Mastin et al v. Ditech Financial, LLC et al

Filing 27

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 1/23/2018. (jsmi, )

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

Riclunond Division
ROBERT L. MASTIN,
et al.,
Plaintiffs,

v.

Civil Action No. 3:17cv368

DITECH FINANCIAL, LLC,
et al.,
Defendants.
MEMORANDUM OPINION

This

matter

is

before

the

Court

on

DEFENDANT'S

DITECH

FINANCIAL LLC AND BANK OF NEW YORK MELLON CORPORATION'S MOTION
TO DISMISS PLAINTIFFS' AMENDED COMPLAINT (ECF No. 21) .
reasons set forth below,
BANK

OF

NEW

PLAINTIFFS'

YORK

For the

DEFENDANT'S DITECH FINANCIAL LLC AND

MELLON

CORPORATION'S

AMENDED COMPLAINT

(ECF No.

21)

MOTION

TO

DISMISS

will be granted in

part and denied in part.
BACKGROUND
I. Factual Background

The facts are set out as alleged in the Amended Complaint.
And,

they

whether
12(b) (6).

must

the

be

taken

Amended

as

true

Complaint

for

purposes

satisfies

Fed.

of
R.

assessing
Civ.

P.

On November 2,
(collectively
"Note") ,

in

2005,

"Plaintiffs")
which

("Deed of Trust")

they

purchase

of

Road,

Spotsylvania,
Amend.

Reply

Plaintiffs'
first
Compl.

~

Complaint,

is

property

promissory
and

located

22553

~~

("Amend.

5-6

in

behind"

7) .

a

borrowers,

Virginia

Complaint,

"fell

executed

were

real

Compl.

Defendant's

Mastin and Jodi A.

(collectively the "Loan")

their

18,

Robert L.

Support
Ex.

on

of

A ("Def.

their

loan

(the

to

mean

that

note

deed

at

7207

trust

Towles

"Property") .

Their

of

(the

in order to finance

(ECF

Compl."));
Motion

to

Mill

(ECF No.
No.

8,

Dismiss

First Reply") ) . 1 Plaintiffs
payments

The term "fell behind,"
taken

a

Mastin

the

in

2009.

(Amend.

as used in the Amended
Mastins

were

then

in

default.
In November 2013,
Greentree
Loan.

Servicing,

the Loan was transferred and Ditech and

LLC

("Di tech") ,

assumed

"Shortly after" the Loan was transferred,

submitting

paperwork

to

Ditech

1

for

a

loan

servicing of

the

Plaintiffs began
modification,

in

In considering a motion to dismiss under Fed. R. Ci v. P.
12 (b) ( 6) , courts may consider documents to which reference is
made
in the complaint.
Am.
Chiropractic Ass'n v.
Trigon
Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004). When a
plaintiff refers to, but fails to include, a pertinent document
in his complaint, a defendant may attach the document to a
motion to dismiss without converting the motion to one for
summary judgment. Gasner v. Cty. of Dinwiddie, 162 F.R.D. 280,
282 (E.D. Va. 1995). Here, Plaintiffs refer to the Deed of Trust
in their Amended Complaint;
this document
is central to
Plaintiffs' claim and may therefore be considered by the Court.
(Amend. Compl. ~ 6).
2

response to which Ditech appointed several points of contact to
Plaintiffs'

file.

called Ditech,

(Amend.

~~

Compl.

9-10).

When

Plaintiffs

Plaintiffs were not able to speak with the same

point of contact more than once.

~

(Amend. Compl.

11). In 2014,

the Property was destroyed in a house fire, prompting Ditech to
deny

Plaintiffs'

occupancy.

loan

modification
~~

(Amend. Compl.

Sometime
Solutions,

after

the

("MVP" )

LLC

modification review.

denial,

modification.

with

(Amend.

Plaintiffs

assist

to

I

(Amend.

directly

due

to

lack

of

12-13).

14).

Home

their

in

MVP

loan

MVP ceased working

at which time Plaintiffs began

Ditech
~~

Compl.

hired

them

~

Compl.

for Plaintiffs after two years,
consulting

review

to

work

15-19) .

towards

On August

a

loan

22,

2016,

Plaintiffs submitted a loan modification application to Ditech.
(Amend.

contacted
trouble

~

Compl.

20).

Following

Di tech

"daily

reaching

Ditech,

this

regarding
and

submission,

their

were

application,"

asked

for

information" when they did reach Ditech.

(Amend.

Ditech

loss

also

Plaintiffs,

requested
which

(Amend. Compl.
In

the

~

a

prof it

Plaintiffs

and

submitted

on

Plaintiffs
had

"duplicative
Compl.

statement

August

30,

~

21) .
from
2016.

22).

"days

leading

to

the

foreclosure

sale,"

Ditech

informed Plaintiffs of a "math error" on their profit and loss
statement and that if they submitted a revised copy the planned
3

foreclosure sale would be cancelled; Plaintiffs resubmitted this
document to Di tech "that same day."
The

foreclosure

auction,

(Amend.
was

however,

~~

Compl.

not

23-25) .

postponed

and

Commonwealth Trustees, LLC ("Substitute Trustee"), as substitute
trustee,

foreclosed

which time

the

on

Ditech

the

had

Plaintiffs

the

correspondence

possibility of

sent

of

given

sale;

Di tech

a

in

next

two

"Notice

of

of

these

Error, "

2016,

months,
the

Plaintiffs

Loan,

the

in

which
the

cancellation of

the

which

Plaintiffs

Di tech' s

response

omitted any mention of cancelling the foreclosure sale.
Compl.

~~

occasions
Ditech,

29-33).
attempted

however,

result,

Since

BONY

to

2013,

make

Plaintiffs

payments

to

have

Ditech

on
on

~~

(Amend.
multiple

the

Loan,

has refused to accept any such payments; as a

is

seeking

possession

of

the

Property

General District Court for the County of Spotsylvania.
Compl.

and

regarding

correspondence,
to

at

New York Mellon

information

and

9,

26-28).

regarding

options"

one

November

Bank of

~~

conflicting

"workout

on

sold to

(Amend. Compl.

course

were

foreclosure

Property

Property was

Corporation ("BONY").
Over

the

in

the

(Amend.

34-35).

II. Procedural Background
On April 17, 2017, Plaintiffs commenced this action against
Di tech,

BONY,

"Defendants"),

and
in

the

Substitute
Circuit
4

Court

Trustee
for

(collectively
the

County

of

Spotsylvania, Case No.
of Removal,

CL17-395.

