VILKOFSKY v. RUSHMORE LOAN SERVICING, LLC et al

Filing 80

MEMORANDUM OPINION indicating that, for reasons stated within, the Court finds that: (1) Plaintiff has adequately pled RESPA claims against Rushmore and SLS at Counts I and III of the Second Amended Complaint, but that said claims are dismissed to th e extent that an accounting is sought as an equitable remedy; (2) Plaintiff cannot state a claim against Rushmore or SLS under the FDCPA at Counts II and IV, and same shall be dismissed; and (3) Plaintiff has failed to state a claim against USB at Co unt V pursuant to respondeat superior, and same shall be dismissed. In light of Plaintiffs attempts to establish the above claims in three separate complaints (Docket Nos. 1 ; 13 ; 57 ), in this Court's estimation, further attempts to amend Counts I and III with respect to equitable relief via an accounting, as well as all claims in Counts II, IV, and V, would be unsuccessful. Accordingly, same shall be denied with prejudice. See Phillips, 515 F. 3d at 245 46 (dismissal with prejudice is appropriate when leave to amend would be futile). An appropriate order follows. Signed by Judge Nora Barry Fischer on 6/14/17. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
FRANCIS VILKOFSKY, JR.,

)
)
Plaintiff,
)
)
v.
)
)
SPECIALIZED LOAN SERVICING, LLC, )
U.S. BANK, N.A., and
)
RUSHMORE LOAN MANAGEMENT
)
SERVICES, LLC,
)
)
Defendants. )

2:16-cv-01291-NBF
District Judge Nora Barry Fischer

MEMORANDUM OPINION
I. INTRODUCTION
Presently before the Court is the Motion to Dismiss (Docket No. 59) filed by Rushmore
Loan Management Services, LLC (“Rushmore”), and the Motion to Dismiss (Docket No. 61)
filed by Specialized Loan Servicing, LLC (“SLS”) and U.S. Bank, N.A. (“USB”) (collectively,
“Defendants”), pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants seek dismissal
of all causes of action by Francis Vilkofsky, Jr. (“Plaintiff”), in his Second Amended Complaint
(Docket No. 58). Plaintiff has therein asserted claims pursuant to the Real Estate Settlement
Procedures Act, 12 U.S.C. §§ 2601, et seq. (“RESPA”) and the Fair Debt Collection Practices
Act, 15 U.S.C.A. §§ 1692, et seq. (“FDCPA”). This Court exercises subject-matter jurisdiction
over Plaintiff’s claims pursuant to 28 U.S.C. § 1331 (federal question). For the following
reasons, Defendants’ Motions shall be GRANTED, in part, and DENIED, in part.

II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain a short and
plain statement of a claim, and show that the pleader is entitled to relief. Dismissal of a
complaint or portion of a complaint is warranted under Federal Rule of Civil Procedure 12(b)(6)
when a claimant fails to sufficiently state a claim upon which relief can be granted. Avoiding
dismissal under Rule 12(b)(6) requires a pleading party’s complaint to provide “enough factual
matter” to allow the case to move beyond the pleading stage of litigation; the pleader must
“‘nudge his or her claims across the line from conceivable to plausible.’” Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 234 – 35 (3d Cir. 2008) (quoting Bell Atlantic Co. v. Twombly, 550
U.S. 544, 556, 570 (2007)).
In assessing the merits of a claim subject to a motion to dismiss, a court must engage in a
two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 – 11 (3d Cir. 2009). First,
factual and legal elements of a claim must be distinguished. Id. Second, it must be determined
whether the facts as alleged support a “plausible claim for relief.” Id. In making the latter
determination, the court must be mindful that the matter pleaded need not include “detailed
factual allegations,” Phillips, 515 F.3d at 231 (quoting Twombly, 550 U.S. at 555), and the court
must construe all alleged facts, and draw all inferences gleaned therefrom, in the light most
favorable to the non-moving party. Id. at 228 (citing Worldcom, Inc. v. Graphnet, Inc., 343 F.3d
651, 653 (3d Cir. 2003)).
Moreover, a pleading party need only “put forth allegations that ‘raise a reasonable
expectation that discovery will reveal evidence of the necessary element[s].’” Fowler, 578 F.3d
at 213 (quoting Graff v. Subbiah Cardiology Assoc., Ltd., 2008 WL 2312671 (W.D. Pa. June 4,
2008)).

