Jackson et al v. OCWEN Loan Servicing, LLC. et al
Filing
22
MEMORANDUM OPINION. Signed by District Judge M. Hannah Lauck on 3/31/2016. (jsmi, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Richmond Division
LEROY T.JACKSON
and
ADELAIDE JACKSON,
Plaintiffs,
V.
Civil Action No» 3:15cv238
OCWEN LOAN SERVICING, LLC, et al.
Defendants.
MEMORANDUM OPINION
This matter comes before the Court on the Motion to Dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6)^filed by Defendants Ocwen Loan Servicing, LLC ("Ocwen") and
Deutsche BankNational Trust Company ("Deutsche Bank") (ECFNo, 11), the Motion to
Dismiss filed by Poore Substitute Trustee, Ltd. ("Poore") (ECF No. 13), and the Motion to
Remand filed byPlaintiffs Leroy Jackson and Adelaide Jackson (collectively, the "Jacksons")
(ECF No. 18). The motions have been fully briefed, and the matters are ripe for disposition. The
Court exercises jurisdiction pursuant to 28 U.S.C. § 1332.^ The Court dispenses with oral
' Federal Rule of Civil Procedure 12(b)(6) allows dismissal for "failure to state a claim
upon which reliefcan be granted." Fed. R. Civ. P. 12(b)(6).
^ Section 1332 confers subject matter jurisdiction whenthe partiesare diverse and the
amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). For purposes of diversity
jurisdiction, the Jacksons are citizens ofVirginia; Deutsche Bank is a citizen of California;
Ocwen is a citizen of Delaware and Florida; and, Poore is a citizen of Virginia. The Notice of
Removal notes that the Complaint soughtdamages in the amountof $125,000. The Amended
Complaint seeks anunspecified amount of"compensatory damages." (Am. Compl. 14, ECF
No. 12.)
No party has disputed diversity jurisdiction based on the amount in controversy. "If the
plaintiffs complaint, filed instate court, demands monetary relief ofa stated sum, that sum, if
asserted in good faith, is 'deemed to bethe amount in controversy."' Dart Cherokee Basin
argument because the materials before the Court adequately present the facts and legal
contentions, and argument would not aid the decisional process. Forthe reasons thatfollow, the
Court will grant the Motions to Dismiss (ECF Nos. 11, 13) and deny the Motion to Remand
(ECFNo, 18).
L Standard of Review
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the
applicability ofdefenses." Republican PartyofN.C. v, Martin, 980 F.2d 943, 952 (4th Cir.
1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice andProcedure § 1356
(1990)). Inconsidering a motion to dismiss for failure to state a claim, a plaintiffs well-pleaded
allegations are taken as true andthe complaint is viewed in the light most favorable to the
plaintiff. Mylan Labs., Inc. v. Matkari, 1 F.3d 1130,1134 (4th Cir. 1993); seealso Martin,
980 F.2d at 952. This principle applies only to factual allegations, however, and "a court
considering a motion to dismiss canchoose to begin by identifying pleadings that, because they
are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556
U.S. 662,679 (2009).
The Federal Rules of Civil Procedure"require[ ] only 'a short and plain statement ofthe
claim showing that thepleader is entitled to relief,' in order to 'give the defendant fair notice of
whatthe ... claimis and the grounds uponwhich it rests."' BellAtl Corp. v. Twombly, 550
Operating Co., LLC v. Owens, 135 S. Ct. 547, 551 (2014) (quoting 28 U.S.C. § 1446(c)(2)).
"When the plaintiffs complaint does notstate the amount in controversy, the defendant's notice
of removal may do so." Id. (citing 28 U.S.C. § 1446(c)(2)(A)).
In the Jacksons' Motion to Remand, they argue that because both they and Defendant
Poore are considered citizens of Virginia for purposes of subjectmatterjurisdiction, no diversity
ofcitizenship exists. As the Court will address, Poore has been fraudulently joined. {See infra
Part III.) Thus, the Court will disregard its citizenship for purposes of diversity.
U.S. 544, 555 (2007) (omission in original) (quoting Conley v. Gibson, 355 U.S. 41,47 (1957)).
Plaintiffs cannot satisfy this standard with complaints containing only "labels and conclusions"
or a "formulaic recitation of the elements of a cause of action." Id. (citations omitted). Instead, a
plaintiff must assert facts that rise above speculation and conceivability to those that "show" a
claim that is "plausible on its face." Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 570;
Fed. R. Civ. P. 8(a)(2)). "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. at 678 (citing Twombly, 550 U.S. at 556). Therefore, in order for a
claim or complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts
sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co.,
324 F.3d 761, 765 (4th Cir. 2003) (citations omitted).
"If, on a motion under Rule 12(b)(6)..., matters outside the pleadings are presented to
and not excluded by the court, the motion must be treated as one for summary judgment under
Rule 56," and "[a]11 parties must be given a reasonable opportunity to present all the material that
is pertinentto the motion." Fed. R. Civ. P. 12(d); see Laughlin v. Metro. Wash. Airports Autk,
149 F.3d 253, 260-61 (4th Cir. 1998); Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985). However,
"a court may consider official public records, documents central to plaintiffs claim, and
documents sufficiently referred to in the complaint [without converting a Rule 12(b)(6) motion
into one for summary judgment] so long as the authenticity of these documents is not disputed."
Witthohn v. Fed. Ins. Co., 164 F. App'x 395, 396-97 (4th Cir. 2006) (citing^//. Energy, Inc. v.
St Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir, 2001); Phillips v. LCIInt'l, Inc., 190
F.3d 609, 618 (4th Cir. 1999); Gasner v. Cty. ofDinwiddie, 162 F.R.D. 280, 282 (E.D.
Va. 1995)).
The Jacksons attach a December 23,2003 note (the "Note") and a December 23, 2003
deed of trust (the "Deed of Trust") to their Amended Complaint. (ECF Nos. 8-1, 8-2.) Ocwen
and Deutsche Bank attach the Deed of Trust, the Note, and a February 13, 2014 Notice of Sale
(the "Notice of Sale") to their Memorandum in Support of the Motion to Dismiss. (ECF Nos.
12-1 to 12-3.) No party contests the authenticity of these documents, and the Jacksons refer to
them in the Amended Complaint. Deeming them central to the claims, the Court will consider
these documents. See Witthohn, 164 F, App'x at 396-97 (citations omitted).
n« Procedural and Factual Background
A.
