United States District Court, D. Maryland
ANN R. RUPLI,
OCWEN LOAN SERVICING, LLC
Rupli, Plaintiff, represented by Gerard P. Uehlinger, Law
Office of Gerard Uehlinger.
Loan Servicing, LLC, Defendant, represented by James Robert
Billings Kang, Blank Rome LLP.
DEBORAH K. CHASANOW, District Judge.
pending and ready for resolution in this consumer lending
case is a motion to dismiss filed by Defendant Ocwen Loan
Servicing, LLC ("Defendant"). (ECF No. 12). The
issues have been fully briefed, and the court now rules, no
hearing being deemed necessary. Local Rule 105.6. For the
following reasons, Defendant's motion to dismiss will be
December 2006, Plaintiff Ann Rupli ("Plaintiff")
entered into a mortgage loan agreement (the "Loan")
from American Brokers Conduit in the amount of $579, 500.00.
The adjustable rate note (the "Note") was secured
by a deed of trust (the "Deed of Trust") on the
residential real property located at 1914 Elkhart Street,
Silver Spring, Maryland 20910 (the "Property").
(ECF No. 2 ¶¶ 52-53; see ECF Nos. 12-2;
12-3). Defendant served as the loan servicer.
asserts that she submitted a qualified written request
("QWR") under the Real Estate Settlement Procedures
Act ("RESPA"), 12 U.S.C. § 2601, et seq.,
on May 12, 2014. She further asserts that she sent a
Validation of Debt letter to Defendant on May 15,
"disputing the alleged debt claimed by  Defendant in
its letter dated April 27" and requesting validation
under the Fair Debt Collection Practices Act
("FDCPA"), 15 U.S.C. § 1692g. (ECF No. 2 ¶¶ 54, 74;
see ECF No. 12-9). Defendant received
Plaintiff's letter on May 19 and acknowledged receipt on
May 23. ( See ECF No. 12-9, at 5, 6). Defendant
responded substantively to Plaintiff's QWR on June 3.
(ECF Nos. 12-10; 12-11). Defendant's response stated
that the owner or investor of the Loan was Residential Asset
Securities Corporation, Home Equity Mortgage Asset-Backed
Pass-Through Certificates, Series 2007-KS3. (ECF No. 2 ¶¶ 54,
August 14, 2014, Defendant allegedly issued to Plaintiff a
Notice of Intent to Foreclose on the Property, which listed
the owner or investor of the Loan as Deutsche Bank National
Trust Company, as Trustee for American Home Mortgage Asset
Trust 2007-2. ( Id. ¶ 55). In April 2015, a letter
from Defendant to Plaintiff noted that the owner or investor
of the Loan was Deutsche Bank National Trust Company, as
Trustee for New Century Home Loan Trust, Series 2005-D, Asset
Backed Pass-Through Certificates. ( Id. ¶ 56).
Plaintiff asserts that she "received no... disclosure in
writing regarding the sale of [the Loan] from the first, to
the second, and then to the third owner Defendant alleged,
but only documents provided by Defendant reflecting the
varying names of the owner/investor." ( Id. ¶
Plaintiff applied for a loan modification in August 2014.
Defendant acknowledged Plaintiff's request and offered
her a Home Affordable Modification Program ("HAMP")
trial period plan ("TPP"). (ECF No. 12-5). She
asserts that the TPP offer "letter contained conflicting
and confusing information by stating Plaintiff had 14 days
from the date of the letter to remit the first payment...
[and] reflecting a first payment date of October 1,
2014." (ECF No. 2 ¶ 58). In a letter dated
September 11, Plaintiff requested additional information
regarding the TPP because Defendant "failed to enclose
with its offer the HAMP-required language that must include
both the proposed interest rate and income figures
prefiguring a qualification for HAMP loan modification."
( Id. ¶ 59). There is no allegation that Plaintiff
accepted the proposed TPP, and Defendant asserts that she did
not. ( See ECF No. 12-1, at 14). Defendant did not
respond to Plaintiff's letter, instead issuing a mortgage
statement on September 17: "[Plaintiff's] trial
installment [is due by] 10/01/2014 in the amount of $1,
354.44." (ECF No. 2 ¶ 60). Plaintiff alleges that she
promptly paid that amount. Defendant issued a mortgage
statement on October 17 reflecting an amount due of $3,
910.08. Shortly thereafter, Defendant issued to Plaintiff a
check for $1, 354.44 referencing an "Escrow Disbursement
Account." ( Id. ¶ 62). The mortgage statement
dated November 11 reflected a total amount due of $767,
368.59, and Defendant sent Plaintiff a letter dated November
14 confirming that she did not make the initial TPP payments
within the required timeframe and, accordingly, her
application for a loan modification was denied. (
Id. ¶¶ 63-64; see ECF No. 12-8). Defendant
provided the Loan transaction history by letter on April 20,
2015, noting a balance of $637, 078.88. (ECF No. 2 ¶ 78).
