Ryan et al v. Romo et al

Filing 64

ORDER denying 32 Motion to Strike; granting 61 Motion to Strike; granting 29 Motion to Dismiss for Failure to State a Claim; granting 30 Motion to Dismiss for Lack of Jurisdiction; granting 30 Motion to Dismiss for Failure to State a Claim; denying 31 Motion to Strike. Signed by Judge Algenon L. Marbley on 3/17/2015. (cw1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES M. RYAN, et al.,
Plaintiffs,
vs.
PEDRO ROMO, et al.,
Defendants.

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Case No. 2:14-CV-38
JUDGE ALGENON L. MARBLEY
Magistrate Judge Norah McCann King

OPINION & ORDER
I. INTRODUCTION
This matter is before the Court on Defendant Wells Fargo Bank, N.A.’s (“Wells Fargo”)
Motion to Dismiss (Doc. 29), Defendant Pedro Romo’s (“Romo”) Motion to Dismiss (Doc. 30),
Mr. and Mrs. Romo’s (“Plaintiffs”) Motions to Strike (Docs. 31-32), and Defendant Wells Fargo
and Romo’s Motion to Strike (Doc. 61). Plaintiffs sue Wells Fargo, Romo, and the Secretary of
Housing and Urban Development (“HUD”) (“Defendants”) alleging defamation, civil
conspiracy, breach of contract, age discrimination by elder abuse, fraud, tortious interference,
and a violation of the Fair Debt Collection Practices Act (“FDCPA”). Plaintiffs also seek a
declaratory judgment that Plaintiffs use the property at issue as their primary residence. Wells
Fargo moves to dismiss for failure to state a claim. (Doc. 29). Romo moves to dismiss for lack
of jurisdiction. (Doc. 30). Plaintiffs move to strike those motions. (Docs. 31, 32). Defendants
Wells Fargo and Romo move to strike additional briefing filed by Plaintiffs. (Doc. 61). For the
following reasons, Wells Fargo’s Motion (Doc. 29) is GRANTED, and all claims against Wells
Fargo are hereby DISMISSED. Romo’s Motion (Doc. 30) is GRANTED, and all claims
against Romo are DISMISSED. Plaintiffs’ Motion to Strike (Docs. 31, 32) is DENIED.

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Defendants’ Motion to Strike (Doc. 61) is GRANTED, so Plaintiffs’ additional briefing (Docs.
56-59) is STRICKEN.
II. BACKGROUND
A. Factual Background
Pro se plaintiffs, James Ryan and Carolyn Ryan, are individuals who own the property in
question, located at 3165 Dale Avenue in Columbus, Ohio (the “Property”). Defendant, Pedro
Romo, lives in South Carolina and works for Wells Fargo. Defendant, Wells Fargo, is a South
Dakota corporation and is the original creditor for a mortgage taken by Plaintiffs. Defendant
Shaun Donovan is the Secretary of HUD and resides in Washington, DC.
Wells Fargo entered into a mortgage contract (the “First Mortgage”) with Plaintiffs for
the Property in December 2008. HUD served as the government insurer for the First Mortgage.
That same month, the Secretary of HUD entered into a second mortgage contract (the “Second
Mortgage”) with Plaintiffs for the Property. Both mortgages include a condition that the lenders
can require payment in full if the Plaintiffs cease to use the Property as their principal residence.
Defendant Romo, on behalf of Wells Fargo, sent a letter to Plaintiffs on September 6, 2013 (the
“September Letter”), which stated that “we were recently notified that you are not currently
residing in the property.” (Doc. 28 at 63). The September Letter was printed on Wells Fargo’s
letterhead, and it included a return address to Wells Fargo and contact information for Wells
Fargo. The September Letter informed the Plaintiffs that “[w]hen you no longer occupy the
above property as your primary residence and are unable to reoccupy this property, your reverse
mortgage loan becomes due and payable.” The September Letter also requested that the
Plaintiffs complete the enclosed form, which would inform Wells Fargo whether the Plaintiffs
intend to reoccupy or sell the Property. Plaintiffs do not suggest that they filled out or returned

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this form to Wells Fargo.
Wells Fargo sent another communication on November 8, 2013, which requested that the
Plaintiffs fill out the enclosed occupancy verification form. This form was meant to verify
Plaintiffs’ primary residence. The Plaintiffs filled out the occupancy verification form, signed it
on November 21, 2013, and mailed it to Wells Fargo. That form was delivered on December 2,
2013. Plaintiffs stated on the form that they use the Property as their primary residence. Romo,
on behalf of Wells Fargo, sent a letter (the “December Letter”) to Plaintiffs on December 17,
2013, stating that Plaintiff’s mortgage was due in full because “we have learned about a change
in your residency status for the property.” The December Letter was printed on Wells Fargo’s
letterhead, and it included a return address to Wells Fargo and contact information for Wells
Fargo. The December Letter explained that as provided under the terms of the mortgage, Wells
Fargo now requests that the mortgage balance be paid in full immediately. In the December
Letter, Wells Fargo requests “[a] letter of intent indicating plans for the property and repayment
of this reverse mortgage.” (Doc. 28 at 35). The December Letter also requests, “[p]lease contact
us as soon as possible to discuss your options.” (Id. at 38). Plaintiffs do not suggest that they
contacted Wells Fargo after receipt of this December Letter.
Plaintiffs allege that the December Letter constitutes a notice of acceleration that
breaches the terms of the Second Mortgage. (Id. at ¶ 67). But the plain language of the
December Letter only references the First Mortgage, which Plaintiffs had with Wells Fargo. (Id.
at 35-38). Plaintiffs also allege that Wells Fargo is merely a debt collector for the First
Mortgage, which is owned by HUD. (Id. at ¶ 78). But the note itself and the December Letter
demonstrate that Wells Fargo is the creditor and HUD merely serves as the government insurer
of the loan.

