Mattison v. PNC Bank, National Association Successor by Merger to National City Bank

Filing 20

ENTRY AND ORDER GRANTING PNC'S PARTIAL MOTION TO DISMISS (Doc. 12 ) AND TERMINATING THIS CASE. Signed by Judge Thomas M Rose on 7/30/2013. (kje1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DAVID L. MATTISON, JR.,
Case No. 3:13-cv-061
Plaintiff,
Judge Thomas M. Rose
-vPNC BANK, N.A., Successor by merger
to National City Bank, successor by merger
to The Provident Bank
Defendant.
______________________________________________________________________________
ENTRY AND ORDER GRANTING PNC’S PARTIAL MOTION TO
DISMISS (Doc. #12) AND TERMINATING THIS CASE
______________________________________________________________________________
Plaintiff David L. Mattison, Jr. (“Mattison”) has brought claims against Defendant PNC
Bank, successor by merger to National City Bank, successor by merger to The Provident Bank
(“PNC”) regarding a foreclosure. In his Amended Complaint, Mattison asserts eight (8) claims
for relief. (Doc. #6.) Mattison’s First Claim for Relief is for violation of the Fair Debt Collection
Practices Act (the “FDCPA”). His Second Claim for Relief is for violation of the Fair Credit
Reporting Act (the “FCRA”). His Third Claim for Relief is for violation of the Real Estate
Settlement Procedures Act (the “RESPA”). His Fourth and Fifth Claims for Relief are for
negligence. His Sixth Claim for Relief is for fraud/misrepresentation. His Seventh Claim for
Relief is for unjust enrichment, and his Eighth Claim for Relief is for breach of the covenant of
good faith and fair dealing.
Now before the Court is PNC’s Partial Motion To Dismiss Claims In Plaintiff’s
Amended Complaint brought pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. #12.) This Motion is
now fully briefed and ripe for decision. A relevant factual background taken, as it must be, from

the Amended Complaint will first be set forth followed by the standard of review and an analysis
of PNC’s Motion.
RELEVANT FACTUAL BACKGROUND
Mattison is the recorded owner of real property located at 4207 Roman Drive, Dayton,
Ohio 45415 (the “Roman Drive Property”). In 1993, Mattison borrowed $69,350 from The
Provident Bank. As collateral for the Note regarding the $69,350 issued by The Provident Bank
to Mattison, Mattison gave The Provident Bank a Mortgage on the Roman Drive Property. This
Mortgage was recorded in April of 1993.
On July 27, 2010, a complaint for foreclosure was filed by PNC claiming to be the holder
of the Note and Mortgage. The Note attached to the foreclosure complaint showed evidence of
formal negotiation in the form of a blank endorsement dated sometime in 1993 which provides
that, “PAY TO THE ORDER OF __________ WITHOUT RECOURSE THIS ____ DAY OF
______ 1993” and is signed by “Martin J. Weiss, Assistant Vice President.” No assignment of
the Mortgage was included with the foreclosure complaint and no evidence of assignment
appears on the Mortgage or is recorded.
On September 23, 2010, Mattison met with Mrs. Lisa Gibson (“Gibson”), a loan
modification officer for PNC. At the time, Gibson informed Mattison that a repayment plan
could be reached.
PNC sent Mattison a proposed repayment agreement on September 28, 2010. Therein,
PNC claimed to be the owner and holder of a mortgage being foreclosed. PNC also claimed that
it was due $23,429.92. At the time, Mattison says he was behind in the amount of $4,785.
Mattison expressed concern to Gibson about the proposed repayment agreement. Gibson

