Prescott v. PHH Mortgage Corporation et al

Filing 49

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 2/7/2017. Copy mailed to Pro Se Plaintiff. (jsmi, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division PATRICIA A. PRESCOTT, Plaintiff, v. Civil Action No. 3:16cv288 PHH MORTGAGE CORPORATION, et al., Defendants. MEMORANDUM OPINION This matter is before the Court on the PLAINTIFF'S MOTION FOR SUMMARY JUDGEMENT dismiss filed by the MOTION TO DISMISS CORNER, 16) [sic] Defendants: (ECF No. 9) filed PHH and several motions to MORTGAGE 25) and the Professional the reasons SPROUSES PLAINTIFF'S COMPLAINT (ECF No. and the MOTION TO Foreclosure forth below, CORPORATION'S DEFENDANT, DISMISS jointly by Defendants Shapiro, (ECF No. set 44) ("PHH Mot."), LLC' S MOTION TO DISMISS ("Sprouses Mot."), granted, (ECF No. Corporation the of Defendants' ("PCF Mot.") Brown, & Alt Virginia. motions the Plaintiff's motion will be denied as moot, For will be and this action will be dismissed. BACKGROUND Patricia June 6, Prescott 2016. Defendants, but (ECF only filed No. the Complaint -in 4) . The Complaint four have been this names properly a action on number of served in this case: PHH Mortgage Foreclosure Alt Corporation Corporation of Virginia ("Shapiro"), and Sprouses Defendants (hereinafter four motions to dismiss. facts alleged in ("PHH") , the ("PFC"), Corner, LLC Professional Shapiro, Brown & ("Sprouses") . 1 These "Defendants") have all filed For purposes of determining the motions, the the Complaint must be assumed true, and the Complaint must be read liberally in light of Prescott's status as a pro se plaintiff. ( 2007) be ("[A] held to See Erickson v. pro se complaint, less stringent Pardus, 551 U.S. 89, 94 however inartfully pleaded, must standards than formal pleadings drafted by lawyers."). A. Relevant Facts Prescott purchased the property in question in December of 2003, secured by a Deed of Trust and Note in the amount of $130,000. (Compl. the loan, and Prescott made timely payments to them until 2009. (Compl. 12) . <JI <JI 4). At some point PHH became the servicer on In 2008, loan modification. Prescott applied for but was denied a (Compl. <JI 14). 1 In November of 2009, Prescott The other Defendants were LOGS Corporation, Gerald Alt, R. Alan Anderson, Kristine Brown, John Burson, J. Cabell Metts III, and Gerald Shapiro.· Summons was returned unexecuted as to Anderson, and it was neither prepared nor issued as to the others. (ECF Nos. 5, 8) . Because these Defendants were never successfully served with process, they will be dismissed from this case. Moreover, because the Complaint asserts no independent federal claims against these Defendants apart from those dismissed by this Memorandum Opinion, the dismissal of the unserved Defendants must be without prejudice. 2 and PHH entered into a "vaguely period loan modification program. After terms of the a trial new program specified" <JI~ (Compl. concluded, loan modification offer six-month trial- 13-15). Prescott received the in April of 2010, but rejected them because "the terms were not as previously agreed to and did not place the Plaintiff's original than the that she began making back payments, amount owed, current, note." (Compl. [sic] in a better position 15-16). l)I<JI Prescott made inquiries alleges as to the and submitted double-payments in an attempt to get but that PHH did not "properly account submitted after April, 2009." (Comp. for any money 16). !)I Prescott specifically alleges that PHH did not account for a series of payments made in May and June of 2010 of $850, contends $425. 91, that $850, PHH' s and failure $425). to these motion their claim of delinquency." Id. she continued to accounting, checks her because amount to clear default." despite Compl. at <JI'll they provided (ECF No. Between 29, December Prescott payments "put the beginning in December of 2010, returning 21-22. 20). an PHH began "[i] nsufficient Attach. 2010 improper and 20); 22-24). Prescott In the filed in attachments response to to the "Addendum" the motions 3 see February three checks were returned to Prescott for that reason. <JI<JI in She further claims that submit monthly payments but that, ~ (Compl. credit (four payments 2011, (Compl. (ECF No. to dismiss, also 29) letters from PHH to Prescott indicate that a fourth check dated March 1, 2011 was also returned (as it was approximately half of what PHH alleged at the time was due). of 2011, Shapiro (ECF No. 29, Attach. 