Ortiz et al v. Ocwen Loan Servicing, LLC
Filing
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Memorandum Opinion and Order: Defendant's motion to dismiss is denied but the motion for a more definite statement is granted. Accordingly, Plaintiff is granted 14 days from the date of this Order to file an amended complaint delineating its causes of action. re 5 . Judge Jeffrey J. Helmick on 10/8/2014. (S,AL)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Mario J. Ortiz, et al.,
Case No. 3: 14 cv 1050
Plaintiffs
v.
MEMORANDUM OPINION
AND ORDER
Ocwen Loan Servicing, LLC,
Defendant
Plaintiffs initiated this action against Ocwen Loan Servicing, LLC for problems related to the
servicing of their loan and mortgage. Defendant Ocwen timely removed this action from the Lucas
County Court of Common Pleas in May 2014.
Ocwen now moves for dismissal of this action under Fed. R. Civ. P. 12(b)(6). Alternatively,
Defendant moves for a more definite statement. As the matters have been briefed, the motion is
ready for adjudication.
APPLICABLE LEGAL STANDARDS
Fed.R.Civ.P. 12(b)(6) provides for dismissal of a lawsuit for “failure to state a claim upon
which relief can be granted.” Courts must accept as true all of the factual allegations contained in
the complaint when ruling on a motion to dismiss. Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir. 2007). To survive a motion to dismiss under Rule
12(b)(6), “even though a complaint need not contain ‘detailed’ factual allegations, its ‘factual
allegations must be enough to raise a right to relief above the speculative level on the assumption
that all the allegations in the complaint are true.’” Ass'n of Cleveland Fire Fighters v. City of Cleveland,
Ohio, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Conclusory allegations or legal conclusions masquerading as factual allegations will not
suffice. Twombly, 550 U.S. at 555 (stating that the complaint must contain something more than “a
formulaic recitation of the elements of a cause of action”). A complaint must state sufficient facts
to, when accepted as true, state a claim “that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009) (explaining that the plausibility standard “asks for more than a sheer possibility
that a defendant has acted unlawfully” and requires the complaint to allow the court to draw the
reasonable inference that the defendant is liable for the alleged misconduct).
Under Fed. R. Civ. P. 12(e), “[a] party may move for a more definite statement of a pleading
to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot
reasonably prepare a response.” Motions for a more definite statement are generally disfavored but
appropriate in those instances where there has not been compliance with Rule 8 but the deficiency is
not so material that the pleading should be dismissed pursuant to Rule 12(b)(6). See 2 James Wm.
Moore, MOORE’S FEDERAL PRACTICE § 12.36[1] (3d ed. 2014).
DISCUSSION
Defendant’s motion advocates dismissal as the complaint makes no cognizable claim against
Ocwen. The Defendant charges that a negligence claim, to the extent it is asserted, fails to identify a
duty on behalf of Ocwen. Finally, Defendant challenges the Plaintiffs’ claims under the Real Estate
Settlement Procedures Act (“RESPA”) as deficient.
Plaintiff’s response appears to challenge the motion for dismissal noting the existence of
factual issues which presumably preclude dismissal under Rule 12(c ). The Plaintiffs also state their
complaint “refers to a series of transactions with a self possessed arm of the Defendant” which
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“giv[es] rise to a claim for damages under 2605(f) of Title 12 and Section 3500.21(f) of Reg.X
Plaintiff’s are entitled to recover damages for the failure of Defendant to respond to the Qualified
Written Request.” (Doc. No. 6 at p. 2). Plaintiffs also allude to the Defendant’s negligent
performance of “its duties to Plaintiffs in having accurate records of the transactions between the
parties.” (Id.)
The complaint states in pertinent part:
3. That during the period of time Defendant had serviced the
loan, the collection of the loan was referred to a collection company
with a claim that the payments on the loan were in arrears.
4. That Plaintiff Mario Ortiz, Jr. Made his current payments
to the collection company, a subsidiary of Defendant, and the loan
was current.
5. During the period of time that the collection company was
servicing the loan, several threats to foreclose on the underlying
mortgage were made to Plaintiff Mario Ortiz, Jr., although the loan
payments were current.
6. That the collection company returned servicing and
collection of the payments to Defendant in or about January 2014
and still claimed that the loan was in arrears in the amount of
$2059.83.
7. As a result of negligence of Defendant Ocwen Loan
Servicing, LLC, , Plaintiff has been damaged by the failure of
Defendant to properly account for payments on the mortgage.
Further Defendant has made and continues to make threats that the
mortgage will be foreclosed upon even though the account is current.
Such actions by Defendant are affecting Plaintiff Mario Ortiz’ credit
detrimentally.
8. The actions of Defendant have affected the relationship of
the Plaintiffs in that the stress of attempting to obtain clear records
of the payments on the loan have been made impossible. Further the
stress on Nicole Ortiz as a result of the actions of Defendant have
required her to seek professional help to cope with the stress to her
financial detriment and the detriment of her health.
9. The allegations in paragraphs 1 though 8 of this complaint
are realleged and incorporated herein by this reference.
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10. The Defendant is a servicer of a “federally related
mortgage loan” as that term is defined in Section 2602(1) of Title 12
of the United States Code.
11. The “qualified written request” was not acknowledged
within 20 days of receipt as required by Section 2605(e )(1)(A) of
Title 12 of the United States Code and Section 3500.21(e)(1) of Req.
X.
12. The Defendant did not, within 60 days of receipt of the
“qualified written request,” provide the information requested and
inform the Plaintiffs of its actions as required by Section 2605(e
)(1)(B)(2) of Title 12 of the United States Code and Section 3500.21(e
)(3) of Reg. X.
13. The Defendant has failed to comply with Section 2605 of
Title 12 of the United States Code.
14. Pursuant to Section 2605(f) of Title 12 of the United
States code and Section 3500.21(f) of Reg. X, the Plaintiffs may
recover of the Defendant actual damages, costs, and reasonable
attorney fees for each failure of the Defendants to comply with any
part of Section 2605 of Title 12 of the United States Code.
(Doc. No. 1-1). Based upon these allegations, Plaintiffs request damages “in the amount of
$100,000.00 for the negligent acts of Defendant in handling the account with the Plaintiffs.” (Id.)
Having reviewed the complaint, I find the complaint to be ambiguous and in need of
revision to reflect a concise and orderly pleading. In their response to the Defendant’s motion,
Plaintiffs concede their complaint is not the model of precision but oppose dismissal of their
allegations. The Plaintiff’s do not object or address Defendant’s motion for a more definite
statement.
Where a pleading is so ambiguous that the responding party is incapable of fashioning an
appropriate response, it is appropriate to move for a more definite statement. Here, the claims of
negligence are intertwined with federal claims under RESP and should be separated so that all are
clear as to the specific causes of action. See Sanders v. Amerimed, Inc., __F.Supp.2d __, 2014 WL
1664472 (S.D. Ohio 2014) (ordering a more definite statement to give clarity to the claims alleged).
Accordingly, Defendant’s motion for a more definite statement is granted.
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CONCLUSION
For the reasons stated above, Defendant’s motion to dismiss (Doc. No. 5) is denied but the
motion for a more definite statement (Doc. No. 5) is granted. Accordingly, Plaintiff is granted
fourteen (14) days from the date of this Order to file an amended complaint delineating its causes of
action.
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge
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