Summary of Allegations in the Amended Complaint^
The Jacksons own a home at 2847 Midland Road, Petersburg, Virginia 23805 (the
"Property"). On December 23, 2003, the Jacksons entered into a mortgage loan with New
Century Mortgage Corporation ("New Century") to purchase the Property. The Note, dated the
same day, evinced the loan. The Deed of Trust, also dated December 23,2003, secured the Note
and appointed Steven C. Conte as trustee. New Century assigned the Note, and Deutsche Bank
now claims ownership over the Note. After assuming ownership, Deutsche Bank appointed
Poore as substitute trustee and engaged Litton Loan Services ("Litton"), and later Ocwen, as
servicers of the loan.
The Jacksons contend that they paid the full monthly loan payments in June 2013 and
July 2013. In August 2013, the Jacksons sent Litton a cashier's check for the monthly payment
that they assert was the ftill, appropriate amount of $1,303.97, The Jacksons state that Ocwen
improperly told them that the payment was insufficient to "bring the loan current" and returned
^For purposes ofthis motion, the Court assumes the well-pleaded factual allegations in
the Amended Complaint to be true and views them in the light most favorable to the Jacksons.
See Matkari, 7 F.3d at 1134.
the payment, (Am. Compl. K 15.) As a precaution, the Jacksons put the payment into a bank
account to avoid spending the money. In September 2013, the Jacksons again sent a full monthly
payment. However, Ocwen applied the September 2013 payment to the June 2013 payment.
The next month, Ocwen applied the Jacksons' October 2013 payment to the July 2013 payment.
This process continued until February 2014, with each payment applied to the payment due three
months prior.
The Jacksons contend that on February 13 and 20, 2014, Poore advertised a trustee's sale
ofthe Property in the Richmond Times Dispatch newspaper via the Notice of Sale, The Notice
of Sale stated, in pertinent part:
TRUSTEE'S SALE OF
2847 MIDLAND RD. PETERSBURG, VIRGINIA 23805
In execution of a Deed of Trust in the original principal amount of $126,000.00
from
LEROY
T.
JACKSON
AND
ADELAIDE
W.
JACKSON
dated
December 23, 2003, recorded among the land records of the Circuit Court for
PETERSBURG CITY as Instrument No. 03-005804 recorded December 31,
2013, the undersigned appointed Substitute Trustee[, Poore,] will offer for sale at
public auction on the courthouse steps at the front of the Circuit Court building
for PETERSBURG CITY located [at] 7 COURTHOUSE AVENUE,
PETERSBURG, VA 23802 on February 21, 2014 at 9:30 a.m
(Am. Compl,
25, 33; Mem, Supp. Mot. Dismiss Ex. 3 ("Notice of Sale"), ECF No. 5-3.) The
Jacksons allege that the Notice of Sale defamed them "by announcing ... that the Jacksons were
sufficiently in arrears on the [mortgage] loan ... and that the lender... was entitled to
foreclosure" of the Property. (Am. Compl,
26.) The Notice of Sale did not report that the
Jacksons were in default on the loan, only that a trustee's sale had been scheduled for the
Property.
On an unspecified date, Poore sent the Jacksons a notice that it had scheduled a
foreclosure of the Property for February 21,2014. The Jacksons maintain that the scheduled
foreclosure was improper because (1) they were current on their payments and (2) even if they
were in arrears, Deutsche Bank did not send a 30-day cure notice as required by the Note and
Deed of Trust
After receiving the correspondence from Poore regarding the scheduled foreclosure,
Adelaide Jackson and the Jacksons' daughter, Crystal L. J. Wynn, called Ocwen. They spoke
with an Ocwen representative, who told Jackson and Wynn that the Jacksons would have to pay
$13,039.70—^ten times the normal monthly amount—^before February 21, 2014 to prevent the
foreclosure and $6,183.17 thereafter to bring the loan current. On February 20,2014, the
Jacksons paid the $13,039.70 "under duress" to prevent the foreclosure. (Am. Compl. ^ 47.) On
March 5,2014, "[a]t the demand of Deutsche [Bank], through Ocwen," the Jacksons paid the
additional $6,183.17 to prevent the scheduling of any additional foreclosures. (Am. Compl.
^ 49.) The February 21, 2014 foreclosure did not occur, and the Jacksons still own the Property.
The Jacksons contend that the only amount they could have owed was $1,303.97, the amount of
the returned August 2013 payment. Thus, $17,918.90 of the amount paid constituted an
overpayment.The Jacksons now seek this amount, plus interest, in damages, as well as a
declaratory judgment that the Jacksons are current on the loan.
Since the near-foreclosure and subsequent payments, the Jacksons allege that Deutsche
Bank has reported to credit bureaus that the Jacksons were more than 30 days in arrears on the
Note and faced foreclosure, despite the Jacksons' continued allegations that they were and are
current on the Note. As a result, the Jacksons' credit scores have declined. The Jacksons'
original complaintsought $125,000 in relief, but their Amended Complaint seeks an unspecified
amount of compensatory damages for this decline.
" $13,039.70 + $6,183.17 - $1,303.97 = $17,918.90.
6
B.
Procedural History
On February 18, 2015, the Jacksons filed their Complaint in the Circuit Court of the City
of Petersburg, Virginia, alleging defamation, overcharges, and breach of contract against
Defendants. (ECF No. 1-1.) On April 20, 2015, Defendants Deutsche Bank and Ocwen
removed the action to this Court, arguing that Poore was fraudulently joined and that the Court
should disregard its citizenship for diversity purposes. (ECF No. 1.) Deutsche Bank and Ocwen
then filed a Motion to Dismiss the Complaint. (ECF No. 4.) Thereafter, the Jacksons timely
filed the Amended Complaint (ECF No. 8), renderingthe first Motion to Dismiss moot, {See
ECF No. 10.) In the Amended Complaint, the Jacksons allege the following counts:
Count I:
Defamation against Ocwen for the posting of the Notice of Sale;
Count II:
Defamation against Poore for the posting of the Notice of Sale;
Count III:
Breach of the Note and the Deed of Trust for scheduling the foreclosure
sale when the Jacksons were not in default on the mortgage; for requiring
the overpayment when the Jacksons were current; and, for failing to
provide a 30-day cure notice, against Deutsche Bank;
Count IV:
Breach of Contract by reporting arrearages to credit reporting agencies,
against Deutsche Bank;
Count V:
Breach of the Implied Duty of Good Faith and Fair Dealing for all of the
alleged actions, against Deutsche Bank; and.
