Fedewa et al v. JP Morgan Chase Bank, National Association et al

Filing 11

MEMORANDUM OPINION re: 2 MOTION to Dismiss by JP Morgan Chase Bank, National Association, 6 First MOTION to Dismiss for Failure to State a Claim by Professional Foreclosure Corporation of Virginia. (See Memorandum Opinion For Details). Signed by District Judge James C. Cacheris on 1/29/13. (nhall)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

ERIC FEDEWA,
and
RITIKA FEDEWA,

Plaintiffs,

v.

J.P. MORGAN CHASE BANK,
NATIONAL ASSOCIATION,
and
PROFESSIONAL FORECLOSURE
CORPORATION OF VIRGINIA,

Defendants.

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M E M O R A N D U M

O P I N I O N

This matter is before the Court on the Motions of
Defendants J.P. Morgan Chase Bank, National Association [Dkt. 2]
and Professional Foreclosure Corporation of Virginia [Dkt. 6]
(collectively, the “Defendants”) to Dismiss the Complaint
(collectively, the “Motions”) of Plaintiffs Eric Fedewa and

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Ritika Fedewa (collectively, the “Plaintiffs”).

For the

following reasons, Defendants’ Motions will be granted. 1
I. Background
1. Factual Background
This proceeding is in large part predicated upon the
foreclosure of Plaintiffs’ residence.

On March 3, 2006,

Plaintiffs entered into a mortgage-loan transaction in
connection with the purchase of real property located at 1034
Founders Ridge Drive, McLean, Virginia (the “Property”).
Plaintiffs executed a Note in the amount of $3,290,000 with
Washington Mutual Bank, F.A. (“Washington Mutual”) as lender,
and contemporaneously executed a Deed of Trust as a security
interest, thereby encumbering the Property. (Compl. 2; J.P.
Morgan Mem. Mot. 1-2.) Washington Mutual was later seized by the
United States Office of Thrift Supervision (“OTS”) and placed
into the receivership of the Federal Deposit Insurance
Corporation (“FDIC”) on September 25, 2008.

The FDIC sold

certain assets and liabilities of Washington Mutual to J.P.
Morgan Chase Bank (“J.P. Morgan”) pursuant to a written Purchase
and Assumption Agreement. (J.P. Morgan Mem. Mot. 4-5.) At some
point, trustee Professional Foreclosure Corporation of Virginia
(“PFC”) was appointed substitute trustee.

(Compl. 2; J.P.

Morgan Mem. Mot. 2; PFC Mem. Mot. 4.)
1

It should be noted that Plaintiffs’ counsel did not appear at the scheduled
January 18, 2013 hearing upon Defendants’ Motions to Dismiss.

2

Plaintiffs do not expressly concede that they failed
to make requisite mortgage payments, but state in the Complaint
that “[J.P. Morgan] Chase asserts that it is the holder of the
Note. [J.P. Morgan] Chase further asserts that the Note is in
default and has instructed the Trustee to sell the Property at
public auction pursuant to the terms of the Trust and the sale
is scheduled for November 27, 2012.”

(Compl. 2.)

The primary

issue of which Plaintiffs complain is Defendants’ purported
disinclination to furnish evidence that Defendant J.P. Morgan is
the true holder of the subject Note.

According to the

Complaint, Plaintiffs have asked to review the Note but have not
been able to do so.

Plaintiffs represent that “[PFC] has

claimed they have the original note but it was in their office
in Virginia Beach.

When questioned abut (sic) transferring it

to Fairfax for review, the plaintiffs were advised a few days
ago that the original was now in Fairfax.”

(Compl. 2.)

Plaintiffs state that “[d]ue to the time of the foreclosure and
the Thanksgiving holiday, the plaintiffs are unable to view such
note at this time. [J.P. Morgan] Chase has produced conflicting
documents to be copies of the Note but which contain
inconsistent information.”

(Id.)