(ECF No.

1, Defendant's Notice

Ex. A ("Def. Not. of Remove.")).

Plaintiffs alleged

claims of breach of contract, violation of the Virginia Consumer
Protection

Act,

Protection
requested

and

Bureau's
rescission
A~~

Remove., Ex.

violation

Regulation
of

the

of

the
As

X.

Consumer
a

foreclosure

Financial

remedy,

Plaintiffs

sale.

(Def.

Not.

of

36-68). On May 11, 2017, Ditech and BONY filed

a Notice of Removal in this Court

(to which Substitute Trustee

consented) alleging jurisdiction to be proper under 28 U.S.C. §§
1331, 1332,

and 1367.

(Def. Not.

of Remove.

~~

9-12) . Although

Plaintiffs filed a motion to remand the matter to state court,
the Court found jurisdiction to be proper under 28 U.S.C. § 1331
and 28 U.S.C.

§

1367.

(ECF No. 11, Plaintiffs' Motion to Remand;

ECF No. 16, Order Denying Plaintiffs' Motion to Remand).
On May 18, 2017, Ditech and BONY filed a motion to dismiss
Plaintiffs'

complaint for failure

to state a

relief could be granted, and, on July 28, 2017,
"that ... the ... [c] omplaint

fail [ed]

to

claim upon which
the Court found

plead sufficient

allegations to support any claim upon which relief

factual

[could]

be

granted," ordered the complaint dismissed without prejudice, and
granted Plaintiffs leave of court to file an amended complaint
within 21 days.

(ECF No.

17) .

The Plaintiffs were admonished

that the Court had "serious doubts as to the viability of the
claims ... pled and the relief requested." Id.
5

Plaintiffs

an

filed

Amended

Complaint

the

against

Defendants on August 18, 2017.

{Amend. Compl.). In their Amended

Complaint,

violations

C.F.R.

§

Plaintiffs

alleged

of

Regulation

X,

12

1024.1 et seq., which implements provisions of the Real

Estate Settlement

Procedures Act

{"RESPA") ,

and Regulation Z,

which implements the Truth in Lending Act ( "TILA") , 12 C. F. R.
1026 .1

et

seq.

Although

under state law,

Plaintiffs

(See Amend. Compl.

no

~~

longer

sought

~~

2017,

the Substitute Trustee filed a motion

to dismiss the Amended Complaint.

Following

(ECF Nos. 19, 20).

Ditech and BONY filed this motion to dismiss the Amended

Complaint.

Plaintiffs

motion to dismiss
reply.
the

(Amend.

47-52).

On August 31,

suit,

relief

36-46), 2 they once again

sought rescission of the foreclosure sale as a remedy.
Compl.

§

However,

Substitute

filed

a

response

in

opposition

to

the

filed by Di tech and BONY who then filed a

because Plaintiffs did not file a
Trustee's

motion

to

dismiss

response to
the

Amended

Complaint, the Court granted the Substitute Trustee's motion and
dismissed

the

Amended

Complaint

2

with

prejudice

as

to

the

Plaintiffs seemingly characterize their allegations under a
TILA regulation, 12 C.F.R. § 1026.36(c) (1) (ii), as one contained
in RESPA' s implementing regulation, known as "Regulation X." 12
C.F.R. § 1024.1 et seg. This part of the Code of Federal
Regulations, however, known as "Regulation z," was promulgated
under the authority of, and with the intention of implementing,
TILA. 12 C.F.R. § 1026.l(a).
6

Substitute Trustee.

(ECF No.

26).

Thus,

Plaintiffs,

Ditech and

BONY are the only remaining parties before this Court.

STANDARD OF REVIEW

Fed.

R.

Civ.

P.

12(b) (6)

permits

the

dismissal

of

a

plaintiff's claim when a plaintiff fails "to state a claim upon
which

relief

motion

can be

to

granted."

dismiss

under

Rule

sufficiency of a complaint.
489

(4th

Cir.

complaint,

1991) .

In

Fed.

R.

12 (b) (6)

Schatz v.

testing

Civ.

Pro.
tests

Rosenberg,

the

12 (b) (6).

legal

the

943 F. 2d 485,

sufficiency

and

"must take

the

facts

in the

favorable to the plaintiff." Eastern Shores Mkts.,
Ltd.

need not,
facts"

legal

of

a

a court must "assume the truth of all facts alleged

in the complaint"

Assoc.

A

P'ship,

however,

or

213 F.3d 175,

180

(4th Cir.

light most

Inc. v. J .D.

2000). A court

"accept the legal conclusions drawn from the

accept

as

true

any

conclusions

inferences,

or

arguments. Id.
In

order

to

survive

a

motion

to

dismiss

under

Rule

12(b) (6), a complaint must allege "enough facts to state a claim
to relief
Twombly,

that
550

"plausible"
court

to

inference

is plausible on its
U.S.

if a
go

570

(2007).

A

Bell Atl.
claim

plaintiff pleads sufficient

beyond

that

544,

face."

the

mere

speculation

defendant

is

7

and

liable

Corp.

v.

is

considered

facts

to allow a

draw
for

a

reasonable

the

alleged

misconduct.

Ashcroft v.

Iqbal,

556

U.S.

662,

678

(2009);

see

Twombly, 550 U.S. at 555. A motion to dismiss should be granted,
however,

if a plaintiff's complaint does no more than set forth

a recitation of the elements of a claim, supported by mere legal
conclusions. Igbal, 556 U.S. at 678; see Walters v. McMahen, 684
F.3d

435,

439

(4th

Cir.

2012)

(reiterating

that

mere

legal

conclusions are entitled to no deference and are not sufficient
to survive a motion to dismiss under Rule 12 (b) (6)); Hooker v.
Disbrow,

No.

1:16-cv-1588-GBL-JFA,

2017 U.S. Dist. LEXIS 57403,

at *5-6 (E.D. Va. April 13, 2017).
If the Court dismisses Plaintiffs'
whether

to

give

Because

Plaintiffs

matter of course,

Plaintiffs
may

no

leave
longer

to

claims,
amend

amend

it must decide

their

their

complaint.

complaint

as

a

either the opposing party's consent or leave

of court is required. Fed. R. Civ. Pro. 15(a). Leave of court to
amend a

complaint is governed by Rule 15 (a) (2)

of the Federal

Rules of Civil Procedure, which states that "[t]he court should
freely give leave when justice so requires." Fed.