24). In April informed Prescott intended to foreclose. (Compl. CJI on behalf of 25) PHH that PHH Although Prescott disputes that PHH was the noteholder at this time, the documents that she attached to her addendum confirm that PHH was the holder. (ECF No. 29, Attach. 27). Despite the foreclosure letter, foreclosure did not occur on Prescott's property until after a second letter received in 2013. (Compl. Between April that PHH (which fraudulently rescission that 2011 was filed satisfaction. attachments of 35-36). CJICJI and still notices replaced (Compl. CJI provided June being of a of 2013, Prescott represented assignment previously and filed by a claims Shapiro} document of certificate of 27-33). 2 Notwithstanding this claim, in Prescott's Addendum (ECF No. the 29) indicate that the Document of Rescission was filed in April of 2011 in order to correct a certificate of satisfaction that had been executed in error (by Bank of America, which never held the property and swore as much in the Document of Rescission) . (ECF No. 29, Attach. 30-31). 2 This portion of the Complaint is especially difficult to decipher. It includes rhetorical questions, conflicting assertions, and is contradicted by the documents filed in the Addendum. (Compl CJICJI 27-33). 4 Prescott 17, 2013 received a (but advertisement Dispatch. second foreclosure allegedly of the (Compl. sent July 35-36) . 29, was foreclosure <Jr<.II letter placed Prescott dated and 2013)' filed modification attempt" with PHH on "October 21, in the a July an Times- final "loan 2014, " 3 but the foreclosure sale proceeded and she received an eviction letter. ~~ (Compl. 37, acquired the trustee. 43). Sprouses was the high bidder at auction and property. (Compl. Prescott (Compl. c:!I 41). PFC was the substitute 44). ~ alleges that the sale to Sprouses violated the terms of the Deed of Trust and the terms of the advertisement of sale, last which respectively advertisement November 14, for 2013. required the sale within property ~c:!I (Compl. and 30 days within 37-40). The 15 basis of the days of of this allegation appears to be that the Substitute Trustee's Deed was not recorded within those timeframes. she contacted the substitute Id. trustee, Prescott states that PCF, settlement was due to occur on November 29, was 2013, On Court December for 13, 2013, Chesterfield and that she 45). c:II Prescott County that . and secured then "ceased attempts for a loan modification . legal representation." (Compl. told in 3 an appeared action in that the Circuit resulted in It is likely that this is a typo in the Complaint, and that the date intended was "October 21, 2013." 5 Sprouses obtaining an irrunediate writ of possession, albeit one (according to Prescott) "based on fraudulent documents." ~ to (Compl. 46). Prescott specifies that the writ was "authorized pursuant a trustee's deed following had not recorded the deed, foreclosure," but that Sprouses and otherwise "did not have a signed and/or notarized valid copy of a trustee's deed on November 21, 2013, when he swore to the surrunons." (Compl. 4 7) . ~ She also asserts that Sprouses has continued to assert legal ownership of the property into 2015, despite reselling the property, and thus has "defrauded not only the Plaintiff, but every person willing and able to purchase the property." (Compl. The property transaction was was re-sold recorded of 2014, and that 55). 2014. (Compl. ~ Plaintiff's equity in April property, but asserts that it "falsely represent [ed]" the true that she deserved. she had the funds time of foreclosure, (Compl. ~ in Complaint) the 56); Court Attach. to consider 25-32). (Compl. ~ the Prescott maintains 58). to satisfy her debt completely at the but was not given the opportunity to do so however, Prescott's Addendum for 1, received that check February 4 9) . Prescott amount a on in ~ are this claim (and many other allegations refuted the (ECF No. for by 29), purposes Prescott claims 6 documents provided in which Prescott has asked the of these "this motions. complaint (Id. is at 1, timely" because "the debt has not been properly adjudicated" "because fraud is present and ongoing." (Compl. <]I and 58). B. Procedural Posture The Complaint (ECF No. contains numerous 4) allegations, which stem directly or indirectly from a foreclosure sale that took place on November 14, 2013. (Compl. <]I 41) . Prescott asserts that the foreclosure occurred after her attempts to satisfy her debts were ignored, and that the foreclosure itself was accomplished through fraud and in violation of a number of state and federal statutes. In response, the Defendants have filed the pending motions to dismiss, seeking dismissal of the action on several grounds, including that the Complaint fails to state any claim upon Prescott's which claims relief can (including be all granted, of her and that federal many claims) of are time-barred. 