Count VI:
Declaratory Judgment, against all Defendants.
In response to the Amended Complaint, Deutsche Bank, Ocwen, and Poore filed their
Motionsto Dismiss. (ECF Nos. 11,13.) The Jacksons responded to both motions. (ECF
Nos, 15, 17.) Ocwen and Deutsche Bank filed a reply in support of their Motion to Dismiss.
(ECF No. 16.) Poore did not file a reply in support of its Motion to Dismiss, and the time to do
so has expired. The Jacksons also filed their Motion to Remand, arguing that the Court has no
subject matter jurisdiction because complete diversity does not exist, (ECF No. 18.) Deutsche
Bank and Ocwen respondedto the Motion to Remand, and the Jacksons replied. (ECF Nos.
19,20.) Poore did not respond to the Motion to Remand, and the time to do so has expired.
The matters are ripe for disposition. For the reasons that follow, the Courtwill deny the
Motion to Remand, grant Poore's Motion to Dismiss, and grant in part and deny in part Deutsche
Bank and Ocwen's Motion to Dismiss.
III. Analysis; Motion to Remand
The Court will deny the Jacksons' Motion to Remand because Poore has been
fraudulently joined and the Court must disregard its citizenship for purposes of subjectmatter
jurisdiction.
A.
Removal Jurisdiction
Title 28, United States Code § 1441(a)^ permits a defendant to remove a civil action to a
federal district court if the plaintiff could have originally brought the action in federal court.
28 U.S.C. § 1441(a). Section 1446 delineates the procedure for removal, including the
requirement that the defendant file a notice of removal in the district court and the state court.
See generally 28 U.S.C. § 1446(a), (d). The state court loses jurisdiction upon the removal of an
action to federal court. 28 U.S.C. § 1446(d) ("[T]he State court shall proceed no further unless
and until the case is remanded.").
^Section 1441(a) provides inpertinent part:
[A]ny civil action brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for the district and division
embracing the place where such action is pending.
28 U.S.C. § 1441(a).
"The party seeking removal bears the initial burden of establishing federal jurisdiction."
Abraham v. Cracker Barrel Old Country Store, Inc., No. 3:1 lcvl82, 2011 WL 1790168, at *1
(E.D. Va. May 9,2011) (citing Mulcahey v. Columbia Organic Chem. Co., 29 F.3d 148, 151 (4th
Cir. 1994)). No presumption favoring the existence of federal subject matter jurisdiction exists
because federal courts have limited, not general, jurisdiction. Id. (citing Pinkley Inc. v. Cityof
Frederick, 191 F.3d 394, 399 (4th Cir. 1999)). Courts must construe removal jurisdiction
strictly. Id. (citing Mulcahey, 29 F.3d at 151.) "If federal jurisdiction is doubtful, a remand is
necessary." Id. (quoting Mulcahey, 29 F.3d at 151.)
Federal diversity jurisdiction, which the Court examines in this case, requires complete
diversity of citizenship. Id. at *2 (citing Carden v. ArkomaAssocs., 494 U.S. 185, 187 (1990));
see also 28 U.S.C. § 1332(a)(1). "[T]he 'citizenship of each plaintiff [must be] diverse from the
citizenship of each defendant.'" Abraham, 2011 WL 1790168, at *2 (second alteration in
original) (quoting Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)).
B.
The Fraudulent Joinder Doctrine
The fraudulentjoinder doctrine operates as an exception to the complete diversity
requirement, permitting a district court to disregard, forjurisdictional purposes, the citizenship of
certain nondiverse defendants, assume jurisdiction over a case, and dismiss the nondiverse
defendants, thereby retaining jurisdiction. Id. (citing Mayes v. Rapoport, 198 F.3d 457, 461 (4th
Cir, 1999)). "To show fraudulent joinder, the removing party must demonstrate either 'outright
fraud in the plaintiff's pleading of jurisdictional facts' or that 'there is no possibility that the
plaintiff would be able to establish a cause of action against the in-state defendant in state
court.'" Hartley v. CSXTransp., Inc., 187 F.3d 422, 424 (4th Cir. 1999) (quoting Marshall v.
Manville Sales Corp., 6 F.3d 229,232 (4th Cir. 1993)). "The party alleging fraudulent joinder
bears a heavy burden—it must show that the plaintiff cannot establish a claim even after
resolving all issues of law and fact in the plaintiffs favor." Id. "This standard is even more
favorable to the plaintiff thanthe standard for ruling on a motion to dismiss under [Federal Rule
of Civil Procedure] 12(b)(6)." Id. The Court is not bound by the allegations in the pleadings,
but can consider the entire record. Mayes, 198 F.3d at 464.
C.
Because the Jacksons Cannot State a Claim for Defamation Against Poore,
Poore Is Fraudnlentlv Joined and the Court Disregards its Citizenship
In this case, even resolving all issues of law and fact in the Jacksons' favor, no possibility
exists that the Jacksons would be able to establish a cause of action in state court, under Virginia
law,^ against Poore. Hartley, 187 P.3d at 424. Defendants satisfy the heavy burden required to
establish fraudulent joinder. Id. As the Court discusses in Part IV.B, infra, the Jacksons cannot
state a claim for defamation against Poore. Accordingly, Poore is fraudulentlyjoined. The
Court will disregard Poore's citizenship for diversity purposes and dismiss it from the case.
IV« Analysis; Motions to Dismiss
At base, the Jacksons contend that the near-foreclosure was unlawful and against the
terms of the Note and Deed of Trust because they remained current on their payments exceptfor
the improperly returned August 2013 payment. To recover their losses for the alleged failures,
they bring various claims against Deutsche Bank, the owner of the Note; Ocwen, the servicer of
the loan; and, Poore, the substitute trustee.
^A court exercising diversity jurisdiction applies the substantive law ofthe forum state.
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-79 (1938).
10
A.