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B. Procedural Background
In January 2014, Plaintiffs filed a Complaint (Doc. 1) in this Court. With leave of the
Court, on June 30, 2014, each Plaintiff filed identical amended complaints (Docs. 27, 28).1 The
Clerk electronically filed the amended complaints on June 30, 2014, which resulted in electronic
service of the file-stamped amended complaints upon defendants through counsel. Neither Wells
Fargo nor Romo challenged the sufficiency of this service. Wells Fargo filed a Motion to
Dismiss for Failure to State a Claim fourteen days later, on July 14, 2014. (Doc. 29). Romo
filed a Motion to Dismiss for Lack of Jurisdiction on the same date. (Doc. 30). Plaintiffs filed
Motions to Strike on July 29, 2014. Plaintiffs argued that Defendants’ motions to dismiss were
premature because Plaintiffs had not yet served either defendant with the amended complaint.
(Docs. 31, 32). Plaintiffs filed responses to Wells Fargo’s Motion to Dismiss for Failure to State
a Claim on August 25, 2014. (Docs. 39, 40). Plaintiffs filed responses to Romo’s Motion to
Dismiss for Lack of Jurisdiction on September 2, 2014. (Docs. 42, 43). Wells Fargo timely
replied. (Doc. 44). Romo timely replied. (Doc. 45). At this point, the motions were fully
briefed.
Plaintiffs served hard copies of their amended complaints on Wells Fargo and Romo in
October 2014. (Docs. 50, 51). Wells Fargo and Romo filed a response to that service in
November 2014, which stated that they had already moved to dismiss the amended complaint
and stated those motions were fully briefed. (Doc. 54). Plaintiffs filed additional briefing for
Wells Fargo’s Motion to Dismiss for Failure to State a Claim in December 2014. (Docs. 56, 57).
Plaintiffs also filed additional briefing for Romo’s Motion to Dismiss for Lack of Jurisdiction in
December 2014. (Docs. 58, 59). Wells Fargo and Romo filed a Motion to Strike Plaintiffs’

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Throughout the case, Plaintiffs have each filed an individual brief and motion, even though the filings are identical.
For consistency, this Court will refer only to the latter filing when citing Plaintiffs’ filings.

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additional responses (Docs. 56-59) because the motions had already been fully briefed and
Plaintiffs did not seek leave of the Court to file additional briefing. (Doc. 61). Plaintiffs filed
responses to that Motion to Strike. (Docs. 62, 63).
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) allows for a case to be dismissed for “failure to
state a claim upon which relief can be granted.” Such a motion “is a test of the plaintiff's cause
of action as stated in the complaint, not a challenge to the plaintiff's factual allegations.” Golden
v. City of Columbus, 404 F.3d 950, 958–59 (6th Cir.2005). Thus, a court must construe the
complaint in the light most favorable to the non-moving party. Total Benefits Planning Agency,
Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir.2008). But a court is not
required to accept as true mere legal conclusions unsupported by factual allegations. Ashcroft v.
Iqbal, 556 U.S. 662, 664 (2009). Although liberal, Rule 12(b)(6) requires more than bare
assertions of legal conclusions. Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir.1993) (citation
omitted). Generally, a complaint must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint must “give the
defendant fair notice of what the claim is, and the grounds upon which it rests.” Nader v.
Blackwell, 545 F.3d 459, 470 (6th Cir.2008) (quoting Erickson v. Pardus, 551 U.S. 89, 93
(2007)). In short, a complaint's factual allegations “must be enough to raise a right to relief
above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). It must
contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. But not
all pled facts must be taken as true, because “when a written instrument contradicts allegations in
the complaint to which it is attached, the exhibit trumps the allegations.” Creelgroup, Inc. v.
NGS Am., Inc., 518 F. App'x 343, 347 (6th Cir. 2013) (quoting Williams v. CitiMortgage, Inc.,

