DAVIS v. BOWENS, et al
Filing
55
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 7/23/2012; RECOMMENDING that Defendants Wells Fargo Bank, N.A. and Aurora Loan Services, LLC's Motion to Dismiss Plaintiff 9;s Amended Complaint (Docket Entry 30 ); Defendant Florence A. Bowens [sic] Motion to Dismiss Plaintiff's Amended Complaint (Docket Entry 37 ); and Defendant Rogers Townsend & Thomas, P.C., f/k/a Kellam & Pettit, P.A.'s Motion to Dismi ss Plaintiff's First Amended Complaint (Docket Entry 40 ) be granted in part in that this Court should dismiss Plaintiff's federal claims for failure to state a claim under Fed. R. Civ. P. 12(b)(6) and should exercise its discretion und er 28 U.S.C. § 1367(c)(3) to dismiss Plaintiff's state law claims without prejudice. FURTHER that Defendant Bridgefield Mortgage Corporation's Motion to Dismiss Plainitff's [sic] Amended Complaint (Docket Entry 33 ) be denied as moot, but without prejudice to the re-filing of said Motion should Plaintiff reinstate a claim against Bridgefield Mortgage Corporation based on the facts alleged in the Amended Complaint. FURTHER that all claims against Defendant Fowler be dismissed without prejudice under Fed. R. Civ. P. 4(m). (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DARIUS E. DAVIS,
Plaintiff,
v.
FLORENCE A. BOWENS, RISHINDA
A. FOWLER f/k/a RISHINDA A.
DAVIS, BRIDGEFIELD MORTGAGE
CORPORATION f/k/a RESMAE
MORTGAGE CORPORATION, WELLS
FARGO BANK, N.A., as trustee
for the Lehman ABS Mortgage
Loan Trust 2007-1 Mortgage
Pass Through Certificates
series 2007-1, AURORA LOAN
SERVICES, LLC, ROGERS TOWNSEND
& THOMAS, P.C., f/k/a KELLAM &
PETTIT, P.A.,
Defendants.
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1:11CV691
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The instant matter comes before the undersigned United States
Magistrate Judge for a recommended ruling on Defendants Wells Fargo
Bank, N.A. and Aurora Loan Services, LLC’s Motion to Dismiss
Plaintiff’s
Amended
Complaint
(Docket
Entry
30);
Defendant
Bridgefield Mortgage Corporation’s Motion to Dismiss Plainitff’s
[sic] Amended Complaint (Docket Entry 33); Defendant Florence A.
Bowens
[sic]
Motion
to
Dismiss
Plaintiff’s
Amended
Complaint
(Docket Entry 37); and Defendant Rogers Townsend & Thomas, P.C.,
f/k/a Kellam & Pettit, P.A.’s Motion to Dismiss Plaintiff’s First
Amended Complaint (Docket Entry 40).
For the reasons that follow,
the Court should deny Bridgefield Mortgage Corporation’s Motion to
Dismiss as moot and should grant in part the remaining Motions to
Dismiss, in that the Court should dismiss Plaintiff’s federal
causes of action for failure to state a claim and should exercise
its discretion under 28 U.S.C. § 1367(c)(3) to decline to hear
Plaintiff’s state law claims.
I. BACKGROUND
Plaintiff alleges that, on January 7, 2002, he and his thenwife,
Defendant
(“Fowler”),
Rishanda
purchased
a
A.
Fowler
single
f/k/a
family
home
Carolina (the “Property”), without financing.
26, ¶ 18.)
Rishanda
in
A.
Davis
Durham,
North
(See Docket Entry
According to Plaintiff, he became incarcerated in July
2004 and remained incarcerated until March 2011.
(Id. ¶ 20.)
During this period of incarceration, Plaintiff asserts that Fowler,
without Plaintiff’s knowledge or consent, encumbered the Property
with a mortgage loan by executing a promissory note payable to
Defendant ResMAE Mortgage Corporation (“ResMAE”), n/k/a Bridgefield
Mortgage Corporation (“Bridgefield”), as lender.