Regarding the purported

inconsistencies between the furnished copies of the Note, it is
unclear from the Complaint the precise nature of those

3

discrepancies, as the allegedly conflicting copies of the Note
are not in the record and not described in the Complaint.
Plaintiffs assert that they have “made numerous
requests of [J.P. Morgan] Chase to produce evidence that they
are the holder of the Note and entitled to enforce the terms of
the Trust ... To date, [J.P. Morgan] Chase, has failed to
produce the appropriate documentation.”

(Id.)

They contend

that they have made numerous “requests” pursuant to the Federal
Truth in Lending Act (“TILA”) and the Real Estate Settlement
Procedures Act (“RESPA”) and that, “[i]n violation of such laws,
[J.P. Morgan] Chase, has failed to fully respond to the
requests.” (Compl. 3.)

Plaintiffs state that if Defendant J.P.

Morgan is the holder of the Note, then they have “breached
[their] agreement with the plaintiffs.” (Id.)

Plaintiffs

further argue that “[J.P. Morgan] Chase and the Trustee should
not be permitted to sell the Property pursuant to the Trust,
until such time as they have complied with all of the requests
of the plaintiffs and produced evidence that they are the
holder2 (sic) of the Note.”

(Id.)

2. Procedural Background
Plaintiffs’ Complaint was originally filed in the
Circuit Court for Fairfax County, Virginia on November 21, 2012.
[Dkt. 1-1.]

On December 18, 2012, Defendant filed a Notice of

Removal pursuant to 28 U.S.C. § 1446(d). [Dkt. 1.]
4

On December

26, 2012, Defendant J.P. Morgan Chase Bank filed their first
Motion to Dismiss.

[Dkt. 2.]

Memorandum in Support.

They also filed an accompanying

[Dkt. 3.]

On December 27, 2012,

Defendant PFC filed a Motion to Dismiss for Failure to State a
Claim. [Dkt. 6.]

They also filed a Memorandum in Support. [Dkt.

7.]
Plaintiffs have not filed any Answer or Opposition to
Defendants’ Motions that are now before the Court.
II. Standard of Review
Federal Rule of Civil Procedure 12(b) (6) allows a
court to dismiss those allegations which fail “to state a claim
upon which relief can be granted.”

Fed. R. Civ. P. 12(b)(6).

Rule 12(b)(6) motion tests the legal sufficiency of the

A

complaint.
2008).

Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.

A court reviewing a complaint on a Rule 12(b)(6) motion

must accept well-pleaded allegations as true and must construe
factual allegations in favor of the plaintiff.

See Randall v.

United States, 30 F.3d 518, 522 (4th Cir. 1994).
A court must also be mindful of the liberal pleading
standards under Rule 8, which require only “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”

Fed. R. Civ. P. 8.

While Rule 8 does not require

“detailed factual allegations,” a plaintiff must still provide
“more than labels and conclusions” because “a formulaic
5

recitation of the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)
(citation omitted).
To survive a Rule 12(b)(6) motion, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”

Ashcroft v.

Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.”

Id.

However, “[t]hreadbare recitals of the elements

of a cause of action, supported by mere conclusory statements,
do not suffice” to meet this standard, id., and a plaintiff’s
“[f]actual allegations must be enough to raise a right to relief
above the speculative level . . . .”

Twombly, 550 U.S. at 555.

Moreover, a court is “not bound to accept as true a legal
conclusion couched as a factual allegation.”

Iqbal, 556 U.S. at

678.
III. Analysis
In Virginia, notes are negotiable instruments that are
freely transferable without impairment of the rights to
subsequent holders. See, e.g., Daugherty v. Diment, 238 Va. 520,
525 (1989).

Virginia law is clear that the negotiation of a

note or bond secured by a deed of trust or mortgage carries with
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it that security.