A well-pleaded complaint, even when “it strikes a savvy judge that actual proof

2

of…facts is improbable,” will not be dismissed as long as the pleader demonstrates that his or
her claim is plausible. Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 555 – 56). To
this end, the Court may consider the “pleadings, public record, orders, exhibits attached to the
complaint, and documents incorporated into the complaint by reference,” when reviewing the
sufficiency of a complaint upon a motion pursuant to Rule 12(b)(6).

Brodzki v. Fox

Broadcasting Co., 868 F.Supp.2d 386, 388 (D. Del. 2012) (citing Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007)).
Nevertheless, the facts provided do need to raise the expectation of relief above a purely
speculative level, and must include more than “labels and conclusions, and a formulaic recitation
of the elements of a cause of action.” Phillips, 515 F.3d at 231 – 32 (quoting Twombly, 550 U.S.
at 554 – 56). Rule 8(a)(2) “requires a ‘showing’ rather than a blanket assertion of an entitlement
to relief.” Id. at 232. “[T]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Fowler, 578 F.3d at 211 (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)).
III. DISCUSSION1
A. RESPA
As explained in the Court’s prior Memorandum Opinion of March 3, 2017, disposing of
Defendants’ original Motions to Dismiss, the Court’s inquiry as to Plaintiff’s RESPA claims is
solely whether or not Plaintiff pled sufficient factual matter to sustain causes of action for the
improper handling of error notices, and related damages. (Docket No. 53 at 7).
1. Response to Notice of Error
Regarding notices of error, RESPA provides the following:
1

In light of the parties’ familiarity with the factual background of the case, as well as the Court’s prior,
exhaustive recitation of the facts in its Memorandum Opinion of March 3, 2017 (Docket No. 53), the Court will
limit its discussion to only those facts newly pled and pertinent to resolution of the instant Motions.

3

(e) Response to notice of error.
(1) Investigation and response requirements.
(i) In general. Except as provided in paragraphs (f) and (g) of this section,
a servicer must respond to a notice of error by either:
(A) Correcting the error or errors identified by the borrower and
providing the borrower with a written notification of the correction,
the effective date of the correction, and contact information, including
a telephone number, for further assistance; or
(B) Conducting a reasonable investigation and providing the borrower
with a written notification that includes a statement that the servicer
has determined that no error occurred, a statement of the reason or
reasons for this determination, a statement of the borrower's right to
request documents relied upon by the servicer in reaching its
determination, information regarding how the borrower can request
such documents, and contact information, including a telephone
number, for further assistance.
12 C.F.R. § 1024.35. RESPA also provides that a mortgage servicer “may, by written notice
provided to a borrower, establish an address that a borrower must use” when submitting such a
notice. 12 C.F.R. § 1024.35(c). However, the servicer must respond “not later than 30 days
(excluding legal public holidays, Saturdays, and Sundays) after” receipt, 12 C.F.R. §
1024.35(e)(3)(i)(C), unless an “asserted error is substantially the same as an error previously
asserted by the borrower for which the servicer has previously complied with its obligation to
respond.” 12 C.F.R. § 1024.35(g)(1)(i). In the latter circumstance, the servicer need only inform
the borrower that it will not reply to the duplicative notice within five days of making such a
determination. 12 C.F.R. § 1024.35(g)(2).
In its prior Motion to Dismiss (Docket No. 15), and as previously noted by this Court
(Docket No. 53 at 8), Rushmore made “no argument regarding its treatment of Plaintiff’s notices
of error.”