(Id. ¶ 21.)
Plaintiff further alleges that Fowler also executed a Deed of Trust
naming ResMAE as lender, again without Plaintiff’s knowledge or
consent.
(Id. ¶ 22.)1
closing attorney.
Defendant Bowens allegedly served as the
(Id. ¶ 33.)
The Amended Complaint identifies
1
Although certain pages of the Deed of Trust at issue purport
to contain Plaintiff’s initials and/or signature (Docket Entry 26,
¶¶ 23-25), and Jacqueline Nelson, a notary public, certified by
stamp and signature that Fowler and Plaintiff appeared before her
(id. ¶ 26), Plaintiff asserts he “was incarcerated in the state of
South Carolina on [the date in question] and could not have
personally appeared before Ms. Nelson in Durham, North Carolina to
execute the Deed of Trust” (id. ¶ 29).
-2-
Defendant Wells Fargo, N.A. (“Wells Fargo”) as the “purported”
current noteholder with respect to the mortgage, Defendant Aurora
Loan Services, LLC (“Aurora”) as a mortgage servicer, and Defendant
Rogers Townsend & Thomas, P.C. (“Rogers Townsend & Thomas”) as
legal counsel for Aurora.
(Id. ¶¶ 5-7, 38.)
As a result of the foregoing events, Plaintiff’s Amended
Complaint purports to state claims for: (1) “Fraud” (id. ¶¶ 45-62);
(2) “Facilitation of Fraud” (id.
¶¶ 63-67); (3) “Unfair and
Deceptive Trade Practices, N.C. Gen. Stat. 75-1.1(a)” (id. ¶¶ 6874); (4) “Violations of the Fair Debt Collection Practices Act
(“FDCPA”) 15 USC § 1692” (id. ¶¶ 75-95); (5) “Negligence” (id.
¶¶
96-100);
(6)
“Negligent
Supervision”
(id.
¶¶
101-08);
(7) “Slander of Title” (id. ¶¶ 109-20); (8) “Violations of RESPA
[Real Estate Settlement Procedures Act] 12 U.S.C. 2601 et seq.”
(id. ¶¶ 121-25); and (9) “Quiet Title” (id. ¶¶ 126-32).
Wells
Fargo, Aurora, Bowens, and Rogers Townsend & Thomas, through three
separately filed Motions to Dismiss (Docket Entries 30, 37, 40),
contend that Plaintiff’s Amended Complaint fails to state a claim
so as to warrant dismissal under Fed. R. Civ. P. 12(b)(6).
(See
Docket Entry 31 at 2; Docket Entry 38 at 2; Docket Entry 41 at 2.)2
2
Bridgefield filed a Motion to Dismiss based on an order
entered by the United States Bankruptcy Court for the District of
Delaware.
(See Docket Entry 34 at 1.)
Plaintiff subsequently
filed a Notice of Voluntary Dismissal Without Prejudice as to
Bridgefield pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). (Docket
Entry 52.) Consistent with that filing, the Docket in this action
reflects the termination of Bridgefield as a Party and the Court
thus should deny Bridgefield’s Motion to Dismiss (Docket Entry 33)
as moot, but without prejudice to the re-filing of said Motion
should Plaintiff seek to reinstate a claim based on these facts
(continued...)
-3-
Despite moving for and receiving an extension of time to respond to
the Motions to Dismiss filed by Bowens and Rogers Townsend & Thomas
(see Docket Entries 42, 44), Plaintiff has responded only to Wells
Fargo and Aurora’s Motion to Dismiss.
(See Docket Entries 45, 46;
Docket Entries dated Jan. 6, 2012, to present.)
II. DISCUSSION
A plaintiff fails to state a claim when the complaint does not
“contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
Iqbal,
556
U.S.
