United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER United States District Judge
Aleta A. Trauger
defendant, Wells Fargo Bank, N.A (“Wells Fargo”),
as trustee for the certificate holders of Park Place
Securities, Inc., asset-backed pass-through certificates,
Series 2004-MCW1, has filed a Motion for Judgment on the
Pleadings (Docket No. 16), to which the plaintiff, Terry Joe
Beasley, has filed a Response in Opposition (Docket No. 18).
For the following reasons, the motion will be granted.
2004, the plaintiff, Terry Joe Beasley, borrowed $189, 000
from Ameriquest Mortgage Company (“Ameriquest”)
to purchase a property located at 2009 College View Drive,
Murfreesboro, Tennessee 37130 (the “Property”).
(Docket No. 11-1 (Deed of Trust); Docket No. 17-1 (Note).) At
some point in the last eight years, Ameriquest transferred
and assigned the Deed of Trust and Note to Wells Fargo, which
acts as trustee for Park Place Securities, Inc. (“Park
Place”), a “securitized trust created for the
purpose of pooling various residential home mortgages.”
(Docket No. 1-1 ¶ 34.) Also at some point in the last
eight years - the Complaint does not clarify
- Mr. Beasley defaulted on his mortgage. In April of 2016,
Wells Fargo initiated foreclosure proceedings on the
Property, but it appears that the foreclosure sale has been
postponed while Mr. Beasley pursues this suit seeking to
enjoin Wells Fargo from further action in connection with the
Complaint, Mr. Beasley alleges multiple instances of
wrongdoing in connection with his mortgage and the scheduled
foreclosure on the Property that he claims warrant judicial
intervention. For example, Mr. Beasley alleges that, at all
times, the identity of the “true creditor” of his
mortgage has been “shielded and made very
confusing” for him and that the “actual
creditor” of his loan is unknown. (Id.
¶¶ 39, 42, 45.) The Complaint further alleges that,
“[o]ver the years, various entities have claimed to be
the ‘creditor' or ‘lender' on Mr.
Beasley's loan; including, but not limited to, Bank of
America, [Ameriquest], and Countrywide.” (Id.
¶ 39.) The Complaint does not, however, identify any
conduct on the part of Wells Fargo that Mr. Beasley claims
contributed to his ignorance of the identity of his creditor.
Beasley further alleges that “these actions in
obscuring the real creditor have harmed [him] because, upon
information and belief, he qualifies for loss mitigation
options which would allow him to stay in his home and satisfy
his debts.” (Id. ¶ 42.) Despite being
qualified for this loss mitigation, Mr. Beasley further
alleges that he was never “offered . . . any loss
mitigation alternatives such as a loan modification or
‘short sale'” of the Property. (Id.
¶ 41.) The record does not, however, support Mr.
Beasley's allegations regarding loss mitigation. On April
11, 2016, Rubin Lublin TN, PLLC sent a “Notice of
Acceleration and Foreclosure” to Mr. Beasley on behalf
of Wells Fargo. (Docket No. 11-4 (Notice).) This Notice
advised Mr. Beasley that Wells Fargo was instituting
non-judicial foreclosure proceedings against the Property and
that, unless Mr. Beasley paid the entire amount of the debt
in full, a foreclosure sale would take place on May 19, 2016.
(Id. at p. 1.) The Notice directed Mr. Beasley to a
website containing “information relative to loss
mitigation options and saving [his] home from
foreclosure.” (Id. at p. 2.) Mr. Beasley has
not denied that he received this letter, nor has he alleged
that he visited the loss mitigation website or submitted an
application for loss mitigation to Wells Fargo at any point.
13, 2016, Mr. Beasley filed an action against Wells Fargo in
the Chancery Court of Rutherford County, Tennessee, seeking
an injunction prohibiting Wells Fargo from taking further
action on the scheduled foreclosure. (Docket No. 1-1.) In the
Complaint, Mr. Beasley alleges that Wells Fargo (1)
wrongfully foreclosed on the Property when it “fail[ed]
to comply with the terms of the securitized trust” in
violation of Tenn. Code Ann. § 35-5-101 et seq.
and Article 1, Section 8 of the Tennessee Constitution; (2)
violated the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et
seq., by using false, deceptive, and misleading
statements in attempting to foreclose on the Property; and
(3) violated regulations promulgated pursuant to the Consumer
Financial Protection Act (“CFPA”), 12 U.S.C.