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498 Fed.Appx. 532, 536 (6th Cir.2012)).
A plaintiff bears the burden of establishing that personal jurisdiction over a defendant
exists. Air Prods. & Controls, Inc. v. Safetech Int'l, Inc., 503 F.3d 544, 549 (6th Cir. 2007)
(citing Serras v. First Tenn. Bank Nat'l Ass'n, 875 F.2d 1212, 1214 (6th Cir. 1989)). Where, as
here, “the district court relies solely on written submissions and affidavits to resolve a Rule
12(b)(2) motion, rather than resolving the motion after either an evidentiary hearing or limited
discovery, the burden on the plaintiff is ‘relatively slight,’ and ‘the plaintiff must make only a
prima facie showing that personal jurisdiction exists in order to defeat dismissal.’” Id. (quoting
Am. Greetings Corp. v. Cohn, 839 F.2d 1164, 1169 (6th Cir. 1988); Theunissen v. Matthews, 935
F.2d 1454, 1458 (6th Cir. 1991)). Plaintiff can make this showing by “ ‘establishing with
reasonable particularity sufficient contacts between [the defendants] and the forum state to
support jurisdiction.’ ” Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir.
2002) (quoting Provident Nat'l Bank v. California Savings Loan Ass'n, 819 F.2d 434, 437 (3d
Cir. 1987)). In deciding a Rule 12(b)(2) motion, the Court “construe[s] the facts in the light most
favorable to the non-moving party,” and “does not weigh the controverting assertions of the party
seeking dismissal.” CompuServe Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996) (emphasis
in original) (citing Theunissen, 935 F.2d at 1459).
IV. LAW AND ANALYSIS
A. Preliminary Motions to Strike
1. Plaintiff’s Motion to Strike
Plaintiffs argue that Wells Fargo’s and Romo’s motions to dismiss were premature
because Plaintiffs had not yet served Defendants with their amended complaint. (Docs. 31, 32).
The Court disagrees.

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Plaintiffs contend that the Motion was preemptive because Plaintiffs had not yet served
Defendants with the Amended Complaint. (Doc. 31 at 1). Plaintiffs concede that the Clerk filed
the Amended Complaint via the electronic filing system on June 30, 2014. (Id. at 2).
Defendants Wells Fargo and Romo filed their motions to dismiss fourteen days after electronic
filing, on July 14, 2014. (Doc. 29, 30). Plaintiff alleges that service to the defendants by means
of the Clerk’s electronic filing is inapplicable because Plaintiff is “not a part of the Court’s e-file
system.” (Doc. 31 at 2).
Plaintiffs’ argument is unpersuasive. Plaintiffs ask the Court to strike Defendants’
motions because Plaintiffs failed to complete mail service in a timely manner. Granting this
request would reward Plaintiff’s failure to serve defendants hard copies of the amended
complaint even though Defendants already received service through the electronic filing system.
Plaintiffs’ Motions to Strike (Docs. 31, 32) are DENIED.
2. Wells Fargo and Romo’s Motion to Strike
After the motions to dismiss were fully briefed, Plaintiffs filed additional briefing in
opposition of the motions. (Docs. 56-59). Defendants Wells Fargo and Romo filed a motion to
strike Plaintiffs’ additional responses because the motions had already been fully briefed and
Plaintiffs did not seek leave of the Court to file additional briefing. (Doc. 61).
Plaintiffs served hard copies of their amended complaints on Wells Fargo and Romo in
October 2014 (Docs. 50, 51) even though the Clerk had electronically filed that amended
complaint in June 2014. Defendants never contested the earlier electronic service. Wells Fargo
and Romo filed a response to that service in November 2014, which stated that they had already
moved to dismiss the amended complaint and stated those motions were fully briefed. (Doc. 54).
Plaintiffs filed additional briefing for Wells Fargo’s Motion to Dismiss for Failure to State a

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Claim in December 2014. (Docs. 56, 57).
Plaintiffs argue that their briefing in opposition of the motions should not be stricken
because the motions to dismiss were not properly before the Court until that time. The
Defendants state that the earlier electronic service was adequate and argue that the Court should
not allow additional briefing just because the Plaintiffs re-served Defendants. This Court agrees,
and Defendants’ motion to strike (Doc. 61) is GRANTED. The Court will strike Plaintiffs’
additional briefing (Docs. 56-59) and will not consider those filings in its analysis of the motions
to dismiss.
B. Wells Fargo’s Motion to Dismiss for Failure to State a Claim
1. Motion to Dismiss the First Cause of Action
a. Defamation
Wells Fargo seeks to dismiss Plaintiffs’ defamation claim because Plaintiffs did not plead
facts to suggest that a defamatory statement was published to a third party and because the
statement is not defamatory. Plaintiffs do not respond directly to this argument, but they state
that Wells Fargo needed permission from the Secretary of HUD to accelerate the mortgage,
which suggests that the statement must have been published to HUD. The Court finds that the
statement that Plaintiffs do not reside at the Property is not defamatory under Ohio law.
A defamation claim in Ohio requires: “(a) a false and defamatory statement concerning
another; (b) an unprivileged publication to a third party; (c) fault amounting at least to
negligence on the part of the publisher; and (d) either actionability of the statement irrespective
of special harm or the existence of special harm caused by the publication.” Harris v. Bornhorst,
513 F.3d 503, 522 (6th Cir. 2008) (quoting Akron–Canton Waste Oil, Inc. v. Safety–Kleen Oil
Serv., Inc., 611 N.E.2d 955, 962 (Ohio Ct.App.1992)). A defamatory statement is “a false