662,
678
(2009)
(emphasis
Ashcroft v.
added)
(internal
citations omitted) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
“Where a complaint pleads facts that are
‘merely consistent with’ a defendant’s liability, it ‘stops short
of the line between possibility and plausibility of “entitlement to
relief.”’”
Id. (quoting Twombly, 550 U.S. at 557).
This standard
“demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”
Id.
In other words, “the tenet that a court must
accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.
2
Threadbare recitals of the
(...continued)
against Bridgefield.
In addition, on March 6, 2012, the Clerk
issued a Notice to Plaintiff regarding his apparent noncompliance
with the requirement of Fed. R. Civ. P. 4(m) to obtain timely
service of process on Fowler, which warned that a failure to
respond within 14 days could result in dismissal without prejudice
of all claims against Fowler. (Docket Entry 48.) Plaintiff has
not responded.
(See Docket Entries dated Mar. 6, 2012, to
present.) The Court thus should dismiss all claims against Fowler
without prejudice.
-4-
elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
A.
Id.3
Federal Claims
Because the Court’s jurisdiction in this action rests on
Plaintiff’s federal claims under the FDCPA and RESPA (see Docket
Entry 26, ¶ 15), the undersigned addresses those matters first.
i.
Violations of the FDCPA
Plaintiff brings his FDCPA claim only against Wells Fargo,
Aurora, and Rogers Townsend & Thomas.
(See id. ¶¶ 52, 75-95.)
To
succeed on his FDCPA claim, Plaintiff must allege: “(1) he was the
object of collection activity arising from a consumer debt as
defined by the FDCPA, (2) the defendant is a debt collector as
defined by the FDCPA, and (3) the defendant engaged in an act or
omission prohibited by the FDCPA.”
Johnson v. BAC Home Loans
Servicing, LP, No. 5:10-CV-303-F, 2011 WL 4544013, at *6 (E.D.N.C.
Sept. 29, 2011) (unpublished) (citing Dikun v. Streich, 369 F.
Supp. 2d 781, 784-85 (E.D. Va. 2005)).
Wells Fargo and Aurora contend that they do not qualify as
debt collectors under the FDCPA and, accordingly, Plaintiff’s
claims
against
them
fail.
(See
Docket
Entry
31
at
5-6.)
Specifically, Wells Fargo and Aurora note that the FDCPA exempts
creditors, defined as:
3
“[D]etermining whether a complaint states on its face a
plausible claim for relief and therefore can survive a Rule
12(b)(6) motion . . . requires the reviewing court to draw on its
judicial experience and common sense.” Francis v. Giacomelli, 588
F.3d 186, 193 (4th Cir. 2009).
-5-
[A]ny person who offers or extends credit creating a debt
or to whom the debt is owed, but such term does not
include any person to the extent that he receives an
assignment or transfer of a debt in default solely for
the purpose of facilitating collection of such debt for
another.
(Id. (quoting 15 U.S.C. § 1692a(4)).)
Plaintiff responds that
“Wells Fargo and Aurora did not extend credit to Plaintiff in any
way and are therefore not creditors.”
(Docket Entry 46 at 6.)
“[C]reditors . . . and mortgage servicing companies are not
debt collectors and are statutorily exempt from liability under the
FDCPA.”
Ruggia v. Washington Mut., 719 F. Supp. 2d 642, 647-48
(E.D. Va. 2010), aff’d, 442 Fed. App’x 816 (4th Cir. 2011) (per
curiam) (internal quotation marks omitted).
Whether Wells Fargo
and Aurora extended credit specifically to Plaintiff would not
alter this conclusion, as the FDCPA “specifically refers to those
who collect debts ‘owed or due or asserted to be owed or due
another.’”
Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373,
379 n.2 (4th Cir. 2006) (quoting 15 U.S.C. § 1692a(6)) (emphasis
added).
Accordingly, it matters not whether Plaintiff owed a debt
to Wells Fargo or Aurora, but only whether Wells Fargo and Aurora
sought to collect on a debt owed to a third party.