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responded that, once Mattison made three months of payments, PNC would stop the foreclosure.
Mattison then informed Gibson that the foreclosure complaint was going forward. Gibson
responded that, once the attorney’s office receives the signed repayment agreement, the
foreclosure action will be placed on hold.
Mattison next filed a request for mediation. PNC continued to pursue the foreclosure
action.
During a mediation conference on February 2, 2011, Mattison was told that a repayment
agreement was sent out. Another mediation conference was set for March 21, 2011, to make sure
that the repayment agreement was being satisfied.
On March 16, 2011, Mattison received the second proposed repayment agreement.
According to the second proposed repayment agreement, which Mattison received on March 16,
2011, the agreement was voided on February 15, 2011.
During this mediation process, PNC first represented that it was the Owner of the Note.
PNC also represented that they were the only parties of interest.
Even though this repayment agreement was not fully consummated, the Parties agree that
a payment of $6,338 was made by Mattison in reliance on the mediation discussions. After
receiving the $6,338 from Mattison, PNC sent Mattison the settlement papers late and said that
the deal was off and that PNC was continuing to pursue foreclosure.
In the foreclosure action, PNC has made the argument that it is the owner of the Note and
that it has ownership of the Mortgage as successor by merger with National City Bank, successor
by merger with Provident Bank. However, through discovery, Mattison found that PNC was a
servicer of the true owners of the Note in question and did not receive the Note via merger.

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In May of 2011, Mattison sent a Qualified Written Request (“QWR”) requesting
information regarding his loan, who owned the Note, and the legal status of the Note. PNC
refused to supply any additional information.
Since June 3, 2011, Mattison has questioned the authenticity of the note attached to
PNC’s foreclosure action. Mattison asserts that the note attached to the foreclosure action is a
completely different note than those filed in the Montgomery County Clerk’s office in 1996 and
1997 cases by PNC against the Roman Drive Property. The notes filed in the 1996 and 1997
cases were not endorsed in blank in 1993 and no signature of a “Martin J. Weiss, Assistant Vice
President” is evidenced on these notes. PNC could not or would not produce Mrs. Teresa S.
Clopp for deposition concerning these inconsistencies.
Mattison alleges that PNC used robo signed documents and misrepresented PNC’s
ownership of the Note attached to the Roman Drive Property. After two years of litigation, the
foreclosure action was administratively dismissed on August 21, 2012.
Following this dismissal, Mattison says he has tried to settle this matter. PNC has not
responded.
In a letter to Mattison dated February 1, 2013, PNC states that, “[e]ffective January 29,
2013, the ownership of your mortgage loan… was transferred to: PNC Bank, National
Association.” This letter also says that, “The sale, transfer or assignment of your mortgage loan
does not affect any term or condition of the promissory note evidencing your mortgage loan or
the security instrument (i.e. mortgage, deed of trust or security deed) securing repayment of the
promissory note.” Finally, the letter says that, “the ownership change of your mortgage loan does

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not affect the servicing of your mortgage loan….”1
Mattison now argues that at no time during the process did PNC hold or acquire/own the
Note in question. Mattison also argues that PNC violated his constitutional right to the quiet
enjoyment of property and took the foreclosure action without any standing to do so. Finally,
Mattison argues that PNC grossly impaired his creditworthiness. The Amended Complaint in
this matter followed.
STANDARD OF REVIEW FOR 12(b)(6) MOTIONS
The purpose of a Rule 12(b)(6) motion to dismiss is to allow a defendant to test whether,
as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the
complaint is true. Mayer v. Mylod, 988 F. 2d 635, 638 (6th Cir. 1993)(citing Nishiyama v.
Dickson County, Tennessee, 814 F.2d 277, 279 (6th Cir. 1987)). Put another way, “the purpose
of a motion under Federal Rule 12(b)(6) is to test the formal sufficiency of the statement of the
claim for relief; the motion is not a procedure for resolving a contest between the parties about
the facts or the substantive merits of the plaintiff’s case.” 5B Charles Alan Wright and Arthur R.
Miller, Federal Practice and Procedure § 1356 (3d ed. 2004). Further, for purposes of a motion
to dismiss, the complaint must be construed in the light most favorable to the plaintiff and its
allegations taken as true. Scheuer v. Rhodes, 416 U.S. 232 (1974).
To survive a 12(b)(6) motion to dismiss, a plaintiff must provide more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action is not enough. Bell
Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007)(citing Papasan v. Allain, 478 U.S.