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statement ‘made with some degree of fault, reflecting injuriously on a person's reputation, or
exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person
adversely in his or her trade, business or profession.’ ” Jackson v. Columbus, 117 Ohio St. 3d
328, 331, 883 N.E.2d 1060, 1064 (2008) (quoting A & B–Abell Elevator Co. v. Columbus/Cent.
Ohio Bldg. & Const. Trades Council, 73 Ohio St.3d 1, 7, 651 N.E.2d 1283 (1995)). A
defamatory statement will be found when a plaintiff pleads that a defendant made disclosures to
“various debt collectors, Credit Reporting Agencies, and [] publicly filing foreclosure.” Ponder
v. Bank of Am., N.A., 2011 WL 8307207, at *6 (S.D. Ohio Mar. 8, 2011).
In the case sub judice, Plaintiffs assert that the false statement is that the Plaintiffs no
longer lived in the Property as their primary residence. (Doc. 28 at ¶ 29). But that statement is
not a defamatory one under Ohio law. It does not injure Plaintiffs’ reputation, expose Plaintiffs
to public shame, or adversely affect Plaintiffs’ profession. Here, Plaintiffs suggest that it caused
injury because Wells Fargo made the statement to the Secretary of HUD, and then HUD gave
approval to accelerate the mortgage. (Doc. 39 at 3). But that type of injury is not the type of
injury that is proper under Ohio’s defamation law. The type of publication that Plaintiffs pled
here are different than the facts in Ponder. There, the plaintiffs pled that the defendant publicly
filed a foreclosure on the plaintiff’s property. That public filing could injure a person’s
reputation, which is one of the requirements for a defamatory statement. But here, Plaintiffs
have not pled any facts to suggest that Defendants made any public filings. They only suggest
that Wells Fargo informed HUD of a change in address, which is not the type of statement that
Ohio’s defamation law criminalizes.
The statement is not defamatory as a matter of law, so the Court need not analyze
whether Plaintiffs pled the claim with adequate specificity. Wells Fargo’s motion to dismiss

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Plaintiffs’ defamation claim is GRANTED.
b. Civil Conspiracy
Wells Fargo seeks to dismiss Plaintiffs’ civil conspiracy claim because the complaint
merely alleges parallel conduct but not an agreement among any defendants, which is required
for a civil conspiracy claim under Ohio law. Plaintiffs argue that all parties knew that there was
a misrepresentation about Plaintiffs’ primary residence but do not address their lack of pleading
an agreement. The Court finds that Plaintiffs’ failure to plead facts about any agreement by
Defendants is fatal to the civil conspiracy claim.
Civil conspiracy in Ohio is “a malicious combination of two or more persons to injure
another in person or property, in a way not competent for one alone, resulting in actual
damages.” Roark v. Rydell, 174 Ohio App. 3d 186, 195, 881 N.E.2d 333, 340 (Ohio Ct.App.
2007) (quoting Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 419, 650 N.E.2d
863 (1995)). “A civil conspiracy claim cannot succeed without an underlying unlawful act.”
Roark, 881 N.E.2d at 340 (quoting Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 475, 700
N.E.2d 859, 868 (1998)). And a successful claim must allege “operative facts constituting an
agreement between [the conspirators].” Collins v. Nat'l City Bank, 2003-Ohio-6893, ¶ 30 (Ohio
Ct.App.); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57, 127 S. Ct. 1955, 1966, 167
L. Ed. 2d 929 (2007) (“an allegation of parallel conduct and a bare assertion of conspiracy will
not suffice. Without more, parallel conduct does not suggest conspiracy, and a conclusory
allegation of agreement at some unidentified point does not supply facts adequate to show
illegality”).
Plaintiffs have alleged no facts to suggest that any Defendants reached an agreement of
any kind. Plaintiffs alleged that defendants knew about the misrepresentation (that Plaintiffs did

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not use the Property as their primary residence) (Doc. 28 at ¶ 31), but they do not plead any facts
about any agreement to injure the Plaintiffs. Furthermore, Plaintiffs do not plead any
information about the context in which any alleged agreement was made. At most, the amended
complaint suggests that Romo and Wells Fargo informed HUD about Plaintiffs’ change of
residence and HUD accelerated the mortgage. (Doc. 28 at ¶ 33). But the conveyance of
information, even if defendants knew the information is false, does not constitute an agreement
between defendants and HUD. For this reason, the motion to dismiss the civil conspiracy claim
is GRANTED.
c. Breach of Contract
Wells Fargo contends that the breach of contract claim should be dismissed because
Plaintiffs have not identified any contract term that Wells Fargo violated and Plaintiffs have not
suffered damages. Plaintiffs respond that Wells Fargo breached the mortgage contract when it
declared Plaintiffs to be in default in the December Letter. The breach of contract claim fails
because Wells Fargo did not breach the contract by sending the December Letter and Plaintiffs
did not plead damages with adequate specificity.
A claim for breach of contract in Ohio “must show that a contract existed, the plaintiff
performed, the defendant breached, and the plaintiff suffered damages.” Pavlovich v. Nat'l City
Bank, 435 F.3d 560, 565 (6th Cir. 2006) (citing Wauseon Plaza Ltd. P'ship v. Wauseon
Hardware Co., 156 Ohio App.3d 575, 807 N.E.2d 953, 957 (Ohio Ct.App. 2004)); see also
Kincaid v. Erie Ins. Co., 2010-Ohio-6036, 128 Ohio St. 3d 322, 944 N.E.2d 207, 208 (where the
court affirmed the lower court’s interpretation of the elements of a breach of contract claim in
Ohio).