R.

Civ.

Pro.

15 (a) (2) . The rule has been interpreted "to provide that 'leave
to amend a

pleading should be denied only when the amendment

would be prejudicial to the opposing party,

there has been bad

faith on the part of the moving party, or the amendment would .
. be[]

futile."' Labor v. Harvey, 438 F. 3d 404, 426

8

(4th Cir.

2006)

(quoting Johnson v. Oroweat Foods Co.,

785 F. 2d 503,

509

(4th Cir. 1986)).
DISCUSSION
I.

Alleged
Violation
1026.36(c) (1) (ii) 3

Plaintiffs
attempted

to

of

allege

that,

since

C.F.R.

12

accepted

and

have

Plaintiffs allege that Ditech violated Regulation
1026.36{c) (1) {ii)

§

partial

payments

1026.36(c) (1) (ii)]
application

Loan

they

(Amend.

Z,

the

2013"

§

"continuously refused to accept payment on the note."
34).

on

C.F.R.

Ditech

~

payments

"early

12

that

Compl.

make

z.

Regulation

to

and

the

payment."

(Amend.

"blatant

refusal

[on

because

the

Loan]

held

them

in

[L]oan

when

the

Compl.
to

~

3 7) .

exercise

a

Ditech
[under

12

suspense
account

"could

C.F.R.

account

came

have

to

§

for
full

Plaintiffs claim that Di tech' s
this

option ... caused

the

Plaintiff's [sic] to suffer harm." Id.
This claim,

however,

regulation in question.
the

Deed

of

Trust,

is based on a misapprehension of the
It also runs afoul of the provisions of

which

specifically

allows

for

Ditech's

refusal of partial payments.
The

claims

fails

in

the

first

instance

regulation on which it is based is not mandatory.
1026.36(c) (1) {ii) states that:

3

See supra note 2.
9

because

the

12 C.F.R.

§

Any servicer that retains a partial payment,
meaning any payment less than a periodic
payment, in a suspense or unapplied funds
account shall: (A) Disclose to the consumer
the total amount of funds held in such
suspense or unapplied funds account on the
periodic
statement
as
required
by · §
1026.41(d) (3), if a periodic statement is
required;
and
(B)
On
accumulation
of
sufficient funds to cover a periodic payment
in any suspense or unapplied funds account,
treat such funds as a periodic payment
received
in
accordance
with
paragraph
(c) (1) (i) of this section.
Under 12

c. F. R.

1026. 36, a periodic payment is defined as "an

§

amount sufficient to cover principal,
applicable)

for

a

given

interest,

12

cycle."

billing

and escrow

(if

C.F.R.

§

1026. 36 (c) (1) {i) . A partial payment is defined as "any payment
less

than a

Plaintiffs

perioic

have

payment."

admitted

12

C.F.R.

§

1026.36(c) (1) (ii).

in their Amended Complaint

that

any

payments they made are less than the amount necessary to qualify
as periodic payments and are therefore governed by 12 C.F.R.
1026. 36 (c) (1) (i) . (Amend Compl.
The
that

a

regulator's

~~

34, 37) .

interpretation of

loan servicer who

§

"receives

a

this

provision provide

partial payment

from a

consumer, to the extent not prohibited by applicable law or the
legal

obligation

following actions:

between
(i)

the

parties, ... may

take

in

a

suspense

of

the

Credit the partial payment upon receipt.

(ii) Return the partial payment to the consumer.
payment

any

or

unapplied

10

funds

(iii) Hold the

account."

CONSUMER

FINANCIAL

PROTECTION

BUREAU,

OFFICIAL

INTERPRETATION

TO

3 6 ( C) ( 1) (ii) ,

https://www.consumerfinance.gov/eregulations/1026-36/201330108_20140118#1026-36-c-l-iii (emphasis added); see 10 KENNETH M.
LAPINE ET AL.

I

Financial

Protection

C.F.R.

175. 04 (2017)

§

Bureau's

1026.36 (c) (1) (ii));

§

ESTATE

BANKING LAW

(approving of the Consumer

official

accord MITCHEL H.

MORTGAGE BANKING SCOPE INFORMATION

AND

interpretation
KIDER ET AL.

7 :46

§

of

(2015).

12
REAL

I

Neither

party has cited any decisional law addressing this issue.
Court

has

located

However,

none .

the

Consumer Financial Protection Bureau

The

interpretation of

( "CFPB")

the

makes sense as a

matter of statutory interpretation.
It

has

long

been

held

that

"the

plain,

obvious,

and

rational meaning of a statute is always to be preferred to any
curious, narrow, hidden sense that nothing but the exigency of a
hard case and the ingenuity and study of an acute and powerful
intellect
U.S.

would discover.

364,

370

(1925)

regulation

at

retains

partial

a

issue

Lynch v.

/1

(internal
begins

by

payment ... "

fact

of

stating

Co.,

267

quotation marks

omitted).

The

saying,

servicer

and

restrictions on such servicers.
The mere

Al worth-Stephens

12

"[a]ny

continues

c. F. R.

§

''any servicer who

on

to

that

impose

1026. 3 6 ( c) ( 1) (ii) .
retains

a

partial

payment" naturally suggests that there are servicers who do not
retain

such

payments.

retain

partial

Id.

payments,

If
one

all
might
11

servicers
expect

were
the

required

to

regulation

to

begin by stating that "a servicer shall retain partial payments
in

a

suspense

or

unapplied

funds

Moreover, · the

account."

regulation, by its explicit terms, is permissive.
Furthermore, Plaintiffs cannot rely on Ditech's obligations
under the Deed of Trust because the Deed of Trust explicitly
provides

that

Ditech

need

not

accept

Plaintiffs'

partial

payments. 4 The Deed of Trust states in pertinent part: " [Di tech]
may return any payment

or partial payment

insufficient to bring the Loan current."

if

the payment

is

{Def. First Reply, Ex.

B) . Plaintiffs do not allege anywhere in their amended complaint
that

their

attempted

{Amend. Compl.

~~

Plaintiffs'
the

notion

payments

would

bring

Ditech

is

obligated

are able

a

loan

servicer

payments at all,

to

accept

in a

Plaintiffs'

suspense account

to eliminate any arrearage.

explained above, however, 12 C.F.R.
require

current.

claim under the regulation rises and falls on

that

Plaintiffs

Loan

34, 37).

partial payments and hold the payments
until

the

such

as

Id.

