Rozier et al v. Citimortage, Inc. et al
Filing
24
MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr on 7/5/11. (kyou, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
WILLIAM ROZIER, et al.9
Plaintiffs,
Civil Action No. 3:10CV831-JAG
v.
CITIMORTGAGE, INC., et al„
Defendants.
MEMORANDUM OPINION
This is an action seeking money damages for alleged violations of the Fair Debt
Collection Practices Act ("FDCPA"), the National Fair Housing Act ("NFHA"), the Real Estate
Settlement Procedures Act ("RESPA"), and the Truth in Lending Act ("TILA"). This matter
comes before the court on defendant-CitiMortgage's Motion to Dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure (Dk. No. 10) and defendant-Wittstadt Title &
Escrow Company's motion to dismiss pursuant to Rules 12(b)(4), 12(b)(6), and 12(b)(7) (Dk.
No. 7). The parties have submitted memoranda of law in support of their respective positions.
The Court will dispense with oral argument because the facts and legal contentions are
adequately presented in the materials presently before the Court and argument would not aid in
the decisional process.
For the reasons discussed herein, the defendants' motions will be
granted.
I.
William Rozier, Shirley Muir, and the Estate of Maurine Muir ("plaintiffs") filed this
action on November 17, 2010.
The plaintiffs, proceeding pro se, allege that CitiMortgage,
Incorporated ("CitiMortgage") and Wittstadt Title & Escrow Company ("Wittstadt") committed
various violations in connection with a mortgage issued to Maurine Muir in 2001 and the
subsequent foreclosure onthe mortgaged property in 2010.1
The plaintiffs allege that Maurine Muir purchased the property located at 6724 Gills Gate
Terrace in Chesterfield, Virginia on July 26, 2001. To finance her purchase, Muir obtained a
loan from CitiMortgage (the "Mortgage").
Nearly ten years later, in September of 2010,
CitiMortgage authorized Wittstadt to begin foreclosure proceedings on its behalf. It is apparent
from the plaintiffs complaint that, at some point between the purchase of the property and the
initiation of foreclosure proceedings, Maurine Muir passed away.
Nearly ten years after the mortgage transaction at issue, the plaintiffs have filed this
action alleging that the defendants failed to make the required disclosures during the transaction.
Count one of the complaint alleges that the "Defendants' failure to provide disclosures
accurately and/or correctly" creates an "issue of fact as to the legal owner of the note and deed."
(Compl. f 26.) Count two asserts that Wittstadt violated the FDCPA during the foreclosure
process. In count three, the plaintiffs claim that CitiMortgage violated the National Fair Housing
Act by failing to comply with a number of its provisions. The plaintiffs claim violations of
RESPA in count four, citing the defendants' failure to provide a booklet on the closing costs
within three days of Maurine Muir's application for the Mortgage. Lastly, count five alleges a
violation of TILA Regulation Z.
II.
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;... it does
not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses."
1The plaintiffs also name "John & Jane Does 1-10" as defendants to the action but provide no
further information regarding these unknown parties.
Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). Bell Atl Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009),
amplified this standard, noting that, to survive a motion to dismiss, a complaint must contain
sufficient factual information "to state a claim to relief that is plausible on its face." Twombly,
550 U.S. at 570, While it does not require "detailed factual allegations," Twombly held that Rule
8 of the Federal Rules of Civil Procedure does demand that a plaintiff provide more than mere
labels and conclusions stating that the plaintiff is entitled to relief. Id. at 55. Thus, a complaint
containing facts that are merely consistent with a defendant's liability stops short of the line
between possibility and plausibility of entitlement to relief. Id. at 557. Rather, a complaint
achieves facial plausibility when it contains sufficient allegations supporting the reasonable
inference that the facts alleged support an actionable claim. Id. at 556; see also Aschcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009).
This analysis is context specific and requires the "reviewing court to draw on its judicial
experience and common sense." Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). The
Giacomelli Court also stressed that '"naked assertions' of wrongdoing necessitate some 'factual
enhancement' within the complaint to cross 'the line between possibility and plausibility of
entitlement to relief" Id. (citing Twombly, 550 U.S. at 557, 127 S. Ct. at 1955). Additionally,
in considering the defendants' motion, the Court assumes the facts alleged in the complaint are
true and draws all reasonable factual inferences in the non-movant's favor. Edwards, 187 F.3d at
243.
III.
In its motion to dismiss, CitiMortgage urges the Court to dismiss all counts asserted
against it. According to CitiMortgage, count one should be dismissed because it neither asserts a
cause of action against CitiMortgage nor states a claim upon which relief can be granted. Count
two's claim for a violation of the FDCPA should be dismissed because it does not allege
wrongdoing by CitiMortgage and because CitiMortgage is not a "debt collector" within the
meaning of the FDCPA. CitiMortgage argues that count three should be dismissed because the
National Fair Housing Act does not create a private right of action for purported violations. As
to counts four and five, CitiMortgage asserts that both are time-barred because the various
provisions of RESPA have either a one or three-year statute of limitations and claims under
TILA are subject to a one-year statute of limitations.