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Plaintiffs alleged that by sending the December Letter, HUD2 wrongfully commenced a
procedure to seize the Property, accelerate the mortgage, and demanded that the Plaintiffs pay
the mortgage in full or vacate the property. (Doc. 28 at ¶ 33). But they have not alleged that
Wells Fargo initiated any foreclosure or eviction action against Plaintiffs. Importantly, Plaintiffs
have not specified a term of the contract that Wells Fargo violated by sending the December
Letter. Further, the Court’s independent reading of the mortgage contract does not reveal any
term of the contract that Wells Fargo violated by sending the December Letter. (Doc 28 at 4250). Wells Fargo correctly points out that if Plaintiffs have used the Property as their primary
residence “and Wells Fargo attempted to foreclose on the grounds that it allegedly was not, then
the [Plaintiffs] could have a viable defense to that court action. But no such court action has
been filed and Wells Fargo has taken no steps to suggest that one will be filed.” (Doc. 29 at 18).
The December Letter was not a breach because neither Plaintiffs nor Wells Fargo suggest that
Wells Fargo has taken any steps to collect the amount of the accelerated mortgage.
Moreover, the breach of contract claim fails because Plaintiffs did not adequately plead
the element of damages. Plaintiffs assert that Wells Fargo “damaged [Plaintiffs] in an amount in
excess of $547,000” (Doc. 28 at ¶ 33) but do not explain any calculation for that amount.
Plaintiffs do not suggest that Wells Fargo foreclosed on or evicted Plaintiffs from the Property,
so Plaintiffs cannot fairly include the value of their home in that calculation. The Plaintiffs have
provided no specificity about their alleged damages. Because Plaintiffs did not plead facts to
suggest a plausible breach of contract or damages, the breach of contract claim against Wells
Fargo is DISMISSED.

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The Plaintiffs suggest that HUD is the creditor for the First Mortgage, but they misinterpret the legal relationship
between the parties. This Court will liberally construe the complaint for the pro se Plaintiffs and assume that the
Plaintiffs made this claim against Wells Fargo for purposes of this breach of contract analysis. Wells Fargo
recognized the mistake and responded to the claim as if it had been written against Wells Fargo. HUD did not file a
motion to dismiss, so the Court need not analyze whether the breach of contract claim could succeed against HUD.

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d. Age Discrimination by Elder Abuse
Wells Fargo seeks to dismiss this claim because there is no such viable claim, and the
amended complaint does not provide any facts that there was disparate treatment based on age.
Plaintiffs do not respond to that argument. In their amended complaint, Plaintiffs merely allege
the claim and support it by stating that Wells Fargo “wrongfully and fraudulently informed HUD
as to their breach of the mortgages.” (Doc. 28 at ¶ 33).
Assuming that Wells Fargo wrongfully informed HUD that Plaintiffs breached their
mortgage, Plaintiffs have not pled enough information to suggest that Wells Fargo was motivated
by an intent to discriminate against Plaintiffs or because Plaintiffs are a particular age. Plaintiffs
only suggest that Wells Fargo engaged in an action of informing HUD without asserting facts
that suggest discrimination of any kind. Their claim of age discrimination is DISMISSED.
e. Fraud
Wells Fargo seeks to dismiss Plaintiffs’ fraud claim because the context of the fraud is
not pled with adequate specificity. Plaintiffs argue that they provided adequate specifics. They
allege at one point that the fraudulent statement was made in the December Letter, which Wells
Fargo sent to Plaintiffs (Doc 39 at 9) and at another point that the fraudulent statement was made
to HUD without providing details about the circumstances of that communication (Id. at 10).
The Plaintiffs do not provide adequate specificity to either allegation, thus their fraud claim fails.
In Ohio, a successful fraud claim must plead: “(1) a representation, (2) material to the
transaction, (3) made falsely, with knowledge of its falsity, or with such reckless disregard for
whether it is true or false that knowledge may be inferred, (4) with the intention of misleading
another into relying upon it, (5) that causes the other party injury.” Roark, 881 N.E.2d at 343
(citing Burr v. Stark Cty. Bd. of Commrs. 23 Ohio St.3d 69, 491 N.E.2d 1101 (1986)).