The Court Will Not Dismiss the Action for the Jacksons' Failure to Plead the
Affirmative Defense of Notice
Because notice should be decidedat the summary judgment stage, the Court deniesthe
arguments in Deutsche Bank and Ocwen's Motion to Dismiss asserting that the Jacksons' entire
action is barred for lack of notice pursuant to Paragraph 22 of the Deed of Trust. Paragraph 22
of the Deed of Trust states, in pertinent part:
Neither Borrower nor Lender may commence, join, or be joined to any judicial
action (as either an individual litigant or the member of a class) that arises from
the other party's actions pursuant to this Security Instrument or that alleges that
the other party has breached any provision of, or any duty owed by reason of, this
Security Instrument, until such Borrower or Lender has notified the other party
... of such alleged breach and afforded the other party hereto a reasonable period
after the giving of such notice to take corrective action.
(Deed of TrustK22.) If the Jacksons are to prevail on a cause of action arising from the Deed of
Trust, they ultimatelymust show that they complied with this notice provision. The Amended
Complaintdoes not state whether the Jacksons submittedthe appropriate notice.
The lack of notice constitutesan affirmative defense. Bennett v. Bank ofAm., N.A., No.
3:12cv34,2012 WL 1354546, at *5 (E.D. Va. Apr. 18,2012) (citing Goodman v. Praxair, Inc.,
494 F.3d 458,464 (4th Cir. 2007)); accord Townsend v. Fed. Nat'I Mortg. Ass923 F. Supp.
2d 828, 832-33 (W.D. Va. 2013); Giovia v. PHHMortg. Corp., No. I:13cv577, 2013 WL
6039039, at *5 (E.D, Va. Nov. 13,2013). "[A] court may rule on such an affirmative defense at
the [Rule] 12(b)(6) stage only 'if all facts necessary to the affirmative defense clearly appear[ ]
on theface ofthe complaint''" Bennett, 2012 WL 1354546, at *5 (emphasis and third alteration
in original) (citing Goodman, 494 F.3d at 464).
Here, the Amended Complaint does not allege whether the Jacksons did or did not
provide the notice required in the Deed of Trust prior to bringing this action. All facts necessary
to resolve this affirmative defense do not "clearly appear" on the face of the Amended
11
Complaint,^ Id. This Court follows others when concluding that a decision asto notice is"more
properly reserved for consideration on a motion for summary judgment." Id. (quoting Richmond,
Fredericksburg & Potomac R.R. v. Forsi^ 4 F.3d 244, 250 (4th Cir. 1993)). Accordingly, the
Court will deny Deutsche Bank and Ocwen's Motion to Dismiss to the extent it relies on a
purported lack of notice.
B.
The Jacksons Fail to State a Claim for Defamation Because the Alleged
Statements Cannot Constitute Actionable Defamation
The Court will dismiss Counts I and II with prejudice because the Jacksons fail to state a
claim for defamation for which relief can be granted against Ocwen and Poore. The alleged
statements are not actionable as defamation because they do not allege harm to a level that
lowers them in the estimation of the community or deters third parties from interacting with
them.
^Defendants cite cases they allege conflict with Giovia, Townsend, and Bennett regarding
when a court should decide that notice issue. Townsend itself mentioned some of these cases as
holding contrary to its ruling. Townsend, 923 F. Supp. 2d at 833 (citing Niyaz v. Bank ofAm.,
No. I:10cv796, 2011 WL 63655, at *2 (E.D. Va. Jan. 3, 2011), aff'd, 442 F. App'x 838 (4th Cir.
2011) (per curiam)); Johnson v. Countrywide Home Loans, Inc., No. I:10cvl018, 2010 WL
5138392, at *2 (E.D. Va, Dec. 10, 2010)). Those cases, however, do not squarely coincide with
the circumstances at bar.
First, the court in Niyaz ruled on the affirmative defense of lack of notice on a motion for
summaryjudgment. Niyaz, 2011 WL 63655, at *2. Johnson, while on a Rule 12(b)(6) motion to
dismiss, specifically relied on a factual finding that no notice had been provided. Johnson, 2010
WL 5138392, at *2 ("[BJecause Plaintiff did not provide notice in accordance with the Deed of
Trust, the Court will grant dismissal."). Second, other cases that ruled on a motion to dismiss did
so by concluding that the facts sufficiently demonstrated a lack of notice. See, e.g., Stovall v.
SunTrust Mortg, Inc., No. RDB-10-2836, 2011 WL 4402680, at *6 (D. Md. Sept. 20, 2011)
(rejecting claim that alternate form of notice sufficed when finding that "it is clear that [Plaintiff]
did not provide notice in accordance with the Deed of Trust"); Gerber v. First Horizon Home
Loans Corp., No. C05-1554P, 2006 WL 581082, at *2 (W.D. Wash. Mar. 8, 2006) (rejecting
plaintiffs arguments that compliance with the notice provision would have been a "useless act").
The Court cannot make a factual finding about notice based on the allegations at bar.
12
1.
Standard for Pleading Defamation Under Virginia Law
InVirginia, a plaintiff claiming defamation must allege (1) thepublication^ (2) ofan
actionable statement with (3) the requisite intent. Jordan v. Kollman, 612 S.E.2d 203, 206
(Va. 2005). An actionable statement "asserts a provably false fact or factual connotation."
Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1093 (4th Cir. 1993) (applying Virginia law)
(citingMilkovich v. Lorain Journal Co., 497 U.S. 1,19 (1990)). "If the statements at issue are
either not defamatory, objectively true, or protectedexpressions of opinion," no actionable
defamation exists. Cook, Heyward, Lee, Hopper, & Feehan v. Trump Va. Acquisitions LLC, No.
3:12cvl31, 2012 WL 1898616, at *3 (E.D. Va. May 23, 2012) (citing yim. Commc'ns Networkv.
Williams, 568 S.E.2d 683, 686 (Va. 2002)); see also Jordan, 612 S.E.2d at 206 (noting that an
actionable statement "must be both false and defamatory" and that "[t]rue statements do not
support a cause of action for defamation").
"[T]o be defamatory, a statement must be more than unpleasant or offensive
"
Hockycko V. Entrodyne Corp., No. 6:05cv25,2005 WL 3132320, at *6 (W.D. Va. Nov. 22,
2005). "Defamatory words 'make the plaintiff appear odious, infamous, or ridiculous.'" Cutaia
V. Radius Eng'glnt'l, Inc.,'No. 5:1 lcv77, 2012 WL 525471, at *3 (W.D. Va. Feb. 16,2012)
(quoting Chapin, 993 F.2d at 1092). To assert harm rising to a level that carries a defamatory
sting, a "plaintiffmust sufficiently allegethat the statement tends to harm his [or her] reputation
'as to lower him [or her] in the estimation of the community or to deter third persons from
associating or dealing with him [or her],'" Blagogee v. Equity Trs., LLC, No. 1:10cvl3, 2010
A
The Defendants do not dispute the publication of the allegedly defamatory statements.