As

1026.36{c) (1) (ii) does not

§

Ditech

to

accept

partial

and the Deed of Trust specifically provides

that Ditech may reject payments that are "insufficient to bring
the Loan current."
claim

fails

as

(Def.
a

First Reply,

matter

of

4

law.

Ex.

B) .

Therefore,

Moreover,

the

this
legal

To be perfectly clear, Plaintiffs do not rely on the language
contained in the Deed of Trust. See (Amend. Compl.) . But, if
they could, further amendment might be appropriate.
12

insufficiency

of

the

claim

could

not

be

remedied

by

giving

Plaintiffs another opportunity to amend because amendment would
be

futile

for the reason that

matter of law.

Labor,

the

theory is not viable as

438 F. 3d at 426

(quoting Johnson,

a

785

F.2d at 509).
II.

Violation of Regulation X

Plaintiffs next allege that "Ditech has violated ... [RESPA]
Regulation X also known as 12 CFR 1024
36).

For the following reasons,

[sic]."

however,

(Amend. Compl.

~

the Amended Complaint

fails to state a claim under Regulation X upon which relief can
be granted.
To the extent that Plaintiffs' claim relies on 12 C.F.R.
1024.38(a),

their Amended Complaint fails because,

below, 12 C.F.R.
action.

§

as explained

1024.38(a) does not create a private right of

§

Insofar as

the Amended Complaint relies upon Di tech' s

alleged violation of

12 C.F.R.

§

1024.41(c) (2) (ii),

it should

likewise be dismissed with prejudice because Ditech was under no
obligation

to

application.

evaluate

an

incomplete

loss

mitigation

To the extent that the Amended Complaint alleges

violations of 12 C.F.R.

§

1024.41(g), it is legally insufficient

as well.
A.

12 C.F.R.

Plaintiffs
Defendant's

[sic]

§

1024.38(a)

confusingly
assertion,

allege
12 C.F.R.
13

that

"[c]ounter

1024.38(a)

[sic]

to

states

that a lender 'shall maintain policies and procedures' necessary
to comply with the recommendations in the rest of the section."
(Amend.
allege

~

Compl.
that,

38)

under

enforce'

provisions

[sic]."

(Amend.

(emphasis in original) . Plaintiffs further
12

C. F .R.

of

1024. 41 (a) ,

§

Regulation
~

Compl.

Plaintiffs allegations as

under

For

39).

X

the

"a

borrower

12

U.S.C.

following

they rely on 12 C.F.R.

§

'may

2605(f)
reasons,

1025.38(a)

have failed to state a claim upon which relief can be granted.
As

an

initial matter,

the

part

of

the Amended

purporting to charge a violation of 12 C.F.R.
to

be

relying

complaint

in an

1024.38(a).
A,

~~

on

allegations

attempt

(Amend.

Compl.

52-57) . By doing so,

deficiencies

contained

in

to

set

state

~~

a

38-39);

forth

1024.38(a) seems

§

in

their

claim under

12

original

c. F. R.

(Def. Not. of Remove,

§

Ex.

Plaintiffs apparently seek to remedy
their

original

complaint

pointed out in the briefing of Defendants'
dismiss.

Complaint

that

were

original motion to

That effort must be ignored.

Under the Federal Rules of Civil Procedure,

"[a]

pleading

that has been amended ... supersedes the pleading it modifies and
remains in effect throughout the action unless
is modified." VIKRAM D. AMAR ET
&

MILLER

§

I

FEDERAL PRACTICE

14 7 6 ( 2O1 7) . Furthermore,

superseded,
pleading,

AL.

it subsequently

AND

the

relevant
14

I

WRIGHT

"the original pleading, once

cannot be utilized to cure defects
unless

PROCEDURE

portion

is

in the amended
specifically

incorporated in
failed

the new pleading."

specifically

Amended

to

Complaint.

allegations

are

A,

~~

the

incorporate

(Amend.

entirely
~~

Compare (Amend. Compl.

Id.

Here,

these

Compl.

absent

Plaintiffs

claims

the

into

their

Indeed,

38) .

from

have

such

Amended

Complaint.

38-39) with (Def. Not. of Remove, Ex.

52-57) . Because of this omission, and the rules governing

amendment

of

pleadings,

the

Amended

Complaint

must

be

considered without reference to any allegation contained in the
original complaint.
In any event, the Amended Complaint wholly fails to state a
claim

upon

which

1024. 38 (a) .

relief

That

can

section

be

granted

mandates

that

under
a

12

C.F.R.

"servicer

§

shall

maintain policies and procedures that are reasonably designed to
achieve the objectives set forth in paragraph
C.F.R.

(b) . " 5 Thus,

12

1024.38(a) requires "only that a lender enact policies"

§

that effectuate the goals outlined in that section. Sabatino v.
Pill,
Va.

No.

2O1 7) .

support

1:17CV72,

Plaintiffs' ,

Dist.

however,

LEXIS 148804,

failed

The
to

Amended

Complaint

"maintain policies

5

at *9

allege only facts

isolated instances where Di tech' s

been deficient.
Ditech

2017 U.S.

and

(W.D.

that might

procedures may have

does

not

allege

procedures

that

that
are

A number of objectives are set forth in 12 C.F.R. § 1024.38(b),
including, but not limited to, accessing and providing timely
and accurate information, properly evaluating loss mitigation
applications, facilitating oversight of, and compliance by,
service providers. See 12 C.F.R. § 1024.38(b).
15

reasonably designed to achieve" any of the goals listed in 12
C.F.R.

§

that

1024.38(b). See

circumstance,

sufficient

facts

the
to

~~

(Amend. Compl.
Amended

allow

20-27, 36-45). Under

Complaint

the

court

does

not

go

beyond

to

allege
mere

speculation and certainly does not permit a reasonable inference
that

Defendants

motion

to

are

dismiss

liable
should

for
be

the

alleged misconduct.

granted

for

that

reason

The
alone.

Iqbal, 556 U.S. 662, 678 (2009); see Twombly, 550 U.S. at 555.
Even if Plaintiffs had pled enough facts in their Amended
Complaint to support a plausible allegation that Ditech had not
"maintain[ed]

policies

and

procedures

that

[were]

reasonably

designed to achieve the objectives set forth in paragraph
of 12 C. F. R.