As nothing in
Plaintiff’s Amended Complaint supports such a conclusion (see
Docket Entry 26), the Court should dismiss Plaintiff’s claim under
the FDCPA as to Wells Fargo and Aurora.
With respect to Rogers Townsend & Thomas, as an initial
matter, Plaintiff’s failure to respond to Rogers Townsend & Thomas’
Motion to Dismiss generally warrants the granting of the requested
relief of dismissal. See M.D.N.C. LR7.3(k).
-6-
No reason exists to
depart from that general rule in regards to Plaintiff’s cause of
action under the FDCPA against Rogers Townsend & Thomas because the
Amended Complaint does not include adequate factual allegations to
support such a claim.
First, Plaintiff frames all allegations in
terms of actions taken by the “Debt Collector Defendants” without
distinguishing between Wells Fargo, Aurora, or Rogers Townsend &
Thomas.
(See Docket Entry 26, ¶¶ 75-95.)
this claim legally deficient.
This approach renders
See, e.g., Bryant v. Wells Fargo
Bank, Nat’l Ass’n, ___ F. Supp. 2d ___, ___, 2012 WL 928435, at *12
(E.D.N.C. 2012) (observing that “Plaintiffs’ pleading of their
RESPA
claims
against
‘Defendants’
generally
.
.
.
makes
it
difficult to ascertain what specific provision of RESPA the []
[d]efendants are alleged to have violated” in contravention of
notice requirements under Fed. R. Civ. P. 8(a)); Bentley v. Bank of
Am.,
N.A.,
773
F.
Supp.
2d
1367,
1374-75
(S.D.
Fla.
2011)
(dismissing claim “for improperly lumping together [the defendants]
such that [the defendants] do not have fair notice of the precise
nature of the violation that is claimed against them”); Melgrito v.
CitiMortgage Inc., No. C11-01765LB, 2011 WL 2197534, at *6 (N.D.
Cal. June 6, 2011) (unpublished) (“Under Rule 8(a), grouping
multiple defendants together in a broad allegation is insufficient
to provide the defendants with fair notice . . . .”).
Moreover, the allegations set forth as to this claim lack
sufficient factual content to state a plausible claim.
example, Plaintiff alleges:
In or about 2010 the Debt Collector Defendants
carelessly, recklessly, negligently or intentionally
-7-
For
utilized and caused to be filed or utilized false,
deceptive, misleading, and perjured affidavits in
connection with the collections of debts in violation of
15 USC 1692(e) [sic].
(Docket Entry 26, ¶ 78.)4
However, the Amended Complaint does not
identify or describe any such affidavits or the place of such
filing other than to state generally:
All Defendants have conducted business in this State
filing fabricated, illegal and unenforceable Deeds
Trust, affidavits as to loan ownership of said Deed
Trust, status of accounts, mortgages and assignments
mortgages and/or other court documents.
by
of
of
of
(Id. ¶ 13.)
Similarly, Plaintiff alleges that:
The Debt Collector Defendants have, on multiple
occasions, carelessly, recklessly, negligently or
intentionally notified numerous third parties that
Plaintiff owed a debt to them when in fact and knowingly
no valid debt was owed to the Defendants, all in
violation of 15 USC 1692(b)(2) [sic].
(Id. ¶ 80.)
However, Plaintiff again fails to support this bare
allegation with any factual matter.
(See id. ¶¶ 17-44, 75-95.)
The Amended Complaint contains a litany of similar allegations
within his claim for violations of the FDCPA (see id. ¶¶ 75-95),
yet the factual contentions set forth in the Amended Complaint
address only the circumstances surrounding the execution of the
promissory note and the Deed of Trust by Fowler (see id. ¶¶ 18-32),
accompanied
by
conclusory
allegations,
such
as
that
“[a]ll
Defendants knew or had reason to know that due to Plaintiff’s
incarceration any signature on the Deed of Trust purporting to be
4
The Amended Complaint cites 15 U.S.C. §§ 1692(a), 1692(b),
etc., when it appears Plaintiff intends to refer to 15 U.S.C.
