Kozusko v. Aegis Funding
Filing
7
MEMORANDUM AND ORDER granting 6 Motion to Dismiss for Failure to State a Claim as to Count III and remanding case to the RI Superior Court as to the remaining counts. So Ordered by Chief Judge William E. Smith on 5/11/2017. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
EDWARD M. KOZUSKO, III,
)
)
Plaintiff,
)
)
v.
)
C.A. No. 17-034 S
)
AEGIS FUNDING D/B/A AEGIS HOME
)
EQUITY by and through its
)
Nominee, MERS,
)
)
Defendant.
)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
This case involves a mortgagee (“Plaintiff”) bringing suit
against mortgagor (“Defendant”), by and through the mortgagor’s
nominee, MERS. Plaintiff’s cause of action is based primarily on
Rhode Island state law, including claims for quiet title (Count
I),
failure
of
indebtedness
(Count
II),
breach
of
contract
(Count IV), and violation of the Rhode Island Deceptive Trade
Practices Act (Count V). The case has come to federal court
because Count III alleges a violation of the federal Real Estate
Settlement
alleges
Procedures
that
he
Act
“submitted
(“RESPA”).
Specifically,
correspondence
.
.
.
Plaintiff
requesting
account information and further disputing account information”
but that Defendant failed to respond. (Compl. ¶¶ 25-27, ECF No.
1-2.)
Before the Court is Defendant’s Motion to Dismiss (ECF No.
6), to which Plaintiff has failed to respond. When considering a
motion to dismiss, the Court takes the factual allegations in
the complaint as true and draws all reasonable inferences in
plaintiff’s favor. See Ocasio-Hernandez v. Fortuno-Burset, 640
F.3d 1, 12 (1st Cir. 2011). Plaintiff’s claim must set forth “a
short
and
plain
statement
of
the
claim,”
Fed.
R.
Civ.
P.
8(a)(2), such that defendant is given “fair notice of what the .
. . claim is and the grounds upon which it rests.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). This requires that Plaintiff
provide
“more
than
labels
and
conclusions,
and
a
formulaic
recitation of the elements of a cause of action will not do.”
Id. (citation omitted).
Count III - the RESPA claim upon which federal question
jurisdiction is predicated – falls well short of that standard.
First,
the
Complaint
fails
to
allege
that
MERS
is
a
“loan
servicer,” which is a statutory requirement for liability under
RESPA. This failure is alone grounds for dismissal. See, e.g.,
Moceri v. Plaza Home Mortg., Inc., No. 11CV1060-CAB RBB, 2013 WL
7869339, at *7 (S.D. Cal. Mar. 7, 2013); Castaneda v. Saxon
Mortg. Servs., Inc., 687 F. Supp. 2d 1191, 1199 (E.D. Cal. 2009)
(“Without alleging that [defendant] is a ‘loan servicer’ under
RESPA plaintiffs cannot show that [defendant] owed any duty to
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respond to their QWR, and accordingly plaintiffs' RESPA claim
against
[defendant]
must
be
dismissed.”).
Second,
while
the
Complaint alleges that Plaintiff sent requests for information
to Defendant, it provides essentially no information regarding
when the requests were sent, to whom or to where, or how many
requests were made. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)
(requiring
plaintiff
allows
the
to
court
draw
to
“plead[]
the
factual
reasonable
content
inference
that
that
the
defendant is liable for the misconduct alleged”).
Third, and lastly, Count III fails to provide any details
for
its
damages
damages
or,
claim.
when
there
RESPA
is
allows
a
for
“pattern
either
or
compensatory
practice
of
non-
compliance,” statutory damages. See 12 U.S.C. § 2605(f)(1)(A),
(B).
Plaintiff
alleges
statutory
damages,
but
provides
no
information to back up its allegation of a “pattern or practice
of non-compliance” with RESPA. Instead, Plaintiff simply states,
without further factual development, that “Defendant’s conduct
was
a
pattern
or
practice
of
non-compliance
with
[RESPA].”
(Compl. ¶ 28, ECF No. 1-2.) This sort of “formulaic recitation
of the elements” is insufficient. Twombly, 550 U.S. at 555; see
also
Iqbal,
556
U.S.
at
678
(“Threadbare
recitals
of
the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.”).
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For these reasons, Defendant’s Motion to Dismiss (ECF No.
6), as it relates to Count III, is GRANTED. Pursuant to 28
U.S.C. § 1367(c), the remainder of this case is REMANDED to
Rhode Island Superior Court.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: May 11, 2017
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