proceed through a class vehicle is purely

procedural in nature and so does not impermissibly "abridge, enlarge, or modify any substantive
right" created by state law. Id, at 407(plurality opinion)(quoting the Rules Enabling Act, 28
U.S.C. § 2072(b)). On that basis, the plurality concluded that Rule 23 alwavs preempts

conflicting state laws such as CPLR Section 901 regardless of"the substantive nature of[the
conflicting state] law, or its substantive purpose," id, at 409, arguing that the validity of any
Federal Rule of Civil Procedure depends "entirely upon whether [the challenged Federal Rule]
regulates procedure," id. at 410.

Justice Ginsburg, writing for the four dissenting members ofthe Court, argued that the

majority fundamentally erred in finding that there was any conflict at all between CPLR
Section 901 and Rule 23. In stark contrast to the plurality's singular focus on content ofthe

challenged federal rule, the dissenters looked to the nature ofthe state rule to be displaced,

examining the history and function of CPLR Section 901 and concluding that it was adopted for
the non-procedural purpose oflimiting remedies. Id, at 445-451 (Ginsburg, J., dissenting).
Reasoning that Rule 23 "governs purely procedural aspects of class litigation," the dissenters
contended that the rule thus presented no conflict with CPLR Section 90rs purpose of

"control[ling] the size of a monetary award a class plaintiff may pursue." Id, at 446-47.

14

Justice Stevens provided the deciding vote. Writing only for himself and concurring with

the judgment, he agreed with the plurality that Rule 23 and CPLR Section 901 stood in conflict
and concluded that the federal rule preempted the state's class action bar. Id at 416-436

(Stevens, J., concurring in part and concurring in the judgment). With respect to the second of
these conclusions, however, Justice Stevens eschewed the plurality's categorical approach of

treating every federal rule that "really regulates procedure" as sufficient to preempt a conflicting
state rule. Id,at 424-28. Instead, he adopted an approach similar to that urged by the dissenters,

focusing on whether the state law had a substantive purpose and acknowledging the possibility
that state rules that are otherwise procedural"may in some instances become so bound up with
the state-created right or remedy that it defmes the scope ofthat substantive right or remedy,"
and concluding that such rules should not be preempted by a conflicting federal rule. Id,at 420.
Under this view. Justice Stevens concluded that the determination of whether a state rule is

supplanted by a federal rule depends not on "whether the state law at issue takes the form of
what is traditionally described as substantive or procedural" but rather on "whether the state law

actually is part ofa State's jGramework ofsubstantive rights or remedies." Id,at 419(emphasis in
original). While Justice Stevens concluded that CPLR Section 901 did not present such a case,
emphasizing in particular the application ofthat law to any action brought in New York under
anv federal or state law, he cautioned that even genuinely procedural Federal Rules of Civil

Procedure would need to give way when they conflict with "seemingly procedural [state] rules
that are intimately bound up in the scope of a substantive right or remedy." Id at 433.
2.

Vost-Shadv Grove Decisions

The opinions in Shadv Grove present a particularly intractable precedential question, as it
is very difficult to determine whether the Court reached a majority on any subset of its analysis.

15

"When a fragmented Court decides a case and no single rationale explaining the result enjoys the
assent offive Justices, the holding ofthe Court may be viewed as that position taken by those
Members who concurred in the judgments on the narrowest grounds." United States v. Alcan
Ali^minum Corp., 315 F.3d 179,189(2d Cir. 2003)(quoting Marks v. United States, 430 U.S.

188, 193 (1977). Interpreting this standard, the Second Circuit has cautioned that
[t]his rule only works in instances where one opinion can
meaningfully be regarded as 'narrower' than another—only when
one opinion is a logical subset of other, broader opinions ... that is
to say, only when that narrow opinion is the common denominator
representing the position approved by at least five justices. When it
is not possible to discover a single standard that legitimately
constitutes the narrowest ground for a decision on that issue, there
is then no law of the land because no one standard commands the

support of a majority ofthe Supreme Court.

Alcan Alnminnm. 315 F.3d at 189(internal quotation marks and citations omitted).
The Second Circuit has not clarified whether Justice Stevens' opinion in Shady Grove

constitutes a"common denominator" and so the holding ofthe case. See Greene v. Gerber

Prods. Co.. —F.Supp. 3d—,Nos. 16-CV-1153(MKB), 17-CV-93(MKB),2017 WL 3327583,

at *13(E.D.N.Y. August 2,2017)(citing Retained Realty. Inc. v. McCabe.376 F. App'x 52,55
(2d Cir. 2010)). However,"the majority of district and circuit courts [] have found Justice
Stevens' concurring opinion controlling." Green,2017 WL 3327583, at *13 (collecting cases).
Ofnote, a number ofcourts have treated Justice Stevens' opinion as binding precedent based on

the five justice majority formed by the apparent agreement between Justice Stevens and the four
dissenters, reasoning that both opinions require courts to assess "the validity of[a challenged]
Federal Rule[] of Civil Procedure [based],in part, on the rights afforded by the state rule that the
Federal Rule displaces."^ In re Wellbutrin XL Antitrust Litig., 756 F. Supp. 2d 670,675(E.D.

'
While some courts have seemingly concluded that Justice Stevens' opinion controls simply because he cast the

deciding vote on grounds that were less expansive than the those put forth by the plurality, at least one court in this
16

Pa. 2010); see also, e.g.. In re Digital Music Antitrust Litig., 812 F. Supp. 2d 390,415

(S.D.N.Y. 2011); cf. also Shadv Grove, 559 U.S. at 442 n.2(Ginsburg, J., dissenting)("[A]
majority ofthis Court, it bears emphasis, agrees that Federal Rules should be read with
moderation in diversity suits to accommodate important state concerns."). Following from this
conclusion, a niunber of opinions in this circuit and elsewhere have distinguished between "pan-

statutory" class-action bars such as CPLR Section 901(b)and limitations built into particular
state statutes, concluding that bars in the latter category "provideQ a procedure that is 'so bound

up with the state-created right or remedy that it defines the scope ofthat substantive right or
remedy'" and so displaces Rule 23. In re Digital Music Antitrust Litig., 812 F. Supp. 2d at 416
(quoting Shadv Grove. 559 U.S. at 420(Stevens, J.): see also Greene,2017 WL 3327583, at *14;
Leonard V.Abbott Labs.. Inc.. No. lO-CV-4676(ADS)
(WDW),2012 WL 764199, at *13

(E.D.N.Y. Mar. 5,2012); Bearden v. Honevwell Int'l. Inc.. No.3:09-1035,2010 WL 3239285,
at *10(M.D. Term. Aug. 16,2010)(Tennessee Consumer Protection Act limitation on class
actions is not preempted by Rule 23); Feizulai v. Sam's West, Inc., 205 F. Supp. 3d 723,728-29
(D.S.C. 2016)(same as to South Carolina Unfair Trade Practices Act).
Rather than wading into this dispute. Plaintiffs urge the court to adopt the approach taken

by the Eleventh Circuit in Lisk v. Lumber One Wood Preserving. LLC,792F.3dl331(llth
Cir. 2015), which found that Rule 23 preempts the class action bar in the Alabama Deceptive
Trade Practices Act under either the plurality or concurrence approach. The panel concluded

circuit has questioned whether that concurrence is really a "logical subset of the plurality opinion. See In Re
Aggrenox Antitrust Litig.. No.3:14-MD-2516(SRU),2016 WL 4204478, at *5(D. Conn. Aug. 9,2016)("[The

concurrence] is not logically narrower[than the plurality opinion] because it is not a logical subset ofthe opinion of
the other Justices in the majority. Those Justices do not implicitly approve ofits rationale for sometimes allowing

state procedural rules to control—on the contraiy, they explicitly reject that rationale—and it therefore does not
represent the common denominator ofthe Court's reasoning.") The court agrees with this skepticism, but ultimately
concludes that it is Justice Stevens' agreement with the dissenters in Shadv Grove that gives his opinion precedential
force in interpreting the federal rules.
17

that "[t]here is no relevant, meaningful distinction between[CPLR Section 901]... and [the]
statutorily created claim for deceptive practices ofthe kind at issue here" and so held that Rule