Williams v. Gifford, 139 Va. 779, 784 (1924)

(“[I]n Virginia, as to common law securities, the law is that
both deeds of trust and mortgages are regarded in equity as mere
securities for the debt and whenever the debt is assigned the
deed of trust or mortgage is assigned or transferred with it.”).
Such has historically been the case in Virginia and,
consequently, the transfer of a note carries with it the
security interest provided for in the deed of trust.

See Va.

Housing Dev. Auth. v. Fox Run Ltd., 255 Va. 356, 364 (1988); see
also Stimpson v. Bishop, 82 Va. 190, 200–01 (1886) (“It is
undoubtedly true that a transfer of a secured debt carries with
it the security without formal assignment or delivery.”).
Virginia is a non-judicial foreclosure state.

The

Virginia Code sets forth the procedural requirements for a nonjudicial foreclosure.

A borrower’s default allows the trustee

(or substitute trustee) to “declare all the debts and
obligations secured by the deed of trust at once due and payable
and may take possession of the property and proceed to sell the
same . . . .”

Va. Code Ann. § 55-59(7).

Indeed, it is

axiomatic that “the current holder of the note[ ]has authority
to foreclose.”

Bernardo v. Nat'l City Real Estate Servs., 435

Fed.Appx. 240 (4th Cir. 2011).

Under Virginia law, the holder

of an instrument or a non-holder in possession of the instrument
with the same rights as the holder may enforce the instrument.
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Va.Code. Ann. § 8.3A-301.

An individual becomes the “holder”

of an instrument through the process of negotiation, and if “an
instrument is payable to an identified person, negotiation
requires transfer of possession of the instrument and its
endorsement by the holder.” Id. at § 8.3A-201(b).

Va. Code §

55-59(7) describes the authority of the trustee to foreclose and
sell property provided as security for a loan as follows:
In the event of default in the payment of
the debt secured or any part thereof, at
maturity, or in the payment of interest when
due, or of the breach of any of the
covenants entered into or imposed upon the
grantor, then at the request of any
beneficiary the trustee shall forthwith
declare all the debts and obligations
secured by the deed of trust at once due and
payable and may take possession of the
property and proceed to sell the same at
auction.
In addition, a person entitled to enforce the instrument may
constitute “a person not in possession of the instrument who is
entitled to enforce the instrument pursuant to § 8.3A-309 or §
8.3A-418 (d).” 2

Va.Code. Ann. § 8.3A-301.

2

Finally, Virginia law

Va. Code § 8.3A-309 states that “[a] person not in possession of an
instrument is entitled to enforce the instrument if (i) the person was in
possession of the instrument and entitled to enforce it when loss of
possession occurred, (ii) the loss of possession was not the result of a
transfer by the person or a lawful seizure, and (iii) the person cannot
reasonably obtain possession of the instrument because the instrument was
destroyed, its whereabouts cannot be determined, or it is in the wrongful
possession of an unknown person or a person that cannot be found or is not
amenable to service of process.” Va. Code § 8.3A-418 (d) states that
“[n]otwithstanding § 8.4-213, if an instrument is paid or accepted by mistake
and the payor or acceptor recovers payment or revokes acceptance under
subsection (a) or (b), the instrument is deemed not to have been paid or
accepted and is treated as dishonored, and the person from whom payment is

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provides that “[a] person may be a person entitled to enforce
the instrument even though the person is not the owner of the
instrument or is in wrongful possession of the instrument.”

Id.

1. Plaintiffs’ Demand for Verification of J.P. Morgan’s
Possession of the Note
In essence, Plaintiffs’ Complaint is largely
predicated upon the allegation that Defendant J.P. Morgan have
failed to furnish satisfactory verification that they are in
Plaintiffs contend that

possession of the original Note.

because Defendants have failed to furnish verification over the
Plaintiffs’ repeated demands, this Court therefore should enjoin
the November 27, 2012 foreclosure of Plaintiffs’ domicile and
conduct an inquiry into “the party that has the legal right to
direct and conduct such a sale...” (Compl. 3.)
The Court declines to pursue such a course of action,
as Plaintiffs’ Complaint merely espouses a recast “show me the
note” theory, which has been widely rejected as “contrary to
Virginia's non-judicial foreclosure laws.”