4 Prescott has filed five documents in opposition to the motions to dismiss (ECF Nos. 29, 32, 33, 34, 43), but admits that her federal claims "may not procedurally be timely." (ECF No. 33 at 6.). 4 PHH and Sprouses have also challenged the Court's subject matter jurisdiction under the Rooker-Feldman doctrine pursuant to Fed. R. Civ. P. 12 (b) (1), but that doctrine does not apply here. Prescott has not sought review or reversal of the state court judgments attached to the Defendants' motions, nor has she complained of any injury sustained from them. Lance v. Dennis, 546 U.S. 459, 464 (2006). The Defendants' arguments thus conflate Rooker-Feldman with the doctrine of preclusion. Id. 7 The Defendants have each requested a hearing for argument on their motions to dismiss (ECF Nos. 22, 28, 39); however, the briefs and responses that have been filed adequately present the dispute, and reaching a further decision. argument Thus, its discretion under Fed. merits of below, the the not aid the Court denies R. Defendants' motions would Civ. Pro. 78, those Court in requests in and proceeds to the motions. For the granted will the and reasons this set action forth will be claims in dismissed with prejudice. DISCUSSION By her her own Complaint. however, is U.S.C. § Prescott ~':[ (Compl. based 1331; Specifically, claims count, 28 only asserts 59-80). on thirty-five Jurisdiction Prescott's U.S.C. § 1367; federal see also in claims. Compl. against the Defendants under See at 28 ':II 3. (RESPA), the Truth in Lending Act (TILA), of these claims is the Fair Debt defective 12 U.S.C. § 2601 et. al., and 15 U.S.C. § 1601 et. for multiple reasons, them are time-barred by the relevant limitations PHH Mot. at 2; at 1-2; PSC Mot. deficiency Sprouses Mot. appears considered in Collection 15 U.S.C. § 1692 et. al., the Real Estate Settlement Procedures Act properly case, jurisdiction in this case is based on Prescott's Practices Act (FDCPA), that this on a the motion 8 face of seeking the al. Each but all of periods. at 1-2. Because Complaint, dismissal See under it is Rule 12(b) (6). See Richmond, Fredericksburg & Potomac R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993). A. Fair Debt Collection Practices Act (FDCPA) Claims Prescott's claims under the FDCPA derive from paragraphs 59, 61, 62, and 64 of the Complaint. The substance of this claim is that PHH accepting to payments) statements in (Compl. ~~ of dates the failed validate and made connection her false with the debt and (by not otherwise collection misleading of her asserted, however, foreclosure the conduct in question all sale in November of 2013, and the Prescott's Complaint was not filed until June 6, 15 debt. 59-64}. Even under the most charitable interpretation occurred before the No. properly 2016 (ECF 4}. The statute of limitations under the FDCPA is one-year. U.S.C. § 1692k(d}. Therefore, Prescott's FDCPA claims are time-barred and will be dismissed. B. Real Estate Settlement Procedures Act (RESPA) Claims In paragraphs 59, 61, 64, and 67 of the Complaint, Prescott can charitably be understood to be asserting claims under RESPA. As best the Court can tell, the source of these claims appear to be that PHH failed to respond to a qualified written request as required by 12 U.S.C. § 2605(e) respond to borrower inquiries"), for payments. (Compl. ':Il 59-61). ("Duty of loan servicer to and failed to properly account Although the Complaint also appears to claim that PCF and Shapiro are responsible for these 9 violations, 5 they are not "lenders" or "servicers" and have not been alleged to be by exists against them. Prescott; therefore, See 12 U . S . C . § no 2 60 5 (i ) (2 ) . viable claim In any event , Prescott's RESPA claims are also time-barred. Prescott alleges numerous times, response. that she on the phone, {Compl. <JI "asked [for an accounting] and in writing" but received no 67) . The only specific written requests she mentions, however, are a letter to Shapiro she alleges was dated April 25, Prescott 2011 has and not a letter included to PHH enough dated detail December in her 9, 2010. 