23 preempted the class action bar. Id, at 1335. The panel specifically rejected the suggestion
that inclusion ofthe class action limitation in the statute to be enforced—as opposed to the "pan-

statutory" bar in CPLR Section 901—affected the analysis, concluding that "the question of
whether a federal rule abridges, enlarges, or modifies a substantive right tums on matters of

substance—^not on the placement of a statute within a state code." Id,at 1336. The decision in
Lisk has not been widely followed outside ofthe Eleventh Circuit, however, with most courts
outside ofthat circuit implicitly or explicitly disagreeing with its interpretation of Shady Grove
and its determination that there was no "meaningful distinction" between CPLR Section 901 and
the Alabama class action bar. See Feizulai. 205 F. Supp. 3d at 728-29; Helnling v. Rheem Mfg.
Co.. No. 15-CV-2257,2016 WL 1222264, at *13-14(N.D. Ga. Mar. 26, 2016); Chapman v.
Priceline Grp.. Inc.. No. 15-CV-1519,2017 WL 4366716, at *7(D. Conn. Sept. 30, 2017). M
see Suchanek v. Sturm Foods. Inc.. 311 F.R.D. 239,263-64(S.D. 111. 2015).
3.

Application

In light ofthe foregoing discussion, the court concludes that it is compelled to follow
Justice Stevens' concurrence in Shadv Grove and apply the class action bar incorporated in the

Alabama, Georgia, and Tennessee consumer protection laws over Rule 23 on that basis. The
court concludes that the overlap between Justice Stevens' concurrence and the dissent—^both of
which "concluded that the validity ofthe Federal Rules of Civil Procedure tums,in part, on the

rights afforded by the state mle that the Federal Rule displaces," In re Wellbutrin XL.756 F.
Supp. 2d at 675—^renders Justice Stevens' concurrence controlling. Accordingly,the court must
assess the whether the state mle being displaced is "intimately bound up in the scope of[the]

18

substantive right or remedy" designed by the state legislature. Shady Grove,559U.S. at410
(Stevens, J.). As with the majority ofcourts that have examined that question, the court

concludes the specific inclusion ofthe class action bar within the Alabama,Tennessee, and
Georgia consumer protection statutes under which Plaintiffs' claims are brought differentiates
them from the "pan-statutory" bar in Shadv Grove and demonstrates that they incorporate a

substantive policy choice. In this regard,the court respectfully breaks with the Eleventh
Circuit's analysis in Lisk, as it concludes that the specific inclusion of a class action bar in the
Alabama(and Tennessee and Georgia)consumer protection laws evinces a desire by the state

legislature to limit not only the form ofthe action but also the remedies available, placing those
bars squarely within Justice Stevens' concurrence.

Accordingly,Plaintiffs' class claims under Alabama's Deceptive Trade Practices Law,

Georgia's Fair Business Practices Act, and Tennessee's Consumer Protection Act are dismissed
without prejudice.^®
it

Justifiable Reliance

Defendants next contend that Plaintiffs' actions under the Pennsylvania Unfair Trade

Practices and Consumer Protection Law ("UTPCPL")^^ must be dismissed because they "fail to

plausibly allege that Plaintiffs reasonably or justifiably rely upon the alleged deceptive
representation," a requirement of both state's statutes. (Defs. Mem. at 19-20.) Defendants
maintain that, because the checks that form the basis ofPlaintiffs' claims and the enclosed

marketing materials "explain what the check is and what the consumer is signing up for ifthey

Ifthey choose to do so, Plaintiffs may amend their complaint to include only claims brought on behalfofthe
Alabama, Georgia, and Tennessee plaintiffs in their individual capacities.

"Defendants also challenge claims brought under the Georgia Fair Business Practices Act on the same basis.
Because the court has already concluded that those claims must be dismissed in Section II.B.i.3, supra, it does not
consider them further here.

19

cash it," no claim ofjustifiable reliance can be established as a matter oflaw. (Id at 20.)
Plaintiffs do not contest the requirement to plead justifiable reliance, instead arguing both that

their allegations meets the required pleading standard and that the question of whether reliance
wasjustifiable is ajury question in almost all cases. (Pis. Opp'n at 11-13.)
Under Pennsylvania law, parties bringing claims under the state's consumer protection

law are required to set forth "sufficient factual allegations showing that '[they]justifiably relied
on the defendant's wrongful conduct or representation.'" Hall v. Equifax Info. Servs. LLC,204

F. Supp. 3d 807,812(E.D. Pa. 2016)(quoting Yocca v. Pittsburgh Steelers Snorts. Inc. 854
A.2d 425,438(Pa. 2004^): see also Hunt v. U.S. Tobacco Co., 538 F.3d 217,221,223-24(3d

Cir. 2008). Under this standard, a consumer protection claim is not actionable ifthe plaintiff
"knows [the claimed deception or misrepresentation] to be false or if its falsity is obvious." See,
e.g., Tov V. Metro Life Ins. Co.. 928 A.2d 186,208(Pa. 2007). At the same time, however,"the

recipient of an allegedly fraudulent misrepresentation is under no duty to investigate its falsity in
order to justifiably rely." Id. at 207("[A] party who engages in intentional fraud should be made
to answer to the party he defrauded, even ifthe latter was less than diligent in protecting himself
in the conduct of his affairs."). The fact that a defendant's alleged misrepresentation is directly
contradicted by a later-in-time written contract between the parties is not dispositive ofthe

inquiry under this standard, and courts have held that the question of whether a misrepresentation
is "obvious" under such circumstances is "a question offact for the fact-finder to decide."
Boehm v. Riversource Life Ins. Co., 117 A.3d 308, 326(Pa. Super. Ct. 2015).

Assessing the Complaint based on this standard, the court concludes that Plaintiffs

provide ample allegation ofjustifiable reliance. Pennsylvania courts have explicitly held that a
contracting party's reliance on pre-contract statements by the counterparty/defendant may be

20

justifiable even where the written contract contradicts those representations. See, e.g.. Toy,928
A.2d at 208("[W]e conclude that [the plaintiff] was under no duty to read the Policy and the fact
that she did not do so does not preclude her from establishing justifiable reliance.") In the

court's view,the allegations presented here provide even greater reason to overlook Plaintiffs'
admitted failure to review the terms ofthe purported contract: Plaintiffs contend that they never
intended to contract with Cross Country, were unaware that they were entering into a contract at

all, and only did so because they relied on the implicit representation that the document they

signed was a check from Ocwen. [E.g. FAC

62-64.) Crediting those allegations, the court

sees no basis for concluding that Plaintiffs' failure to review the contractual terms on the check
or enclosed material was per se unjustifiable and concludes that the allegations are more than
sufficient to survive at this stage.

