Barrett v. HSBC Bank USA, National Association, as Trustee for the Certificateholders of the MLMI Trust, Mortgage Loan Asset-Backed Certificates, Series 2005-WMC1 et al
Filing
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Memorandum Opinion and Order granting 16 Motion to Dismiss filed by Bank of America NA, HSBC Bank USA, National Association, as Trustee for the Certificateholders of the MLMI Trust, Mortgage Loan Asset-Backed Certificates, Series 2005-WMC1. [see order for specifics] (Ordered by Judge John McBryde on 11/9/2012) (cxb)
u.s. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FILED
IN THE UNITED STATES DISTRIC
NORTHERN DISTRICT OF TEX
FORT WORTH DIVISION
DETRA BARRETT,
CLERK, U.S. DISTRICT COURT
B)' _ _~ ~
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Plaintiff,
NOV -92012
Deputy
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§
VS.
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NO. 4:12-CV-476-A
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HSBC BANK USA, NATIONAL,
ASSOCIATION, AS TRUSTEE FOR THE
CERTICIATEHOLDERS OF THE MLMI
TRUST, MORTGAGE LOAN ASSETBACKED CERTIFICATES, SERIES
2005-WMC1, ET AL.,
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Defendants.
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MEMORANDUM OPINION
and
ORDER
Before the court for decision is the motion of defendants,
HSBC Bank USA, National Association, as Trustee for the
Certificateholders of the MLMI Trust, Mortgage Loan Asset-Backed
Certificates, Series 2005-WMCl ("HSBC") and Bank of America, N.A.
("BOA")
(collectively,
"defendants"), to dismiss the amended
complaint of plaintiff, Detra Barrett, for failure to state a
claim upon which relief may be granted.
After having considered
such motion, plaintiff's response, plaintiff's amended complaint,
and applicable legal authorities, the court has concluded that
defendants' motion to dismiss should be granted.
I.
Background
Plaintiff instituted this action by filing a petition in the
District Court of Tarrant County, Texas, 17th Judicial District,
on June 21, 2012, against defendants as Cause No. 17-259884-12.
Defendants removed the case to this court on July 13, 2012.
On
July 31, 2012, the court ordered plaintiff to file an amended
complaint that complies with the Federal Rules of civil Procedure
and the Local civil Rules of the united states District Court for
the Northern District of Texas.
On August 20, 2012, plaintiff
filed her amended complaint, after which defendants filed a
motion to dismiss along with a supporting brief on October 12,
2012.
Plaintiff filed an objection to defendant's motion to
dismiss on November 7, 2012.
II.
Plaintiff's Claims
Plaintiff has alleged five claims under the Federal Trade
Commission Act, 15 U.S.C.
§
45 (a)
("FTC Act")
i
three claims under
the Fair Debt Collection Practices Act, 15 U.S.C.
§§
1692e,
1692g, and 16921 ("FDCPA") i three claims under the Fair Credit
Reporting Act, 15 U.S.C.
§
1681s ("FCRA") i and one claim under
the Real Estate Settlement Procedures Act, 12 U.S.C.
("RESPA").
§
2607
Plaintiff seeks monetary civil penalties, injunctive
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relief, and costs of court.
The action arises out of defendants'
attempts to enforce the lien against plaintiff's property to
secure repaYment of the promissory note at issue.
Plaintiff made the following factual allegations in her
amended complaint:
On July 9, 2004, plaintiff signed a promissory note with WMC
Mortgage Corporation in order to purchase the property that is
the sUbject of this lawsuit.
On June 20, 2012, plaintiff
requested in writing that defendants produce certified copies of
"any and all transfer documents showing all of the transfers and
assignments of the Original Deed of Trust and the Original Note
and Original Title."
Am. Compl. at 9.
produced such documents to plaintiff.
Defendants have not
Plaintiff has attempted to
verify that defendants are the holders of the note, but
defendants have refused to do so.
Id.
Defendants have "forced
placed Escrow on the loan stating that the Plaintiff had not pay
property taxes for consumers' homes when such taxes had been
paid."
