Smith v. AmeriHome Mortgage Corporation

Filing 11

ORDER granting 8 Motion to Dismiss for Failure to State a Claim. Signed by Judge George C Smith on 11/26/12. (lvw1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARY E. SMITH,
Plaintiff,
Case No. 2:12-cv-556
JUDGE SMITH
Magistrate Judge Deavers

v.

AMERIHOME MORTGAGE
CORPORATION,
Defendant.

OPINION AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss the Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 8). This motion is fully briefed and
ripe for disposition. For the reasons that follow, the Court GRANTS Defendant’s Motion to
Dismiss.
I.

Background
In August 2008, Plaintiff Mary E. Smith executed a promissory note to Liberty Mortgage

Company, Inc., in the amount of $86,782 (the “promissory note”). The note was secured by a
mortgage on property located in Columbus, Ohio. Defendant Amerihome Mortgage Corporation
is the current holder of the promissory note and the related mortgage.
In July 2010, Defendant filed a foreclosure action in the Common Pleas Court of Franklin
County, Ohio, asserting that Plaintiff was in default for nonpayment on the promissory note. In
February 2012, Defendant voluntarily dismissed the state court foreclosure action pursuant to
Ohio Rule of Civil Procedure 41(A)(1), leaving no state court foreclosure proceeding pending

between the parties.
In June 2012, pro se Plaintiff initiated this action against Defendant. To the extent it can
be discerned from the Complaint, Plaintiff asserts that Defendant engaged in improper conduct
in connection with the state court foreclosure proceeding initiated against her by Defendant.
More particularly, Plaintiff alleges that Defendant did not follow requirements established by the
Secretary of Housing and Urban Development (“HUD”), for loans insured under the Federal
Housing Administration’s (“FHA”) Single Family Insured Loan program, when it initiated the
foreclosure action against her, and that it committed fraud when it removed the FHA loan
number from the loan papers to conceal the nature of the loan from the court. Plaintiff also
asserts that she was charged various fees, required to make an additional payment toward her
homeowner insurance policy, and that Defendant was dilatory in its communications with her.
Lastly, Plaintiff alleges that her credit report has been negatively effected, suggesting that
Plaintiff’s actions caused this circumstance.
In August 2012, Defendant moved to dismiss for failure to state a claim upon which
relief can be granted. See Fed. R. Civ. P. 12(b)(6). Defendant’s Motion to Dismiss has been
fully briefed and is ripe for review.
II.

Standard of Review
Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a lawsuit for “failure to

state a claim upon which relief can be granted.” A Rule 12(b)(6) motion to dismiss is directed
solely to the complaint and any exhibits attached to it. Roth Steel Prods. v. Sharon Steel Corp.,
705 F.2d 134, 155 (6th Cir. 1983). The merits of the claims set forth in the complaint are not at
issue on a motion to dismiss for failure to state a claim. Consequently, a complaint will be

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dismissed pursuant to Rule 12(b)(6) only if there is no law to support the claims made, or if the
facts alleged are insufficient to state a claim, or if on the face of the complaint there is an
insurmountable bar to relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir.
1978). Rule 12(b)(6) must be read in conjunction with Rule 8(a) of the Federal Rules of Civil
Procedure, which requires the complaint to contain a “short and plain statement of the claim
showing that the pleader is entitled to relief[.]”
A court, in considering a 12(b)(6) motion to dismiss, must “construe the complaint in the
light most favorable to the plaintiff,” accepting as true all the plaintiff’s factual allegations.
Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). Although in this context all of the
factual allegations in the complaint are taken as true, a court is “not bound to accept as true a
legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). Consequently, “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
Furthermore, to survive dismissal pursuant to Rule 12(b)(6), a claim must contain
sufficient factual matter to “state a claim to relief that is plausible on its face.” Twombly, at 570.
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, at
1950. While 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.” Twombly, at 555. “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has alleged
– but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’ ” Iqbal, at 1950 (quoting Fed.

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R. Civ. P. 8(a)(2)). In the final analysis, the task of determining plausibility is “context-specific
[and] requires the reviewing court to draw on its judicial experience and common sense.” Id.
III.