Accordingly, Defendants' motion to dismiss the Pennsylvania UTPCPL-based claims for
failure to allege justifiable reliance is denied.
UL

Statute ofLimitations

Defendants next challenge Plaintiffs' claims brought under the Arizona and Indiana^^
consumer protection statutes as untimely under the applicable statutes oflimitations. (Defs.
Mem. at 20-22.) The court examines Defendants' specific arguments with respect to those
statutes separately.
1.

The Arizona Claims

Defendants contend that the Arizona Consumer Fraud Act("CFA")claims are untimely

because, under Arizona law,the statutory period within which the claims run started on the date
Defendant also challenges Plaintiffs' claims brought under the Alabama Deceptive Trade Practices Act and the
Tennessee Consumer Protection Act on the same basis. Because the court aheady concluded those claims must be
dismissed (Section II.B.i.3, sunra). it does not address the timeliness ofthose claims.
21

that Plaintiffs received an account statement containing the allegedly fraudulent charges. (Id

at 20.) Claims brought under the CPA must be initiated "within one year after the cause of
action accrues." Alaface v. Naf1 Inv. Co.. 892 P.2d 1375, 1380(Ariz. 1994). A consumer

fraud cause of action accrues "when the defrauded party discovers or with reasonable diligence

could have discovered the fraud." Id.(quoting Mister Donut of Am.,Inc. v. Hams,723 P.2d

670,672(1986)); accord Cervantes v. Countrywide Home Loans,Inc., 656 F.3d 1034,1045 (9th
Cir. 2011). "When discovery occurs and a cause of action accrues are usually and necessarily
questions offact for the jury." Doe v. Roe.955 P.2d 951,961 (Ariz. 1998)(en banc). However,
where the alleged fraud is "apparent" from the face of documents or statements, the statutory
period begins to run from the time the plaintiff receives those documents and the court may
assess the statutory period accordingly. See Phillips v. Mortg. Elec. Registration Svs., Inc., No.
CV-lO-2459-PHX-DGC,2011 WL 587097, at *2(D. Ariz. Feb. 8, 2011).

The court concludes that the allegations in the Complaint give rise to an inference that the
Arizona Plaintiffs could not have discovered the alleged fraud in the exercise of reasonable

diligence from the face of billing statements provided by Defendants. As alleged in the

Complaint, one ofthe integral components ofthe alleged scheme was the practice of obfuscating
the source and nature of payments to Cross Country on Plaintiffs' mortgage and escrow

statements by,inter alia, hiding the charges within Ocwen-provided statements as a line item and
using intentionally vague or inconspicuous descriptions ofthose charges. (FAC
also id

88-94;

129-131 (as to Arizona PlaintiffPaul Emmert); 134-136(as to Arizona Plaintiff

Carolyn loth); 139-141 (as to Arizona Plaintiff Brian Rafacz).) These allegations are sufficient

to support a plausible inference that the Arizona Plaintiffs' delay in discovering the alleged fraud

22

from the billing statements was reasonable and so that the actions, initiated within a year of
Plaintiffs' actual discovery ofthe charges,'^ was timely.

Accordingly, Defendcints' motion to dismiss is denied as to the Arizona CPA claims.
2.

The Indiana Claims

Defendants separately move to dismiss as untimely claims under Indiana's Deceptive
Consumer Sales Act("IDCSA")raised by Justin Wisnewski,the sole Indiana-based plaintiff
listed in the Complaint. (Defs. Mem. at 21-22.)

Defendants first argue that Wisnewski's claims are untimely because they were filed

outside ofthe applicable statute oflimitations. Claims under the IDCSA must be brought within

two years of"the occurrence ofthe deceptive act." Ind. Code Ann. § 25-5-0.5-5(b).^'^ However,
under Indiana law,"the commencement ofa class lawsuit tolls the applicable statute of

limitations during the period between the filing ofthe action and the trial court's ruling on the

question of class action certification." Ling v. Webb.834 N.E.2d 1137,1142(Ind. Ct.

App. 2005). In the present case, this class action tolling rule renders Wisnewski's claims timely:
class action claims under the IDCSA in the present action were first brought in November 2014.

(2d Am. Compl.(Dkt. 53)Kt 160-64), roughly 17 months after the earliest point at which
Wisnewski's claims could have accrued(FAC If 162(stating that Wisnewski received a

The Arizona Plaintiffs initiated their claims against Defendants on November 20,2014,less than one year from

each ofthose plaintiffs separate discovery ofthe payments during 2014. (See 2d Am. Compl.(Dkt. 53) 126,
130, 131,135, 136,140.)

This period may be tolled where the defendants engaged in "concealment or fraud ofsuch character as to prevent
inquiry,[] elude investigation, or to mislead the plaintiff." Elward v. Electrolux Home Prods.. Inc., — F. Supp.
3d _ No. 15-C-9882,2017 WL 3704842, at *9(N.D. 111. Aug. 28,2017)(internal quotation marks and citations
omitted). With respect to Wisnewski,there is no dispute that he brought his claim more than two years after

receiving the initial solicitation in June 2013 and his discovery ofthe charges in July 2014. (FAC
23

162,165.)

solicitation "[i]n or around June 2013).) Tolling Wisnewski's time to file firom November 2014,
the court thus concludes that Wisnewski's IDCSA claims are timely.

Defendants next point to the IDCSA's notice provision, with which they claim

Wisnewski failed to comply. (Defs. Mem.at 22 n.l5; Defs. Reply in Supp. of Mot.("Defs.

Reply")(Dkt. 327) at 7-8.) The IDCSA requires that a prospective plaintiff who does not claim
to have been harmed by an "incurable deceptive act" must

give[] notice in writing to the [defendant] within the sooner of(i)six
[] months after the initial discovery ofthe deceptive act,[or](ii) one
[] year following such consumer transaction ... which notice shall
state fully the nature of the alleged deceptive act and the actual
damages suffered therefirom....

Ind. Code Ann. § 24-5-0.5-5(a). This notice can only be provided by the aggrieved consumer

bringing the action, and constructive notice given through another individual or action is
insufficient to satisfy the notice provision. See, e.g., Jasper v. Abbott Labs.. Inc.. 834 F.
Supp. 2d 766, 773(N.D. 111. 2011).

Notice need not be provided, however, where the consumer complains that they suffered
fi-om an "incurable deceptive act." Ind. Code Ann.§ 24-5-0.5-5(a)("No action may be

brought... unless(1)the deceptive act is incurable or(2)the consumer bringing the action shall
have given notice in writing to the supplier ...."(emphasis added)); cf. also McCormick Piano
& Organ Co.. Inc. v. Geiger. 412 N.E.2d 842,849(Ind. Ct. App. 1980)("[I]fthe consumer fails

to comply with the notice procedures[,] then his suit can only be for an 'incurable deceptive

act.'"). An "incurable deceptive act" is defined as "a deceptive act done by a supplier as part of
a scheme, artifice, or device with intent to defraud or mislead." Ind. Code Ann. § 24-5-0.5-2(8).