6 Complaint to determine if any of these communications were "qualified written communications" § 2605 (e) (1) (B), barred. year) . under RESPA obligations, RESPA is See see 12 U.S.C. but any action arising from them is now time- The statute of limitations for a U.S.C. § 2605 one triggering three 12 years U.S. C. expired § (and for 2 614. approximately RESPA claim under 12 all Thus, other RESPA claims, any three potential years action before the 5 It is difficult to discern against whom Prescott is asserting particular claims, because the Complaint does not specify to whom it is refers when it uses the term "Defendant" or "Defendants." The Complaint also uses personal pronouns ("he" and "they," primarily) without corresponding antecedents. 6 Prescott also reports that she made a request in 2013, but does not provide further detail regarding when, in what form, and to whom the request was sent. (Compl. SI 64) . Prescott also admits that she received a response to that request. Id. 10 Complaint. Therefore, Prescott's RESPA claims are also time- barred and will be dismissed. C. Truth in Lending Act (TILA) Claims Prescott also alleges that TILA "[b]y account," claiming failing by not amount to notify accepting owed." PHH violated "Regulation Z" of the Plaintiff payments, (Compl. and 59) . <JI actions took place in 2010 and 2011. Regulation Z, like most statute of limitations. § 226 .1 (e); of TILA, See 15 U.S. C. 12 CFR 1026 .1 (e) . "[b]y All (Compl. is of these 20-24, governed 164 0 ( e) ; Therefore, suspense falsing of <JI<JI a by a [sic] alleged 60) . But one-year see also 12 CFR Prescott's TILA claims are also time-barred, and will be dismissed. 7 D. Remaining Claims in the Complaint For the reasons set forth above, Complaint will be dismissed. this TILA, conclusion. RESPA and See ECF No. other several make it slices of the dispositive Notably, 33 mortgage procedurally be timely [.] ") ; at Prescott has not disputed 6 see also id at specific issue of violations 5 ("The time-barred, [sic] fraudulent 7 ("The servicing pie may be of the federal claims in the behavior."); id. may fact not that does not at 8-9 Prescott's specific TILA claims involve 12 CFR 1026. 34 and 12 CFR 1026. 41, regulations that did not go into effect until January of 2014, well after the conduct alleged in this case. (See PHH Motion 9). Prescott now admits this additional deficiency in her claim. (ECF No. 33 at 8). 11 (asking the Court to treat the alleged federal violations as evidence of the "larger case of fraud" since "the letter of the law many not allow for conviction.''). Like the federal claims in the Complaint, it appears that Prescott's Virginia statutory and common-law claims also fail to state plausible claims upon which relief can be granted for multiple reasons. However, the Court need not rule on each individually because it has dismissed all claims over which it had original § jurisdiction. See 28 U.S.C. 1367 (c) . Because of the questions federal presented in the Complaint, jurisdiction over the related state claims was proper pursuant to the Court's supplemental jurisdiction. See 28 U.S.C. § 1367. However, federal question, having dismissed all those claims presenting a only state discretion under 28 U.S.C. § claims remain. Pursuant to its 1367(c) (3), the Court elects not to exercise its supplemental jurisdiction over any of those claims because there is Inc. v. HIF Bio, no basis to do Inc., 556 so. U.S. See also Carlsbad Tech., 635, 636 (2009). Thus, the remaining claims in the Complaint will also be dismissed and the Defendants' motions will be granted. claims will be without Dismissal of the state law prejudice, reasserting them in state court, appear to be legally insufficient. 12 subject even though the to Prescott state claims CONCLUSION For the reasons MOTION TO DISMISS MOTION TO (ECF No. DISMISS all state federal law dismissed JUDGEMENT [sic] will s will be Complaint, MORTGAGE CORPORATION'S SPROUSES CORNER, COMPLAINT (ECF No. (ECF No. be dismissed dismissed the PHH DEFENDANT, DISMISS claims claims the TO above, 9), PLAINTIFF' and Shapiro's MOTION and stated 25) PLAINTIFF'S will with without 16)' LLC'S and be granted, prejudice. prejudice. MOTION FOR SUMMARY It is so ORDERED. Isl Robert E. Payne Senior United States District Judge 13 The Having (ECF No. 44) will be denied as moot. Richmond, Virginia Date: February -'2_, 2017 PCF

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