1

This letter was not attached to nor referenced in Mattison’s Am. Compl. but was
attached to his Response to PNC’s Partial Motion To Dismiss. Mattison does, however, allege
that PNC misrepresented during a mediation process that it was the owner of the Note.
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265, 286 (1986)). “[O]nce a claim has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the complaint.” Id. at 1969. However, the
factual allegations must be enough to raise a right to relief above the speculative level. Bell
Atlantic Corp., 127 S.Ct. at 1965(citing 5 C. Wright & A. Miller, Federal Practice and Procedure
§ 1216, p. 235-236 (3d ed. 2004)). The factual allegations in the complaint, even if doubtful in
fact, must do something more than merely create a suspicion of a legally cognizable right. Id.
The Sixth Circuit has noted that to survive a motion to dismiss under Fed. R. Civ. P.
12(b)(6), “a ... complaint must contain either direct or inferential allegations respecting all the
material elements to sustain a recovery under some viable legal theory.” Columbia Natural
Resources, Inc. v. Tatum, 58 F. 3d 1101 (6th Cir. 1995), cert. denied, 516 U.S. 1158 (1996). The
Court “need not accept as true legal conclusions or unwarranted factual inferences.” Morgan v.
Church’s Fried Chicken, 829 F. 2d 10, 12 (6th Cir. 1987). Put another way, bare assertions of
legal conclusions are not sufficient. Lillard v. Shelby County Bd. of Education., 76 F. 3d 716,
726 (6th Cir. 1996). It is only well-pleaded facts which are construed liberally in favor of the
party opposing the motion to dismiss. Id.
In evaluating whether the plaintiff has stated a cognizable claim, the court generally may
not consider matters outside of the pleadings. See Hammond v. Baldwin, 866 F.2d 172, 175 (6th
Cir. 1989). To this effect, Rule 12(b) provides that if "matters outside the pleadings are
presented to and not excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable
opportunity to present all material made pertinent to such a motion by Rule 56." Fed R. Civ. P.
12(b).

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The courts have clarified the scope of what may be considered without reaching ‘matters
outside of the pleadings.’ A court may consider: (1) any documents attached to, incorporated by
or referred to in the pleadings; (2) documents attached to the motion to dismiss that are referred
to in the complaint and are central to the plaintiff’s allegations, even if not explicitly
incorporated by reference; and (4) matters of which the court may take judicial notice. Apex
Energy Group, LLC v. Apex Energy Solutions of Cincinnati, LLC, No. 1:12cv46, 2013 WL
394464 at *2 (S.D. Ohio Jan. 31, 2013.) Under these circumstances, the court may consider
extraneous documents without requiring the conversion of the motion to one for summary
judgment. Id.
Notwithstanding, the ability of a court to consider supplementary documents is not
without limitations. The Sixth Circuit has explained that “[w]hile documents integral to the
complaint may be relied upon, even if they are not attached or incorporated by reference, it must
also be clear that there exist no material disputed issues of fact regarding the relevance of the
document." Mediacom Southeast LLC v. BellSouth Telecommunications., Inc., 672 F.3d 396, 400
(6th Cir. 2012) (citations, internal quotation marks, and alterations omitted). Put otherwise, if
the authenticity, validity, or enforceability of a document is not in dispute, the court may
consider it on a motion to dismiss; but a genuine dispute as to the legal sufficiency of said
document requires the court to consider the issue under a motion for summary judgment
standard. Id.; see also Ouwinga v. Benistar 419 Plan Services., 694 F.3d 783, 796-797 (6th Cir.
2012).
ANALYSIS
PNC seeks to dismiss Mattison’s FDCPA, FCRA and RESPA claims pursuant to Fed. R.

