Kolano v. Bank of America, NA et al

Filing 10

Order granting in part and denying in part Defendants' Motion for judgment on the pleadings (Related Doc # 6 ). Plaintiff Kolanos claim against Bank of America, N.A. for violations of 12 U.S.C. § 2605 is hereby dismissed. Plaintif f Kolanos claim against Bank of America, N.A. for violation of 15 U.S.C. § 1641(f) is dismissed. Plaintiffs claim against Fannie Mae claim for violation of 15 U.S.C. § 1641(f) is the sole remaining claim. Judge John R. Adams on 3/19/14.(K,C)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ALICIA VEGA KOLANO,
Plaintiff,
v.
BANK OF AMERICA, NA et al.,
Defendants.

) CASE NO. 5:13-cv-00832
)
)
)
) JUDGE JOHN R. ADAMS
)
) ORDER
)
)
)

This matter is before the Court on Defendants’ Motion for Judgment on the Pleadings
(Doc. 6). This matter is fully briefed and ripe for review.
I. Introduction
On April 12, 2013, Plaintiff Alicia Vega Kolano (Kolano) filed a complaint against
Defendants Bank of America, N.A. (BANA) and Federal National Mortgage Association (Fannie
Mae) alleging violations of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601, et seq.
(RESPA) against BANA, and two claims under the Truth in Lending Act, 15 U.S.C. § 1601 et
seq. (TILA) against both Defendants. Defendants moved for judgment on the pleadings on all
three of Kolano’s claims. In response, Kolano agreed to dismiss her claim for violations of TILA
under 15 U.S.C. § 1639g based on the effective date of this statutory provision. Doc. 7 at 16.

Accordingly, Kolano’s second claim for relief is dismissed without prejudice. The Court will
now review whether the remaining claims survive Defendants’ motion.
II. Legal Standard
Fed. R. Civ. P. 12(c) provides that “[a]fter the pleadings are closed—but early enough not
to delay trial—a party may move for judgment on the pleadings.” The standard for evaluating a
motion for judgment on the pleadings is the same as that applicable to a motion to dismiss under
Rule 12(b)(6) for failure to state a claim. Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 511–12
(6th Cir. 2001). The Sixth Circuit stated the standard for reviewing such a motion to dismiss in
Assn. of Cleveland Fire Fighters v. Cleveland, 502 F.3d 545 (6th Cir. 2007) as follows:
The Supreme Court has recently clarified the law with respect to what a plaintiff
must plead in order to survive a Rule 12(b)(6) motion. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court
stated that “a plaintiff’s obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. at 1964–65 (citations and quotation
marks omitted). Additionally, the Court emphasized that even though a complaint
need not contain “detailed” factual allegations, its “[f]actual 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.” Id. (internal citation and quotation
marks omitted). In so holding, the Court disavowed the oft-quoted Rule 12(b)(6)
standard of Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957) (recognizing “the accepted rule that a complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief”),
characterizing that rule as one “best forgotten as an incomplete, negative gloss on
an accepted pleading standard.” Twombly, 550 U.S. at 563.
Id. at 548.
If an allegation is capable of more than one inference, this Court must construe it in the
plaintiff’s favor. Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)
(citing Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993)). This Court may not grant a