Gallant v. Deutsche

Bank Nat'l Trust Co., 766 F.Supp.2d 714, 721 (W.D.Va.2011)
(citation omitted). Accord Minix v. Wells Fargo Bank, 81 Va.
Cir. 130, 2010 WL 7765589, at *4 (Fairfax Cnty. Aug. 24, 2010)
(cautioning that courts should not “be creating a judicial

recovered has rights as a person entitled to enforce the dishonored
instrument.”

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foreclosure procedure when the legislature has mandated a nonjudicial procedure to be appropriate”) (citation omitted).
Section 55–59.1 of the Virginia Code specifically states that:
If a note or other evidence of indebtedness
secured by a deed of trust is lost or for
any reason cannot be produced ..., the
trustee may nonetheless proceed to sale,
provided the beneficiary has given written
notice to the person required to pay the
instrument that the instrument is
unavailable and a request for sale will be
made of the trustee upon expiration of 14
days from the date of mailing of the notice.
Va.Code § 55–59.1(B).

The Court must reject Plaintiffs’ claim

that a secured party is required to come to a court of law and
prove its authority or standing to foreclose on the secured
property.

“Sections 55–59.1 through 55–59.4 [of the Virginia

Code], which set forth the procedural requirements for a nonjudicial foreclosure, do not require an interested party to
prove ‘standing’ in a court of law before initiating the
foreclosure process.”

Tapia v. United States Bank, N.A., 718

F.Supp.2d 689, 698 (E.D.Va. 2010).
2. Plaintiffs’ Request for Declaratory Relief
To the extent that the Plaintiffs seek a declaratory
judgment regarding the validity of the November 27, 2012
foreclosure sale, the Court agrees with the Defendants that such
relief is inappropriate.

(J.P. Morgan Mem. Mot. 9.)

“[D]eclaratory judgments are designed to declare rights so that

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parties can conform their conduct to avoid future litigation.”
Tapia, 718 F.Supp.2d at 695.

Such relief “is unavailable in

situations where ... ‘claims and rights asserted have fully
matured, and the alleged wrongs have already been suffered.’ ”
Trull v. Smolka, 2008 WL 4279599, at *8, 2008 U.S. Dist. LEXIS
70233, at *24 (E.D.Va. Sept. 18, 2008) (quoting Bd. of
Supervisors v. Hylton Enters., 216 Va. 582, 221 S.E.2d 534, 537
(1976)).

The relief sought by Plaintiffs is the injunction of

the November 27, 2012 foreclosure sale.

The Court notes that

this date has already passed, and Defendants have represented
that the foreclosure sale set for that date did not take place
because it was cancelled.

Consequently, this Court is no longer

capable of granting that component of the relief sought by
Plaintiffs. 3
3. Plaintiffs’ TILA and RESPA Requests
In their Complaint, Plaintiffs allege that they have
made several requests of Defendant J.P. Morgan under the Truth
in Lending Act, 15 U.S.C. § 1601 et seq., and the Real Estate
Settlement Procedures Act, 12 U.S.C. § 2601 et seq., but that

3

The Court is not aware of any further developments that have taken place
with regard to Plaintiffs’ property or the foreclosure thereof. If
foreclosure has already taken place, however, then “the alleged wrong or
questionable conduct has already occurred (the foreclosure) [and] declaratory
relief is inappropriate.” Ramirez–Alvarez v. Aurora Loan Servs., LLC, 2010 WL
2934473, at *3, 2010 U.S. Dist. LEXIS 116995, at *6 (E.D.Va. July 21, 2010).
In that case, seeking a declaratory judgment as to title and interest in the
property is inapposite to the underlying purpose of declaratory relief.
Merino v. EMC Mortg. Corp., CIV.A 1:09-CV-1121, 2010 WL 1039842 (E.D.Va. Mar.
19, 2010).