Presently, Rushmore contends that Plaintiff’s RESPA claim against it must be

dismissed because Plaintiff did not send any error notices to the appropriate address designated

4

pursuant to 12 C.F.R. § 1024.35(c).2 (Docket No. 59 at 7 – 9). Whatever merits this argument
may have, Rushmore may not assert it at this juncture. The Third Circuit Court of Appeals has
held that the Federal Rules of Civil Procedure impose certain restrictions on the filing of
successive motions to dismiss; namely, that a party that makes a motion under Rule 12 cannot
make a subsequent motion under Rule 12 raising a defense or objection that could previously
have been asserted. Leyse v. Bank of America Nat’l Ass’n, 804 F.3d 316, 320 (3d Cir. 2015)
(citing Fed. R. Civ. P. 12(g)(2)). See also Oliver v. Roquet, -- F.3d --, 2017 WL 2260961, at *4
n. 3 (3d Cir. 2017) (A party, “with limited exceptions, ‘must not make another such motion
raising a defense or objection that was available to the party but omitted from its earlier
motion.’”); Dicio v. Wells Fargo Bank, N.A., 2015 WL 8276585, at *17 (W.D. Pa. Nov. 4, 2015)
report and recommendation adopted, 2015 WL 8207486 (W.D. Pa. Dec. 7, 2015) (Fischer, J.)
(In case in which a motion to dismiss was denied following the filing of an amended complaint, a
subsequent motion to dismiss could not raise defenses not raised – although available – in the
first motion.).

As noted in Plaintiff’s Response, “Plaintiff’s Second Amended Complaint

incorporates in its entirety and verbatim the same RESPA allegations made against Rushmore
that were in the Amended Complaint.” (Docket No. 64 at 2). Rushmore has failed to provide
any intervening justification for its failure to raise this argument in an identical prior pleading.

2

Contact information for borrowers to assert errors. A servicer may, by written notice provided to a
borrower, establish an address that a borrower must use to submit a notice of error in accordance
with the procedures in this section. The notice shall include a statement that the borrower must use
the established address to assert an error. If a servicer designates a specific address for receiving
notices of error, the servicer shall designate the same address for receiving information requests
pursuant to § 1024.36(b). A servicer shall provide a written notice to a borrower before any
change in the address used for receiving a notice of error. A servicer that designates an address for
receipt of notices of error must post the designated address on any Web site maintained by the
servicer if the Web site lists any contact address for the servicer.

12 C.F.R. § 1024.35(c).

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Accordingly, the Court will not now consider it. Having raised no other objection to Plaintiff’s
RESPA claim, Rushmore’s Motion to Dismiss will be denied as to Count I.
SLS also argues that its duties under RESPA were not triggered due to Plaintiff’s failure
to send notices of error to the address designated pursuant to 12 C.F.R. § 1024.35(c). (Docket
No. 62 at 8 – 12). In response to the same argument in its prior Motion to Dismiss (Docket No.
26), this Court stated that Plaintiff “failed to affirmatively plead that he used the correct post
office box number and that said number was designated by SLS as the appropriate means of
delivering an error notice.” (Docket No. 53 at 15). However, the Court did note that the fact that
the address used by Plaintiff3 was so similar to that designated by SLS4 lent credence to
Plaintiff’s argument that he used an acceptable address. (Id. at n. 4).
The Second Amended Complaint now states that Plaintiff sent his error notice to SLS at
P.O. Box 636005 which, while not the P.O. Box claimed by SLS in the Motion to Dismiss to be
designated for receipt of same, was nonetheless previously provided to Plaintiff by SLS for
sending error notices. (Docket No. 58 ¶¶ 42 – 46). Plaintiff also argues that SLS’s response to
his error notice – without any mention of the need to use another address – is further evidence
that he utilized the correct address. (Id. ¶ 47 – 48). The Court agrees. A pleading party need
only “put forth allegations that ‘raise a reasonable expectation that discovery will reveal
evidence of the necessary element[s].’”

3

Fowler, 578 F.3d at 213 (citation omitted).

Specialized Loan Servicing, LLC
P.O. Box 636005
Littleton, CO 80163

(Docket No. 58 ¶ 42).
4

Specialized Loan Servicing, LLC
P.O. Box 601347
Littleton, CO 80163

(Docket No. 62 at 11).

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For

purposes of surviving a motion under Rule 12(b)(6), Plaintiff has pled a sufficient factual basis
as to this issue so that it may proceed through discovery.
2. Damages
Yet, SLS still asserts that a RESPA claim cannot be maintained because Plaintiff has pled
no actual damages beyond generalized claims of harm to his emotional health. (Docket No. 62 at
12 – 15). As this Court noted in its prior Opinion, a “plaintiff claiming a RESPA violation must
allege not only a breach of a duty required to be performed under RESPA, but must also show
that the breach caused him to suffer damages.” Wilson v. Bank of America, N.A., 48 F.Supp.3d
787, 799 (E.D. Pa. 2014).