Rule 12(b)(6) motion merely because it may not believe the plaintiff’s factual allegations. Id.
Although this is a liberal standard of review, the plaintiff still must do more than merely assert
bare legal conclusions. Id. Specifically, the complaint must contain “either direct or inferential
allegations respecting all the material elements to sustain a recovery under some viable legal
theory.” Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)
(quotations and emphasis omitted).
III. Matters outside the pleadings
Kolano requests that this Court convert Defendants’ motion into a Fed. R. Civ. P. 56
motion or exclude factual matters not contained the Complaint or Answer. Doc. 7 at 4.
Specifically, Kolano argues that the following three sentences in Defendant’s motion contain
inappropriate references to matters outside the Complaint:
1. Plaintiff is utilizing RESPA and TILA for the sole purpose of having a vehicle
for creating lawsuits that allege technical violations of these statutes, and in
turn seek minimum statutory penalties and large awards of attorney’s fees
(Doc. 6 at 4);
2. Plaintiff does not seek this information for any legitimate purpose under either
RESPA or TILA (Doc. 6 at 4); and
3. Plaintiff’s counsel has created a veritable cottage industry out of these cases:
http://www.troydoucet.com/; http://www.foreclosure-fight.com/blog/tdoucet/
troy-doucet-openslaw-firm (Doc. 6 at 4 FN 10).
As a general rule, when considering a Fed. R. Civ. P. 12(c) motion, the Court is limited to
considering only the pleadings; if matters outside the pleadings are considered, the Court must
convert the motion to one for summary judgment. Fed. R. Civ. P. 12(d). However, there are
exceptions to this rule. A count need not convert a motion to dismiss, for example, where the
where one or more of the following exists: (1) the evidence consists of proceedings of which the

court is permitted to take judicial notice, see Rodic v. Thistledown Racing Club, Inc., 615 F.2d
736, 738 (6th Cir. 1980); (2) the documents’ contents are alleged in the plaintiff’s complaint, and
their authenticity is unchallenged, see Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994); (3)
the defendant’s attachment of extrinsic material to its motion to dismiss does not rebut,
challenge, or contradict anything in the plaintiff’s complaint, see Song v. City of Elyria, 985 F.2d
840, 842 (6th Cir. 1993); and (4) the documents are referred to in the plaintiff’s complaint and
are central to plaintiffs claim, see Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir.
1999).
The Court finds it unnecessary to convert the 12(c) motion into a motion for summary
judgment. The first two statements at issue are not evidence, but merely arguments by BANA,
and will be considered accordingly. The third statement contains both argument (that Plaintiff’s
counsel “has created a veritable cottage industry” out of RESPA and TILA cases) and directs the
Court to a website presumably owned and operated by Plaintiff’s counsel as evidence of the
argument. The Court need not determine whether the website is a “matter of public record”
since the information on the website will not be considered for the purpose of deciding
Defendants’ motion.
Accordingly, the Court declines to convert Defendant’s motion into a motion for
summary judgment and will apply the standard of review for reviewing a motion for judgment
on the pleadings.
IV. Facts
On August 29, 2007, Plaintiff signed a promissory note (“Note”) in the amount of
$139,000.00 payable to Countrywide Bank, FSB.

Plaintiff secured the Note by signing a

mortgage dated August 29, 2007 (“Mortgage”) secured by the property located at 9248
Lakewood Drive, N.E., Mineral City, Ohio (the “Property”). Countrywide Bank, FSB then
transferred its ownership of the Note to Defendant Fannie Mae. Defendant Bank of America is
the servicer of Plaintiff’s Note and Mortgage.
On May 8, 2012, Plaintiff, through counsel, mailed a letter to Defendant BANA. BANA
received the letter on May 10, 2012. The letter requested the following information:
1. The name, address, and telephone number of the owner of my client’s
note, plus name of the master servicer of the note.
2. The date that the current note holder acquired this mortgage note, and
from whom it was acquired from.
3. The date your firm began servicing the loan.
4. A complete payment history of how payments and charges were
applied, including the amounts applied to principal, interest, escrow, and other
charges.
5. The current interest rate on this loan and an accounting of any
adjustments.
6. A statement of the amount necessary to reinstate this loan.
7. A complete copy of the loan closing documents, including a copy of the
note and mortgage.
8. A copy of all appraisals, property inspections, and risk assessments
completed for this account.
Doc. 1-1 at 1. The letter states the reason Plaintiff believes the account to be in error as “the fees
charged to this account are in excess of those allowed under the mortgage or note and should be
removed.” Doc. 1-1 at 2. The letter cost Plaintiff $64.60 for drafting and $6.20 in postage to
mail.
BANA responded to Plaintiff’s letter on June 4, 2012 providing the name, address, and
telephone number for the Note’s owner, Defendant Fannie Mae, but stated additional time would