§§ 1692a, 1692b, etc.
-8-
Plaintiff’s was necessarily a forgery” (id. ¶ 42); that “each
Defendant could plainly see the clear and obvious differences in
Plaintiff’s alleged signatures upon the pages” (id.); and that
“[a]ll Defendants financially benefitted from the false execution
of
the
Deed
collection
of
Trust
practices
in
Plaintiff’s
despite
name,
knowledge
of
and
the
pursued
debt
instrument’s
invalidity” (id. ¶ 43).
Moreover, specific references to Rogers Townsend & Thomas
appear only in the following paragraphs:
7. Defendant Rogers Townsend and Thomas, P.C., f/k/a
Kellam and Pettit, P.A., is a “debt collector” as defined
by 15 U.S.C. § 1692 et seq., and a law firm with its
principal place of business at 2550 West Tyvola Road,
Suite 520, Charlotte, North Carolina 28217, doing
business in Durham County, North Carolina.
. . .
38. Among the entities involved in the foregoing attempts
at communication with Plaintiff [i.e., notices of default
and demands for payment] were Aurora Loan Services, LLC,
a purported loan servicer/attorney-in-fact for Defendant
Wells Fargo, Kellam & Pettit, P.A., purported Substitute
Trustee under the Deed of Trust, and Rogers Townsend &
Thomas, PC, f/k/a Kellam & Pettit, P.A., attorneys for
Aurora Loan Services, LLC.
. . .
52. Defendant Wells Fargo, Defendant Aurora Loan
Services, LLC and Defendant Rogers, Townsend and Thomas,
PC, f/k/a Kellam & Pettit, P.A., (collectively referred
to as the “Debt Collector Defendants”) knew or should
have known that Plaintiff’s incarceration prevented his
participation in the execution of the Deed of Trust.
. . .
125. Plaintiffs [sic] have previously made written
demands to Defendants U.S. Bank, National Default
Corporation, Kellam & Pettit and Rogers Townshend [sic]
& Thomas, P.C. to show evidence of standing to claim a
-9-
debt and Defendants have directly refused to evidence
such standing.
(See id. ¶¶ 7, 38, 52, 125.)
On
these
facts,
Plaintiff
has
neither
provided
factual
assertions adequate to support an FDCPA claim against Rogers
Townsend & Thomas nor stated allegations with sufficient clarity to
provide Rogers Townsend & Thomas fair notice.
Accordingly, the
Court should dismiss Plaintiff’s claim under the FDCPA against
Rogers Townsend & Thomas.5
ii.
Violations of RESPA
The Amended Complaint does not specifically identify the
Defendants against whom Plaintiff asserts his claim for violations
of RESPA, but said claim appears directed at Wells Fargo, Aurora,
and Rogers Townsend & Thomas.
(See id. ¶¶ 121-25.)6
Plaintiff
5
Rogers Townsend & Thomas also argues that Plaintiff does not
qualify as a “consumer” under the FDCPA because Plaintiff denies
any obligation to pay the debt at issue. (See Docket Entry 41 at
8-9.) This argument is unpersuasive. Section 1692a(3) defines a
consumer as “any natural person obligated or allegedly obligated to
pay any debt.”
The Amended Complaint sufficiently identifies
Plaintiff as a natural person with an alleged obligation to pay a
debt and this satisfies the “consumer” element of an FDCPA claim.
See, e.g., Bridge v. Ocwen Fed. Bank, FSB, 681 F.3d 355, 361-363
(6th Cir. 2012) (“Throughout the FDCPA coverage is based upon
actual or merely alleged debt. . . .
A defendant may not
retroactively change the status of the plaintiff it has pursued as
an alleged debtor.
To hold otherwise would defy the clear
congressional mandate we are charged with upholding.”); Dunham v.