In order to advance a claim under RESPA, a plaintiff must

“sufficiently allege one of two types of damages: (1) actual damages 5 to the borrower as a result
of the failure to comply with § 2605; or (2) statutory damages 6 in the case of a pattern or practice
of noncompliance with the requirements of § 2605.” Giordano v. MGC Mortgage, Inc., 160
F.Supp.3d 778, 781 (D.N.J. 2016) (citations omitted).

“[W]hen basing a claim on actual

damages, ‘the borrower has the responsibility to present specific evidence to establish a causal
link between the financing institution’s violation and their injuries.’” Id. (quoting Straker v.
Deutsche Bank Nat’l Trust, 2012 WL 7829989 *11 (M.D. Pa Apr. 26, 2012)).

5

Despite SLS’s argument to the contrary, the Second Amended Complaint includes claims for actual
damages stemming from a diminished credit score as part of Plaintiff’s claim. (Docket No. 58 ¶ 55). Nonetheless,
as this Court previously held in its Memorandum Opinion of March 3, 2017, “Plaintiff’s pleadings appear only to
demonstrate that his diminished credit rating existed before SLS’s response to the notice of error. This is
insufficient to sustain his claim against SLS for pecuniary actual damages under RESPA.” (Docket No. 53 at 13).
The same holds true now, and any claim for actual damages against SLS pertaining to Plaintiff’s credit score will be
dismissed.
6

Despite SLS’s argument to the contrary, the Second Amended Complaint includes statutory damages as
part of Plaintiff’s claim. (Docket No. 58 ¶ 1). However, as with his claim for actual damages stemming from
diminished credit scores, Plaintiff has failed to remedy the issues the Court found with respect to statutory damages
in its Memorandum Opinion of March 3, 2017. (Docket No. 53 at 13). Any claim for statutory damages against
SLS will be dismissed.

7

Plaintiff believes that his revised allegations of emotional distress-related damages are
sufficient to survive dismissal. He relies primarily upon the following comments made in a May
9, 2016, error notice to SLS:
SLS has not cashed 5 monthly payments.
…
SLS is charging me $29.14 as a late fee for each check not cashed for a total of
$524.52. I am also being charged interest on unpaid interest that would have been
paid if…SLS would have cashed the checks.
…
SLS has held $1,752.82 in suspended funds yet I am not getting any interest on
this money.
…
I am open to a solution to this problem but I will not pay any excess fee to SLS.
(Docket No. 58 ¶ 84). Plaintiff concluded his error notice by stating that SLS’s conduct was
“causing enormous mental stress for my family.” (Id.). SLS’s allegedly inadequate response to
this error notice evinced in Plaintiff a belief that “his cries for help are being ignored,” “his
concerns are not worth SLS’s effort,” and “he is unable to get SLS to understand…that he is
being cheated.” (Id. ¶ 84 – 85). As such, he avers SLS’s behavior is the proximate cause of
“extreme stress worrying about whether he will lose his home in foreclosure.” (Id.).
Federal courts have concluded that damages for emotional distress are consistent with
RESPA’s express language allowing “for ‘any actual damages to the borrower.’” Giordano, 160
F.Supp.3d at 785 (quoting 12 U.S.C. § 2605(f)). See also Palmer v. MGC Mortgage, Inc., 2013
WL 6524648 *5 (E.D. Pa. Dec. 10, 2013) (citing Benner v. Bank of America, 917 F.Supp.2d 338
(E.D. Pa. 2013); Wright v. Litton Loan Servicing LP, 2006 WL 891030 (E.D. Pa. Apr. 4, 2006))
(“[W]hile our Court of Appeals has not determined whether actual damages under RESPA
includes non-pecuniary damages such as emotional distress, several courts in our district have
found that it does.”). Nonetheless, “bare allegations are insufficient as they do not establish that
the alleged distress was ‘as a result of’ the failure to respond…as opposed to the financial
8