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Defendant has “failed to fully respond.” (Compl. 4.)

Plaintiffs

contend that “[J.P. Morgan] has indicated a charge to the Note
of $140,000 for other fees, but refuses to explain such fees and
the basis for their liability by the plaintiffs.

[J.P. Morgan]

further provided interest rate information which did not comply
with the Note and Trust.”

(Compl. 4.)

Although it is not clear from the Complaint whether
Plaintiffs actually attempt to plead violations of TILA and
RESPA, particularly so in light of the actual relief sought
through this proceeding, the Court will entertain their
allegations as though they constitute at least an attempt at
proper pleading.

Despite their broad allegations of wrongdoing,

Plaintiffs do not cite any specific provisions of TILA and RESPA
that they believe either Defendant has violated through their
conduct.

Beyond their alleged failure to respond to Plaintiffs’

requests to furnish verification that Defendant is the holder of
the Note, it is not clear precisely what acts Defendants
performed or failed to perform that contravene the relevant
tenets of TILA and RESPA. 4

The Court notes that, in light of the

fact that Plaintiffs are represented by counsel, their pleadings
are not construed with the level of deference afforded to pro se
Plaintiffs.

4

The Court notes that Defendant’s conduct has been adjudged to have been
proper in the foregoing, and nothing in TILA and RESPA contravenes that
judgment.

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RESPA mandates good faith estimates and disclosure of
settlement terms and interest rates from lenders in order to
allow consumers to evaluate whether they can afford all aspects
of their loan.

See 12 U.S.C. § 2601(a)-(b).

Regarding

Plaintiffs’ purported requests under RESPA, 12 U.S.C. § 2605(e)
states that "[i]f any servicer of a federally related mortgage
loan receives a qualified written request from the
borrower . . . for information relating to the servicing of such
loan, the servicer shall provide a written response
acknowledging receipt of the correspondence within 20 days."
(emphasis added).

A “qualified written request” is defined as

a written correspondence, other than notice
on a payment coupon or other payment medium
supplied by the servicer, 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.
12 U.S.C. § 2605(e)(1)(B).

Creditors have sixty days following

the receipt of a qualified written request to make requested
changes to the borrower’s account, notify the borrower of the
results of any investigation pertaining to the account, and
transmit the name and telephone number of a representative who
can answer any questions about the account. 12 U.S.C. §
2605(e)(2).

A party to the loan transaction is not subject to
13

RESPA requirements for responding to a qualified written request
unless that party actually received the qualified written
request.

Morilus v. Countrywide Home Loans, Inc., 2007 U.S.

Dist. LEXIS 44943 (E.D.Pa. June 20, 2007).
To the extent Plaintiffs attempt to state a cause of
action under RESPA, their efforts must fail. Plaintiffs have not
pleaded that they actually sent a qualified written request to
which either Defendant failed to respond.

The Complaint

contains no details as to the substantive content of the
request, when the requests were sent by Plaintiffs and received
by Defendant, or whether the form of the requests comported with
the requirements of RESPA.

Indeed, the very form of the

requests themselves is wanting for explication.

There is no

indication of whether Plaintiffs’ requests were oral or written,
and if the requests were written, they are not part of the
record.

In any event, Plaintiffs’ Complaint does not describe

the requests as having been written.

Because Plaintiffs do not

provide the aforementioned details regarding their requests, the
plain language of the statute indicates that Defendant may not
be held liable for failure to respond to these inquiries.
Furthermore, RESPA itself holds that “[n]othing in this chapter
shall affect the validity or enforceability of any sale or
contract for the sale of real property or any loan, loan

14

agreement, mortgage, or lien made or arising in connection with
a federally related mortgage loan.”

12 U.S.C. § 2615.

The stated purpose of TILA is to provide for the
informed use of credit by consumers. 15 U.S.C. § 1601(a).