For similar reasons, Wittstadt also argues for dismissal of all five counts. They assert
that counts one and two merely state legal conclusions and should be dismissed for failure to
state a claim. Wittstadt contends that the claim for violations of the National Fair Housing Act
does not assert a cause of action against it and should therefore be dismissed. Finally, Wittstadt
echoes CitiMortgage's arguments as to counts four and five, asserting that they are time-barred.
As noted above, count one generally alleges that the defendants failed to provide correct
and accurate disclosures, which the plaintiffs claim creates an issue of fact as to the owner of the
note and deed to the property. Yet, count one does not specify the disclosures the defendants
failed to make, nor does it allege what statutes or regulations were violated. Accordingly, count
one must be dismissed for failure to state a claim.
The plaintiffs' FDCPA claim in count two must also fail. Count two reads: "The Notice
of Foreclosure Action sent by Wittstadt Title & Escrow Company fails to provide the required
notice to dispute the debt." (Compl. f 28.) As an initial matter, count two does not allege any
wrongdoing by CitiMortgage.
collectors.
Furthermore, the FDCPA regulates the practices of debt
See 15 U.S.C. § 1692a(6).
In this case, CitiMortgage is a creditor, not a debt
collector, and is therefore not liable under the FDCPA. See Scott v. Wells Fargo Home Mortg.,
Inc., 326 F. Supp.2d 709, 717 (E.D. Va. 2003). As it relates to Wittstadt, count two must also be
dismissed because the allegations, even if true, do not rise to a cause of action under the FDCPA.
Although the FDCPA does require an initial communication from a debt collector to include a
notice regarding the debtor's right to dispute the debt and be presented with verification, the
plaintiffs here have not alleged that the Notice of Foreclosure Action was an initial
communication from Wittstadt. Instead, all the plaintiffs have alleged is that the Notice of
Foreclosure Action failed to provide the requisite notice.
Count two, therefore, will be
dismissed.
In count three, the plaintiffs claim that CitiMortgage violated the National Housing Act,
12 U.S.C. § 1701x(c), and assert a private cause of action based on this alleged violation. In
determining whether a private right of action exists under 12 U.S.C. § 1701x(c), the Court must
look for "rights-creating language" in the text of the statute. See Alexander v. Sandoval, 532
U.S. 275, 288 (2001).2 Such language "explicitly confer[s] a right directly on ... the plaintiff."
Cannon v. Univ. ofChicago, 441 U.S. 677, 690 n.13 (1979). No such "rights-creating" language
exists in § 1701x(c). Section 1701x(c)(5)(D)(ii) provides that the Secretary of Housing and
Urban Development ("Secretary of HUD") "shall monitor the compliance of creditors with the
requirements of subparagraphs (A) and (B)." Furthermore, subsection E provides that the
"Secretary shall submit a report to the Congress not less than annually regarding the extent of
compliance of creditors with the requirements of subparagraphs (A) and (B) and the
effectiveness of the entity monitoring such compliance."
12 U.S.C. § 1701x(c)(5)(E). It is
2 Although the Supreme Court originally articulated a four factor inquiry for determining
whether an implied private right of action exists under a statute, see Cort v. Ash, All U.S. 66, 78
(1975), subsequent cases have focused on Congress's intent to create a private right of action.
See Gonzaga Univ. v. Doe, 536 U.S. 273 (2002); Alexander, 532 U.S. at 286-87; see also Love v.
Delta Air Lines, 310 F.3d 1347, 1351-52 (11th Cir. 2002) (recognizing this trend).
evident from the text of the statute that Congress, therefore, did not intend to create a private
right of action by enacting § 1701x. Count three will be dismissed.
The plaintiffs' claim under RESPA in count four references a failure by the defendants to
provide a "booklet" on the closing costs. Although count four simply states a legal conclusion
and does not meet the pleading standard articulated in Twombly and Iqbal, the Court need not
decide that issue because a claim asserted under RESPA is subject to either a one or three-year
period of limitations. 12 U.S.C. § 2614. It is unclear which section the plaintiffs assert their
claim under, but even assumingthe limitations period is three years, the period has long expired.
The mortgage at issue was finalized in 2001, nearly ten years ago. Consequently, count four is
time-barred and will be dismissed.
Similarly, count five claims a violation ofTILA Regulation Z. 15 U.S.C. § 1640(e) states
that any action under TILA must be brought within one year from the date of the alleged
violation. Since the mortgage transaction closed nearly ten years ago, the plaintiffs' claim under
TILA is also time-barred and will be dismissed.
IV.
For the reasons stated above, defendant-CitiMortgage's motion to dismiss and defendantWittstadt's motion to dismiss will be granted.
It is SO ORDERED
Let the Clerk send a copy of this Order to all counsel of record.
John A. Gibney,
United States District frudge
Date: July 5, 2011
Richmond, VA
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