§

1024. 38,

(b)

11

the Amended Complaint would still fail

to state a claim upon which relief could be granted because 12
C.F.R.

§

1024.38 does not create a private right of action.

The

Supreme

administrative

Court

of

" [a] gencies

the

may play

but not the sorcerer himself.
275,

291

may

by

(2001).

United
the

"invoke

a

private

has

sorcerer's

Alexander v.

11

Put less colorfully,

regulation

States

said

that

apprentice

Sandoval,

532 U.S.

an administrative agency
right

of

action

that

Congress through statutory text created, but it may not create a
right that Congress has not.

11

Redington,

577

442

U.S.

560,

Id.

(citing Touche Ross
n.

18

(1979)).

A

Co. v.

valid

reasonable regulation that authoritatively construes a
16

&

and

statute

that creates a private right of action does, however, contain a
private right of action. Sandoval, 532 U.S. at 284. This follows
because " [a]
through

a

Congress that intends

private

cause

of

[a]

action

statute to be enforced

intends

the

authoritative

interpretation of the statute to be so enforced as well." Id. To
determine whether a private right of action is created under 12
C.F.R.

§

1024.38,

the authority under which it was promulgated

must be identified.
CFPB
promulgate
~'

is

authorized

regulations

12 U.S.C.

§

under

multiple

implementing

sections

RESPA's

of

RESPA

objectives.

to

See,

2617(a). Not all of those enabling provisions,

however, grant CFPB the authority to promulgate regulations that
create private rights of action. Compare 12 U.S.C.
with

12

confusion,

U.S.C.
CFPB

§

took

2617(a).
pains

Recognizing
during

the

the

§

2605(j) (3)

possibility

rulemaking

process

of
to

identify the precise authority under which each regulation was
enacted.
Here, CFPB made clear that 12 C.F.R.
under the authority of 12 U.S.C.

§

§

1024.38 was enacted

2617, which does not create a

private right of action (as opposed, for example, to 12

u.s.c.

§

2605, which does) . 6 78 Fed. Reg. 10696, 10777-79 (Feb. 14, 2013).

Section 19 of RESPA was codified at 12 U. s. c. § 2617, while
Section 6 of RESPA was codified at 12 U.S. c. § 2605. It is
appropriate to make note of this information here because
subsequent quotations from the Federal Register contained in

6

17

In

no

uncertain

terms,

CFPB

announced

Fed.

Reg.

at

10779.

This was a

it

"adopt[ed]

[12 U. s. c.

1024. 38 pursuant to its authority under
78

that

§

right

of

action

for

general servicing policies,
create

significant

carefully

crafted

enforcement

by

compliance

with

the

a

the

rule

risk."
that

Bureau

and

provisions

procedures,

litigation

and

Id.

"private liability for violations of

that

As

set

forth

a

result,

Federal

and

regulators

1024.38,"

§

CFPB

"supervision

requires

of

"allowing a

and requirements would

other

violations

2617 (a)] . "

conscious decision by CFPB

after the notice and comment period revealed that
private

§

but

for

rejects

1024.38." Id.

§

Considering the explicit interpretation given to 12 C.F.R.
§

1024 .38 by CFPB,

from

within

this

there is a predictable absence of case law
district

construing

its

requirements.

Other

districts that have squarely confronted the issue, however, have
uniformly
Wells

confirmed

CFPB' s

Fargo Home Mortg.,

163454,
C.F.R.

at
§

*12-14

(E.D.

1024.38 does

No.

at

*9-11

interpretation of

(E. D.
the

15cvl3297,

Mich.

not

Smith v. Nationstar Mortg.,
154344,

interpretation.

Dec.

7,

create a
No.

Mich.

regulation).

Austerberry v.

2015 U.S.
2015)

Dist.

LEXIS

(holding that

12

private right of action);

15-13019,

Nov.

See

16,
For

2015 U.S. Dist. LEXIS

2015)

(affirming CFPB' s

example,

in an

action

this memorandum replace RESPA's original section designations
with the designations now contained in the United States Code.
18

eerily similar to
granted

a

plaintiffs

Plaintiffs',

defendant's

a

motion

claim under 12

to

C.F.R.

because it found 12 C. F. R.

§

United States District Court
dismiss

in

1024.38;

§

response

the

to

a

court did so

1024. 38 did not create a private

right of action under which the plaintiff could state a claim.
Joussett v. Bank of America, N.A., No.

15-6318,

2016 U.S. Dist.

LEXIS 138912, at *14-16 (E.D. Pa. Oct. 6, 2016).
Therefore,
alleged

insofar as the Amended Complaint relies on any

violation

of

12

C.F.R.

§

1024.38,

it

is

fatally

defective because there is no right privately to enforce those
provisions of the regulation.
defect,

And, no amendment could cure that

making any amendment a

That aspect of

futility.

Amended Complaint will be dismissed with prejudice.

the

Labor,

438

F.3d at 426 (quoting Johnson, 785 F.2d at 509).
B.

12 C.F.R.

The

Amended

which
C.F.R.

relief
§

§

1024.41

Complaint

also

can be

granted

1024.41(g) 7

because

to
the

7

fails
the

to

state

extent

Amended

its

a

claim

relies

Complaint

upon
on

does

12
not

To be explicit, contrary to their assertions concerning 12
C.F.R. § 1024.38, Plaintiffs are in fact correct when they state
that 12 C.F.R. § 1024.41 creates a private right of action. 12
C.F.R. § 1024.41 ("A borrower may enforce the provisions of this
section pursuant to [12 U.S.C. 2605(f]); (Amend. Compl. ~ 39).
12 C.F.R. § 1024.41 was promulgated pursuant to 12 U.S.C. § 2605
and is therefore an authoritative interpretation of a statute
for which Congress has already granted a private right of
action, making such an interpretation permissible. Sandoval, 532
U. s. at 284; 78 Fed. Reg. at 10822-23 (recognizing that CFPB
19

allege

that

Plaintiffs

submitted

mitigation application more

to

Ditech

a

complete

than thirty-seven days

before

loss
the

foreclosure sale.
On

August

22,

2016,

Plaintiffs

modification application to Ditech.

submitted

(Amend. Compl.

~

a

loan

20). After

Ditech informed Plaintiffs of the need to complete a profit and
loss

statement,

modification 8
41).