be required to respond to Plaintiff’s remaining requests. On July 23, 2012, BANA sent a second
response to the letter (the “July response”). Kolano claims BANA’s July response is deficient.
A. Plaintiff’s claim against Defendant Bank of America, N.A. for violating 12
U.S.C §2605(e)
The Real Estate Settlement Procedures Act, 12 U.S.C. § 2601, et seq., (“RESPA”) is a
consumer protection statute that regulates, inter alia, the servicing of real estate loans. 12 U.S.C.
§ 2601(a), (b); Empire Title Services, Inc. v. Fifth Third Mortg. Co., 2013 WL 1337629, *4
(N.D. Ohio Mar 29, 2013); Augenstein v. Coldwell Banker Real Estate, LLC, 2011 WL 3837096,
*3 (S.D. Ohio Aug 30, 2011). Plaintiff claims that Defendant Bank of America, N.A. failed to
properly respond to her letter, thereby violating 12 U.S.C. § 2605.
Under 12 U.S.C. § 2605 a borrower may request information related to the servicing of
her loan by submitting a “qualified written request” (“QWR”) to the loan servicer. A QWR is
defined as:
a written correspondence, other than notice on a payment coupon or other
payment medium supplied by the servicer, that-(i) includes, or otherwise enables the servicer to identify, the name and
account of the borrower; and
(ii) includes a statement of the reasons for the belief of the borrower, to
the extent applicable, that the account is in error or provides sufficient detail to
the servicer regarding other information sought by the borrower.
12 U.S.C. § 2605(e)(1)(B). Section 2605(e)(2) sets forth the ways in which a loan servicer must
then respond to the QWR. The loan servicer may:
(A) make appropriate corrections in the account of the borrower, including the
crediting of any late charges or penalties, and transmit to the borrower a written
notification of such correction (which shall include the name and telephone
number of a representative of the servicer who can provide assistance to the
borrower);

(B) after conducting an investigation, provide the borrower with a written
explanation or clarification that includes-(i) to the extent applicable, a statement of the reasons for which the
servicer believes the account of the borrower is correct as determined by the
servicer; and
(ii) the name and telephone number of an individual employed by, or the
office or department of, the servicer who can provide assistance to the borrower;
or
(C) after conducting an investigation, provide the borrower with a written
explanation or clarification that includes-(i) information requested by the borrower or an explanation of why the
information requested is unavailable or cannot be obtained by the servicer; and
(ii) the name and telephone number of an individual employed by, or the
office or department of, the servicer who can provide assistance to the borrower.
12 U.S.C. § 2605(e)(2). Thus, BANA had three ways to respond to Kolano’s QWR: 1) make
corrections to Kolano’s account and inform her in writing of the correction; 2) investigate
Kolano’s request and provide written explanation that includes the reasons the BANA believes
that the account is correct; or 3) investigate the matter and provide a written response to Kolano
setting forth the reasons BANA could not obtain the information she requested. In each response,
BANA is required to provide the contact information of a representative who could provide
further assistance.
Here, Kolano mailed a self-titled “QWR” letter to BANA on May 8, 2012. BANA
initially responded to Kolano’s letter on June 4, 2012, and followed up on July 20, 2012. Kolano
alleges that BANA failed to comply with the requirements of 12 U.S.C. § 2605(e)(2). Doc. 7 at
9. However, Kolano does not state the manner in which BANA failed to comply with §
2605(e)(2) in either her brief in opposition or in her Complaint. Id.; Doc. 1 at 5.
BANA’s July response to Kolano’s QWR included 1) a payment history listing the
transactions for Kolano’s loan; 2) a listing of the fees that had been charged against her account