This conclusion stands even ifthe period between the original Indiana plaintiffs' withdrawal from the action in
November 2016(Stipulation ofDismissal(Dkt. 165)) and the filing of Wisnewski's claims in April 2017 is
excluded from the tolling period, as the resulting, non-tolled period would total approximately 22 months.
24

In order to bring a claim for an incurable deceptive act, the plaintiff must allege the
circumstances ofthe fraud with specificity,

McKinnev v. State, 693 N.E.2d 65,71

(Ind. 1998), and must also allege that the defendant acted with the intent to defraud or mislead,
see Perry v. Gulf Stream Coach. Inc.. 814 N.E.2d 634,647(Ind. Ct. App. 2004).

Here,the court concludes that Wisnewski was not required to provide notice under the
IDCSA,as the allegations in the Complaint,taken as a whole, are more than sufficient to support

a finding that Defendants engaged in an "incurable deceptive act." The Complaint is replete with
detailed allegations regarding Defendants' scheme,the form ofthe solicitation checks, and the
means by which Defendants disguised the charges incurred by plan recipients fsee generally
FAC

60-97), including specific allegations that Defendants acted with the purpose of

deceiving and misleading mailing recipients(see, e.g.. id.

2,65,273). Moreover,the

Complaint provides specific allegations as to the timing of Wisnewski's receipt ofthe allegedly
fraudulent mailing, the form ofthe solicitation and subsequent charges on his mortgage

statements, and his reliance on the fraudulent representation. (Id

162-66.) Taken together,

these allegations provide ample reason to conclude that Wisnewski was the victim of an

"incurable deceptive act" committed by Defendants and so is not bound by the IDCSA's notice

provisions. See Jones v. Bridgepoint Educ.. Inc., No. 16-CV-338,2017 WL 2438461, at *4
(N.D.Ind. June 5, 2017)("A plaintiff asserting a claim for an incurable deceptive act under the
IDCSA must present facts to show what the fraudulent or deceptive act was, when and how it
was committed, and how plaintiff relied on said deceptive act to [their] detriment.").

Accordingly, Defendants' motion to dismiss the IDCSA claims brought by Wisnewski is
denied.

25

C.

Challenges to Unjust Enrichment and Breach of Fiduciary Duty Claims

Separate from their challenges to Plaintiffs' statutory claims, Defendants also challenge
several ofPlaintiffs' claims for unjust enrichment and breach of a fiduciary duty by Ocwen. The
court examines these challenges separately and,for the reasons that follow, concludes that the
Motion must be denied as to both sets of claims.

i.

Unjust Enrichment
1.

Viability of Uniust Enrichment Claims Under Texas and Virginia
Law

Defendants first argue that neither Texas nor Virginia recognizes a cause of action for

unjust enrichment and so Plaintiffs' unjust enrichment claims under those state laws must be
dismissed. (Defs. Mem. at 22.) The court reviews the laws ofthose states separately.
(a)

Unjust Enrichment in Texas

Where a federal court rules on matters of state law, it is bound to apply the law as

"declared by its Legislature in a statute or by its highest court in a decision." Erie R.R. Co. v.
Tomnkin;:;, 304 U.S. 64,78(1938). Where no such statement is available, however,the court

"consider[s] the language ofthe state intermediate appellate courts to be helpful indicators of
how the state's highest court would rule

[and] will look to their decisions unless convinced

by other persuasive data that the highest court ofthe state would decide otherwise." Licci ex rel.
Licci V. Lebanese Canadian Bank. SAL.739 F.3d 45,48(2d Cir. 2013)(intemal quotation marks
and citations omitted).

The issue of whether Texas courts treat unjust enrichment as a cause of action has not

been addressed directly by the Texas Supreme Court, nor do the decisions ofthat state's

appellate courts clearly indicate a single result. In a limited number of decisions, the Texas

Supreme Court has referred to causes of action for unjust enrichment without specifically stating
26

whether unjust enrichment is itself a "cause of action" or merely a "theory ofrecovery," as
Defendants contend here. See, e.g., HECI Exploration Co. v. Neel,982 S.W.2d 881,891-92

(Tex. 1998)(affirming grant ofsummary judgment in favor of defendant on imjust enrichment);
Fortune Prod. Co. v. Conoco. Inc., 52 S.W.3d 671,683-84(Tex.2000)(affirming in part

damages award based on unjust enrichment claim); Heldenfels Bros.,Inc. v. Citv of Corpus
Christi, 832 S.W.2d 39,41 (Tex. 1992)("A party may recover under the unjust enrichment

theory when one person has obtained a benefit from another by fraud, duress, or the taking ofan
undue advantage.") Texas's intermediate appellate courts have split on the significance ofthese
decisions and the proper treatment of unjust enrichment claims. Compare, e.g., Davis v.
OneWest Bank N.A., No. 2-14-264-CV,2015 WL 1623541, at *1 (Tex. Ct. App. Apr 9,2015)

("Unjust enrichment, itself, is not an independent cause of action but rather characterizes the
result ofa failure to make restitution of benefits either wrongfully or passively received under

circumstances that give rise to an implied or quasi-contractual obligation to pay."(intemal

quotation marks and citation omitted)), with Pepi Corp. v. Galliford, 254 S.W.3d 457,460(Tex.
Ct. App. 2007)("Unjust enrichment is an independent cause of action.") However, one federal
court considering the issue recently concluded that

[wjhether unjust enrichment is characterized as a cause of action or
a theory of recovery, the elements are clear. Unjust enrichment is
an implied-contract basis for requiring restitution when it would be
unjust to retain benefits received. Unjust enrichment allows
recovery when one person has obtained a benefit from another by
fraud, duress, or the taking of an undue advantage.
Perales v. Bank of Am.,N.A., No. H-14-1791,2014 WL 3907793, at *3(S.D. Tex. Aug. 11,

2014)(intemal quotation marks and citations omitted)(collecting cases); see also Newington v.
Forrester, No. 08-CV-0864,2008 WL 4908200, at *4(N.D. Tex. Nov. 13,2008)("Given that the

[Texas] Supreme Court has stated that unjust enrichment is a cause of action, and that Texas
27

courts seem willing to award recovery based on unjust enrichment, even if it is nothing more

than a theory,the court concludes that [plaintiffs] claim for unjust enrichment should proceed.")
The court concludes Plaintiffs' cause of action for unjust enrichment imder Texas law can

proceed. While it is admittedly a close call, the court concludes that the implicit recognition of
unjust enrichment by various decisions ofthe Texas Supreme Court demonstrates that court s
willingness to accept such causes of action. Moreover,the court agrees with those federal courts
in Texas cited above in their conclusion that, regardless of whether unjust enrichment is styled as

a cause ofaction or simply as a theory ofrecovery based on implied contract, Texas law clearly

permits recovery on that basis. Accordingly, Defendants' motion to dismiss the claims of unjust
enrichment under Texas law is denied.

(b)

Unjust Enrichment in Virginia

Unlike their counterparts in Texas,courts in Virginia leave little doubt that unjust

enrichment may be maintained as an independent cause of action. In one 2008 decision, for
instance, the state's highest court set forth the elements of a cause ofaction for unjust
enrichment:

To state a cause of action for unjust enrichment, [the plaintiff] had
to allege that:(1)he conferred a benefit on [the defendant];(2)[the
defendant] knew ofthe benefit and should reasonably have expected
to repay [the plaintiff]; and(3)[the defendant] accepted or retained
the benefit without paying for its value.
Snhmidt v. Household Fin. Corp., IL 661 S.E.2d 834,838(Va. 2008). Defendant cites only two

trial court decisions, both of which predate the opinion referenced above. Steele v. Batalo,62
Va. Cir. 102,108(Va. Cir. Ct. 2003); Lodal v. Verizon Va., Inc.. 74 Va. Cir. 110(Va. Cir.