Id. at 11.
Defendants also "took more than seven amounts
to credit"l plaintiff's account after defendant received a refund
from the tax collector's office.
No further details or factual statements are alleged in the
1
The court believes this to mean seven "months."
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complaint; rather, the rest of the complaint consists of legal
conclusions and general statements and beliefs about defendants.
III.
Grounds for Defendants' Motion
Defendants filed their motion pursuant to Rule 12(b) (6) of
the Federal Rules of Civil Procedure for failure to state a claim
upon which relief may be granted.
Defendants argue that
plaintiff has not alleged sufficient facts to state a claim for
any cause of action, that her claims "rest upon mere conclusory,
stale, and misplaced allegations, rather than identifying any
actual misconduct on behalf of Defendants, or any actual harm
suffered by [plaintiff] .
,,2
Def.
IS
Br. at 2.
IV.
Analysis
A. Standard of Review
Rule 8(a) (2) of the Federal Rules of civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. civ. P. 8(a) (2),
"in order to give the defendant fair
Defendants also mention that many parts of plaintiffs complaint are copied "virtually
word-for-word" from the complaint filed in United States v. Fairbanks Capital Corp., et aI., No.
1:03-CV-12219-DPW (D. Mass. Nov. 12,2003). Defendants have included such complaint in
their appendix.
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notice of what the claim is and the grounds upon which it rests."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
quotation marks and ellipsis omitted).
(internal
Although a complaint need
not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action.
See Twombly, 550 U.S. at 555 & n.3.
Thus, while a
court must accept all of the factual allegations in the complaint
as true, it need not credit bare legal conclusions that are
unsupported by any factual underpinnings.
556 U.S. 662, 679 (2009)
See Ashcroft v. Iqbal,
("While legal conclusions can provide
the framework of a complaint, they must be supported by factual
allegations.")
Moreover, to survive a motion to dismiss for failure to
state a claim, the facts pleaded must allow the court to infer
that the plaintiff's right to relief is plausible.
U.S. at 679.
Iqbal, 556
To allege a plausible right to relief, the facts
pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient.
U.S. at 566-69.
Twombly, 550
"Determining whether a complaint states a
[is] a context-specific task
plausible claim for relief .
that requires the reviewing court to draw on its judicial
experience and common sense."
Iqbal, 556 U.S. at 679.
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B. Applying the Standards to the Amended Complaint
Proceeding on the basis of the information before the court
in plaintiff's amended complaint, the court finds that
plaintiff's allegations for all claims fall short of the pleading
standards or otherwise fail.
with respect to plaintiff's claims
under the FTC Act, such statute does not provide a private right
of action, and therefore plaintiff has no standing.
with respect
to plaintiff's remaining claims, the amended complaint fails to
meet the standard set forth in Rule 8{a) (2), as interpreted by
the Supreme Court in Twombly and Iqbal.
1.
Claims Alleging FTC Act Violations
Plaintiff's first five claims allege violations of the FTC
Act, which provides no private right of action.
Scott & Fetzer Co., 752 F. Supp. 732, 734
See Cranfill v.
(E.D. Tex. 1990)
(explaining that it is well-settled that no private right of
action exists under the FTC Act, and citing applicable cases) .
Therefore, plaintiff's claims under the FTC Act fail as a matter
of law.
2.
Claims Alleging FDCPA Violations
The FDCPA proscribes debt collectors from using "any false,
deceptive, or misleading representation or means" or "unfair or
unconscionable means" when collecting a debt.
-1692f.
15 U.S.C.
§§
Mortgage lenders are generally not considered debt
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1692e
collectors under the FDCPA.
Williams v. Countrywide Home Loans,
Inc., 504 F. Supp.2d 176, 190 (S.D. Tex. 2007).
Plaintiff has
alleged no facts that could plausibly state a claim for any kind
of violation of the FDCPA by defendants.
Defendant correctly
points out that plaintiff does not identify a single occasion
that she was subjected to treatment that could qualify as an
FDCPA violation.
