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Ogle v. U.S. Bank N. A.

United States District Court, E.D. Tennessee

March 14, 2018

SANDRA OGLE, Plaintiff,
v.
U.S. BANK NATIONAL ASSOCIATION, as trustee for RESIDENTIAL ASSET SECURITIES, CORPORATION, HOME EQUITY MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-KS3, and OCWEN LOAN SERVICING, LLC, Defendants.

          MEMORANDUM OPINION

          THOMAS A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE

         This 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.

         I. Background

         This 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].[1]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].

         Defendant 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].

         On 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].[2]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.

         II. Standard of Review

         A 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)).

         Federal 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 unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In 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. at 679.

         III. Analysis

         Defendants 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.

         A. Plaintiff's Wrongful Foreclosure Claim

         First, 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 ...


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