but not reflected in the payment history; 3) copies of the Mortgage, Note, Truth in Lending
Disclosure Statement(s), Uniform Residential Loan Application, Good Faith Estimate(s), Notices
of Right to Cancel, Appraisal Report, and Settlement Statement; 4) the name, address, and
contact phone number for the servicer of the loan; 5) the interest rate of the loan; 6) verification
of debt; the name, address, and contact phone number for the owner of the note; and 7) name,
address, and contact phone number of a representative who could provide further assistance.
Additionally, this response states that Kolano’s QWR letter seeks information beyond that which
is available under 12 U.S.C. § 2605, explains that BANA had ordered a reinstatement calculation
and would provide same under separate cover, explains why the original Note was not being
provided, and explains that BANA had ordered a payoff demand statement and would provide
same under separate cover.
BANA has demonstrated that Kolano requested a substantial amount of information,
some of which goes beyond the scope of 12 U.S.C. § 2605. BANA has also demonstrated that it
responded to Kolano’s QWR in writing and provided her with a substantial amount of
information. When pleading her cause of action, Kolano engages in the very type of vague and
general pleading that Twombly seeks to prevent. See Doc. 1 at para. 29-34. In her response,
Kolano again fails to point to any facts that would “raise a right to relief above the speculative
level on the assumption that all the allegations in the complaint are true.” Twombly, 550 U.S. at
555. Because Kolano merely relies on a general and broad recitation of the statutory language,
she has failed to sufficiently plead her claim that BANA violated 12 U.S.C. § 2605.

Id.

(Although a complaint need not contain “detailed factual allegations,” it does require more than
“labels and conclusions” or “a formulaic recitation of the elements of a cause of action.”).

Accordingly, Plaintiff Kolano’s claim against Bank of America, N.A. for violations of 12
U.S.C. § 2605 is hereby dismissed.
B. Plaintiff’s claim against Defendants Bank of America, N.A. and Fannie Mae for
violating 15 U.S.C. § 1601 et seq. (TILA)
The Truth in Lending Act, 15 U.S.C. § 1601, et seq., (“TILA”) has several purposes: “to
assure a meaningful disclosure of credit terms so that the consumer will be able to compare more
readily the various credit terms available to him and avoid the uninformed use of credit, and to
protect the consumer against inaccurate and unfair credit billing and credit card practices.” Beach
v. Ocwen Fed. Bank, 523 U.S. 410, 412 (1998) (quoting 15 U.S.C. § 1601(a)). The statute thus
requires creditors/owners to “provide borrowers with clear and accurate disclosures of terms
dealing with things like finance charges, annual percentage rates of interest, and the borrower’s
rights.” Id. Given its purpose, the Sixth Circuit has “repeatedly stated that TILA is a remedial
statute and, therefore, should be given a broad, liberal construction in favor of the consumer.”
Marais v. Chase Home Finance LLC, 736 F.3d 711, 714 (6th Cir. 2013); Begala v. PNC Bank,
Ohio, Nat’l Ass’n, 163 F.3d 948, 950 (6th Cir. 1998). By its terms, TILA provides for an action
for damages against “any creditor who fails to comply with any requirement imposed under” its
parts. 15 U.S.C. § 1640(a). Kolano bases her TILA claim on 15 U.S.C. § 1641(f)(2).
1. BANA is not liable under 15 U.S.C. § 1641(f)(2).
Kolano argues that BANA is liable as a servicer under 15 U.S.C. § 1641(f)(2). This issue
was recently decided in by the Sixth Circuit in Marais. There the court held “TILA expressly
exempts servicers from liability unless the servicer was also a creditor or a creditor’s assignee.”
Marais, 736 F.3d at 719. Kolano only alleges that BANA was a servicer of the loan, therefore