Ct. 2007). In light ofthe clear statement by the state's highest court, however,these contrary

28

decisions are of no consequence to the court, and Defendants' motion to dismiss the Virginialaw-based unjust enrichment claims on that basis is denied.
2.

Adequacy of Altemate Remedies

Defendants next make the related arguments that Plaintiffs' unjust enrichment claims fail

because, first, they have adequate legal remedies at law and so are barred from bringing their
claims under the law of Alabama, Arizona, Colorado, Georgia, Indiana, Maryland, Michigan,

New Mexico,Pennsylvania, Tennessee, Virginia, and Washington, and second,the presence of a
valid contract bars Plaintiffs from bringing those claims under the laws of all ofthose states

except Alabama and with the addition of Ohio. (Defs. Mem. at 22-24.) In response. Plaintiff
argues both that they are permitted by Federal Rule of Civil Procedure 8 to plead altemative
theories ofrecovery (Pis. Opp'n at 21-22), and in any event Plaintiffs dispute the presence of any
valid contract(id at 17-19).

The court agrees that, at the pleading stage, it would be premature to dismiss the unjust
enrichment claims based on Plaintiffs' altemate claims for legal remedies. Rule 8 sets forth a

liberal pleading standard, pursuant to which "[a] party may set out[two] or more statements of a
claim or defense altematively or hypothetically, either in a single count or defense or in separate

ones." Fed. R. Civ. P. 8(d)(2). "Rule 8(d)ameliorates the uncertainty inherent in all litigation at

the pleading stage by permitting plaintiffs to allege claims in the altemative, even ifthe legal
theories underlying those claims are technically inconsistent or contradictory." St. John's Univ.,
N.Y.. V. Bolton. 757 F. Supp. 2d 144,184(E.D.N.Y.2010)(Garaufis, J.)(holding that both
breach ofcontract and unjust enrichment claims could survive motion to dismiss).
Defendants are correct that, in some instances, courts in the cited states have dismissed

claims becaxise ofthe presence of a valid contract or some other form of adequate legal remedy.

29

See, e.g.. Univalor Tr.. SA v. Columbia Petroleum. LLC.315 F.R.D. 374, 382(S.D. Ai. 2016)

("[T]he existence ofan express contract extinguishes an unjust enrichment claim altogether
because unjust enrichment is an equitable remedy which issues only where there is no adequate
remedy at law."); CR3 of Ind.. LLC, v. Specialty Surfaces Inf1. Inc.. No. 07-CV-991,2008 WL

3914092,at *9 n.4(S.D. Ind. Aug. 19,2008)(same). In the court's view, however,these cases

fail to account for the liberal pleading standard ofthe Federal Rules of Civil Procedure described
above, which expressly contemplates pleading in the alternative regardless ofinconsistency. S^
Fed. R. Civ. P. 8(d)(3)("A party may state as many separate claims or defenses as it has,
regardless ofconsistency."). Courts applying the law ofeach ofthe cited states have reached the

same conclusion in assessing alternative unjust enrichment pleadings on motions to dismiss.^^
Moreover,the court notes that some courts that disallowed altemative pleading of unjust

enrichment have done so explicitly on the basis that the plaintiffs before them admitted the
presence of a valid contract covering the same subject matter targeted by their unjust enrichment
claims. See, e.g.. Duke Energv Ind.. Inc. v. Comcast ofIndianapolis. LLC.No. 14-CV-2041,
2015 WL 5554016, at *3-4(S.D. Ind. July 17, 2015)("In short, the parties agree that an express

See, e.g.. Sirmon v. Wvndham Vacation Resorts. Inc.. No. 10-CV-2717-LSC,2012 WL 4341819, at *5-6(N.D.
Ala. Sept. 18, 2012); Menocal v. GEO Grp.. Inc.. 113 F. Supp. 3d 1125, 1133(D. Colo. 2015); WESI. LLC v.
Compass Envtl.. Inc.. 509 F. Supp. 2d 1353,1362-63(N.D. Ga.2007); Stanley v. Cent. Garden & Pet Corp.. 891 F.
Supp. 2d 757,766(D. Md.2012); Glaske v. Indep. Bank Corp. No.323167,2016 WL 298986, at *10(Mich. Ct.
App. Jan. 21,2016)(unpublished opinion); Fultz & Son. Inc. v. Browning-Ferris Indus, of Ohio. Inc..
No. 17-CV-53, 2017 WL 40129224, at *2(N.D. Ohio Sept. 12,2017); Kane v. Platinum Healthcare. LLC.
No. 10 4390, 2011 WL 248494, at *5-6(E.D. Pa. Jan. 25,2011); United Tel. Se.. LLC v. Bristol Tenn. Essential
Servs.. No. 14-CV-242,2015 WL 13186245, at *3(E.D. Tenn. Aug. 5,2015); Kellv v. Ammado Internet Servs..
Ltd.. No. 12-CV-291, 2012 WL 4829341, at *5(E.D. Va. Oct. 12,20121: cf. Alliance Labs. LLC v. Stratus Pharm..
Inc.. No. 12-CV-927, 2013 WL 273309, at *5(D. Ariz. 2013)(allowing altemative pleading oftrademark
infringement and unjust enrichment); F. McConnell & Sons. Inc. v. Target Data Svs.. Inc.. 84 F. Supp. 2d 961,979
(N.D. Ind. 1999)(acknowledging permissibility of alternate pleading of unjust enrichment and breach of contract
but dismissing unjust enrichment claim because it was "insufficient to place [the defendant](or the Court)on notice
as to whether [the plaintiff] seeks to advance a quantum memit remedy for breach ofcontract, an unjust enrichment
claim for relief, or both"); Auee v. Strvker Corp.. Civ. No. 14-1089 KG/SMV,2016 WL 3567047, at *8(D.N.M.
May 5,2016)(permitting pleading of both unjust enrichment and claims under the New Mexico Unfair Practice
Act); Accretive Tech. Grp. Inc. v. Adobe Svs.. Inc.. No. C15-309RSM,2015 WL 4920079, at *11 (W.D. Wash.
Aug. 17,2015)(permitting altemative pleading of unjust enrichment where the claim was"not merely a re-pleading
ofthe breach ofcontract claim under a different name"(internal quotation marks omitted)).
30

and enforceable contract exists and that this contract governs [the subject matter at issue in the

unjust enrichment claims], and Plaintiff is accordingly not permitted to also plead equitable
theories ofrelief."); Selman v. CitiMortgaee. Inc.. No. 12-441-WS-B,2013 WL 838193,at *13

& n.l9(S.D. Ala. Mar. 5,2013)rsameV cf. also Elliot Indus. Ltd. P^Shio v. BP Am.Prod. Co.,
407 F.3d 1091,1116-17(10th Cir. 2005)(affirming grant ofsummary judgment on unjust

enrichment where plaintiff did not dispute validity of contract but only whether it covered the

precise question at issue in the equitable claim). The court views these cases as readily
distinguishable from the present controversy, in which the essence ofthe Complaint is that
Plaintiffs and other putative class members were fraudulently induced to enter into a contract and
so that the resulting agreements with Defendants were invalid.