"Publicationoccurs when an actionable statement is transmitted to some third person so as to be
heard and understood by such person." Suarez v. Loomis Armored US, LLC, No. 3:10cv690,
2010 WL 5101185, at *2 (E.D. Va. Dec. 7,2010) (citation omitted) (internal quotation marks
omitted).
13
WL2933963, at *6 (E.D. Va. July 26, 2010) (quoting Skillstorm, Inc. v. Elec. Data Sys., LLC,
666 F. Supp. 2d 610,619 (E.D. Va. 2009)). Plaintiffmayput forth a defamatory charge
expressly or by "inference, implication or insinuation." Mann v. Heckler & Koch Def., Inc., No.
1:08cv611, 2008 WL 4551104, at *8 (E.D, Va. Oct. 7, 2008) (quoting Hatfill v. N.Y. Times Co.,
416 F.3d 320, 331 (4th Cir. 2005)). Accordingly, courts should consider boththe allegedly
defamatory words and the "inferences fairly attributable" to them. Id.
The United States Court of Appeals for the Fourth Circuit makes clear that the court must
consider the context of an allegedly defamatory statement in determining whether a statement
constitutes opinion. Snyder v. Phelps, 580 F.3d 206, 219-20 (4th Cir. 2009) (stating that courts
must"assess how an objective, reasonable readerwould understand a challenged statement by
focusing on the plain language of the statement and the context and general tenor of its
message") (addressing First Amendment principles in tort claims arising from speech);
Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180, 184 (4th Cir. 1998) (examining in defamation
claim the "context and tenor of the [allegedly defamatory] article"). The Supreme Court of
Virginia similarly requires an examination of context. Hylandv. Raytheon Tech. Servs. Co., 670
S.E.2d 746,751 (Va. 2009) ("In determining whether a statement is one of fact or opinion [in a
defamation claim], a court may not isolate one portion of the statement at issue from another
portion of the statement. Rather, a court must consider the statement as a whole.") (citations
omitted). The Court determines as a matter of law whether a statement "is one of fact or one of
opinion." Chaves, 335 S.E.2d at 102.
14
2.
The Notice of Sale Does Not Support a Claim for Defamation Because
the Statements Are Not Sufficiently Defamatory
The Notice does not support an actionable claim for defamation because, even
considering the foreclosure notice in context, the statements it contained and the "inferences
fairly attributable" to the words used do not carry a sufficiently defamatory sting. Mann, 2008
WL 4551104, at *8. First, the Jacksons' abstract allegations of "public shame and
embarrassment," (Am, Compl.
27-28, 35-36), cannot support a finding that the Notice
"causedharm to their reputation." Blagogee, 2010 WL 2933963, at *6-7 (holdingthat the
plaintiffs' allegations of feeling odious and ridiculous around friends and colleagues and
receiving annoying phone calls from debt counseling companies did not set forth sufficient facts
to supportan actionable claim for defamation). Second, no facts support the Jacksons' vague
assertions that because the general public read the Notice, which "carried with it the necessary
indication to the general publicthat they had defaulted on the mortgage," the Notice "necessarily
caused damage to the [Jacksons'] reputation." (Am. Compl.
26, 29, 34, 37.) See Wolfv. Fed
Nat'I Mortg. Ass830 F. Supp. 2d 153,168 (E.D. Va. 2011) (finding that allegations of
"embarrassment, public shame, and emotional harm without any supporting facts or contentions"
as a result of a foreclosure notice were insufficient to state a claim for actionable defamation).^
Therefore, the Jacksons do not allege sufficient facts to support a claim for actionable
^The contrary Northern District ofAlabama case cited by the Jacksons does not persuade
the Court to depart from the consistent holding of this Court because it applied Alabama law,
which "presumes reputational damages" if a statement "'exposes the plaintiffto public ridicule
or contempt.'" Hope v. BSIFin., Inc., No. 5:12cv736, 2012 WL 5379177 (N.D. Ala. Oct. 26,
2012) (quoting Gary v. Crouch, 867 So. 2d 310,316 (Ala, 2003)). The parties do not cite, and
the Court does not find, Virginia authority requiring a presumption of reputational damages in an
action for simple defamation.
15
defamation because the Notice does not carry a defamatory sting. The Court will grant the
Motion to Dismiss Counts I and II with prejudice.
C.
The Jacksons Have Stated a Claim for Breach of Contract Because They
Allege Plausible Facts to Support Each Element of the Claim
The Jacksons have stated a claim for breach of contract because they "allege facts
sufficient to state all the elements" of the claim, including plausible support for the existence of a
contract, a breach of the contract, and damages stemming from the breach. See Bass, 324 F.3d
at 765 (citations omitted).
1.
Standard for Breach of Contract Under Virginia Law
To state a claim for breach of contract under Virginia law, a plaintiff must plausibly
allege: (1) a legally enforceable obligation of a defendant to a plaintiff; (2) the defendant's
violationor breach ofthe obligation; and, (3) an injury or harm caused by the defendant's
breach. Filakv. George, 594 S.E.2d 610, 614 (Va. 2004).
2.
The Jacksons Plausibly Allege Each Element to State a Claim for
Breach of Contract for the Scheduled Foreclosure and Required
Overpayments
The Jacksons allege plausible facts to state a claim for breach of contract for Deutsche
Bank's scheduling of the foreclosure and requiring the overpayments. First, no dispute exists
that the Deed of Trust constitutes a contract between the Jacksons and Deutsche Bank, See
Jones V. Fulton Bank, N.A., 565 F. App'x 251,252 (4th Cir. 2014) (citation omitted). Second,
the Jacksons aver that Deutsche Bank breached the terms of the Deed of Trust when it failed to
accept what the Jacksons clearly allege was a fiill payment in August 2013 and when it
scheduled a foreclosure despite the Jacksons' currentpayment status.(Am. Compl, ^ 46.)