Portfolio Recovery Assocs., LLC, 663 F.3d 997, 1002 (8th Cir. 2011)
(“[T]he district court erred in concluding that the plain language
of § 1692a(3)’s ‘consumer’ definition does not apply to [the
plaintiff] because a debt collector mistakenly alleged that he owed
a debt.”).
6
Regardless, along with Wells Fargo, Aurora, and Rogers
Townsend & Thomas (Docket Entry 31 at 7-9; Docket Entry 41 at 1213), Bowens moves for dismissal of any RESPA claim against her
(continued...)
-10-
alleges in conclusory fashion that he did not receive timely notice
of appointments, assignments or transfers of the mortgage in
violation of RESPA.
(Id. ¶ 123.)
He also complains of a failure
to timely provide the required notification of any change of
servicers,
again
without
factual
allegations.
(Id.
¶
124.)
Finally, Plaintiff asserts without any detail that he “previously
made written demands to Defendants U.S. Bank, National Default
Corporation, Kellam & Pettit and Rogers Townshend [sic] & Thomas,
P.C. to show evidence of standing to claim a debt and Defendants
have directly refused to evidence such standard.”
(Id. ¶ 125.)
Plaintiff has not specified which provisions of RESPA give
rise to his claims.
(See id. ¶¶ 121-25.)
However, “RESPA creates
a private right of action for only three types of wrongful acts:
(1) payment of a kickback and unearned fees for real estate
settlement services, 12 U.S.C. § 2607(a), (b); (2) requiring a
buyer to use a title insurer selected by the seller, 12 U.S.C.
§ 2608(b); and (3) the failure by a loan servicer to give proper
notice of a transfer of servicing rights or to respond to a
qualified written request [(‘QWR’)] for information about a loan,
12 U.S.C. § 2605(f).”
Das v. WMC Mortg. Corp., No. 10-CV-00650-
LHK, 2012 WL 1657111, at *7 (N.D. Cal. May 10, 2012) (unpublished)
6
(...continued)
(Docket Entry 38 at 5 (“First, it is noted that the claim for
relief cannot relate to Defendant Bowens.
However, since the
Amended Complaint references all ‘Defendants,’ Defendant Bowens
will address this issue.”)).
Moreover, Plaintiff’s failure to
respond to the Motions to Dismiss by Bowens and Rogers Townsend &
Thomas generally warrants granting the relief they request. See
M.D.N.C. LR7.3(k).
-11-
(citation and internal quotation marks omitted).
The Amended
Complaint makes no allegations regarding either a kickback or title
insurance.
(See Docket Entry 26.)
With respect to notice obligations, Plaintiff argues in his
Response Brief: “Under §3500.2, when a federally related mortgage
loan is assigned, sold or transferred, the transferor must provide
a disclosure at least 15 days before the effective date of the
transfer.
A transfer of servicing notice from the transferee must
be provided not more than 15 days after the effective date of the
transfer.”
(Docket Entry 46 at 7.)
The section Plaintiff cites
appears to refer to 24 C.F.R. § 3500.2, which sets out definitions
within a body of regulations related to RESPA and does not address
notice requirements.
Another provision of those regulations - 24
C.F.R. § 3500.21(d) - does address certain notice requirements, but
only with respect to a change in servicers.
mirrors
RESPA,
which
provides
that
Said regulation thus
“[e]ach
servicer
of
any
federally related mortgage loan shall notify the borrower in
writing of any assignment, sale, or transfer of the servicing of
the loan to any other person,” 12 U.S.C. § 2605(b) (emphasis
added), and that “[e]ach transferee servicer . . . shall notify the
borrower of any such assignment sale or transfer,” 12 U.S.C.
§ 2605(c) (emphasis added).7
Plaintiff’s Amended Complaint does not allege, much less offer
factual matter regarding, any such servicing transfer. (See Docket
7
The Amended Complaint does not (and plausibly could not)
identify Bowens as a loan servicer subject to any such notice
requirements. (See Docket Entry 26.)