Finally, Defendants argue that, regardless of whether unjust enrichment may be alleged in
the alternative. Plaintiffs' claims fail to meet the pleading standard for those claims because they

fail to assert that they lack an adequate alternate remedy at law. (Defs. Reply at 10.) Among the
cited states, only Arizona incorporates an explicit requirement that unjust enrichment pleadings
must allege the lack of an adequate legal remedy. See, e.g., QptoLum.Inc. v. Cree, Inc., 244 F.

Supp. 3d 1005,1013(D. Ariz. 2017)(stating that, under Arizona law, plaintiffs bringing unjust
enrichment claim must allege, inter alia,"an absence of a remedy provided by law"). As other
courts have noted, however,"Arizona courts define the adequate remedy at law element as

asking "whether there is a contract which governs the relationship between the parties." In re
Auto. Parts Antitrust Litig., 29 F. Supp. 3d 982,1016(E.D. Mich. 2014)(citing Trustmark Ins.
Co. V. Bank One. Ariz., NA,48 P.3d 485,491 n.5 (Ariz. Ct. App. 2002)). Where, as here.

Plaintiffs' allegations are clearly read to indicate that no valid contractual relationship existed
due to Defendants' fraud, the requirements of Arizona law are met,and the court will not dismiss

31

the claim for the lack of a formulaic recitation ofthat element. ^Auto. Parts Antitrust Litig.,

29 F. Supp. 3d at 1016(concluding that the absence ofa contractual relationship in the complaint
satisfied the pleading requirements); Isofoton. S.A. v. Giremberk,No. CV-04-0798-PHX-ROS,
2006 WL 1516026, at *4-5(D. Ariz. 2006)(concluding that unjust enrichment claim could

proceed where "the Court has not yet decided whether a binding contract is in effect")3.

Benefit ofthe Bargain

Defendants' final argument is that Plaintiffs cannot maintain a claim for unjust
enrichment under the law of Arizona, Colorado, Maryland, or Tennessee because, in failing to

deny that they received coverage under the warranty, they effectively admit that they received
the "benefit ofthe bargain" under the policies. (Defs. Mem. at 24.) In support ofthis argument.
Defendants cite cases from each ofthose states for the proposition that, where a defendant

"performed [its] obligation pursuant to agreement vrith [the plaintiff]," no action for unjust
enrichment may be maintained. USLife Title Co. of Ariz, v. Gutkin, 732 P.2d 579,585(Ariz.

Ct. App. 19861: see also Van Zanen v. Qwest Wireless. LLC.522 F.3d 1127, 1129-33(10th
Cir. 2008)(holding that a party to a contract that was subsequently invalidated could not recover

through unjust enrichment where they received performance); Cannon v. Wells Fargo Bank,
N.A., No.PWG-13-1324,2014 WL 672687, at *13-14(D. Md. Feb. 20, 2014); Charles Griggs
Bids. Materials. Inc. v. Wong.No. 6628, 1989 WL 35470, at *2(Tenn. Ct. App. Apr. 14,1989).

Those cases speak to the readily distinguishable situation in which the defendants provided a

benefit pursuant to a valid and voluntary agreement. See USLife. 732 P.2d at 585 (stating that
the benefit was conferred "pursuant to agreement"); Van Zanen.522 F.3d at 1128-29(noting that

the parties entered into an agreement voluntarily); Cannon.2014 WL 35470, at *11, *14
(holding that the insurance policies that formed the basis for the unjust enrichment claim were

32

expressly contemplated by contract); Charles Griggs, 1989 WL 35470, at *1 (noting that the
defendants had already paid a third-party under an express agreement with that party). Crediting

the allegations ofthe Complaint, Plaintiffs never voluntarily entered into the contracts with
Defendant and were unaware of either the contract or the coverage ofthe policies provided

thereunder. In the court's view,it would be inimical to the purposes of unjust enrichment to

dismiss Plaintiffs' unjust enrichment claims on the basis that they received the benefit of a
bargain that they never sought and of which they were unaware.
4:

^

For the foregoing reasons. Defendants' motion to dismiss Plaintiffs' claims for unjust
enrichment is denied.

ii.

Breach ofFiduciary Duty

Defendants' final contention is that Plaintiffs' claims for breach offiduciary duty by

Ocwen under the laws of Alabama, Arizona, Georgia,Indiana, Michigan, New Jersey, New

Mexico, Ohio, Virginia, and Washington^^ fail because, as a matter oflaw, no fiduciary
relationship exists between a mortgagor and loan servicers in those states. (Defs. Mem.
at 25-28.) Under the law of each ofthe cited states, mortgagees(and mortgage servicers)

typically do not owe the borrower a general fiduciary duty.^^ Plaintiffs do not contest this

"
Plaintiffs also assert a breach offiduciary claim under California law. (FAC ^ 294.) Defendants previously
moved to dismiss that claim, and the court denied that motion. (Sept. 23,2014, Mem.& Order(Dkt. 42)at 48.)
See, e.g.. Shedd v. Wells Fargo Home Mortg.. Inc.. No. 14-275-CB-M,2015 WL 6479537, at *5-6(S.D. Ala.

Oct. 26,2015)(Alabama); Marearitis v. BAC Home Loans Servicing LP,No. CV 11-1741-PHX-SRB,2012 WL
12885712, at *6(D. Ariz. Mar. 9, 2012)(Arizona); Phillips v. Ocwen Loan Servicing. LLC. 12-CV-3861-WSD,
2013 WL 4854760, at *7(N.D. Ga. Sept. 11,2013)(Georgia); Baehl v. Bank of Am.. N.A.. No. 12-CV-29-RLYWGH,2013 WL 1319635, at *9-10(S.D. Ind. Mar.29,2013)(Indiana); Cover v. HSBC Mortg. Servs.. Inc.. 701
F.3d 1104,1108 (6th Cir. 2012)(per curiam)(Michigan); Galavda v. Wachovia Mortg.. FSB.No. 10-1065,2010
WL 5392743, at *16-17(D.N.J. Dec. 22, 2010)(New Jersey); Sinclair v. Donovan. Nos. 11-CV-lO, 1 l-CV-79,2011
WL 5326093, at *9-10(S.D. Ohio Nov.4,2011)(Ohio); Grenadier v. BWW Law Grp.. No. 14cv827, 2015 WL
417839, at *8-9(E.D. Va. Jan. 30,2015)(Virginia); Westcott v. Wells Fareo Bank. N.A.. 862 F. Supp.2d 1111,
1119(W.D. Wash. 2012)(Washington); cf Zamora v. Wells Fareo Home Mortg.. a Div. of Wells Fareo Bank.
N.A.. No. CV 12-48 RB/LFG,2012 WL 12895364, at *12(D.N.M. Sept. 18,2012)(concluding, in the context of a
33

general proposition. Instead, Plaintiffs argue that Ocwen stands in a fiduciary relationship to
Plaintiffs because it serves as Plaintiffs' escrow agent and contend that Ocwen violated its

fiduciary duties by misleading Plaintiffs for its own benefit. (Pis. Opp'n at 25-28.) Plaintiffs
separately contend that Ocwen's relationship with Plaintiffs went beyond that of a normal
mortgage servicer and so supports a finding of a fiduciary relationship. The court addresses
these arguments separately.
1.