[to Ditech]

In response,

Property

for

Plaintiffs

"submitted

on August 30,

Ditech scheduled a

November

2016,

while

at

complete

a

2016."

(Amend.

foreclosure
the

same

loan

Compl.

sale of
time

~

the

assuring

Plaintiffs that the foreclosure sale would be cancelled due to
enacted this regulation under 12 U.S.C. § 2605 and that it
creates "a private right of action pursuant to [12 U.S.C.
2605(f)]"); see Eslick v. Cenlar, No. 2:17cv381, 2017 U.S. Dist.
LEXIS 177957, at *6 (E.D. Va. Oct. 3, 2017) (noting that a
borrower "may enforce that section's provisions against lenders
by a private right of action."); see also Combs v. United States
Bank Nat' 1 Ass' n, No. 1: l 7cv545, 2017 U.S. Dist. LEXIS 100542,
at *2 (E.D. Va. June 28, 2017).
8

Plaintiffs allege in their memorandum in opposition of
Defendants' motion to dismiss the Amended Complaint that they
had submitted a "facially complete application,
and that under
12 C.F.R. § 1024.4l(c) (2) (iv) Ditech was required to treat it as
a complete loan modification application from the date of its
original submission; here, August 30, 2016. (Resp. in Opp.).
This allegation, however, should be disregarded in assessing
legal sufficiency because it was not raised in the Amended
Complaint. See (Amend. Compl.). Under the Federal Rules of Civil
Procedure, it is "axiomatic that a complaint may not be amended
by the briefs in opposition to a motion to dismiss.
Katz v.
Odin, Feldman & Pittleman, P.C., 332 F.Supp.2d 909, 917 n. 9
(E.D. Va. 2004)
(internal quotations omitted); see Davis v.
Cole, 999 F.Supp. 809, 813 (E.D. Va. 1998) (refusing to consider
additional
allegations
offered in response
to motion to
dismiss) .
/1

/1

20

their "full and complete application."

~~

(Amend. Compl.

42-43).

Following this,

Plaintifs were informed that there was a "math

error"

profit

in

the

and

loss

statement

that

needed

to

be

corrected; Plaintiffs did so that same day on Ditech's assurance
that if they did so the foreclosure
(Amend.

~~

Compl.

23-25).

Ditech,

Property on November 9, 2016.

however,

violation

of

[12

C.F.R.

alternative,

Plaintiffs

allege

modification

application

was

evaluate

loss

a

1024(c) (2) (ii)
require"

Ditech

instances,

that

to

do

Plaintiffs

1024.41] ."

§

claim

even

that,

package"

Plaintiffs'
so.

Id.

if

under

Ditech's

In

the
loan

still

"may

12

~

Compl.

"in

their

Ditech

position

(Amend.
that

45).

such conduct was

incomplete,

mitigation

and

that

foreclosed on the
~

(Amend. Compl.

The Amended Complaint asserts
express

sale would be cancelled.

C . F . R.

"would
46).

course

of

§

almost
In

both

conduct

resulted in Plaintiffs being ''di vested of their family home. 11
(Amend. Compl.
Under

~

12

received a

45).

C.F.R.

§

1024.4l(g),

a

loan

servicer

who

has

complete loss mitigation application "more than 37

days before a foreclosure sale ... shall not move for foreclosure
judgment
"Complete

or

order

Loss

of

sale,

Mitigation

or

conduct

Application"

9

a

foreclosure
is

defined

sale." 9
by

the

Although there are a number of exceptions to this rule, none of
them are implicated by the facts as alleged in Plaintiffs'
amended complaint. See 12 C.F.R. § 1024.4l(g) (1)-(3).
21

regulation to mean
servicer

has

"an application in connection with which a

received

all

the

information

that

the

servicer

requires from a borrower in evaluating applications for the loss
mitigation

options

1024. 41 (b) (1) .

available

to

the

borrower."

CFPB has further explained that a

12

C.F.R.

§

servicer "has

flexibility to establish its own application requirements and to
decide the type and amount of information it will require from
borrowers applying for loss mitigation options . " CONSUMER FINANCIAL
PROTECTION

OFFICIAL

BUREAU,

INTERPRETATION

TO

36 (c) (1) (ii)

I

https://www.consumerfinance.gov/eregulations/1024-41/201518239#1024-41-b-2.

According

to

the

text

itself and CFPB's official interpretation,

of
then,

the

regulation

a servicer has

the discretion to decide what applications it considers

to be

"complete. 1110 A servicer that violates this provision is liable
to

a

plaintiff

for

(1)

any

actual

damages

caused

by

the

violation as well as (2) an amount not to exceed $2,000 for each
violation in the case of a pattern or practice of noncompliance
with the requirements of that section.
Those damages are only due,

however,

12 C. F. R.
if a

§

1024. 41 (a) .

plaintiff can show

that his damages were "a result of the RESPA violation." Combs,
2017 U.S. Dist. LEXIS 100542, at *8-9 (emphasis in original).

10

See 12 C. F. R. § 1024. 41 (b) ( 1) ("an application in connection
with which a servicer has received all the information that the
servicer requires from a borrower") (emphasis added).
22

Here,

Plaintiffs

submitted a

directly to Di tech on August 22,

loss
2016.

mitigation application
(Amend.

Compl.

~

20) .

Sometime before August 30, 2017, 11 Ditech contacted Plaintiffs to
inform them that a profit and loss statement was needed from Mr.
Mastin.

(Amend. Compl.

~

22). Plaintiffs submitted this document

to Ditech on August 30, 2017. Id.
Taking the facts as Plaintiffs'
that

up

to

mitigation
entitled

to

this

point,

application

Ditech

to

flexibility

be

with

allege them,

considered

incomplete.
regard

to

Plaintiffs'

Because
what

evaluation of loss mitigation applications,

it is clear

it

loss

Ditech

is

requires

in

Ditech's assessment

of Plaintiffs' August 22, 2016, application should be considered
proper under 12 C.F.R.