To

facilitate informed consumer decisions, the Act requires
“meaningful disclosure of credit terms so that the consumer will
be able to compare more readily the various credit terms
available to him and avoid the uninformed use of credit.”
U.S.C. § 1601(a).

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The content and presentation of loan

agreements are regulated by TILA and implementing Federal
Reserve Board Regulation Z, 12 C.F.R. § 226.
disclosure statute.

TILA is a

It does not substantively regulate consumer

credit but rather “requires disclosure of certain terms and
conditions of credit before consummation of a consumer credit
transaction.”
Cir. 2001).

Rendler v. Corus Bank, 272 F.3d 992, 996 (7th
Under TILA and Regulation Z, a lender must disclose

to a borrower “certain material terms clearly and conspicuously
in writing, in a form that [Plaintiff] may examine and retain
for reference.” In re Webster, 300 B.R. 787, 799 (Bankr.
W.D.Okla. 2003)(citing 15 U.S.C. §§ 1638(b)(1) & 12 C.F.R. §
226.17(a)(1))(internal citations omitted).

Disclosures must be

made before credit is extended, thus before the transaction is
consummated, and must reflect the actual terms of the legal

15

obligation between the parties. 15 U.S.C. § 1638(b)(1); 12
C.F.R. § 226.17(b) & (c)(1).
Thus, under TILA, a creditor's principal disclosure
obligations arise before the credit transaction is consummated.
See Rudisell v. Fifth Third Bank, 622 F.2d 243, 246 (6th Cir.
1980); 12 C.F.R. § 226.17(b) (“The creditor shall make
disclosures before consummation of the transaction.”).
Consummation, in turn, is defined by Regulation Z as “the time
that a consumer becomes contractually obligated on a credit
transaction.” 12 C.F.R. § 226.2(a)(13); see Cades v. H & R
Block, Inc., 43 F.3d 869, 876 (4th Cir. 1994); Harper v. Lindsay
Chevrolet, 212 F.Supp.2d 582, 587 (E.D.Va. 2002).

In closed-end

transactions, the required disclosures under TILA are to be made
as of the time that credit is extended and it is as of that time
that the adequacy and accuracy of the disclosures are measured.
Begala v. PNC Bank, Ohio, Nat. Ass'n, 163 F.3d 948, 950 (6th
Cir. 1998); 15 U.S.C. § 1638(b).

It should be noted that a

creditor is not required to make disclosures above and beyond
those required by TILA.

See Cosby v. Mellon Bank, N.A., 407

F.Supp. 233, 234 (W.D.Pa. 1976) (“[T]he requirements of
disclosure under the [Truth in Lending] Act do not apply to all
information that a creditor might furnish to a customer but only
to that information the Act requires to be ‘disclosed’ to a
customer”).
16

It must be noted that many of the basic details of
Plaintiffs’ TILA allegations are not clear in this case.

Unlike

a typical TILA claim, Plaintiffs here do not allege that a
disclosure violation took place prior to extension of the
subject loan or around consummation.

Plaintiffs have not

alleged that Defendant J.P. Morgan failed to provide them with
requisite disclosure information at the origination of their
loan, or that they were provided with inaccurate or incomplete
information.

Indeed, for Defendant J.P. Morgan to have done so

would be impossible under the facts of the instant proceeding,
as Plaintiffs’ loan originated with Washington Mutual. 5
Nevertheless, the Court need not reach a discussion of
the legal relationship between the two financial entities in
this matter.

Regardless of whether TILA liability may be

imputed to Defendant J.P. Morgan from actions or inaction on the
part of Washington Mutual, in any event it is clear that
Plaintiffs have not pleaded sufficient facts to support a TILA
claim.
Regarding the $140,000 charge “for other fees”
associated with the loan, the Compliant states that Defendant
J.P. Morgan “refuses to explain such fees or the basis for
liability by the plaintiffs.” (Compl. 3.)