Plaintiff asserts that, as a result of Defendant's
failure to comply with governing federal statutes, she
"has been assessed additional fees and costs including
an interest per day assessment." ( Id. ¶ 66).
commenced this action in the Circuit Court for Montgomery
County on December 9, 2015. Defendant removed the case to
this court on January 19, 2016. (ECF No. 1). Plaintiff
advances four counts against Defendant for: violation of 12
C.F.R. § 1024.41, a regulation under RESPA concerning loss
mitigation procedures, because Defendant allegedly did not
properly consider her HAMP loan modification application
(Count I); violation of the FDCPA because Defendant
purportedly failed to validate her debt and misidentified the
owner or investor of the Loan (Count II); violation of the
Consumer Financial Protection Act of 2010 ("CFPA"),
12 U.S.C. §§ 5481, 5564 (Count III); and deceptive trade
practices in violation of the Maryland Consumer Protection
Act ("MCPA"), Md. Code Ann., Com. Law § 13-301
et seq. (Count IV). (ECF No. 2 ¶¶
79-111). Plaintiff's complaint seeks
injunctive relief, monetary damages, and attorneys' fees
moved to dismiss the complaint on February 16, 2016. (ECF No.
12). Plaintiff responded in opposition (ECF No. 18), and
Defendant replied (ECF No. 19).
Standards of Review
challenges Plaintiff's standing to enforce HAMP
guidelines. Because standing is an element of subject matter
jurisdiction, Defendant's motion to dismiss for lack of
standing should be treated under Fed.R.Civ.P. 12(b)(1).
See White Tail Park, Inc. v. Stroube, 413
F.3d 451, 459 (4th Cir. 2005); Axel Johnson, Inc. v.
Carroll Carolina Oil Co., Inc., 145 F.3d 660, 661-62
(4th Cir. 1998) (affirming the district court's dismissal
of the complaint for lack of standing pursuant to Rule
12(b)(1)). The existence of subject matter jurisdiction is a
threshold issue the court must address before considering the
merits of the case. Jones v. Am. Postal Workers
Union, 192 F.3d 417, 422 (4th Cir. 1999).
also moves to dismiss under Fed.R.Civ.P. 12(b)(6), arguing
that Plaintiff's complaint fails to state a claim. The
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the sufficiency of the complaint. Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A
complaint need only satisfy the standard of Fed.R.Civ.P.
8(a)(2), which requires a "short and plain statement of
the claim showing that the pleader is entitled to
relief." "Rule 8(a)(2) still requires a showing,
' rather than a blanket assertion, of entitlement to
relief." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 n.3 (2007). That showing must consist of more than
"a formulaic recitation of the elements of a cause of
action" or "naked assertion[s] devoid of further
factual enhancement." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citations omitted).
stage, all well-pleaded allegations in a complaint must be
considered as true, Albright v. Oliver, 510 U.S.
266, 268 (1994), and all factual allegations must be
construed in the light most favorable to the plaintiff.
See Harrison v. Westinghouse Savannah River
Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan
Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.
1993)). In evaluating the complaint, unsupported legal
allegations need not be accepted. Revene v. Charles
Cnty. Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989).
Legal conclusions couched as factual allegations are
insufficient, Iqbal, 556 U.S. at 678, as are
conclusory factual allegations devoid of any reference to
actual events. United Black Firefighters v. Hirst,
604 F.2d 844, 847 (4th Cir. 1979); see also
Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.
of fraud, which Plaintiff asserts in Count IV of the
complaint, are subject to the heightened pleading standard of
Fed.R.Civ.P. 9(b). Harrison, 176 F.3d at 783. Rule
9(b) states that, "in alleging a fraud or mistake, a
party must state with particularity the circumstances
constituting the fraud or mistake. Malice, intent, knowledge,
and other conditions of a person's mind may be alleged
generally." Such circumstances typically "include
the time, place, and contents of the false representation, as
well as the identity of the person making the
misrepresentation and what [was] obtained thereby.'"
Id. at 784 (quoting 5 Charles Alan Wright & Arthur
R. Miller, Fed. Prac. & Proc. § 1297 (2d ed. 1990)). Rule
9(b) provides the defendant with sufficient notice of the
basis for the plaintiff's claim, protects the defendant
against frivolous suits, eliminates fraud actions where all
of the facts are learned only after discovery, and safeguards
the defendant's reputation. Id. at 784 (citation
omitted). Fraud allegations that fail to comply with Rule
9(b) warrant dismissal under Rule 12(b)(6). See
Harrison, 176 F.3d at 783 n.5.
RESPA Regulation (Count I)
initial argument is that Plaintiff lacks standing to pursue
her claims because she does not have a legal right to enforce
HAMP and its guidelines. (ECF No. 12-1, at 19-22). In Count
I, Plaintiff asserts that Defendant violated 12 C.F.R. §
1024.41 in connection with her purported loss mitigation
application. As best the court can discern,
Plaintiff does not seek to enforce HAMP guidelines; rather,
Plaintiff grounds Count 1 in the RESPA regulations. As §
1024.41 itself makes clear, "[a] borrower may enforce
the provisions of this section pursuant to section 6(f) of
RESPA (12 U.S.C. 2605(f))." ...