Fiduciary Duties ofEscrow Agents

The laws ofeight ofthe relevant states—all aside from Alabama and Georgia—clearly

recognize that the acceptance ofescrow funds imposes on the holder ofthe funds a limited
fiduciary duty with respect to the management and disposition ofescrowed funds. While the

specifics of escrow agents' fiduciary duties vary between those states, it is axiomatic that escrow
depositaries are "required to perform their responsibilities [under the escrow agreement] with
scrupulous honesty, reasonable skill, and ordinary diligence." 28 Am.Jur. 2d Escrow § 23.

Engaging in self-dealing and misleading the principal with respect to the funds held in escrow

negligence action, that home loan servicer did not owe a common law duty of care, including a fiduciary duty,to
mortgagor borrower under New Mexico law).

Maxfieldv. Martin. 173 P.3d 476,478(Ariz. Ct. App.2007)(noting that escrow agent has fiduciary duty to

discharge responsibilities with "scrupulous honesty, skill, and diligence"(internal citations omitted)); Meridian Title
Corp. V. Pilgrim Fin.. LLC.947 N.E.2d 987,992(Ind. Ct. App.2011)(holding that escrow depositary has fiduciary
duty towards each ofthe parties); Smith v. First Nat'l Bank & Trust Co. of Sturgis, 440 N.W.2d 915,918(Mich. Ct.
App. 1989)("[A]n escrow agent may be held liable in tort for the negligent perfonnance of its duties as escrow
agent or breach ofits fiduciary duties owed to its principal."); Colesrove v. Behrle,164 A.2d 620,625(N.J. Super.
Ct. App. Div. 1960)("A fiduciary relationship is created by and inherent in the nature ofan escrow agreement"),
accord Innes v. Marzano-Lesnevich. 136 A.3d 108,116(N.J. 2016); Matter of Arrieta. 733 P.2d 866, 868

(N.M. 1987)("By acting as an escrow agent,[the depositary] assumed a fiduciary relationship ...."); Saad v.
Rodriguez.506 N.E.2d 1230,1233(Ohio Ct. App. 1986)("[T]he escrow is a fiduciary agent for both parties to a

purchase agreement."); Int'l Fid. Ins. Co. v. Western Va. Water Auth.. Civ. No. ll-CV-441,2012 WL 2357368,
at *4(W.D. Va. June 20,2012)("Because an escrow agreement creates a principal-agent relationship, certain
fiduciary duties that normally accompany principal-agent relationships also apply within the context of escrow
agreements."); Stvrk v. Cornerstone Invs.. Inc.. 810 P.2d 1366,1371 (Wash. Ct App. 1991)("An escrow agent
owes a fiduciary duty to the parties to the escrow to conduct the transaction with scrupulous honesty, skill and
diligence, and must comply strictly with the provisions ofthe escrow agreement."(citing Nat'l Bank of Wash, v.
Eouitv Inv'rs. 506 P.2d 20(Wash. 1973)).

34

both constitute violations ofthe depositary's fiduciary obligations, id)and this is precisely what
Plaintiffs accuse Ocwen of doing: the Complaint alleges that Ocwen allowed Cross Country to
send Plaintiffs and others checks that appeared to relate to escrow funds managed by Ocwen,

intentionally obscured subsequent deductions in mortgage and escrow statements using vague

descriptions ofthe charges, and directly benefitted from the resulting charges in the form offee-

splitting with Cross Country(FAC HI 295,297). These allegations relate directly to Ocwen's
role as an escrowee for its customers and support a claim based on violation of its duty to
administer the escrow accounts honestly.

As noted above, the law of Alabama and Georgia with respect to a mortgagee's fiduciary

duties when holding an escrow account for a mortgagor is not as clear as that in the other
relevant states. The dispute is not whether an escrow agent in those states is generally subject to

fiduciary duties with respect to the escrowed funds, as that proposition is established under the
law of both states.

Fisher v. Comer Plantation, Inc., 772 So.2d 455,468 (Ala. 2000)
("An

escrow agent is generally considered to be the agent of both parties to an escrow agreement."

(intemal quotation marks and citation omitted)); Threatt v. Rogers,604 S.E.2d 269,272(Ga. Ct.
App. 2004)(holding that escrow is subject to fiduciary duty where it is established that the
depositary,"by mutual consent of both parties,[is] made the agent of both parties and clothed
with authority to deliver the property to one party or the other on the happening ofsome future
event."). However,in a pair of decisions, the Eleventh Circuit concluded that a mortgagee's use
of an escrow account to make "tax and insurance payments" did not give rise to fiduciary duties

under the laws of Georgia or Alabama. Telfair v. First Union Mortg. Corp.. 216 F.3d 1333, 1342

(11th Cir. 2000)(examining Georgia law); Faez v. Wells Fargo Bank. N.A.. 745 F.3d 1098,
1110-11 (11th Cir. 2014)(same as to Alabama). While those cases at first appear to cut down

35

Plaintiffs' claims under the law ofthose states, the court concludes that they do not foreclose the

issue. At issue in both cases were escrow pa5mients made after the escrow agent, who was also

the mortgagee, obtained insurance on the property to protect its own interest in the property. See
Telfair, 216 F.3d at 1336 (security deed authorized defendant to use escrow funds to obtain

hazard insurance to protect its collateral); Faez, 745 F.3d at 1109-10(defendant required plaintiff
to obtain flood insurance for an amount equal to the mortgaged property's replacement value).
Under those circumstances, the Eleventh Circuit concluded that "the mortgagee does not act as

an agent because the mortgagee acts neither for the sole benefit ofthe mortgagor nor under the
mortgagor's control." Telfair, 216 F.3d at 1342; Faez. 745 F.3d at 1111 ("The loan agreement
makes it clear that the insurance requirement is for the lender's protection."(internal quotation
marks and citation omitted)).

The court views these cases as distinguishable and so insufficient to relieve Ocwen ofits

fiduciary duties as an escrow agent under the laws of either Alabama or Georgia at this stage. As
noted,the defendants in the cases before the Eleventh Circuit were acting both as mortgagee and
escrowee, and the challenged payments from the escrow accounts protected the defendant's

interest in the mortgages and were contemplated by the mortgage agreement themselves.

Limiting the defendants' ability to act in their own interest as mortgagee by making payments
from the escrow account would have undermined their otherwise arms-length mortgagor-

mortgagee relationship and so been at odds with repeated warnings from courts in both states
that no fiduciary relationship arises in a normal mortgage because the parties to a mortgage "are
creditor and debtor with clearly opposite interests." Moore v. Bank of Fitzgerald, 483 S.E.2d

135, 139(Ga. Ct. App. 1997k cf. also K&C Dev. Com v. AmSouth Bank. N.A., 597 So.2d 671,
675 (Ala. 1992)("Courts have traditionally viewed the relationship between a bank and its

36

customer as a creditor-debtor relationship that does not impose a fiduciary duty on the bank.")-

This is readily distinguished from the current allegations, in which Plaintiffs contend that Ocwen
abused its position as escrowee to enter into an entirely new agreement that was not necessary to

protect the mortgagee's interests nor even logically related to the mortgage. Separating Ocwen's
duties as an escrowee from its duties as a mortgage servicer, the court concludes that Plaintiffs

may bring a breach offiduciary duty claim based under Alabama and Georgia law.
Defendants argue that placing mortgage servicers imder a fiduciary duty with respect to
the escrow accounts would "swallow the default rule that mortgage servicers owe no fiduciary

duty to borrowers." (Defs. Reply at 12.) This argument misimderstands the scope ofthe duties
contemplated here, however. The court does not hold that mortgage servicers are subject to an
"omnibus fiduciary duty," as Defendants put it, based on their duties with respect to the escrow
frinds. Rather, the court holds only that escrow depositaries are subject to a fiduciary duty only

with respect to their management and maintenance offunds or other property held in escrow.
2.