BANA cannot be liable for violating 15 U.S.C. § 1641(f)(2). Accordingly, Kolano’s claim
against Bank of America, N.A. for violating 15 U.S.C. § 1641(f)(2) is hereby dismissed.
2. Fannie Mae may be held vicariously liable under 15 U.S.C. § 1641 for BANA’s
deficient response to Kolano’s QWR letter.
15 U.S.C. § 1641(f)(2) provides that “[u]pon written request by the obligor, the servicer
shall provide the obligor, to the best knowledge of the servicer, with the name, address, and
telephone number of the owner of the obligation or the master servicer of the obligation.”
Kolano argues that BANA failed to provide the requested information for the “master servicer.”
Fannie Mae defends Kolano’s claim by arguing that a mortgage owner may not be held
vicariously liable for a mortgage servicer’s failure to comply with 15 U.S.C. § 1641(f).
Fannie Mae’s argument fails. A mortgage owner may be held vicariously liable for a
servicer’s failure to comply with 15 U.S.C. § 1641(f). See Marais, 736 F.3d at 716-17; Kissinger
v. Wells Fargo Bank, N.A., 888 F.Supp.2d 1309, 1315 (S.D. Fla. Aug 30, 2012). In Kissinger,
the court stated:
Because TILA does not impose liability upon a servicer who is not an owner or
assignee of a note, the private right of action that Section 1640(a) creates would
be meaningless, unless agency principles permit a creditor to be held liable for
Section 1641(f)(2) violations committed by its servicer. To avoid rendering
Section 1640(a) superfluous, this Court concludes that agency principles apply,
and creditors may be held vicariously liable for the Section 1641(f)(2) violations
of their servicers.... This conclusion gives force to the disclosure provision in
Section 1641(f)(2) and comports with the intent of TILA to be remedial in nature
... and ... [to] be construed liberally in order to best serve Congress’s intent.
888 F.Supp.2d at 1315 (citation omitted). Likewise, the Sixth Circuit in Marais found that a
servicer of loan could not be liable to the debtor under TILA, for any failure to provide the
debtor with identity of the creditor, because TILA only imposes liability on creditors. 736 F.3d at
718-19. To find that vicarious liability does not apply to Fannie Mae would render § 1640(a)
meaningless. See Marais, 736 F.3d at 716 (citation omitted).

Fannie Mae also argues that Kolano has failed to plead a substantive violation of 15
U.S.C. § 1641(f). BANA’s July response identified itself as the servicer of the loan and stated
that it has been the servicer of the loan since the inception of the loan. Kolano suggests that
because BANA failed to identify itself as the “master servicer,” this identification was deficient
under the statute. Citing to Kissinger v. Wells Fargo Bank, N.A., 2013 WL 360027 (S.D.Fla. Jan
30, 2013) (“Kissinger II”), Fannie Mae argues that the fact that BANA does not use the words
“master servicer” is immaterial since BANA stated that it had been the servicer of Kolano’s loan
since the Loan’s inception.. The Kissinger II court concluded on summary judgment that “as a
matter of law, [ ] it is not necessary that the response to a creditor’s inquiry explicitly state that a
servicer is the master servicer where adequate information is provided to the creditor for the
creditor to make that determination.” 2013 WL 360037, *4. Previously, however, the same court
found that whether a loan servicer’s response to a borrower’s inquiry provided the borrower with
sufficient information to conclude that servicer was the loan’s “master servicer” is not a matter to
be decided on a motion to dismiss. Kissinger, 888 F.Supp.2d at 1312.
This Court agrees with the analysis in Kissinger and finds that whether BANA’s response
to Kolano’s QWR provided the Kolano with sufficient information to conclude that BANA was
her loan’s “master servicer” is not a matter to be decided on a motion to dismiss.
Fannie Mae’s motion for judgment on the pleadings as to Plaintiff Kolano’s claim for
violation of 15 U.S.C. § 1641(f) is DENIED.
V. Conclusion
For the foregoing reasons, Defendants motion for judgment on the pleadings is DENIED
IN PART and GRANTED IN PART. Plaintiff Kolano’s claim against Bank of America, N.A. for
violations of 12 U.S.C. § 2605 is hereby dismissed. Plaintiff Kolano’s claim against Bank of

America, N.A. for violation of 15 U.S.C. § 1641(f) is dismissed. Plaintiff’s claim against Fannie
Mae claim for violation of 15 U.S.C. § 1641(f) is the sole remaining claim.
IT IS SO ORDERED.
March 19, 2014

/s/ John R. Adams____________________
JUDGE JOHN R. ADAMS
UNITED STATES DISTRICT COURT