§

1024.41,

and Plaintiffs'

application

should be deemed not to have triggered any obligation on Ditech

11

Plaintiffs do not allege the exact date on which Ditech
contacted them to request a profit and loss statement from Mr.
Mastin; Plaintiffs do, however, state that they submitted the
document to Di tech on August, 30, 2017. See (Amend. Compl. ~
22). 12 C.F.R. § 1024.41(b) (2) (i) (B) requires that, once a
borrower submits to a servicer a complete loss mitigation
application forty-five days before a scheduled foreclosure sale,
the servicer is obligated to notify the buyer in writing, within
five days of its receipt (excluding holidays and weekends) ,
whether the application is either complete or incomplete. 12
C.F.R. § 1024.41(b) (2) (i) (B). In addition, the notice must state
the documents and information the buyer must submit in order to
make the application complete. Id. Here, Plaintiffs do not
allege that Ditech is in violation of this provision, and, even
if they had, the Amended Complaint does not plead "enough facts
to state a claim to relief that is plausible on its face"
because they have not alleged the date on which they received
Ditech's request. Twombly, 550 U.S. at 570.
23

to postpone the foreclosure sale under 12 C.F.R.
CONSUMER

FINANCIAL

36{c) (1) {ii),

PROTECTION

OFFICIAL

BUREAU,

1024.41{g).

§

INTERPRETATION

TO

https://www.consumerfinance.gov/eregulations/1024-

41/2015-18239#1024-41-b-2.
allegations

as

they

It

relate

follows

to

the

that

August

Plaintiffs

22,

2016,

1

loss

mitigation application fail to state a claim upon which relief
can be granted.
The Amended Complaint further alleges,
the days leading up to the foreclosure

however,

sale,"

that,

"on

Di tech informed

Plaintiffs that there had been a "math error" in the profit and
loss statement Plaintiffs submitted on August 30,
Compl.

~

23).

2016.

{Amend.

Plaintiffs were told that if they resubmitted a

corrected version of the document the foreclosure sale would be
postponed.

Plaintiffs did so that same day.

24-25). Nonetheless,
postpone

the

November 9,

Compl.

~~

says the Amended Complaint, Ditech did not

foreclosure
2016.

{Amend.

{Amend.

sale

and

Compl.

~

the

Property

was

sold

on

26-27) . Although Plaintiffs

do allege that Ditech contacted them regarding the error "in the
days leading to the foreclosure sale," Plaintiffs do not allege
any specific date on which they received such notice.
Unfortunately for Plaintiffs,

time here is of the essence.

In order for Plaintiffs to state a valid claim under 12 C.F.R.
1024.41{g)
foreclosure

§

and to support an obligation on Ditech to cease any
sale,

Plaintiffs were required to submit
24

the

loss

mitigation application to Ditech "more than 37 days before [the]
foreclosure
specific

sale."

date

information

to

12

on

C.F.R.

which

Ditech,

Plaintiffs

the

"enough facts to state a
its

face."

defining

Twombly,

when

foreclosure
plead

the

sale

facts

Without alleging a

submitted

Amended

Complaint

the

does

corrected
not

allege

claim to relief that is plausible on

550 U.S.

at

application

took

which

1024.4l(g).

§

place,

would

570.
was

the

allow

speculation or to draw a

Absent a

clear timeline

submitted

Amended
a

court

reasonable

when

the

does

not

Complaint
to

go

inference

are liable for the alleged misconduct.

and

Iqbal,

beyond

mere

that Defendants

556 U.S.

662,

678

(2009); see Twombly, S50 U.S. at SSS.
Lastly,
1241 (c) (2) (ii)
package"

allege

Plaintiffs
[sic] ,

even

Plaintiffs'

lenders

though

it

circumstances,

the

~

46)

cited

Complaint)

is

(and

the

it were

However,
plain

undermines this allegation.

The regulation states more fully that
discretion,
and

of fer

a

evaluate

loss

and

incomplete

even if

(emphasis added) .

provision

may

C.F.R.

12

"under

mitigation

that,

given

Ditech would "almost" be required to

review their application,
Compl.

that

incomplete.

(Amend.

the plain language of

language
Lynch,

of

the

Amended

267 U.S.

at 370.

"a servicer may,

in its

evaluate an incomplete loss mitigation application
a

borrower a

1024. 41 (c) (2) (ii)

loss

mi tiga ti on option. "

(emphasis added) .
25

12

C. F. R.

§

If that provision were not

plain enough,

the regulation further states that nothing in its

terms "imposes a duty on a servicer to provide any borrower with
any specific loss mitigation option." 12 C.F.R.

§

1024.4l(a). In

light of this language, any choice Ditech had under 12 C.F.R.
1024.41 to evaluate Plaintiffs'
merely

discretionary,

Plaintiffs
C.F.R.

have

not

failed

to

§

loss mitigation application was
compulsory.

state

a

Because

claim for

this,

of

violation of

12

1241 upon which relief can be granted.

§

For the foregoing reasons,

the Amended Complaint fails to

state a claim upon which relief can be granted to the extent it
is

based

on Di tech' s

mitigation
sale.

and

refusal

Ditech's

to

failure

evaluate
to

an

postpone

incomplete
the

loss

foreclosure

Furthermore, because the allegation rooted in 12 C.F.R.

1024 .41 {c) (2) (ii)

fails

because

of

a

misunderstanding

of

§

the

law, and any attempt to remedy this inadequacy would be futile,
the Amended Complaint based on 12 C.F.R.

§

1024.4{c) (2) {ii) will

be dismissed with prejudice.
Plaintiffs should,

however,

be given leave to amend their

Amended Complaint as it relates to the claim based on 12 C.F.R.
§

1024.4l{g)

(and

only

that

claim).

As

to

that

claim,

the

Amended Complaint fails because it has not alleged enough facts
for the Court draw a reasonable inference that Ditech could be
liable
that,

for

the

alleged misconduct.

It

appears

from briefing

if given leave to amend the Amended Complaint, Plaintiffs
26

may

be

able

to

include

the

specific

dates

upon

which

they

received Ditech' s notice of the alleged "math error" contained
in the profit and loss statement,
be

able

to

allege

facts

and,

concerning

more importantly,
the

revised document was submitted to Ditech.

date

on

(Amend.

might

which

that
~

Compl.

23-

25) .
If
before

the
the

submission
foreclosure

was

made

sale,

more

than

Plaintiffs'

thirty-seven
allegations

days

likely

would survive a Rule 12(b) (6) motion to dismiss. See 12 C.F.R.

§

1024 .41 (g) . 12 Because "[t] he court should freely give leave when
justice so requires,"

and allowing

amended

this

complaint

in

prejudice Defendants,
to do so.

Fed.

R.

Plaintiffs

situation

would

to

not

amend

be

their

futile

or

this Court should grant Plaintiffs leave

Civ.

Pro.