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Civ. P. 12(b)(6). PNC further argues that, if these federal claims are dismissed with prejudice,
the remaining state law claims must be dismissed for lack of subject matter jurisdiction. Each of
Mattison’s federal claims will be addressed seriatim.
FDCPA Claim
PNC argues that Mattison’s FDCPA claim is time-barred and Mattison cannot rely upon
equitable tolling to disregard the statute of limitations. PNC also argues that it is not a debt
collector as defined by the FDCPA. Mattison responds that his FDCPA claim is not time-barred,
that PNC is a debt collector as defined by the FDCPA and that PNC’s fraudulent concealment
prevented him from discovering the FDCPA violations.
Statute of Limitations
“The FDCPA is a broad statute aimed at eliminating the use of abusive, deceptive, and
unfair debt collection practices by debt collectors.” Purnell v. Arrow, 303 F. App’x 297, 301 (6th
Cir. 2008). FDCPA claims have a one-year statute of limitations. See 15 U.S.C. § 1692k(d).
Thus, each alleged discrete violation must have occurred within the one-year limitation period
and not just be the later effects of an earlier time-barred violation. Purnell, 303 F. App’x at 302.
Mattison’s original Complaint was filed on March 2, 2013. Thus, Mattison must plead
FDCPA violations that occurred on or after March 2, 2012, to avoid the statute of limitations.
Mattison pleads several discrete violations of the FDCPA. (See Am. Compl. §§ 64-69,
71-74.) However, the Am. Compl. does not indicate that any of these violations occurred on or
after March 2, 2012.
Mattison argues that he has pled FDCPA violations that occurred in July of 2012 and

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February of 20132. Mattison pleads that, after the foreclosure action was dismissed on August
21, 2012, he has tried to settle this matter with PNC and, at no time during this process did PNC
hold or acquire the Note in question. (Am. Compl. ¶¶ 52, 53, 57.) He also pleads that PNC has
not responded to any of his settlement proposals. (Id. ¶ 54.) Thus, Mattison is saying that PNC
violated the FDCPA by negotiating with him in the Fall of 2012 regarding the Note in question
when PNC did not own the Note in question.
This argument is unavailing for at least two reasons. First, actions that might take place
during settlement negotiations are not violations of the FDCPA. See Ball v. Ocwen Loan
Servicing, LLC, No. 1:12CV0604, 2012 WL 1745479 at *5 (N.D. Ohio May 16, 2012) Second,
while Mattison may argue that PNC purchased Mattison’s defaulted mortgage loan on or around
January 29, 2013, this purchase does not alter PNC’s prior status. (See Am. Compl. ¶ 21.)
Regarding PNC’s prior status, this Court takes judicial notice that The Court of Common
Pleas of Montgomery County, Ohio has found that, upon taking possession of the Note, which
was endorsed in blank, PNC became the holder of the note and was thus entitled to enforce it.3
PNC v. Mattison, 2010 CV 05946, Magistrate’s Pretrial Entry and Order filed July 17, 2012
(Montgomery Cnty. Ct. Com. Pl. Jul. 17, 2012).
In sum, Mattison has not pled violations of the FDCPA that occurred on or after March 2,
2012. However, Mattison argues that fraudulent concealment prevented him from discovering

2

Mattison’s reference to the February 2013 time frame in his brief is not supported by any
allegations in his Am. Compl. It is, however, supported by a letter he received from PNC and
later filed with his Response to PNC’s Partial Motion To Dismiss.
3