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Furthermore, to comply with Federal Rule of Civil Procedure 9(b), a complaint for fraud must:
“(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker,
(3) state where and when the statements were made, and (4) explain why the statements were
fraudulent.” Gupta v. Terra Nitrogen Corp., 10 F. Supp. 2d 879, 883 (N.D. Ohio 1998) (quoting
Acito v. IMCERA Group, Inc., 47 F.3d 47, 51 (2d Cir. 1995)).
Plaintiffs’ response (Doc 39 at 9-10) suggests that Wells Fargo committed fraud both in
its communication with Plaintiffs in the December Letter and in its communication with HUD.3
But neither possibility can succeed because Plaintiffs did not plead the required element of injury
with adequate specificity. As discussed above, Plaintiffs assert that Wells Fargo injured the
Plaintiffs “in an amount in excess of $547,000” (Doc. 28 at ¶ 33) but do not explain any basis or
calculation for that amount. Plaintiffs do not suggest that Wells Fargo has foreclosed on or
evicted Plaintiffs from the Property, so Plaintiffs cannot include the lost value of their home in
that calculation. The Plaintiffs have not pled any actual injury. Plaintiffs’ fraud claim against
Wells Fargo is DISMISSED.
2. Motion to Dismiss Third Cause of Action4 – Tortious Interference
Wells Fargo seeks to dismiss the tortious interference claim because the theory is based
on the idea that the December Letter constitutes a breach of the Second Mortgage with HUD, but
the plain language of the December Letter shows that it does no such thing.5 Plaintiffs respond
with a restatement of their assertions from the amended complaint without addressing the
inconsistency between the letter’s plain language and the assertions in the complaint. The Court

3

Although this Court looks only to the amended complaint in determining the validity of a motion to dismiss, the
Court interprets the pleadings liberally for a pro se litigant and looks to the Plaintiffs’ response to lend clarity to the
amended complaint. For this reason, the Court will consider both scenarios as it examines the amended complaint.
4
The Second Cause of Action is directed only at HUD, so Wells Fargo does not move to dismiss it.
5
Plaintiffs seem to misunderstand the December Letter. Plaintiffs suggest that the December Letter demands an
acceleration of both their First Mortgage (held by Wells Fargo) and their Second Mortgage (held by HUD). But the
December Letter only references an acceleration of the First Mortgage. The tortious interference claim is premised
on this misunderstanding.

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finds that the claim for tortious interference must fail.
A successful claim for tortious interference must include the following elements: “(1) the
existence of a contract, (2) the wrongdoer's knowledge of the contract, (3) the wrongdoer's
intentional procurement of the contract's breach, (4) the lack of justification, and (5) resulting
damages.” Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St. 3d 171, 176, 707 N.E.2d 853,
858 (1999). When considering a motion to dismiss, a court traditionally must consider all facts
in the light most positive to the non-moving party. But “when a written instrument contradicts
allegations in the complaint to which it is attached, the exhibit trumps the allegations.”
Creelgroup, 518 F. App'x at 347 (quoting Williams v. CitiMortgage, 498 Fed.Appx. at 536).
Plaintiffs assert that the December Letter constituted a notice of acceleration of the
Second Mortgage between Plaintiffs and HUD. (Doc. 28 at ¶ 67). But the December Letter does
not reference the Second Mortgage. The December Letter is attached to the amended complaint
and directly contradicts the allegations in the amended complaint, so the December Letter trumps
Plaintiff’s assertions in the complaint. The December Letter does not constitute an acceleration
or breach of the Second Mortgage, as Plaintiffs suggest, so Plaintiffs have not adequately pled
the third element of a tortious interference claim. Wells Fargo’s motion to dismiss this claim is
GRANTED.
3. Motion to Dismiss Fourth Cause of Action – FDCPA
Wells Fargo asserts that the FDCPA claims should be dismissed because, as an original
creditor, Wells Fargo is not subject to the FDCPA, which applies only to debt collectors.
Plaintiffs respond that the First Mortgage is a debt due to HUD and that Wells Fargo merely acts
as a collector of that debt. (Doc. 39 at 12). The Court agrees with Wells Fargo after an
examination of the December Letter and the First Mortgage.

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Both parties agree that the FDCPA applies only to debt collectors, so the remaining issue
is whether Wells Fargo qualifies as a debt collector. “The term ‘debt collector’ means any
person … who regularly collects or attempts to collect … debts owed or due or asserted to be
owed or due [to] another.” 15 U.S.C.A. § 1692a(6) (emphasis added). In other words, “a debt
collector does not include the consumer's creditors, a mortgage servicing company, or an
assignee of a debt, as long as the debt was not in default at the time it was assigned.” Perry v.
Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985).
The First Mortgage is attached to the amended complaint, and states that the “Security
Instrument is given to Wells Fargo Bank, N.A.” and Wells Fargo is later described as the
“Lender.” (Doc. 28 at 42). Because the First Mortgage is attached to the amended complaint
and directly contradicts the assertions in the complaint, the written instrument trumps those
assertions. The First Mortgage states that the lender is Wells Fargo, so Wells Fargo is the
creditor and is not a debt collector. For that reason, the FDCPA does not apply to Wells Fargo
with regards to the First Mortgage. Plaintiffs’ fourth cause of action against Wells Fargo is
therefore DISMISSED.
4. Motion to Dismiss Fifth Cause of Action – Declaratory Judgment
Plaintiffs seek a declaratory judgment that they use the Property as their primary
residence. Wells Fargo contends that a declaratory judgment is unnecessary because there is no
ongoing controversy. Plaintiffs respond that Wells Fargo has continued to harass Plaintiffs since
sending the Letter in December 2013.6 This Court finds that there is not an ongoing controversy,