15 (a) (2);

Labor,

438 F.3d at 426

(quoting Johnson, 785 F.2d at 509).
III. Equitable Remedy of Rescission

Plaintiffs
secure,

have

requested

a

remedy

which

but because they have failed to allege a

12

they

cannot

right,

this

In addition, Plaintiffs might be able to allege that their
loss mitigation application was "facially complete" as of their
August 30, 2016, submission, and that, therefore, Ditech was
required to treat it as complete for purposes of 12 C. F. R. §
1024.4l(g). See under 12 C.F.R. § 1024.4l(c) (2) (iv); supra note
8.

27

request can be dismissed in short order. 13 Plaintiffs allege that
they are entitled to rescission of the foreclosure sale because
it is "an appropriate claim for relief under Virginia law" and
would "return the
before

the

[sic]

improperly

(Amend. Compl.

~~

Plaintiffs to the position they were in
held

foreclosure

sale

was

conducted."

47-48). Plaintiffs (and Defendants) mistakenly

cite Virginia precedent that purports either to confer or deny a
remedy of rescission of the foreclosure sale.
47-52);

(Amend.

Compl.

~~

(Def. Mem.). Both parties, however, miss the point.

The

Amended

Complaint

does

not

assert

a

claim

under

Virginia law; instead, the Amended Complaint asserts claims only
under federal regulations contained in 12 C.F.R.
C.F.R.
the

§

laws

1024.38,
of

and 12 C.F.R.

Virginia

would

§

1024.41.

permit

or

"sitting in diversity cases,

'substantive'

law,

[is]

as state statutes." 28
460, 465
diversity.

1026.36,

Therefore,

deny

rescission has nothing to do with this matter.
court

§

the

whether

remedy

True,

12

of

a federal

when deciding questions of

bound by state court decisions as well

u.s.c.

§

1652; Hanna v. Plumer, 380 U.S.

(1965). But, in this case, the Court is not sitting in
It

is

exercising its

13

federal

question

jurisdiction

The remedy Plaintiffs request is addressed in this memorandum
separately from the underlying merits of Plaintiffs' claims for
two reasons: (1) Plaintiffs have organized their complaint in
manner that appears to allege rescission of the foreclosure sale
as a separate count, rather than a remedy tied to a right,
(Amend. Compl. ~~ 47-52); and (2) it needs to be made clear to
the Plaintiffs that injunctive relief is unavailable.
28

under 28 U.S.C.

1331.

§

(ECF No.

is governed by federal law.

16). Accordingly,

Erie Railroad Co. v.

this matter

Tompkins,

304

U.S. 64, 78 (1938).
First,

Plaintiffs request that this Court order rescission

of the foreclosure sale as a result of alleged violations of 12
C.F.R. 1026.36(c) (1) (ii).
it is true that,
from Congress,

~~

(Amend. Compl.

37, 47-52). Although

" [a] bsent the clearest command to the contrary

federal

courts retain their equitable power to

issue injunctions in suits over which they have jurisdiction,"
Califano v.
provides

Yamasaki,

for

a

442

remedy

U.S.
of

682,

704

(1979),

rescission

in

Regulation Z

consumer

credit

transactions in which a creditor acquires a security interest in
the

consumer's

However,

this

principal

dwelling.

section provides

12.

that

C.F.R.

§

1026.23(a).

residential mortgages

are

specifically excluded from the regulation's coverage. 12 C.F.R.
§

1026.23(f) (1).

Because

of

this

omission

(and

Plaintiffs'

failure allege any violation under this regulation, as explained
above)

a

request

for

this

remedy

as

it

relates

to

this

regulation could not be granted.
Second,

it

appears

from

the

Amended

Complaint

that

the

Plaintiffs pray for rescission of the foreclosure sale under 12
C.F.R.
above,

§

1024.38(a).

though,

(Amend.

Compl.

~

47-52).

As

explained

that regulation does not create a private right

of action which Plaintiffs are entitled to enforce, much less a
29

private right of action.

Thus,

it does not allow the Court to

grant them the equitable remedy of rescission.
2015

U.S.

Dist.

LEXIS

163454,

at

*12-14;

See Austerberry,

Smith v.

Nationstar

Mortg., 2015 U.S. Dist. LEXIS 154344, at *9-11; 78 Fed. Reg. at
10778.

Any claim for

such a

remedy linked to this

regulation

must therefore fail.
Finally,

Plaintiffs request this same remedy in connection

with their alternative and inconsistent claims under 12 C.F.R. §
1024. 41 (g)
38-40,

and 12 C. F. R.

46-52).

Under

1024. 41 (c) (2) (ii) .

§

12

C.F.R.

statutory remedy of damages.

§

1024.41,

12 U.S.C.

(Amend.

is

~~

only

a

2605(f); 12 C.F.R.

§

there

Compl.

§

1024.41(a). Courts have interpreted this enumeration of a damage
remedy as evincing the intent of Congress to exclude all other
remedies.

Eslick,

that 12 C.F.R.
in

private

procedures"

§

2017 U.S.

Dist.

LEXIS 177957,

at *4

(holding

1024.41 "does not provide for injunctive relief

actions
and

for

citing

violations
a

string

of
of

loan

modification

cases

from

other

jurisdictions that have held the same) .
CONCLUSION

For the foregoing reasons, DEFENDANT'S DITECH FINANCIAL LLC
AND

BANK OF NEW

YORK MELLON

CORPORATION'S

MOTION

TO DISMISS

PLAINTIFFS' AMENDED COMPLAINT (ECF No. 21) will be granted as to
all counts.
be

dismissed

The claim under 12 C.F.R.
with

prejudice;

the
30

§

1026.36(c) (1) (ii) will

claim

under

12

C.F.R.

§

1024.38(a)
under

12

will
C.F.R.

prejudice.
Ditech

be
§

dismissed

with

1024.4l(c) (2) (ii)

To

the

extent

the

violated

12

C.F.R.

§

In

that

regard,

standard pleading format
February 9,

2018.

will

and,

be

1024.4l(g),

the

dismissed

Amended Complaint

dismissed without prejudice for
Complaint.

prejudice;

that

claims

claim

claim
with
that

will

be

leave to file another Amended
any

amendment

and any amendment

must

conform

shall be

to

filed by

Ditech and BONY shall file Answers and any

motions by March 9, 2018.
It is so ORDERED.

/s/
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date: January ~' 2018

31