Batton et al v. Wells Fargo Bank NA

Filing 15

MEMORANDUM AND OPINION AND ORDER denying 7 MOTION by Wells Fargo Bank NA to Dismiss 1 Complaint. Signed by Judge Joseph R. Goodwin on 3/31/2017. (cc: attys; any unrepresented party) (tmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
FREDERICK A. BATTON, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:16-cv-12036

WELLS FARGO BANK, N.A.,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending before the court is the defendant’s Motion to Dismiss [ECF No. 7]. The
plaintiffs did not file a timely response to the Motion. For the reasons given below,
the Motion is DENIED.
I.

Background
On December 12, 2016, the plaintiffs filed their Complaint [ECF No. 1] with

the court. The plaintiffs allege that the defendant violated the Real Estate Settlement
Procedures Act (“RESPA”). Compl. 2–4. According to the plaintiffs, the defendant
received a qualified written request (“QRW”) from the plaintiffs, but the defendants
refused to respond to the QWR and failed to conduct an investigation.1 The plaintiffs
state that they have suffered actual damages as a result of the defendant’s inaction:
[T]he Plaintiff was harmed financially in that [ ] she has to hire an
attorney, she had to pay a filing fee to file this lawsuit and she lost a
For the purpose of resolving the defendant’s Motion, the court accepts as true all of the well-pleaded
allegations in the Complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 663–64 (2009).
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$400 filing fee on the last lawsuit, she had to spend time assembling this
case and working with an attorney. Further, she was hassled, annoyed,
inconvenienced, forced to waste time. Further because she has been
denied her RESPA response she has been unable to fix her mortgage.
Compl. ¶ 15.d.

The plaintiffs seek statutory damages and reasonable

attorney’s fees and costs.
The defendant argues that the plaintiffs have failed to allege any “actual
damages” under RESPA, and thus they have failed to state a claim upon which relief
can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
II.

Legal Standard
A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a

complaint or pleading. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).
Rule 8 of the Federal Rules of Civil Procedure requires that a pleading contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8. As the Supreme Court reiterated in Iqbal, that standard “does not
require ‘detailed factual allegations’ but ‘it demands more than an unadorned, the–
defendant–unlawfully–harmed–me accusation.’” Ashcroft v. Iqbal, 556 U.S. 662, 677
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[A] plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. A court cannot accept as true legal conclusions
in a complaint that merely recite the elements of a cause of action supported by
conclusory statements. Iqbal, 556 U.S. at 678. “To survive a motion to dismiss, a
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complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). To
achieve facial plausibility, the plaintiff must plead facts that allow the court to draw
the reasonable inference that the defendant is liable, and those facts must be more
than merely consistent with the defendant’s liability to raise the claim from merely
possible to probable. Id.
III.

Discussion
Congress enacted RESPA in order to “insure that consumers throughout the

Nation are provided with greater and more timely information on the nature and
costs of the settlement process and are protected from unnecessarily high settlement
charges caused by certain abusive practices that have developed in some areas of the
country.” 12 U.S.C. § 2601. One tool provided to consumers under RESPA is the
ability to submit a QWR to loan servicers, allowing consumers to request information
or to request that errors be investigated and corrected.
The statute requires that “[i]f any servicer of a federally related mortgage loan
receives a qualified written request from the borrower . . . for information relating to
the servicing of such loan, the servicer shall provide a written response
acknowledging receipt of the correspondence within 5 days.” 12 U.S.C. §
2605(e)(1)(A). Additionally, the statute requires that the loan servicer conduct an
investigation and explain its findings within 30 days of receiving the QWR. See 12
U.S.C. § 2605(e)(2).
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RESPA provides that any loan servicer who fails to comply with the applicable
QWR response provisions will be liable to the borrower in the following amounts:
In the case of any action by an individual, an amount equal to the sum
of—
(A) any actual damages to the borrower as a result of the
failure; and
(B) any additional damages, as the court may allow, in the
case of a pattern or practice of noncompliance with the
requirements of this section, in an amount not to exceed
$2,000.
12 U.S.C. § 2605(f)(1). Additionally, “in the case of any successful action under this
section, the costs of the action, together with any attorney’s fees incurred in
connection with such action as the court may determine to be reasonable under the
circumstances” may be awarded. 12 U.S.C. § 2605(f)(3). Thus, the statute requires
that a plaintiff suffer “actual damages” before he or she may recover any statutory
damages or attorney’s fees and costs. See 12 U.S.C. § 2605(f)(1)(A); see also

Hutchinson v. Del. Sav. Bank FSB, 410 F. Supp. 2d 374, 383 (D.N.J. 2006) (“[A]lleging
a breach of RESPA duties alone does not state a claim under RESPA. Plaintiffs must,
at a minimum, also allege that the breach resulted in actual damages.”); Bishop v.

Quicken Loans, Inc., No. 2:09-cv-01076, 2010 WL 3522128, at * 6 (S.D. W. Va. Sept.
8, 2010) (Copenhaver, J.) (dismissing a claim under RESPA because the plaintiffs
failed to allege actual damages); Ghuman v. Wells Fargo Bank, N.A., 989 F. Supp. 2d
997, 1007 (E.D. Cal. 2013) (“A RESPA claim’s failure to allege a pecuniary loss
resulting from a failure to respond is fatal to the claim.”).
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Taking all of the plaintiffs’ allegations as true, the plaintiffs have sufficiently
alleged actual damages under RESPA. See 12 U.S.C. § 2605(f)(1)(A); see also

Johnstone v. Bank of Am., N.A., 173 F. Supp. 2d 809, 816 (N.D. Ill. 2001) (deciding
that a plaintiff sufficiently stated a claim to recover under RESPA for time spent on
the case and for inconvenience, insofar as the plaintiff could establish actual
pecuniary loss); cf. Rawlings v. Dovenmuehle Mortg., Inc., 64 F. Supp. 2d 1156, 1165
(M.D. Ala. 1999) (“Regarding the damages provision of [RESPA], the court reads
‘actual damages’ broadly so as to encompass mental anguish damages.”).
As discussed above, the plaintiffs stated that they suffered damages regarding
wasted time, annoyance, inconvenience, and paid filing fees. See Compl. ¶ 15.d.
Accordingly, the court FINDS that the plaintiffs have sufficiently stated a claim upon
which relief can be granted.
IV.

Conclusion
The court ORDERS that the defendant’s Motion to Dismiss [ECF No. 7] is

DENIED.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

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March 31, 2017