6

Plaintiffs argue that “Wells Fargo has continued to harass” Plaintiffs by sending an additional non-occupancy letter
in April 2014, charged an “assessment fee” of $423 in December 2013, charged an inspection fee of $15 in June
2014, and sent an inspector to the property in August 2014 to determine if the Plaintiffs were residing in the
Property. (Doc. 39 at 4). But none of these assertions were included in the amended complaint. The Court must
evaluate the facts presented in the complaint when considering a motion to dismiss, so the Court does not consider
these additional facts in its consideration of the motion. Furthermore, these additional facts would not rise to the
level of an “ongoing controversy” even if they had been pled in the amended complaint. Plaintiffs agreed to allow

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so declaratory relief is not proper at this time.
The Sixth Circuit has adopted a five-factor test for determining whether a district court
should consider a request for declaratory relief. The factors are:
(1) whether the judgment would settle the controversy;
(2) whether the declaratory judgment action would serve a useful purpose in clarifying
the legal relations at issue;
(3) whether the declaratory remedy is being used merely for the purpose of “procedural
fencing” or “to provide an arena for a race for res judicata”;
(4) whether the use of a declaratory action would increase the friction between our
federal and state courts and improperly encroach on state jurisdiction; and
(5) whether there is an alternative remedy that is better or more effective.
AmSouth Bank v. Dale, 386 F.3d 763, 785 (6th Cir. 2004).
The declaratory relief would not serve to settle a controversy because there is no ongoing
controversy between the parties. And it would not clarify the legal relations because Wells
Fargo has not brought an eviction or foreclosure action on the Property. Wells Fargo correctly
points out that if Plaintiffs have used the Property as their primary residence “and Wells Fargo
attempted to foreclose on the grounds that it allegedly was not, then the [Plaintiffs] could have a
viable defense to that court action. But no such court action has been filed and Wells Fargo has
taken no steps to suggest that one will be filed.” (Doc. 29 at 18). A declaratory judgment would
not clarify the legal relations between Wells Fargo and Plaintiffs, and there is also no pending
controversy between Wells Fargo and Plaintiffs at this time, so a declaratory judgment would not
be useful. The motion to dismiss Plaintiffs’ fifth cause of action against Wells Fargo is
GRANTED.

inspectors on the Property in the terms of their First Mortgage contract, the Plaintiffs plead no facts that suggest the
additional fees were for the purpose of harassing the Plaintiffs, and one additional letter does not create an ongoing
controversy.

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C. Romo’s Motion to Dismiss for Lack of Jurisdiction
Mr. Romo alleges that all claims against him should be dismissed from this Court
because sending letters on behalf of his employer to an Ohio address is insufficient under Ohio’s
long arm statute and Due Process to generate personal jurisdiction in Ohio. Mr. Romo also
alleges that Ohio’s corporate shield doctrine applies, which shields him from personal
jurisdiction for actions taken on behalf of his employer. Plaintiffs argue that they pleaded
adequate facts to demonstrate Mr. Romo’s contacts with the state and that the corporate shield
doctrine does not apply because Mr. Romo did not file an affidavit that he sent the letters on
behalf of his employer. Based on the allegations in the amended complaint and attached
documentation, it is clear that Mr. Romo did not have adequate contacts with the forum state, so
Mr. Romo’s motion to dismiss for lack of jurisdiction is persuasive.
Mr. Romo misconstrues the corporate shield doctrine in the Sixth Circuit. In fact, fifteen
years ago, the Sixth Circuit abrogated case law that Mr. Romo cited in his motion. The Sixth
Circuit held that while “ ‘jurisdiction over the individual officers of a corporation cannot be
predicated merely upon jurisdiction over the corporation’ … the mere fact that the actions
connecting defendants to the state were undertaken in an official rather than personal capacity
does not preclude the exercise of personal jurisdiction over those defendants.” Balance
Dynamics Corp. v. Schmitt Indus., Inc., 204 F.3d 683, 698 (6th Cir. 2000) (quoting Weller v.
Cromwell Oil Co., 504 F.2d 927, 929 (6th Cir. 1974)). Sixth Circuit precedent is clear that Mr.
Romo can be subject to personal jurisdiction in Ohio even though his actions were on behalf of
his employer. Mr. Romo’s argument that the corporate shield doctrine protects him from
personal jurisdiction unequivocally fails.
A plaintiff has the burden to demonstrate that a court has personal jurisdiction over each