5

The Complaint

As stated in the foregoing, Washington Mutual was later closed by the FDIC,
and certain assets were eventually sold to Defendant J.P. Morgan pursuant to
a Purchase and Assumption Agreement.

17

provides scant background upon which to evaluate this
allegation, and the paucity of accompanying information fatally
undermines any TILA claim Plaintiffs might have attempted to
state though the allegation.

The Complaint does not contain any

substantive information regarding the purported basis for or
assessment of the charge.

There is no information in the

Complaint with regard to when the charge was assessed.

There

are no facts in the Complaint relating to Defendant’s alleged
refusal to explain the basis of the charge.

There is not any

explanation of how assessment of the charge differs from the
terms of the existing loan agreement, or why disclosure of the
basis for the charge is required under TILA.

Indeed, Plaintiffs

have not cited any authority in support of their TILA
allegations and have not cited a specific part of TILA that they
believe has been violated.
In addition, the Complaint does not contain any
explanation as to how the interest rate information that was
provided to Plaintiffs was inaccurate, incomplete, or differs
from the information that had previously been provided or
differs from the information that Plaintiffs believe Defendants
should have provided.

Indeed, there is no indication from the

Complaint as to what the substance of the provided interest rate
information was.

Furthermore, Plaintiffs have not explained how

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the information itself or Defendants’ conduct contravene the
provisions of either TILA or RESPA.
Despite the ostensible inference of the Complaint that
Plaintiffs have made other requests for information that went
unanswered by Defendants, the Complaint does not explain what
those additional requests entailed.

To the extent that the

purported requests made by Plaintiffs pursuant to TILA and RESPA
extend beyond their request for verification that Defendant J.P.
Morgan is the true holder the Note and example of a request for
information concerning the origin of a charge to the Note, it is
not clear whether there were other requests made by Plaintiffs
to Defendants and what the precise content of those requests
would have been.

Plaintiffs have not explained or attached

documentation capable of expounding the content of any such
requests.

Indeed, there is simply nothing in the record that

describes when Plaintiffs’ requests were made and what those
requests entailed.
In summation, Plaintiffs' allegations with regard to
TILA and RESPA are so summarily pled that they do not raise a
right to relief above the speculative level.

Plaintiffs’

Complaint does not contain “sufficient factual matter” to

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support their conclusory allegations that Defendants have
violated RESPA and TILA. 6
4. “Breach[] [of the Parties’] Agreement”
It is not clear from the Complaint the precise
wrongdoing Defendant PFC is alleged to have committed.
Plaintiffs have not cited any specific violation of the terms of
the Note or Deed of Trust that they believe PFC to have
committed.

It is well-settled that “[t]he powers and duties of

a trustee in a deed of trust, given to secure the payment of a
debt, are limited and defined by the instrument under which he
acts.”

Warner v. Clementson, 254 Va. 356, 361 (1997).
Though the Complaint boldly asserts that “[i]f [J.P.

Morgan] is the holder of the Note, it has breached its agreement
with the plaintiffs[,]” a court is “not bound to accept as true
a legal conclusion couched as a factual allegation.”
U.S. at 678.

Iqbal, 556

Similarly, to the extent that Plaintiffs believe

that Defendant J.P. Morgan is in breach of some component of
their agreement through conduct that the Court has not already
discussed in the foregoing, it is not clear from the Complaint
the precise nature of the breach or the precise wrongdoing
Defendant J.P. Morgan is alleged to have undertaken.
IV. Conclusion
6

Though it appears to be a distinct possibility that Plaintiffs’ TILA and
RESPA claims are time-barred, due to the substantive deficiency of the
Complaint, the Court need not reach Defendants’ statute of limitations
argument.

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For the foregoing reasons, the Court will grant the
Defendants’ Motions to Dismiss.
An appropriate Order will issue.

January 29, 2013
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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