-12-
Entry 26.)
Moreover, Plaintiff’s Response only argues that the
Amended Complaint contains factual assertions that warrant an
inference regarding the transfer of the noteholder. (See Docket
Entry 46 at 7-8 (“Since Defendant Wells Fargo admits that it is the
alleged noteholder and Defendant RESMAE was the admitted original
lender, it stands that an assignment or transfer must have been
purportedly made from the Lender to the original noteholder.
Notice of that assignment or transfer was not given to Plaintiff,
in violation of the act.”).)
Further, the Amended Complaint does
not allege actual damages due to any lack of notice of any change
in servicers, but instead offers only a general allegation of harm
from all combined actions of all Defendants. (See Docket Entry 26,
¶¶ 44, 121-25.)
EMC
Mortg.
RESPA claims require more.
Corp.,
382
Fed.
App’x
833,
See, e.g., Frazile v.
836
(11th
Cir.
2010)
(affirming dismissal of RESPA claim for “fail[ing] to allege facts
relevant to the necessary element of damages caused by assignment
[of loan servicing]” in light of 12 U.S.C. 2605(f)); Allen v.
United Fin. Mortg. Corp., 600 F. Supp. 2d 1089, 1097 (N.D. Cal.
2009) (“[A] number of courts have read [Section 2605(f)] as
requiring a showing of pecuniary damages in order to state a claim.
. . .
This pleading requirement has the effect of limiting the
cause of action to circumstances in which plaintiffs can show that
a failure of notice has caused them actual harm.”).
The Amended
Complaint thus fails to allege factual matter sufficient to state
a RESPA claim under Section 2605(b) or (c).
-13-
To the extent Plaintiff attempts to assert a claim under
Section 2605(e) based on an alleged failure to respond to a QWR,
the Court notes that the Amended Complaint references demands made
only to one Defendant in this case, Rogers Townsend & Thomas, as
the
other
entities
Plaintiff
identifies
as
objects
of
his
communications, “U.S. Bank” and “National Default Corporation” (see
Docket Entry 26, ¶ 125), are not Parties to this action. Moreover,
the Amended Complaint lacks factual assertions sufficient to show
that, as to the QWR response requirement, Plaintiff has “a claim to
relief that is plausible on its face,” Iqbal, 556 U.S. at 678.
In
this regard, the Amended Complaint asserts only:
Plaintiffs [sic] have previously made written demands to
Defendants U.S. Bank, National Default Corporation,
Kellam & Pettit and Rogers Townshend [sic] & Thomas, P.C.
to show evidence of standing to claim a debt and
Defendants have directly refused to evidence such
standing.
(Docket Entry 26, ¶ 125.)
“For correspondence to qualify as a QWR, it must contain a
statement
that
explains
‘the
reasons
for
the
belief
of
the
borrower, to the extent applicable, that the account is in error or
provide[]
sufficient
detail
to
the
information sought by the borrower.’”
servicer
regarding
other
Banh v. Aurora Loan Servs.,
LLC, No. CV 11-06365 PSG, 2012 WL 2202982, at *3 (N.D. Cal. Jun.
14,
2012)
(unpublished)
(quoting
12
U.S.C.
§
2605(e)(1)(A)).
Plaintiff has included no factual matter showing that his alleged
written demands met those standards. (See Docket Entry 26.) Other
courts have dismissed RESPA claims where, as here, “[t]he Amended
Complaint does not attach the QWR or otherwise allege its date, its
-14-
contents or subject matter, or any other pertinent information
. . . .”
Williams v. Wells Fargo Bank, N.A., No. C10-5880BHS, 2012
WL 72727, at *7 (W.D. Wash. Jan. 10, 2012) (unpublished).
Even if the Amended Complaint did adequately allege that
Plaintiff made a QWR, it fails to set forth factual matter showing
that he suffered actual damages from any alleged non-response by
any Defendant.
(See Docket Entry 26.)