The Montgomery Cnty. Ct. Com. Pl. also found that Mattison viewed the Note during a
meeting with PNC’s counsel on June 4, 2012.
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the FDCPA violations. Specifically, Mattison argues that PNC fraudulently concealed their nonholder and non-ownership position from him until February 2013.
Fraudulent concealment is an argument for equitable tolling. Pinney Dock and Transport
Co. v. Penn Central Corp., 838 F.2d 1445, 1465 (6th Cir. 1988). The Sixth Circuit has not
decided whether equitable tolling applies to FDCPA claims. Ball, 2012 WL 1745479 at *6.
Mattison has the burden of proving both equitable tolling and fraudulent inducement.
Pinney, 838 F.2d at 1465; Ball, 2012 WL 1745479 at * 6. However, even if equitable tolling
applied, Mattison has not plausibly pled fraudulent concealment.
To maintain a claim for fraudulent concealment, Mattison must plead that (1) PNC
concealed the conduct that constitutes the cause of action; (2) that PNC’s concealment prevented
Mattison from discovering the cause of action; and (3) until discovery, Mattison exercised due
diligence in trying to find out about the cause of action. Pinney, 838 F.2d at 1465.
The conduct that PNC allegedly concealed is its non-holder and non-ownership status of
the Note. However, as was determined by the Montgomery County Court of Common Pleas,
upon taking possession of the Note, which was endorsed in blank, PNC became the holder of the
Note and was entitled to enforce it. Further, because PNC may have later bought the Note in
foreclosure, does not mean that PNC was not entitled to earlier enforce it as a servicer. Thus,
Mattison has not pled facts from which the Court can conclude that he has a plausible argument
for fraudulent concealment, particularly since he knew or should have known that PNC could
enforce the Note, at least as a servicer, at the time of the foreclosure.
Is PNC a Debt Collector?
In addition to arguing that the statute of limitations bars Mattison’s FDCPA claim, PNC

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argues that it is not a debt collector and is, therefore, not subject to provisions of the FDCPA.
Mattison responds that PNC is a debt collector.
The FDCPA defines a debt collector as “any person who uses any instrumentality of
interstate commerce or the mail in any business for the principal purpose of which is the
collection of any debts, or who regularly collects or attempts to collect, directly or indirectly,
debts due or asserted to be owed or due another….” 15 U.S.C. § 1692a(6). The FDCPA then
excludes specific categories of entities which may otherwise be collecting debts. Id. Relevant
here is an exclusion for “any person collecting or attempting to collect any debt owed… or due
another to the extent such activity… concerns a debt which was not in default at the time it was
obtained by such person….” 15 U.S.C. § 1692a(6)(F). Thus, a debt collector under the FDCPA
explicitly excludes a creditor collecting a debt owed to it which was not in default at the time it
was obtained.
Mortgage servicers may also be excluded from the FDCPA’s definition of debt collector.
Mortgage servicers are excluded provided the servicer neither acquired the debt when it was in
default nor treated the debt as if it were in default at the time of acquisition. Bridge v. Ocwen
Federal Bank, FSB, 681 F.3d 355, 359-62 (6th Cir. 2012).
Mattison alleges that PNC is a debt collector under the FDCPA. (Am. Compl. ¶ 61.)
However, this is a legal conclusion and he offers no further factual allegations rendering this
legal conclusion plausible. In fact, Mattison bases this argument on his assertion that PNC was
attempting to foreclose but did not acquire the Note until January 29, 2013. However, as the
Court of Common Pleas of Montgomery County, Ohio has determined in the foreclosure action,
upon taking possession of the Note, which was endorsed in blank, PNC became the holder of the

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Note and was thus entitled to enforce it. In addition, Mattison has pled that PNC was a servicer
of the note. (Am. Compl. ¶ 40.)
Mattison suggests that Glazer v. Chase Home Finance LLC, 704 F.3d 453 (6th Cir.
2013), somehow makes PNC an FDCPA debt collector. However, Glazer holds just the opposite.
In Glazer, the Sixth Circuit held that Chase Home Finance LLC, the mortgage loan servicer for a
Fannie Mae owned mortgage loan, was not an FDCPA debt collector. Id. at 457.
At the time of the foreclosure action, PNC was, at minimum, a servicer. Whether owner
or servicer, PNC does not meet the FDCPA definition of debt collector.
Conclusion On FDCPA Claim
Mattison has not plausibly pled that PNC is a debt collector as defined in the FDCPA. If
PNC were a debt collector, Mattison has not pled violations within the one-year statute of
limitations for FDCPA claims and he has not shown that he is eligible for equitable tolling.
Mattison’s FDCPA claim must be dismissed.
FCRA Claim
PNC argues that Mattison has not plausibly pled an FCRA claim. Specifically, PNC
argues that there is not a private right of action for violations of 15 U.S.C.§ 1681s-2(a), and there
is no allegation that PNC received a notice of dispute from a credit reporting agency. Mattison
responds that it is not plausible for him to provide evidence of the disputes he initiated with
several reporting agencies in the pleading stage and that he has pled that PNC was negligent in
violation of 15 U.S.C. § 1681o.
The FCRA was enacted “to ensure fair and accurate credit reporting, promote efficiency
in the banking system, and protect consumer privacy.” Smith v. Encore Credit Corp., 623 F.