Deutsche Bank's contentions that the Jacksons "provide no factual support for their
assertion that they were current on the [mortgage loan] other than repeatedly proclaiming it to be
16
Third, the Jacksons plausibly claim that they incurred damages as a result of Deutsche
Bank's breaches by scheduling the foreclosure and requiring the overpayment, including a
specific, otherwise-unnecessary payment ofover $17,000J' (Am. Compl.
47-51.) To the
extent the Jacksons allege a breach of contract stemming from a lack of 30-day notice under
Paragraph 22 of the Deed of Trust, however, the claim fails. No foreclosure took place. The
Jacksons can claim no damages from the lack of notice. See Jones, 565 F. App'x at 252.
Thus, the Court will grant Deutsche Bank and Ocwen's Motion to Dismiss Count III of
the Amended Complaintto the extent it relies upon a breach of lack of the 30-day cure notice
and will deny the motion to dismiss Count III as to breaches for scheduling the foreclosure and
requiring the overpayment.
true" misunderstand the standard by which the Court reviews the Amended Complaint on a Rule
12(b)(6) motion. {See Deutsche Bank, Ocwen Mem. Supp. Mot. Dismiss 11, ECF No. 12.) At
this stage, the Court must accept as true the Jacksons' plausible factual assertions, such as their
allegation that they have always been current on their payments and that Deutsche Bank
therefore had no right under the Deed of Trust to demand overpayments or schedule a
foreclosure. MatkarU 1 F.3d at 1134.
Deutsche Bank's arguments that the Jacksons do not sufficientlyallege damages as to
the overpayment breach once again misstate the standard at the Rule 12(b)(6) stage. {See
Deutsche Bank, Ocwen Mem. Supp. Mot. Dismiss 11-12.) The Jacksons clearly point to
specific damages incurred as a resuh of Deutsche Bank's breaches, includingthe overpayment of
morethan $17,000. (Am. Compl. K47-51.) At this stage, the Court assumes those plausibly
articulated damages to be factually true. Matkari, 7 F.3d at 1134; see Bourdelais v. JPMorgan
Chase Bank, N.A., No. 3:10cv670, 2012 WL 5404084, at *10 (E.D. Va. Nov. 5,2012)
The Amended Complaint alleges that some new payment terms were negotiated over the
telephone. The Jacksons do not seem to premise their breach of contract claim on any oral
modification, despite Deutsch Bank's suggestions otherwise. (Deutsche Bank, Ocwen Mem.
Supp. Mot. Dismiss 12.) Instead, the Jacksons contend that that the verbal statements by an
Ocwen representative put them on notice of the foreclosure and guided them through the process
to stop the sale. (Am. Compl.
45-46.)
While black letter law states that the Deed of Trust could not be modified based on any
oral communications, the Court does not confront a circumstance where such a finding need be
made. Mclnnis v. BAC Home Loan Servicing, Inc., No. 2:1 lcv468, 2011 WL 383590, at *8 n.5
(E.D, Va. Jan, 13, 2012) ("To the extent Plaintiff [alleges that] a verbal contract to permanently
17
D.
The Jacksons' Count IV Breach of Contract Claim Is Not Preempted by
FCRA Because It Is a Common Law Claim Not for Defamation, Invasion of
Privacy, or Negligence
The Court will deny Deutsche Bank and Ocwen's Motion to Dismiss Count IV of the
Amended Complaint because the Fair CreditReporting Act ("FCRA"), 15 U.S.C. § 1681,e? seq.,
does not preempt the Jacksons' breach of contract claim against Deutsche Bank. Ocwen and
Deutsche Bankseek a contraryresolution but do so asking this Court to follow non-binding
decisions from the United States Courts of Appeals for the Second and Seventh Circuits without
attempting to explain why this Court should ignore myriad district court decisions in the Fourth
Circuitfinding that preemption should not occur. Ocwenand Deutsche Bank's position does not
persuade.
1.
Applicable Law; FCRA Preemption
"The FCRA is a comprehensive statutory scheme designed to regulate the consumer
reporting industry." Ross v. FDIC, 625 F.3d 808, 812 (4th Cir. 2010). "The FCRA creates a
duty for furnishers of credit information to provide accurate information, includinga duty to
correct inaccuracies and to investigate disputed information upon notice from a creditreporting
agency [("CRA")]." White v. Green Tree Servicing, 118 F. Supp, 3d 867, 871 (D. Md, 2011)
(citing 15 U.S.C. § 1681s-2); see Ross, 625 F.3d at 813. As first passed in 1970, the FCRA
contained a limited preemption provision in Section 1681h(e), which allowed for certain state
common law claims to proceed despite FCRA's effecton consumerlaw. White, 118 F. Supp. 3d
at 871. It provides, in pertinent part:
Except as provided in sections 168In and I68I0 of this title, no consumer may
bring any action or proceeding in the nature of defamation, invasion of privacy, or
negligence with respect to the reporting of information against any consumer
modify her loan exists, such a contract would be barred in Virginia by the statute of frauds.")
(citations omitted).
18
reporting agency, any user of information, or any person who furnishes
information to a consumer reporting agency, based on information disclosed
pursuant to section 1681g, 1681h, or 1681m of this title, or based on information
disclosed by a user of a consumer report to or for a consumer against whom the
user has taken adverse action, based in whole or in part on the report except as to
false information furnished with malice or willful intent to injure such consumer.
15U.S.C.§ 1681h(e).
When Congress enacted FCRA, the law "generally permitted state regulation of the
consumer reporting industry," which resulted in some disparities among reporting laws from
state to state. Ross, 625 F.3d at 812; Evans v. Trans Union LLC, No. 2:10cv945, 2011 WL
672061, at *3 (S.D. W. Va. Feb. 14, 2011). In 1996, Congress amended FCRA to countermand
the patchwork of laws passed by states. Ross, 625 F.3d at 812-13. Included in the 1996
amendments was a "generalpreemption provision, 'both by its terms and its given moniker,'
which is 'General exceptions.'" Jeffery v. Trans Union, LLC, 273 F. Supp. 2d 725, 727 (E.D.