hardships” also suffered. Giordano, 160 F.Supp.3d at 785 (citation omitted). “If a plaintiff
simply can allege that failure to respond to a letter caused distress, without more, any RESPA
claim would survive a motion to dismiss.” Id. The RESPA violation must proximately cause the
emotional distress. Block v. Seneca Mortg. Serv., -- F.Supp.3d --, 2016 WL 6434487 *23 (D.N.J.
Oct. 31, 2016).
In arguing that Plaintiff’s Second Amended Complaint does not satisfy the pleading
requirements for actual damages in the form of emotional distress, SLS relies substantially upon
the holding in Szczodrowski v. Specialized Loan Servicing, LLC, 2015 WL 1966887, at *7 – 8
(E.D. Mich. May 1, 2015) (claim for emotional damages due to “stress” was not, alone,
sufficient to maintain claim). Additionally, this Court previously held that while it appeared in
the Amended Complaint that Plaintiff experienced some degree of emotional distress as a result
of prior attempts to resolve Plaintiff’s unpaid mortgage balance, Plaintiff did not indicate how
SLS’s purported violation of 12 C.F.R. 1024.35(e)(1) was the proximate cause. (Docket No. 53
at 12 – 13). Plaintiff must plead facts demonstrating a clear causal link between SLS’s violations
and his injury. Hager v. CitiMortgage, Inc., et al., 2017 WL 751422 *9 (D.N.J. Feb. 27, 2017).
Now, viewed in the light most favorable to Plaintiff, it appears Plaintiff has pled
sufficient factual matter to connect his claimed emotional distress to SLS’s failure to properly
respond to his notice of error. Unlike his Amended Complaint, Plaintiff’s Second Amended
Complaint clearly articulates that SLS’s failure to properly address his error notice caused
emotional distress. As recited by the Court, above, Plaintiff stated that SLS’s conduct was
“causing enormous mental stress for my family,” and evinced in Plaintiff a belief that “his cries
for help are being ignored,” “his concerns are not worth SLS’s effort,” and “he is unable to get
SLS to understand…that he is being cheated.” ((Docket No. 58 ¶¶ 84 – 85). He concludes by

9

averring that SLS’s behavior resulted in “extreme stress worrying about whether he will lose his
home in foreclosure.” (Id.).
In Szczodrowski, the district court held that “‘[r]ecoverable emotional distress requires a
highly unpleasant mental reaction (such as anguish, grief, fright, humiliation, or fury).’” 2015
WL 1966887, at *7 – 8 (quoting Eichholz v. Wells Fargo Bank, N.A., 2011 WL 5375375, at *5
(E.D. Mich. Nov. 7, 2011)). The court went on to note that “unpleasant emotion” is not
emotional distress. Id. However, it also found that the Seventh Circuit Court of Appeals held
that summary judgment was properly denied where the plaintiff described similar claims
involving alleged sleep loss, depression, shakiness, headaches, and crying. Id. (citing Catalan v.
GMAC Mortg. Corp., 629 F.3d 676, 696 (7th Cir. 2011)).
Presently, Plaintiff has pled “enormous” and “extreme” emotional distress, stemming
from worry caused by his sense that SLS ignored his cries for help; his concern regarding SLS’s
failure to investigate his claims; his belief that he has been cheated by SLS; and his concern that
he is not being taken seriously by SLS, all of which may result in the loss of Plaintiff’s home.
While Plaintiff’s terminology may not be sufficiently severe to persuade SLS of the existence of
emotional distress, it is more than the “threadbare allegation” of “stress” rejected by the district
court in Szczodrowski, 2015 WL 1966887, at *8. Cf. Giordano, 160 F.Supp.3d at 785 (“The
Court finds that Plaintiff’s bare allegations are insufficient as they do not establish that the
alleged distress was ‘as a result of’ the failure to respond to the RF1/QWR letter as opposed to
the financial hardships she was already experiencing.”). Plaintiff has nudged his claim across the
line from conceivable to plausible. Phillips, 515 F.3d at 234 – 35. Thus, the Court will deny
SLS’s Motion to the extent is seeks dismissal of Count III.