Relationship Between Plaintiffs and Ocwen

Plaintiffs also argue that Ocwen's relationship with Plaintiffs transcended that of a

normal mortgagor and mortgagee and so gives rise to a general fiduciary relationship under the

laws of Alabama, Arizona, Michigan, Ohio, New Mexico, and Washington.^® (Pis. Opp'n
at 28-30.) Plaintiffs identify cases in each ofthose jurisdictions indicating the general rule that
mortgagees and mortgage servicers owe no fiduciary relationship to mortgagors may be
overcome where the relationship between the parties transcends that ofa normal borrower and
lender. (Id.)

2° In their opposition, Plaintiffs state only that "several ofthe [newly added]jurisdictions" embrace an expansive
defmition offiduciary relations, without identifying any particular states(id, at 28), but they cite cases discussing
fiduciary duties of mortgagors under the law ofthe states listed above.
37

After examining these cases, however,the court is unconvinced that any exception to the

general rule that mortgagees are not fiduciaries of the mortgagors is applicable here. Plaintiffs
are correct that courts in each ofthe cited states have offered some suggestion that a mortgagee's

relationship with the borrower may give rise to a fiduciary relationship between mortgagor and

mortgagee.^^ The factors that may give rise to such a relationship are extremely ill-defmed,
however,suggesting only in general terms that actions by the mortgagee that go beyond the role
of a"normal lender" could lead to imposition of heightened duties. See, e.g., Lansburg v. Fed.
Home Loan Mortg. Corp.,No. ll-CV-1529,2016 WL 5931030, at *6(D. Ariz. Oct. 12,2016)

(noting that fiduciary relationship may arise ifthe "loan servicer goes beyond the ordinary role
ofa lender and actively engages with the borrower and advises the borrower as to what to do,
then the loan servicer may have a fiduciary duty to the borrower"). These vague, standardless

statements ofpotential exceptions do little to assist the court in assessing the validity of
Plaintiffs' claim. More to the point, however, Plaintiffs fail to connect any allegation in the

Complaint to the development ofa fiduciary relationship under the laws of any ofthe relevant
states.^^ Left without either a standard to apply or facts to support that standard, the court cannot

See Atkins v. GE Capital Mortg. Servs.. Inc.. 993 F. Supp. 1406,1419(M.D. Ala. 1998); Lansburg v. Fed. Home
Loan Mortg. Corp.. No. 1 l-CV-1529,2016 WL 5931030, at *6(D. Ariz. Oct. 12, 2016); Ponder v. Bank of Am.,

No. lO-CV-81,2011 WL 8307207, at *4(S.D. Ohio Mar 8,2011)("Though a financial institution generally does
not owe a fiduciary duty to a borrower, a fiduciary relationship can arise out ofan informal relationship if both
parties understand that a special trust or confidence has been reposed."(internal quotation marks and citation
omitted)); cf Sheldon v. Vilsack. No. 1 l-CV-10487,2011 WL 6371289, at *5(E.D. Mich. Dec. 20,2011)(noting
that the complaint"does not plead adequate facts to demonstrate the extraordinary situation that would create a
fiduciary duty to Plaintiff under Michigan law" without stating what facts would be required); R.A. Peck,Inc. v.
Liberty Fed. Sav. Bank. 766 P.2d 928,92(N.M. Ct. App.)(concluding that lender had "well exceeded a'normal
lender's' role" as it had "thrust itself into the transaction, and plac[ed] itselfin a position to reach fmancial

benefits"); Tonseth v- Wamu Equity Plus, No. C11-1359,2012 WL 37406, at *5(W.D. Wash. Jan. 9,2012)("[A]
special relationship must deyelop between [a lender and a borrower] before a fiduciary duty exists.")
22 In its own reyiew ofthe Complaint,the court identifies only one paragraph relating to the basis for finding such a
fiduciary duty, which alleges that Ocwen "took on more services and receiyed greater economic benefit than a
typical loan sendcer does" by "unilaterally proyid[ing] its logo, customer lists, and confidential customer
information to a third party(Cross Country)solely for the purpose of generating profits for itself and the third
party." (FAC ^ 296.) The court fails to see how these allegations, which point only to interactions between Ocwen
38

reasonably adopt Plaintiffs' argument that Ocwen's relationship with Plaintiffs justifies departing

from the baseline rule and imposing on Ocwen a general fiduciary duty vis-a-vis Plaintiffs?^
*

*

*

*

Accordingly, Defendants' motion to dismiss Plaintiffs' breach offiduciary duty claims is
denied, and Plaintiffs may proceed with those claims to the extent that they allege breach of
Ocwen's duty as an escrow agent.

and Cross Country, could support the development of any heightened duty with respect to Plaintiffs, nor do
Plaintiffs elaborate on the significance ofthis allegation to their claim.

To the extent that Plaintiffs argue that the court's previous decision allowing breach offiduciary duty claims
asserted under California law requires the same result with respect to the states cited above(Sept. 23,2014, Mem.&
Order at 47-49), they misread that opinion. Plaintiffs suggest that the court allowed the California claim to go
forward because it "failed to give a precise definition ofa fiduciary relationship." (Pis. Opp'n at 29.) However,in
denying the motion to dismiss those claims,the court cited a six-factor test often relied on by California courts to
assess whether a fiduciary relationship exists, and noted that many ofthose factors appeared to be supported by
Plaintiffs' First Amended Complaint. (Sept. 23,2014, Mem & Order at 49 n.25.) In contrast. Plaintiffs cite no
standard for determining whether Ocwen should be treated as a fiduciary under the laws ofthe states cited here.
39

III.

CONCLUSION

For the reasons stated above. Defendants' motion to dismiss(Dkt. 324)is GRANTED IN
PART and DENIED IN PART. Plaintiffs' claims for violations ofthe Alabama Deceptive Trade

Practices Act,the Georgia Fair Business Practices Act, and the Tennessee Consumer Protection
Act are DISMISSED WITHOUT PREJUDICE. Defendants' motion to dismiss Plaintiffs' claims

under the Pennsylvania Unfair Trade Practices and Consumer Protection Law,the Arizona
Consumer Fraud Act, the Indiana Deceptive Consumer Sales Act, Plaintiffs' claim for unjust
enrichment under the laws of Alabama, Arizona, Colorado, Georgia, Indiana, Maryland,

Michigan, New Mexico, Ohio,Pennsylvania, Tennessee, Texas, Virginia, and Washington, and
PlaintifTs breach offiduciary duty claims under the laws of Alabama, Arizona, Georgia, Indiana,

Michigan, New Jersey, New Mexico, Ohio, Virginia, and Washington is DENIED.
SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brooklyn,New York

NICHOLAS G. GARAUFIf

November ^,2017

United States District Judge

40