Va. 2003) (citations omitted) (noting that understatutory construction principles, a general
statute "must yield" to a coexisting specific statute on the same subject matter). The broad
preemption statute in Section 1681t(b)(l)(F) states, in pertinent part:
(b) General exceptions
No requirement or prohibitionmay be imposed under the laws of any State(1) with respect to any subject matter regulated under--
(F) section 1681s-2 of this title, relating to the responsibilities of
persons who furnish information to consumer reporting agencies,
15 U.S.C. § 1681t(b)(l)(F). No dispute exists that Section 1681t(b)(l)(F) squarely preempts
state statutes that concern the "responsibilities of persons who furnish information to consumer
reporting agencies." Ross, 625 F.3d at 813 (citing 15 U.S.C, § 1681t(b)(l)(F)).
19
However, since its enactment, courts have noted an apparent conflict between the broad
preemption enacted in Section 1681t(b)(l)(F) and the more limited so-called "malice"
preemption provision in Section 1681h(e). M at 814 n.*; see White, 118 F. Supp. 3d at 872. For
example, if the sweeping language in Section 1681t(b)(l)(F)—"no requirement or prohibition
may be imposed under the laws of any State"—^preempts all state statutory and common law
claims, it would also preempt a litigant's claim for defamation with malice, even though Section
1681h(e) expresslyexempts such a claim from FCRA's preemptive effect.
To reconcile any inconsistency, the vast majority of the district courts within the Fourth
Circuit, including this Courton multiple occasions, has employed the so-called "statutory
approach" to interpret claims ofpreemption before them.'^ Under this approach, courts conclude
that Section 1681h(e), which speaks to "only certain types of common laws," preempts just those
narrow state common law claims, while Section 1681t(b)(l)(F), which directly addresses "state
laws," bars only state statutoryclaims, Bourdelais, 2012 WL 5404084, at *7 (quoting Evans,
2011 WL 672061, at *4); Hazaimeh v. U.S. BankNat'I Ass'n, 94 F. Supp, 3d 741, 753 (E.D. Va,
2015). Courts so ruling note that this reading follows a proper statutory construct by assuring
that Section 1681t(b)(l)(F) does not render Section 1681h(e)—^an existing provision when
Congress passed Section 1681t(b)(l)(F)—superfluous. See, e.g.. White, 118 F. Supp. 3d at 872
(citing cases); Bourdelais, 2012 WL 5404084,at *7 (citing cases).
The Fourth Circuit has not addressed the conflict. Hazaimeh, 94 F. Supp. 3d at 753.
Other circuits have evaluated the preemptive interrelation of the two FCRA provisions and, in
The Misel case from the Middle District of North Carolina cited by Deutsche Bank and
Ocwen does not persuade this Court to forsake the statutory approach, Misel v. Green Tree
Servicing, LLC, 782 F. Supp. 2d 171 (M.D.N.C. 2011). Misel differs factually. In part because
the complaint in Misel did not allege that the defendant was a CRA, the court did not address the
20
non-binding decisions, have found the statutory approach unpersuasive,
This Court concurs
with one districtjudge who decided that, "[c]onsidering the unsettled state of the applicable law"
and the well-reasoned opinions of "most districtjudges in the Fourth Circuit [that apply the
statutory approach], it makes sense to follow [the] rule that [S]ection 1681t(b) preemptsonly
state statutes, whereas [S]ection 1681h(e) preempts state common law." Alston v. Wells Fargo
Bank, N.A., No. 8:12cv3671, 2013 WL 990416, at *6 (D. Md. Mar. 12, 2013).
2,
FCRA Does Not Preempt the Jacksons* Claim for Breach of Contract
Because Neither Section 1681t(b>(lKF) Nor Section 1681h(e) Applies
Following the well-reasoned statutory approach adopted by this Court, FCRA does not
preempt the Jacksons' claim for breach of contract in Count IV because neither Section
1681t(b)(l)(F) nor Section 1681h(e) applies to the claim. First, Section 1681t(b)(l)(F) does not
preempt the Jacksons' common law breach of contract claimsbecause it only preempts state
statutory law. Hazaimeh, 94 F. Supp. 3d at 753. Second, Section 1681h(e)does not preempt the
Jacksons' breach of contract claim because it "do[es] not relate to defamation, invasion of
privacy, or negligence." Id. (citing 15 U.S.C. § 1681h(e)). Thus, FCRA does not preempt the
statutory approach and did not reach a conclusion regarding a conflict between Section 1681h(e)
and (b)(1)(F). 782 F. Supp. 2d at 177.
1
Two circuit courts of appeals have declined to employ the statutory approach,
concluding instead that no conflict between the preemption provisions exists because "[s]ection
1681h(e) preempts some state claims that could arise out of reports to credit agencies;
§ 1681t(b)(l)(F) [simply] preempts more of those claims," Macpherson v. JPMorgan Chase
Bank, N.A., 665 F.3d 45,47^8 (2d Cir. 2011), cert denied, 132 S, Ct. 2113 (2012); Purcell v.
Bank ofAm,, 659 F.3d 622, 625 (7th Cir. 2011); Premium Mortg. Corp. v. Equifax, Inc., 583
F.3d 103,106-07 (2d Cir. 2009). Without citation, both Macpherson and Purcell suggest that
this broad preemptive reading comports with a congressional intent to steer supervision of claims
about furnishers providing false reports to CRAs away from litigation and toward administrative
agencies, Macpherson, 665 F.3d at 48 (quoting Purcell, 659 F.3d at 626); Purcell, 659 F.3d
at 626, Deutsche Bank and Ocwen fail to argue why this Court should adopt these out-of-circuit
rulings over several thoughtful decisions within this very district.
21
Jacksons' common law claim for breachof contract. The Court will deny Deutsche Bank and
Ocwen's Motion to Dismiss Count IV of the Amended Complaint,
E.
The Jacksons Do Not Plausibly Allege a Breach of the Implied Covenant of
Good Faith and Fair Dealing Because It Cannot Exist as a Separate Tort
Claim
The Court will grant Deutsche Bank and Ocwen's Motion to Dismiss Count V of the
AmendedComplaint, the Jacksons' claim for breach of an implied covenant of good faith and
fair duty, because it cannot exist as a separate tort claim,
1.
Standard to Evaluate a Breach of the Implied Covenant of Good Faith
and Fair Dealing Under Virginia Law
Contracts governed by Virginia law, including those governing mortgages such as a deed
of trust, contain an implied covenant of good faith and fair dealing. Covarrubias v.
CitiMortgage, Inc., No. 3:14cvl57, 2014 WL 6968035, at *3 (E.D. Va. Dec. 8, 2014) (citing Va.