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Supp.2d 910, 921 (N.D. Ohio 2008)(citing Safeco Insurance Co. of America v. Burr, 551 U.S. 47
(2007)). Its purpose is to protect consumers from inaccurate information in consumer reports and
to establish credit reporting procedures that use correct, relevant, up-to-date information in a
confidential and responsible manner. Id.(citing Jones v. Federated Financial Reserve Corp., 144
F.3d 961, 965 (6th Cir. 1998)).
15 U.S.C. § 1681s-2(a)
Mattison pleads that PNC was required to provide a notice of dispute to the credit
reporting agencies in accordance with 15 U.S.C. § 1681s-2(a) when PNC knew that he was
disputing the legal status and amount owed and PNC had reasonable cause to believe that the
information they were reporting was inaccurate. (Am. Compl. § 82.) He also pleads that PNC
was required under 15 U.S.C. § 1681s-2(a) to correct and update the information provided to the
credit reporting agencies when PNC knew or should have known that information they were
providing was inaccurate or incomplete. However, these claims fail because Mattison has no
civil cause of action for violation of 15 U.S.C. § 1681s-2(a). 15 U.S.C. § 1681s-2(c); see also
Zamos v. Asset Acceptance, LLC, 423 F. Supp.2d 777, 787-88 (N.D. Ohio 2006).
15 U.S.C. § 1681s-2(b)
Mattison also pleads that PNC was required under 15 U.S.C. § 1681s-2(b) to respond to
the request for reinvestigation initiated by him through one or more credit reporting agencies “by
completing an inquiry not the facts underlying the trade-line and providing accurate information
to the credit reporting agencies regarding that trade-line.” (Am. Compl. ¶ 84.) Further, PNC,
according to Mattison, was required to cease reporting the derogatory information during the 60
days following the receipt of the Qualified Written Request (“QWR”). (Am. Compl. ¶ 85.)

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Mattison also pleads that PNC continued to report the adverse credit information in violation of
15 U.S.C. § 1681s-2(b). Finally, Mattison pleads that PNC negligently failed to put in place a
procedure to complete an adequate reinvestigation of disputed credit information in violation of
15 U.S.C. § 1681s-2(b) and § 1681o. (Am. Compl. ¶¶ 84-87.)
At least one federal court in Ohio has declined to recognize a private cause of action
under 15 U.S.C. § 1681s-2(b) for a consumer against a furnisher of information. Zamos, 423 F.
Supp. 2d at 788. However, whether the Sixth Circuit recognizes a private cause of action for a
consumer against a furnisher of information under 15 U.S.C. § 1681s-2(b) remains unclear.
Encore Credit, 623 F. Supp. 2d at 922.
If Mattison was able to proceed with a private cause of action, the statute provides that a
furnisher of information has no duties until receiving notice of a dispute. 15 U.S.C. § 1681s2(b)(1). However, a “plaintiff must 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, (6th Cir. 2004)(citing Young v. Equifax Credit Information
Services, Inc., 294 F.3d 631, 639–40 (5th Cir. 2002)).
In this case, MATTISON does not allege that he filed a dispute with a credit reporting
agency.4 The only allegation in Mattison’s Am. Compl. that comes close is that PNC was
required to respond to the request for the reinvestigation initiated by Mattison through one or
more credit reporting agencies…. (Am. Compl. ¶ 84.) However, this is a mere recitation of an
element of the FCRA and does not specifically identify any claim that he specifically filed with a

