United States District Court, E.D. Tennessee
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE
civil action is before the Court on defendants' Motion to
Dismiss Pursuant to Federal Rule of Civil Procedure 12(c)
[Doc. 6]. In this motion, defendants seek a judgment on the
pleadings in their favor on all claims in plaintiff's
complaint [Doc. 1-1]. Plaintiff filed a response in
opposition [Doc. 12], and the time for defendants to file a
reply has now passed, see E.D. Tenn. L.R. 7.1(a).
Defendants' motion is thus fully briefed and ready for
disposition. For the reasons explained below, the Court will
grant this motion.
case concerns allegedly unlawful foreclosure proceedings on
plaintiff's home. Plaintiff maintains her primary
residence at 6311 Pine Marr Drive in Hixson, Tennessee (the
“Property”) [Doc. 1-1 ¶ 1]. On October 30,
2006, plaintiff executed a deed of trust on the Property with
Homecomings Financial, LLC (“Homecomings”) as the
lender and Mortgage Electronic Registration Systems, Inc.
(“MERS”) as the beneficiary [Id. ¶
33].Defendant U.S. Bank National Association,
as trustee for Residential Asset Securities, Corporation,
Home Equity Mortgage Asset-Backed Pass-Through Certificates,
Series 2007-KS3 (the “Securitized Trust”), is a
securitized trust created for the purpose of pooling various
residential mortgages [Id. ¶ 33]. Plaintiff
asserts that, according to Securities and Exchange Commission
(“SEC”) filings from 2007, the cut-off for
placing mortgage loans into the Securitized Trust was April
1, 2007 [Id.]. Plaintiff alleges that, despite this,
MERS executed an assignment in July 2016, purporting to
transfer both the note and deed of trust for the Property to
the Securitized Trust [Id. ¶ 35].
Ocwen Loan Servicing, LLC (“Ocwen”), was the
mortgage loan servicer for plaintiff's note and deed of
trust [Id. ¶ 42]. Plaintiff asserts that Ocwen
referred her loan for foreclosure and that, on August 25,
2016, a non-judicial foreclosure sale of the Property took
place [Id. ¶¶ 36, 42]. Plaintiff alleges
that she applied for loss mitigation alternatives-such as a
loan modification or short sale of the Property-but that
Ocwen never properly considered her request before initiating
the foreclosure sale [Id. ¶ 37]. Plaintiff also
claims that, due to a failure to comply with its own enabling
documentation, the Securitized Trust lacked standing to
pursue foreclosure [Id. ¶ 39]. Plaintiff avers
that, as a result of defendants' conduct, she has
suffered threatened foreclosure and eviction, emotional
distress, harm to her credit rating, and legal expenses
[Id. ¶¶ 51-52].
January 9, 2017, plaintiff filed a complaint in the Chancery
Court for Hamilton County, Tennessee, against both the
Securitized Trust and Ocwen [Doc. 1 ¶ 1].
Plaintiff's complaint seeks monetary and injunctive
relief against defendants, asserting the following claims:
(1) wrongful foreclosure under Tennessee law; (2) a violation
of the Fair Debt Collection Practices Act, 15 U.S.C.
§§ 1692-1692p (the “FDCPA”); and (3) a
violation of the Real Estate Settlement Procedures Act, 12
U.S.C. §§ 2601-2617 (the “RESPA”) and
its implementing regulations-particularly, 12 C.F.R. §
1024.41 [Doc. 1-1 ¶¶ 38-54].Defendants then
timely removed plaintiff's action to this Court under 28
U.S.C. § 1446(a) [Doc. 1], and filed an answer to the
complaint [Doc. 3]. On April 17, defendants filed the instant
motion for judgment on the pleadings under Rule 12(c) [Doc.
6]. Plaintiff filed a response in opposition on March 16
[Doc. 12]. Defendants did not file a reply, and the time to
do so has now passed. See E.D. Tenn. L.R. 7.1(a).
Therefore, the Court will proceed to rule on defendants'
motion at this time.
Standard of Review
motion for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c) is subject to the same standard of
review as a motion brought under Federal Rule of Civil
Procedure 12(b)(6). See Penny/Ohlmann/Nieman, Inc. v.
Miami Valley Pension Corp., 399 F.3d 692, 697 (6th Cir.
2005); accord Lindsay v. Yates, 498 F.3d 434, 438
(6th Cir. 2007). In reviewing either a Rule 12(b)(6) motion
to dismiss or a Rule 12(c) motion for judgment on the
pleadings, the Court “must construe the complaint in a
light most favorable to plaintiffs, accept all well-pled
factual allegations as true, and determine whether plaintiffs
undoubtedly can prove no set of facts in support of those
allegations that would entitle them to relief.”
Bishop v. Lucent Techs., Inc., 520 F.3d 516, 519
(6th Cir. 2008) (citing Harbin-Bey v. Rutter, 420
F.3d 571, 575 (6th Cir. 2005)).
Rule of Civil Procedure 8(a)(2) sets out a liberal pleading
standard. Smith v. City of Salem, 378 F.3d 566, 576
n.1 (6th Cir. 2004). Thus, pleadings in federal court need
only contain “‘a short and plain statement of the
claim showing that the pleader is entitled to relief, '
in order to ‘give the [opposing party] fair notice of
what the . . . claim is and the grounds upon which it
rests.'” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). Detailed factual allegations are not
required, but a party's “obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions.”
Id. “[A] formulaic recitation of the elements
of a cause of action will not do, ” nor will “an
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
deciding a Rule 12(c) a motion for judgment on the pleadings,
the court must determine whether the complaint contains
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570; Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th
Cir. 2007). “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.” Iqbal, 556 U.S.
at 678. “Determining whether a complaint states a
plausible claim for relief will [ultimately] . . . be a
context-specific task that requires th[is Court] to draw on
its judicial experience and common sense.” Id.
have moved for judgment on the pleadings under Rule 12(c) on
each of plaintiff's three claims-wrongful foreclosure, a
violation of the FDCPA, and a violation of the RESPA and its
implementing regulations [Doc. 6]. The Court will address
each of these causes of action in turn.
Plaintiff's Wrongful Foreclosure Claim
defendants seek dismissal of plaintiff's wrongful
foreclosure claim [Doc. 11 pp. 3-7]. Plaintiff asserts that
she has properly pleaded such a theory of liability [Doc. 12
pp. 2-3]. For the reasons explained below, the Court finds
that defendants are ...