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B. FDCPA
In order to state a cause of action under the FDCPA, Plaintiff must demonstrate that: (1)
he is a consumer; (2) Defendants are debt collectors; (3) Defendants attempted to collect a “debt”
as defined by the FDCPA; and (4) Defendants violated a provision of the FDCPA in attempting
to collect the debt. Sullivan v. Allied Interstate, LLC, 2016 WL 7187507 *5 (W.D. Pa. Oct. 18,
2016) (citing Douglass v. Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014)).
Defendants argue that Plaintiff has failed to make this showing.
1. Debt Collector
In its Motion to Dismiss, Rushmore argues that the second element of the above test
cannot be established by Plaintiff, and warrants dismissal of Count II. A “debt collector”
pursuant to 15 U.S.C. § 1692a(6) is:
Any person who uses any instrumentality of interstate commerce or the mails in
any business the principal purpose of which is collection of any debts, or who
regularly collects or attempts to collect, directly or indirectly, debts owed or due
or asserted to be owed or due to another.
However, a creditor’s assignee may not be characterized as a debt collector for purposes of the
FDCPA if the obligation was not in default when assigned. Warren v. Wells Fargo Bank, N.A.
ex rel. Wells Fargo Bank Minnesota, N.A., 2015 WL 6393111, at *4 (W.D. Pa. Oct. 21, 2015)
(McVerry, J.) (citing Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379, 403 (3d Cir. 2000)). See
also Block, 2016 WL 6434487, at *19 (“[T]he servicer of a residential mortgage loan is not a
‘debt collector’ if the loan in question is not in default when acquired by the servicer.”). Further,
when a plaintiff does not plead facts sufficient to demonstrate that a mortgage was in default at
the time a defendant mortgage-servicer began servicing the loan, the plaintiff’s FDCPA claim
should be dismissed. Warren, 2015 WL 6393111, at *4 (citing Owens v. JP Morgan Chase
Bank, 2013 WL 2033149, at *4 (W.D. Pa. May 14, 2013) (Mitchell, M.J.)).
11

The Second Amended Complaint is devoid of any such showing. (Docket No. 58 ¶¶ 70 –
75). Rather, Plaintiff has pled that Rushmore accepted all mortgage payments from 2013
through August 2014, and that had Rushmore cashed his checks after August 2014, Plaintiff
would have been current7. (Docket No. 58 ¶¶ 17 – 18, 29). Thus, in the Court’s estimation, the
Second Amended Complaint establishes only that Rushmore was initially “servicing a current
payment plan rather than demanding payment on a defaulted loan.” Owens, 2013 WL 2033149,
at *4. Conclusory assertions aside, Plaintiff has not alleged evidence sufficient to support his
claim that the mortgage was still in default at the time Rushmore became the servicer. (Id. ¶ 8).
Accordingly, Count II must be dismissed, because Rushmore is not a “debt collector” for
purposes of the FDCPA.
2. Home Inspection
In its Motion to Dismiss, SLS asserts that Plaintiff’s FDCPA claim against it must be
dismissed, because the Second Amended Complaint narrowed the claim to focus solely upon the
use of excessive home inspections to harass Plaintiff and pressure him to pay all monies due and
owing. (Docket No. 62 at 15 – 19). In the Second Amended Complaint, Plaintiff pleads the
following violations by SLS:
(a)

(b)

Imposing excessive and obtrusive home inspections on the Plaintiff that
were in no way necessary to protect the real estate, but were solely done
for the purpose of harassing and abusing the Plaintiff into unlawfully
coercing the Plaintiff into making a payment on a debt he does not owe,
and "... the natural consequence of which is to harass, oppress, [and]
abuse" the Plaintiff, quoting 15 U.S.C. § 1692d;
Using the ruse of "home inspections" that were not necessary and not
performed to protect the real estate but were, in fact, a false pretext for

7

The Court observes that Rushmore became the mortgage-servicer only after the mortgage was modified to
avoid foreclosure. (Docket No. 58 ¶ 15). Plaintiff’s “Exhibit A” provides that “[t]his Loan Modification Agreement
(“Agreement”), made this 26th day of November, 2012, between FRANCIS VILKOFSKY (“Borrower”) and
Specialized Loan Servicing LLC, as servicer for the current Note Holder (“Servicer”), amends and
supplements (1) the Mortgage, Deed of Trust or Security Deed (the “Security Instrument”), dated June 25, 2007…”
(Docket No. 58-1 at 2) (emphasis added). See Brodzki, 868 F.Supp.2d at 388 (the court may consider exhibits
attached to the complaint at the motion to dismiss stage).

