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Ventura v. America's Servicing Co.

United States District Court, Fourth Circuit

August 19, 2013



ALEXANDER WILLIAMS, Jr., District Judge.

Pending before the Court are Defendants' Motion to Dismiss and Defendants' Motion for Leave to File Supplement Exhibit. The Court has reviewed the record and deems a hearing unnecessary. For the following reasons, the Court GRANTS Defendants' Motion to Dismiss and DENIES AS MOOT Defendants' Motion for Leave to File Supplement Exhibit.


The Court takes the following facts from pro se Plaintiff Gloria Ventura's Complaint, real estate records, and state court judicial documents. Courts may consider such documents without converting motions to dismiss into motions for summary judgment as courts may take notice of such matters when ruling on motions to dismiss. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (citation omitted); Sec'y of State For Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007); Andrews v. Daw, 201 F.3d 521, 524 n. 1 (4th Cir. 2000) (citing cases).

The instant case sounds in mortgage fraud. Plaintiff has sued the following entities: America's Servicing Company (America); Wells Fargo Bank (Wells Fargo); Vantria FCU (Vantria); U.S. Bank; and Jane and John Doe (1-100). The appellation "Defendants" refers to these entities collectively.

Plaintiff Gloria Ventura (Plaintiff) and her husband, Juan Majano, own real property located at 1743 Red Oak Lane, Waldorf, Maryland 20601 (the Property). On January 8, 2004, Posey Properties, LLC, in consideration of $290, 000, granted Ventura and Majano the deed to said Property. On May 18, 2005, Ventura and Majano executed a Note and Deed of Trust in the amount of $324, 000 to refinance the Property. See Doc. No. 15-4; Doc. No. 15-6. The Note names Union Federal Bank of Indianapolis as the lender. Via the same instrument, Union Federal assigned the Note to U.S. Bank National Association, as Trustee for Bear Stearns Assert Backed Securities I Trust, Asset Backed Certificates, Series 2005-AC5. See Doc. No. 15-4 at 5; see also Doc. No. 15-5. On June 20, 2011, Ventura and America, which is a division of Wells Fargo, executed a Loan Modification Agreement (Agreement) modifying the unpaid principal balance of $323, 999.59 to $353, 247.18. The Agreement also provided for monthly payments of $1, 703.35 at a yearly interest rate of 5% until the maturity date of August 1, 2051. See Doc. No. 15-7 at 2.[1]

In July 2012, Plaintiff alleges that she requested a debt validation under the FDCPA from America and Vantria. Plaintiff further alleges that America and Vantria failed to respond to her request. Relatedly, Plaintiff alleges that Defendants failed "to keep correct and accurate business records." Doc. No. 2 ΒΆ 15.

Plaintiff also alleges that, on an unspecified date, unspecified Defendants promised her a novation or loan modification if she failed to make three months of payments. Similarly, Plaintiff alleges that unspecified Defendants failed to modify her home loan after she entered into an agreement of some sort.

Plaintiff makes a handful of other loosely connected allegations. For instance, Plaintiff alleges that unspecified Defendants (1) charged her excessively, (2) initiated a foreclosure without showing a right to the Note, and (3) participated in a scheme to steer Hispanic homeowners into risky subprime loans.

This case was removed on July 19, 2013. Plaintiff's Complaint was registered on the same day. Based on the foregoing allegations, Plaintiff asserts the following claims: (1) negligence; (2) declaratory relief; (3) specific performance; (4) accounting; (5) breach of contract; (6) violation of FDCPA; (7) request for a TRO; (8) fraud; (9) quiet title; and (10) federal civil rights violation. Defendants filed a Motion to Dismiss on July 26, 2013. Doc. No. 15. The Clerk mailed a Rule 12/56 letter to Plaintiff on July 29, 2013. Doc. No. 16. The Rule 12/56 letter gave Plaintiff until August 15, 2013 to respond to Defendants' Motion to Dismiss. This date has come and gone and Plaintiff has yet to respond.


The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). In two recent cases, the U.S. Supreme Court has clarified the standard applicable to Rule 12(b)(6) motions. Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). These cases make clear that Rule 8 "requires a showing, ' rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 556 n.3 (quoting Fed.R.Civ.P. 8(a)(2)). This showing must consist of at least "enough facts to state a claim to relief that is plausible on its face." Id. at 570.

In deciding a motion to dismiss, the court should first review the complaint to determine which pleadings are entitled to the assumption of truth. See Iqbal, 129 S.Ct. at 1949-50. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950. In so doing, the court must construe all factual allegations in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999). The Court need not, however, accept unsupported legal allegations, Revene v. Charles County Commissioners, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, ...

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