§ 5511 et seq., by failing to offer him loss
mitigation alternatives to foreclosure. (Id.
¶¶ 44-57.) Shortly after the Complaint was filed,
Wells Fargo removed the action to this court on the grounds
that the court possesses federal question jurisdiction over
the claims. (Docket No. 1.) On July 21, 2016, Wells Fargo
filed its Answer, attaching multiple documents referenced in
the pleadings and denying any wrongdoing in connection with
the scheduled foreclosure on the Property. (Docket No. 11.)
September 16, 2016, Wells Fargo filed the pending Motion for
Judgment on the Pleadings (Docket No. 16), accompanied by a
Memorandum of Law arguing that the Complaint fails to state a
claim upon which relief can be granted. (Docket No. 17.)
Wells Fargo argues that Mr. Beasley's wrongful
foreclosure claim is deficient as a matter of law and fact
because (1) it is not ripe until Wells Fargo completes
foreclosure proceedings against the Property, (2) Mr. Beasley
has no standing to challenge any breach of the terms of the
securitized trust, and (3) Mr. Beasley has failed to allege
facts demonstrating that Wells Fargo has violated any law in
the course of the foreclosure. (Id. at pp. 4-8.)
Wells Fargo also argues that the Complaint fails to state a
claim under the FDCPA because it fails to allege facts
supporting the inference that Wells Fargo is a “debt
collector” within the meaning of that statute or used
false, deceptive, or misleading statements in attempting to
foreclose on the Property. (Id. at pp. 8-9.)
Finally, Wells Fargo argues that the Complaint fails to
allege facts supporting a claim under the CFPA, because the
cited regulation does not “impose a duty on a
servicer to provide any borrower with any specific loss
mitigation option.” (Id. at pp. 9-10 (quoting
12 C.F.R. § 1024.41).)
October 10, 2016, Mr. Beasley filed a Response in Opposition
to the Motion. (Docket No. 18.) In it, Mr. Beasley argues
that his claims are ripe because Wells Fargo has merely
postponed the scheduled foreclosure sale of the Property and
will in all likelihood proceed with the sale, should the
court decline to hear his claims. (Id. at pp. 3-4.)
Mr. Beasley also argues that his wrongful foreclosure claim
is supported by Wells Fargo's failure to follow certain
“statutory requirements” in pursuing foreclosure,
but he does not mention the violations of Tenn. Code Ann.
§ 35-5-101 et seq. or the Tennessee
Constitution that are alleged as the basis for the claim in
the Complaint. (See Id. at pp. 3-6.) Rather, Mr.
Beasley argues that the wrongful foreclosure is based on
Wells Fargo's failure to follow the “specific and
detailed actions” required of a servicer pursuant to 12
C.F.R. § 1024.41. (Id. at p. 5.) According to
Mr. Beasley, Wells Fargo was required to “evaluate
[him] for loss mitigation options” but failed to notify
him of those options, in violation of this regulation (which
also serves as the basis for his claim under the CFPA).
(Id. at pp. 5, 8.) Finally, Mr. Beasley argues that
Wells Fargo acquired his debt from Ameriquest after he had
already defaulted on his mortgage and is, therefore, a
“debt collector” within the meaning of the FDCPA.
(Id. at pp. 7-8.)
12(c) of the Federal Rules of Civil Procedure provides that
“[a]fter the pleadings are closed - but early enough
not to delay trial - a party may move for judgment on the
pleadings.” Conversely, a motion under Rule 12(b)
“must be made before pleading if a responsive pleading
is allowed.” Rule 12(c) motions for judgment on the
pleadings and Rule 12(b)(6) motions are evaluated under the
same standard of review. Fritz v. Charter Twp. of
Comstock, 592 F.3d 718, 722 (6th Cir. 2010).
Accordingly, the court must “construe the complaint in
the light most favorable to the nonmoving party, accept the
well-pled factual allegations as true, and determine whether
the moving party is entitled to judgment as a matter of
law.” Commercial Money Ctr., Inc. v. Ill. Union
Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). Although
the court's decision regarding a motion for judgment on
the pleadings rests primarily upon the allegations of the
complaint, “matters of public record, orders, items
appearing in the record of the case, and exhibits attached to
the complaint[ ] also may be taken into account.”
Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir.
2001) (quoting Nieman v. NLO, Inc., 108 F.3d 1546,
1554 (6th Cir. 1997)). In considering a motion for judgment
on the pleadings, the court “need not accept ...