12

(c)

(d)

sending someone to Plaintiff's home to put pressure on Plaintiff to pay an
alleged debt was a false and misleading practice that violates 15 U.S.C. §
1692e, see: Rodriguez v. Seterus, Inc., 2015 WL 5677182 (S.D. Fla. Sept.
28, 2015);
Making the false and misleading representations that the Plaintiff must pay
a high balance to bring his mortgage current when Rushmore knew for a
fact that all Rushmore had to do to bring the mortgage current was to cash
the Plaintiff's previously submitted checks, which misleading
representations violated 15 U.S.C. § 1692e;
Attempting to collect fees, and charges and expense incidental to the
principal obligation that are not authorized by the agreement creating the
debt or permitted by law because all Rushmore has to do is cash the
checks it already received from the Plaintiff to eliminate the charges and
expenses, in violation of 15 U.S.C. § 1692e.

(Docket No. 58 ¶ 95) (emphasis added). As pled, Plaintiff has limited his FDCPA claim against
SLS solely to the nature of its home inspections. To the extent that SLS is arguing for dismissal
based upon same, the Court will grant the Motion.
Debt collectors are prohibited from engaging in acts, “the natural consequence of which
is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C.
§ 1692d. Plaintiff’s “Exhibit U8,” purportedly showing the number of inspections conducted at
Plaintiff’s home, does not display a record of inspections after August 27, 2015, and SLS did not
become the mortgage-servicer until 2016. (Docket No. 58-21). While Exhibit U states that there
“were additional inspections after 8/27/2015,” (id.), Plaintiff does not argue that home
inspections are impermissible under the terms of the mortgage. (Docket No. 58 ¶ 95). All that
Plaintiff argues is that SLS continued Rushmore’s practice of ordering “unnecessary, excessive,
obtrusive and harassing home inspections,” without providing further details.

(Id. ¶ 53).

According to Plaintiff, these inspections persisted in spite of Plaintiff’s requests to halt the
practice, and were conducted on at least a monthly basis. (Id.). Plaintiff describes one instance
in which a home inspector entered Plaintiff’s home without permission or announcing his
8

Brodzki, 868 F.Supp.2d at 388 (the court may consider exhibits attached to the complaint at the motion to
dismiss stage).

13

presence. (Id. ¶ 54). Yet, this one particular occurrence admittedly took place during an
inspection ordered by Rushmore, not SLS. (Id.). As to home inspections ordered by SLS,
Plaintiff has provided to the Court nothing more than “threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements.” Fowler, 578 F.3d at 211. Labels
and conclusions – “unnecessary, excessive, obtrusive and harassing” – are insufficient to sustain
Plaintiff’s cause of action, here; the Court requires a factual showing, not a broad assertion of
unlawfulness. Phillips, 515 F.3d at 231 – 32. Plaintiff’s FDCPA claim against SLS will,
therefore, be dismissed9.
C. ACCOUNTING
This Court held previously that there is “no authority for the assertion of an independent
cause of action for an accounting” in this case. (Docket No. 53 at 17). Further:
[t]he Court notes that there is no indication in the Amended Complaint as to
whether an accounting is being sought under state or federal law. The Court also
notes that Pennsylvania has abolished an equitable accounting as an independent
cause of action. Global Arena, LLC v. Eterpreting, LLC, 2016 WL 7156396 *2
(E.D. Pa. Dec. 8, 2016). Federal courts in Pennsylvania have generally held that
an accounting is not a valid cause of action, but an equitable remedy. ClubCom,
Inc. v. Captive Media, Inc., 2009 WL 249446 *14 (W.D. Pa. Jan. 31, 2009).
Plaintiff provides no authority for his assertion to the contrary. This claim must,
therefore, be dismissed without prejudice.
(Id. at 17 – 18). Thus, to the extent Plaintiff continues to assert such a cause of action in the
Second Amended Complaint, same is dismissed. To the extent that Plaintiff seeks an accounting
as an equitable remedy under its remaining RESPA claims, SLS argues that RESPA does not
provide for equitable relief. (Docket No. 71 at 4). See 12 U.S.C. § 2605(f)10. The Court agrees,
and dismisses the RESPA claims inasmuch as an accounting is sought as an equitable remedy11.