Vermiculite, Ltd. v. W.R. Grace & Co., 156 F.3d 535, 541-42 (4th Cir. 1998)),affdinpart,
rev'd in part, 623 F. App'x 592 (4th Cir. 2015). To prove a breach of the implied covenant of
good faith and fair dealing under Virginia law, a plaintiff must establish "(1) a contractual
relationship between the parties, and (2) a breach of the implied covenant." Enomoto v. Space
Adventures, Ltd., 624 F. Supp. 2d 443, 450 (E.D. Va. 2009); Bourdelais, 2012 WL 5404084,
at *4. While breach of this duty does not constitute an independent tort, the failure to act in
compliance with this duty can support a breach of contract claim. Charles E. Brauer Co., 466
S.E.2d.at385.
2.
No Breach Exists in This Case Because the Jacksons Pled the Claim as
a Separate Tort Claim
The Jacksons cannot plead, as they have here, a breach of an implied covenant of good
faith and fair dealing as an independent tort. A claim for breach of this implied covenant can
22
support a breach of contract claim. Charles E. Brauer Co., 466 S.E.2d at 385. However, such a
claim cannot be "pled as a separate tort claim." Jones, 565 F. App'x at 253.
The Jacksons wrongly attempt to plead a separate tort cause of action for breach ofthe
implied covenant ofgood faith and fair dealing.'"^ Such an improper pleading supports dismissal
of Count V. Jones, 565 F. App'x at 253; Smith v. Flagstar Bank, F.S.B., No. 3:14cv741,2015
WL 1221271, at *6 (E.D. Va. Mar. 17,2015) ("Plaintiffhas attempted to assert a separate cause
of actionfor breachof the impliedduty of good faith, and thus he has not stated a claim upon
which relief may be granted under Virginia law."). Accordingly, the Court will grant Deutsche
Bank and Ocwen's Motion to Dismiss Count V of the Amended Complaint.
F.
The Jacksons' Declaratory Judgment Claim Seeks No Relief Independent of
Their Other Claims
The Court will grant Ocwen's Motion to Dismiss Count VI of the Amended Complaint
because declaratory relief serves no useful purpose in these circumstances: the Amended
Complaintcontains substantive claims that address the same conduct as the request for
declaratory relief
1.
Standard for Declaratory Judgment
"[D]istrict courts possess discretion in determining whether and when to entertain an
action under the DeclaratoryJudgment Act, even when the suit otherwise satisfies subject matter
jurisdictional prerequisites," JVilton v. Seven Falls Co., 515 U.S. 277, 282 (1995), The
Declaratory Judgment Act expressly states that district courts "may declare the rights and other
The Jacksons do not couch their claim as a breach of contract. The Jacksons mention
the Deed of Trust and the Note in Count V, but they do not link any of the alleged breaches of
the implied covenant of good faith and fair dealing to any provision in the contracts. Without
pleading a specific breach, the Jacksons have not "allege[d] facts sufficient to state all the
elements" of a breach of contract claim in Count V. See Bass, 324 F.3d at 765 (citations
omitted).
23
legal relations of any interested party seeking such declaration." 28 U.S.C. § 2201(a). In light of
this "nonobligatory"language, the Supreme Court has explained that "[i]n the declaratory
judgment context, the normal principle that federal courts should adjudicate claims within their
jurisdiction yields to considerations of practicality and wise judicial administration," Wilton, 515
U.S. at 288,
A district court may decline to entertain a declaratory judgment claim when it has "good
reason"to do so. Volvo Constr. Equip. N Am., Inc. v. CLMEquip. Co., 386 F.3d 581, 594 (4th
Cir. 2004). In determining whether to exercise declaratory jurisdiction, this Court must consider
whether declaratory relief would "serve a useful purpose in clarifying and settling the legal
relations in issue," and whether the judgment would "terminate and afford relief from the
uncertainty, insecurity, and controversy giving rise to the proceeding." Id. (citationomitted).
Because the requested declaratory judgment serves neither of these objectives, the Court will
dismiss Count VI of the Amended Complaint.
"[Cjourts have repeatedly recognized that [a] declaratory judgment serves no useful
purpose when it seeks only to adjudicate ... already existing claim[s]." Metra Indus., 2014 WL
652253, at *2 (second alteration in original) (citing cases); see Seneca Ins. Co. v. ShippingBoxes
I, LLC, 30 F, Supp. 3d 506, 511-512 (E.D. Va. 2014) (citations omitted); Newton v. State Farm
Fire & Cas. Co., 138 F.R.D. 76, 79-80 (E.D. Va. 1991) (dismissing declaratoryjudgment claim
brought by insured against insurer because the declaratory judgment would serve no useful
purpose in clarifying the contractual issues before the court).
2.
The Declaratory Judgment Requests Serve No Useful Purpose
Because Thev Seek Only to Adjudicate Already Existing Claims
The Court will grant Deutsche Bank and Ocwen's Motion to Dismiss Count VI of the
Amended Complaint because its allegations mirror those in the Jacksons' other claims. In Count
24
VI, the Jacksons seek a declaration that they are current on their payments, that they have
overpaid, and that they received no cure notice. (Am. Compl.
63-67.) They seek relief based
on similar allegations in their breach of contract claim in Count IIL (Am. Compl. ^ 43.)
Here, the "same conduct underlies [the Jacksons'] claims for declaratory judgment and
breach of contract." MetraIndus. ^2014 WL 652253, at *2, "Because the declaratory judgment
claim 'seeks the resolution of legal issues that will, of necessity, be resolved in the course of the
litigation of the other causes of action,'" the claim for declaratory relief is duplicative and
permitting it to proceed will not serve a useful purpose. Metra Indus., 2014 WL 652253, at *2
(citation omitted). Thus, CountVI of the Amended Complaint fails to state a properclaim for
declaratory relief The Court will grant Deutsche Bank and Ocwen's Motion to Dismiss Count
VI of the Amended Complaint.
V. Conclusion
For the foregoing reasons, the Court will grant in part and deny in part Deutsche Bank
and Ocwen's Motionto Dismiss; grant Poore's Motionto Dismiss; and, deny the Jacksons'
Motion to Remand. An appropriate Order shall issue.
/s/
M. Hannah I^ctc
^ j %
r
Date: 3-3 I* lb
United States District Judge
Richmond, Virginia
25
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