Plaintiff’s RESPA claim
fails as a matter of law for that reason as well.
See Williams,
2012 WL 72727, at *7 (dismissing RESPA claim in part because the
plaintiffs failed “to plead facts demonstrating the actual damages
that [the plaintiffs] incurred as a result of [the defendants’]
alleged failure to respond”); Bishop v. Quicken Loans, Inc., No.
2:09-01076, 2010 WL 3522128, at *6 (S.D.W. Va. Sept. 8, 2010)
(unpublished) (“Although plaintiffs allege that they ‘have suffered
financial loss, annoyance and inconvenience,’ plaintiffs do not
allege how [the defendant’s] failure to comply with RESPA caused
them harm.”); Singh v. Washington Mut. Bank, No. C-09-2771-MMC,
2009 WL 2588885, at *5 (N.D. Cal. Aug. 19, 2009) (unpublished)
(dismissing RESPA claim because “plaintiffs have failed to allege
any facts in support of the conclusory allegation that as a result
of defendants’ failure to respond, defendants are liable for actual
damages, costs, and attorneys fees” (internal quotation marks
omitted)).
Under
these
circumstances,
the
Court
should
conclude
Plaintiff’s RESPA claim falls short under the Iqbal standard.
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B.
State Law Claims
Under 28 U.S.C. § 1367(a), “in any civil action of which the
district courts have original jurisdiction, the district courts
have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under Article
III of the United States Constitution.”
However, “the district
courts may decline to exercise supplemental jurisdiction over a
claim under subsection (a) if . . . the district court has
dismissed all claims over which it has original jurisdiction.”
28
U.S.C. § 1367(c)(3).
“It has consistently been recognized that
pendent
is
jurisdiction
plaintiff’s right. . . .
a
doctrine
of
discretion,
not
of
[I]f the federal claims are dismissed
before trial, even though not insubstantial in a jurisdictional
sense, the state claims should be dismissed as well.”
Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
United Mine
In light of the
recommended dismissal of the federal claims at this early stage in
the litigation, the Court should decline to exercise supplemental
jurisdiction over Plaintiff’s state law claims and, instead, should
dismiss those claims without prejudice.
III. CONCLUSION
Plaintiff’s Amended Complaint fails to state a claim under the
FDCPA or RESPA.
Because the remainder of Plaintiff’s claims arise
under state law, and diversity of citizenship does not exist in
this action, the Court should exercise its discretion under 28
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U.S.C. § 1367 to dismiss the remainder of Plaintiff’s claims
without prejudice.
IT IS THEREFORE RECOMMENDED that Defendants Wells Fargo Bank,
N.A. and Aurora Loan Services, LLC’s Motion to Dismiss Plaintiff’s
Amended Complaint (Docket Entry 30); Defendant Florence A. Bowens
[sic] Motion to Dismiss Plaintiff’s Amended Complaint (Docket Entry
37); and Defendant Rogers Townsend & Thomas, P.C., f/k/a Kellam &
Pettit,
P.A.’s
Motion
to
Dismiss
Plaintiff’s
First
Amended
Complaint (Docket Entry 40) be granted in part in that this Court
should dismiss Plaintiff’s federal claims for failure to state a
claim under Fed. R. Civ. P. 12(b)(6) and should exercise its
discretion under 28 U.S.C. § 1367(c)(3) to dismiss Plaintiff’s
state law claims without prejudice.
IT IS FURTHER RECOMMENDED that Defendant Bridgefield Mortgage
Corporation’s Motion to Dismiss Plainitff’s [sic] Amended Complaint
(Docket Entry 33) be denied as moot, but without prejudice to the
re-filing of said Motion should Plaintiff reinstate a claim against
Bridgefield Mortgage Corporation based on the facts alleged in the
Amended Complaint.
IT IS FURTHER RECOMMENDED that all claims against Defendant
Fowler be dismissed without prejudice under Fed. R. Civ. P. 4(m).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 23, 2012
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