4

Mattison now says that it is not plausible for him to provide evidence of the disputes he
initiated with several reporting agencies in the pleading stage.
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specific credit reporting agency on a specific date. See Diop v. BSI Financial Services, No. 1214377, 2013 U.S. Dist. LEXIS 7088 at *3 (E.D. Mich. Jan. 17, 2013)(finding that the exact same
language found in ¶ 84 of Mattison’s Am. Compl. contained no supporting facts resulting in
dismissal).
Mattison also does not allege that PNC received any notice of disputed information from
a credit reporting agency. Therefore, Mattison has not alleged a violation of 15 U.S.C. § 1691s2(b) upon which relief may be granted.
15 U.S.C. § 1681o
Mattison pleads that PNC negligently failed to put in place a procedure to complete an
adequate reinvestigation of disputed credit information in violation of 15 U.S.C. § 1681o. (Am.
Compl. ¶ 87.) This section provides for civil liability for failing to comply with any requirement
imposed under the FCRA. 15 U.S.C. § 1681o. Thus, it cannot stand alone. There must be a
failure to comply with some other provision of the FCRA and Mattison has not successfully pled
any other failure to comply. Therefore, Mattison has not alleged a violation of 15 U.S.C. § 1691o
upon which relief may be granted.
Conclusion On FCRA Claim
Mattison has not plausibly pled an FCRA claim. There is not a private right of action for
violations of 15 U.S.C.§ 1681s-2(a) and Mattison has not pled violations of 15 U.S.C. §§
1691s(2)(b) or 1681o upon which relief may be granted. Therefore, Mattison’s FCRA claim
must be dismissed.
RESPA Claim
PNC argues that Mattison’s RESPA claim fails because Mattison has not pled any

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actionable damages or any damages causally related to a RESPA violation. Mattison responds
that his Am. Compl. pleads actual damages under RESPA.
RESPA provides that failure to comply results in liability for actual damages and any
additional damages the court may allow if there is a pattern or practice of noncompliance. 12
U.S.C. § 2605. Courts have determined that actual damages must be pled as part of any RESPA
claim and any alleged loss must be related to the alleged RESPA violation itself. Marais v.
Chase Home Finance, LLC, No. 2:11-cv-314, 2012 WL 4475766 at *6 (S.D. Ohio Sep. 26,
2012); see also Hintz v. JPMorgan Chase Bank, N.A., 686 F.3d 505 at 510-11 (8th Cir.
2012)(damages for a RESPA claim must be pled with particularity showing that a failure to
respond or give notice has caused actual harm).
Mattison pleads that, as a result of PNC’s violations of RESPA, he has “suffered
damages of an economic and non-economic nature.” (Am. Compl. ¶ 98.) While this may causally
connect damages to the alleged RESPA violation, it does identify the damages with the required
specificity.
Mattison asserts that the issue is whether actual damages may include compensation for
economic loss and/or emotional and mental distress. However, this is not the issue. The issue is
whether he has pled actual damages as a result of PNC’s alleged RESPA violation.
Mattison alleges no specific damages that relate to his RESPA claim. Therefore, his
RESPA claim must be dismissed.
CONCLUSION
All of Mattison’s federal claims are dismissed. Further, without federal question
jurisdiction, this Court has no power to adjudicate Mattison’s state-law claims. Therefore, they

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are also dismissed.
PNC’s Partial Motion To Dismiss (doc. #12) is GRANTED. The captioned cause is
hereby ordered terminated upon the docket records of the United States District Court for the
Southern District of Ohio, Western Division, at Dayton.
DONE and ORDERED in Dayton, Ohio this Thirtieth day of July, 2013.

s/Thomas M. Rose
_______________________________
THOMAS M. ROSE
UNITED STATES DISTRICT
JUDGE
Copies furnished to:
Counsel of Record

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