Rather, plaintiff makes such conclusory
allegations as "[o]n numerous occasions, in connection with the
collection of debts that were in default when obtained by
defendants, defendants have used false, deceptive, or misleading
representations or means . . . . "
Am. Compl. at 13.
The
remaining allegations offer more legal conclusions with no facts
to support them, and represent the type of "unadorned, thedefendant-unlawfully-harmed-me accusation[s]" that the Supreme
Court has rejected.
Iqbal, 556 U.S. 662, 678
Additionally,
Plaintiff's objection in response to defendants' motion to
dismiss fails to address or cure the deficiencies of her
complaint, but provides more legal conclusions.
3.
Claims Alleging FCRA Violations
Plaintiff's claims under FRCA fail for the same reasons as
her claims under the FDCPA.
The FCRA imposes civil liability on
a person who willfully obtains a consumer report for a purpose
that is not authorized by the FCRA.
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Nowhere does plaintiff
allege any facts that could state a plausible claim for relief.
At no place in her complaint does she identify any specific
instances of defendants' misreporting credit information, or any
dispute she may have had with a credit reporting agency.
Again
she recites legal conclusions and claims that defendants are
liable, while providing no facts specific to herself.
4.
Claims Alleging Violations of RESPA
Similarly, plaintiff's claims under RESPA fail, as plaintiff
has again alleged no facts that could constitute a violation of
the statute.
She claims that, in violation of 12 U.S.C.
§
2605,
defendants failed to:
77. (a) Promptly post payments received in a timely manner;
78. (b) Timely apply payments to principal and interest on
consumers' accounts??
79. (c) Make timely payments to escrow funds for casualty
insurance premiums and property taxes; and
80. (d) Timely and adequately acknowledge, investigate, and
respond to consumers' qualified written requests for
information about the servicing of their loans and escrow
accounts.
Am. Compl. at 16-17.
Plaintiff provides no specific facts to
support the above conclusions.
For example, plaintiff fails to
allege such basic facts as the date, amount, or recipient of any
payment she made, when defendants posted a payment or failed to
do so, or that she even made a payment to defendants.
She
similarly does not allege what payments defendants failed to make
to escrow funds.
She fails to describe what kinds of "qualified
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written requests" she may have made, which RESPA defines as
written correspondence that "(i) includes, or otherwise enables
the servicer to identify, the name and account of the borrower;
and (ii) includes a statement of the reasons for the belief of
the borrower, to the extent applicable, that the account is in
error or provides sufficient detail to the servicer regarding
other information sought by the borrower."
2605 (e) (1) (B) (i) - (ii).
12 U.S.C.
§
The qualified written request must be
related to the servicing of the loan, meaning it must relate to
"any scheduled periodic paYments from a borrower" or the "making
of . . . paYments of principal and interest."
2605 (e) (1) (A) and 2605 (i) (3).
12 U.S.C.
§§
See Souto v. Bank of Am., N.A.,
No. H-11-3556, 2012 WL 3638024, at *7-8
(S.D. Tex. Aug. 22, 2012)
(explaining qualified written request under RESPA).
Plaintiff
provides no facts indicating that she sought information related
to her account or payments, as the only correspondence she
alleges related to the deed and note.
v.
Conclusion
The court has already afforded plaintiff an opportunity to
file an amended complaint that complies with the requirements of
Rules 8(a) (2) and 9(b), alleging with particularity the facts
that she contends will establish her right to recover against
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defendants as to each theory of recovery alleged.
For the
reasons stated above, the court concludes that plaintiff's
amended complaint has not resolved those defects, and that
plaintiff's pleadings do not allege that she is entitled to
relief.
Accordingly, defendants' motion to dismiss should be
granted, and all of plaintiff's claims should be dismissed with
prejudice.
Therefore,
The court ORDERS that defendants' motion to dismiss be, and
is hereby, granted, and that all claims and causes of action
asserted in the above-captioned action by plaintiff against
defendants, be, and are hereby,
SIGNED November 9, 2012.
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