9

The FDCPA claim against USB will, likewise, be dismissed as same is based solely upon the theory of
respondeat superior. (Docket No. 58 ¶ 101).
10

(f) Damages and costs

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IV. CONCLUSION
Based upon the foregoing, the Court finds that: (1) Plaintiff has adequately pled RESPA
claims against Rushmore and SLS at Counts I and III of the Second Amended Complaint, but
that said claims are dismissed to the extent that an accounting is sought as an equitable remedy;
(2) Plaintiff cannot state a claim against Rushmore or SLS under the FDCPA at Counts II and
Whoever fails to comply with any provision of this section shall be liable to the borrower for each
such failure in the following amounts:
(1) Individuals
In the case of any action by an individual, an amount equal to the sum of-(A) any actual damages to the borrower as a result of the failure; and
(B) any additional damages, as the court may allow, in the case of a pattern or
practice of noncompliance with the requirements of this section, in an amount
not to exceed $2,000.
(2) Class actions
In the case of a class action, an amount equal to the sum of-(A) any actual damages to each of the borrowers in the class as a result of the
failure; and
(B) any additional damages, as the court may allow, in the case of a pattern or
practice of noncompliance with the requirements of this section, in an amount
not greater than $2,000 for each member of the class, except that the total
amount of damages under this subparagraph in any class action may not exceed
the lesser of-(i) $1,000,000; or
(ii) 1 percent of the net worth of the servicer.
(3) Costs
In addition to the amounts under paragraph (1) or (2), in the case of any successful action
under this section, the costs of the action, together with any attorneys fees incurred in
connection with such action as the court may determine to be reasonable under the
circumstances.
(4) Nonliability
A transferor or transferee servicer shall not be liable under this subsection for any failure
to comply with any requirement under this section if, within 60 days after discovering an
error (whether pursuant to a final written examination report or the servicer's own
procedures) and before the commencement of an action under this subsection and the
receipt of written notice of the error from the borrower, the servicer notifies the person
concerned of the error and makes whatever adjustments are necessary in the appropriate
account to ensure that the person will not be required to pay an amount in excess of any
amount that the person otherwise would have paid.
12 U.S.C. § 2605.
11

See e.g. Reed v. Select Portfolio Servicing, Inc., 2017 WL 663139, at *7 (E.D. Tenn. Feb. 16, 2017) (Court
is unable to broaden RESPA’s scope to include equitable remedies); Garrow v. JPMorgan Chase Bank, N.A., 2016
WL 2894066, at *5 – 6 (E.D. Mich. Apr. 27, 2016) (RESPA relief is limited to monetary damages); Beck v. Wells
Fargo Bank, Nat’l Assoc., 2011 WL 6217345, at * 4 (N.D. Cal. Dec. 14, 2011) (RESPA does not provide for
equitable relief); Malally v. BAC Home Loan Servicing, LLC, 2010 WL 5140626, at *9 n. 13 (RESPA provides for
neither equitable nor injunctive relief); Becker v. Chicago Title Ins. Co., 2004 WL 228672, at *15 (E.D. Pa. Feb. 4,
2004) (equitable relief not available under RESPA).

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IV, and same shall be dismissed; and (3) Plaintiff has failed to state a claim against USB at
Count V pursuant to respondeat superior, and same shall be dismissed. In light of Plaintiff’s
attempts to establish the above claims in three separate complaints (Docket Nos. 1; 13; 57), in
this Court’s estimation, further attempts to amend Counts I and III with respect to equitable relief
via an accounting, as well as all claims in Counts II, IV, and V, would be unsuccessful.
Accordingly, same shall be denied with prejudice. See Phillips, 515 F. 3d at 245 – 46 (dismissal
with prejudice is appropriate when leave to amend would be futile).
An appropriate order follows.
/s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Date: June 14, 2017
cc/ecf: All counsel of record.

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