Discussion
Construing the Complaint liberally,1 Plaintiff alleges that Defendant failed to comply

with requirements set forth by HUD for loans insured under the FHA’s Single Family Insured
Loan Program in connection with the foreclosing proceeding. But this allegation is unavailing as
it is well-accepted law that, while a mortgagee’s noncompliance with HUD servicing
requirements can be an affirmative defense to foreclosure, no private right of action exists under
the HUD regulations. See Federal National Mortgage Ass’n v. LeCrone, 868 F.2d 190, 193 (6th
Cir. 1989); Wells Fargo Bank, NA v. Favino, No. 10–cv–571, 2011 WL 1256771 (N.D. Ohio
2011). That is, “no express or implied right of action in favor of the mortgagor exists for
violation of HUD mortgage servicing policies”. Id. Therefore, there is no private right of action
that may be brought by Plaintiff for Defendant’s alleged noncompliance with HUD regulations
governing foreclosure of federal insured mortgages.
Plaintiff alleges that Defendant committed fraud by “removing the FHA loan number
from [her] loan papers so the courts would not know it was [an] FHA loan.” (Compl. ¶ 1).
Under Ohio law, in order to prevail on a theory of fraud, a plaintiff must prove the following
elements: (1) a representation of fact or, where there is a duty to disclose, a concealment; (2)
which is material to the transaction; (3) made with knowledge of its falsity or with such utter
disregard and recklessness that knowledge of its falsity may be inferred; (4) with the intent to
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Because Plaintiff is proceeding pro se, this Court must construe her allegations liberally
and apply a less stringent standard to those pleadings than to a complaint drafted by counsel.
Burrell v. Henderson, 483 F. Supp.2d 595, 599–600 (S.D. Ohio 2007). However, a court does
not need to accept as true “legal conclusions or unwarranted factual inferences.” Id. at 600.
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mislead another in relying on it; (5) justifiable reliance; and (6) injury proximately caused by the
reliance. Williams v. Aetna Fin. Co., 700 N.E.2d 859, 868 (Ohio 1998). A party cannot maintain
an action for fraud when the fraudulent representations or concealments were not made to induce
the plaintiff to act. Wells v. Cook, 16 Ohio St. 67, syllabus (1865). Consequently, a plaintiff
fails to state a valid cause of action for fraud when she alleges harm due to a misrepresentation
or concealment directed at another. Moses v. Sterling Commerce America, Inc., 2002-Ohio-4327
(Ohio Ct. App. Aug. 15, 2002).
Here, Plaintiff alleges that Defendant attempted to mislead the foreclosure court, but she
does not allege that Defendant intended to mislead her, or that she justifiably relied upon any
misrepresentation or concealment to her detriment. Thus, even if Defendant filed documents
with the intent to mislead, which Defendant denies, the intent to mislead would have been
directed at the court, not Plaintiff. Accordingly, even accepting Plaintiff’s allegations as true,
she does not present a viable claim of fraud under Ohio law.
Plaintiff also vaguely alleges that Defendant’s improper actions have damaged her ability
to obtain credit at lower interest rates. However, Plaintiff fails to state a valid claim under the
Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. Under the FCRA, “furnishers of
credit information” must “report accurate information to consumer reporting agencies regarding
a consumer’s credit.” Bach v. First Union Nat’l Bank, 149 F. App’x 354, 358 (6th Cir. 2005)
(citing 15 U.S.C. § 1681s–2(a)(1)(A)). If a consumer disputes the accuracy of information
furnished to a credit reporting agency, the furnisher is obligated to investigate the dispute and
correct any inaccuracies discovered. Id. (citing 15 U.S.C. § 1681s–2(b)(1)(A)-(D)). A plaintiff
alleging violations of § 1681s–2(b) may bring a private cause of action to enforce his rights

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against the furnisher, id., but only if the plaintiff can “show that the furnisher received notice
from a consumer reporting agency, not the plaintiff, that the credit information is disputed.”
Downs v. Clayton Homes, Inc., 88 F. App’x 851, 853–54 (6th Cir. 2004) (citing Young v.
Equifax Credit Info. Servs., Inc., 294 F.3d 631, 639–40 (5th Cir. 2002)).
In this matter, Plaintiff has not pleaded that she disputed the accuracy of information
reported to a consumer reporting agency, or that Defendant received notice from a consumer
reporting agency that credit information furnished to the consumer reporting agency regarding
her is disputed. Therefore, Plaintiff fails to plead all necessary elements of an FCRA claim, and
this claim must be dismissed.
Finally, Plaintiff asserts that Defendant was dilatory in its communications, charged her
late fees and attorney fees, and required her to make an extra insurance payment. Presumably,
these fee and payment requirements were related to Defendant’s position that she had defaulted
under the terms of the mortgage loan agreement. Nonetheless, Plaintiff fails to present a
cognizable claim. For this reason, these assertions are inadequate to state a claim upon which
relief can be granted.
IV.

Conclusion
For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss the

Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 8).
The Clerk shall remove Document 8 from the Court’s pending motions list.

The Clerk shall remove this case from the Court’s pending cases list.
IT IS SO ORDERED.

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s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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