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defendant. Air Prods. & Controls, Inc. v. Safetech Int'l, Inc., 503 F.3d 544, 549 (6th Cir. 2007)
(citing Serras v. First Tenn. Bank Nat'l Ass'n, 875 F.2d 1212, 1214 (6th Cir. 1989)). To establish
personal jurisdiction over a defendant, a plaintiff must fulfill both the state’s long arm statute and
the due process guarantees of the constitution. Conn v. Zakharov, 667 F.3d 705, 711 (6th Cir.
2012). Ohio’s long arm statute includes nine ways in which an out-of-state defendant shall be
subject to personal jurisdiction in Ohio. Plaintiffs state that four of these apply to Mr. Romo,
including:
(1) Transacting any business in this state;
(3) Causing tortious injury by an act or omission in this state;
(4) Causing tortious injury in this state by an act or omission outside this state if he
regularly does or solicits business, or engages in any other persistent course of conduct,
or derives substantial revenue from goods used or consumed or services rendered in this
state;
(6) Causing tortious injury in this state to any person by an act outside this state
committed with the purpose of injuring persons, when he might reasonably have expected
that some person would be injured thereby in this state;
(Doc. 42 at 2); Ohio Rev. Code Ann. § 2307.382(A).
Plaintiffs do not allege that Mr. Romo conducted any business in Ohio, that Mr. Romo
was ever in Ohio or that he made an act or omission while in Ohio, or that Mr. Romo regularly
does business or has a persistent course of conduct in Ohio. (Doc. 28). So Plaintiffs do not meet
the requirements of subsections (1), (3), or (4). But on the other hand, Plaintiffs allege that Mr.
Romo sent the December Letter to Plaintiffs, which stated Plaintiffs were not using the Property
as their primary residence and thus had violated their mortgage with Wells Fargo. (Id. at ¶ 10).
They allege that Mr. Romo wrongfully accelerated Plaintiffs’ mortgage and that the Plaintiffs
were injured in the amount of $547,500. (Id. at ¶ ¶ 13, 12). These assertions plausibly meet the
requirements of subsection six of Ohio’s long arm statute because Mr. Romo acted outside of
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Ohio, but Plaintiffs assert that those actions purposefully caused injury to Plaintiffs in Ohio.
Because a plaintiff is only required to make a prima facie showing that personal jurisdiction is
proper at this stage of the litigation, this Court will assume that Ohio’s long arm statute has been
satisfied and will next examine the due process requirements for jurisdiction.
To fulfill the due process requirements for personal jurisdiction, “[f]irst, the defendant
must purposefully avail himself of the privilege of acting in the forum state or causing a
consequence in the forum state. Second, the cause of action must arise from the defendant's
activities there. Finally, the acts of the defendant must have a substantial enough connection with
the forum state to make the exercise of jurisdiction over the defendant reasonable.” Berning v.
BBC, Inc., 575 F. Supp. 1354, 1356 (S.D. Ohio 1983) (citing Southern Machine Co., Inc. v.
Mohasco Industries, Inc., 401 F.2d 374, 381 (6th Cir.1968)). “[T]he ‘purposeful availment’
requirement is satisfied when the defendant's contacts with the forum state are such that ‘he
should reasonably anticipate being haled into court there.’ ” Ganote Consulting & Software
Design, Inc. v. Imperial Optical, Inc., No. CIV.A. 3:02-CV-65-H, 2002 WL 31375036, at *4
(W.D. Ky. Oct. 17, 2002) (quoting Compuserve, Inc. v. Patterson, 89 F.3d 1257, 1263 (6th
Cir.1996)). Importantly, “the purposeful availment [element] does not require that a defendant
be physically present in the forum state.” Ganote, 2002 WL 31375036, at *4 (citing
Compuserve, 89 F.3d at 1264). Communications alone can rise to the level of purposeful
availment. CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1266 (6th Cir.1996) (where defendant
purposely availed himself when he sent numerous letters, e-mail messages, and made numerous
phone calls to plaintiff in another state). But a single letter, even one threatening litigation, does
not constitute purposeful availment. See Calphalon Corp. v. Rowlette, 228 F.3d 718, 723 (6th
Cir. 2000) (upholding a district court’s decision that a defendant who sent only one letter to a

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plaintiff did not purposely avail himself of the laws in the state where the letter was sent);
Invisible Fence, Inc. v. Fido's Fences, Inc., 687 F. Supp. 2d 726, 736 (E.D. Tenn. 2009) (where
the court determined that if a defendant only sends one letter to plaintiff in the forum state, that
does not constitute purposeful availment in that forum state).
In this case, Plaintiffs have alleged that Mr. Romo sent them two letters: one nonoccupancy notification (Doc. 28 at 63); and one that stated that Plaintiffs’ mortgage with Wells
Fargo was due and payable. (Doc. 28 at 35). But Plaintiffs’ amended complaint does not allege
that Mr. Romo had any further contact with Ohio than sending these two letters to Plaintiffs’
Ohio address. While Plaintiffs do not have to allege that Mr. Romo was physically present in
Ohio, they must allege more than his authorship of two letters sent to Ohio. Because authoring
and sending only two letters to Ohio residents does not suggest that Mr. Romo purposefully
availed himself of Ohio laws, due process protects Mr. Romo from Ohio jurisdiction. Mr.
Romo’s motion to dismiss for lack of jurisdiction is GRANTED.
V. CONCLUSION
For the foregoing reasons, Wells Fargo’s motion to dismiss (Doc. 29) is GRANTED, and
all claims against Wells Fargo are hereby DISMISSED. Romo’s motion to dismiss (Doc. 30) is
GRANTED, and all claims against Romo are DISMISSED. Plaintiffs’ Motion to Strike (Docs.
31, 32) is DENIED. Defendants’ Motion to Strike (Doc. 61) is GRANTED, so Plaintiffs’
additional briefing (Docs. 56-59) is STRICKEN.
IT IS SO ORDERED.
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: March 17, 2015

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