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Pearson v. Select Portfolio Servicing., Inc.

United States District Court, D. Maryland

February 23, 2018

ANTHONY PEARSON, Plaintiff,
v.
SELECT PORTFOLIO SERVICING., INC., et al., Defendants.

          ORDER

          Paula Xinis United States District Judge

         On May 11, 2017, pro se Plaintiff Anthony Pearson filed suit, alleging violations of the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2601, et seq., and its implementing regulation, 12 C.F.R. § 1024, by Defendants Select Portfolio Servicing (“SPS”) and Specialized Loan Servicing (“SLS”), and requesting actual damages of $21.11 and any costs of this action. Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). See ECF Nos. 7 & 9. Plaintiff responded and moved to file an amended complaint. ECF Nos. 13 & 14. The issues are fully briefed, and the Court now rules pursuant to Local Rule 105.6 because no hearing is necessary. For the reasons stated below, Pearson's motion is DENIED and Defendants' motions to dismiss are GRANTED.

         I. BACKGROUND

         This case arises out of a mortgage secured by property located at 1122 Blue Wing Terrace, Upper Marlboro, Maryland (“the Property”), presently the subject of a foreclosure case in the Circuit Court for Prince George's County. See CDM v. Pearson, Docket No. CAEF17- 0672.[1] Defendants Specialized Loan Servicing (“SLS”) and Select Portfolio Servicing (“SPS”) are mortgage servicers who have serviced the loan secured by the mortgage on the Property. ECF No. 2 at 3. Pearson alleges that he sent Defendants four separate written requests for information (“RFI”), and that Defendants' written responses to Pearson's RFIs “failed to address any areas of concern set forth in the RFI.” ECF No. 2 at ¶ 13.

         On May 11, 2017, Pearson filed a Complaint against Defendants in the Circuit Court for Prince George's County, Maryland, alleging that Defendants' responses to his RFIs violated the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601, et seq., and its implementing regulations, 12 C.F.R. §§ 1024.1 to 1024.41 (known as “Regulation X”). See ECF Nos. 1 & 2. On June 14, 2017, SLS properly removed this case to the United States District Court for the District of Maryland. ECF No. 1. On June 20, 2017, SLS moved to dismiss Pearson's Complaint under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, enter summary judgment in its favor. See ECF No. 7. On August 2, 2017, SPS filed its motion to dismiss also pursuant to 12(b)(6). See ECF No. 9.

         II. Standard of Review

         When reviewing a Rule 12(b)(6) motion to dismiss, a plaintiff's well-pleaded allegations are accepted as true and the complaint is viewed in the light most favorable to the plaintiff. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “However, conclusory statements or a ‘formulaic recitation of the elements of a cause of action will not [suffice].' ” EEOC v. Performance Food Grp., Inc., 16 F.Supp.3d 584, 588 (D. Md. 2014) (quoting Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief above a speculative level.” Twombly, 550 U.S. at 555. “ ‘[N]aked assertions' of wrongdoing necessitate some ‘factual enhancement' within the complaint to cross ‘the line between possibility and plausibility of entitlement to relief.' ” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557).

         Although pro se pleadings are construed liberally to allow for the development of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), a court cannot ignore a clear failure to allege facts setting forth a cognizable claim. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate. Only those questions which are squarely presented to a court may properly be addressed.”) (internal citation omitted)). See also Bell v. Bank of Am., N.A., No. RDB-13-0478, 2013 WL 6528966, at *1 (D. Md. Dec. 11, 2013) (“Although a pro se plaintiff is general[ly] given more leeway than a party represented by counsel . . . a district court is not obligated to ferret through a [c]omplaint that is so confused, ambiguous, vague or otherwise unintelligible that its true substance, if any, is well disguised.”). “A court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are not more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 665 (2009).

         III. Analysis

         A. Motion to Dismiss

         To state a claim under RESPA regarding a loan servicer's inadequate or untimely response to a RFI, a plaintiff must demonstrate that the defendant (1) was responsible for the servicing of the plaintiff's loan; (2) received a valid RFI from the plaintiff which requests information regarding a loan and allows the servicer to identify the mortgage loan account about which the request is made; and (3) failed to respond adequately or within thirty days. The plaintiff must also show that he is entitled to actual or statutory damages. See 12 C.F.R. § 1024.36; accord Nash v. PNC Bank, N.A., No. TDC-16-2910, 2017 WL 142317 at *6 (D. Md. Apr. 20, 2017).

         Pearson's Complaint centers on Defendants' responses to several letters that he describes as “RFIs.” Pearson asserts that Defendants' responses did not “address any area of concern set forth in the RFI” or merely promised to respond more substantively in the future. See 12 C.F.R. § 1024.36(d)(2); ECF No. 2 at ¶¶ 13 & 14. Pearson attaches two letters to his Complaint, which he characterizes as his requests for information. See ECF No. 2. One letter requests information from SPS regarding the “Holder in Due Course” of the Note, and demands production of the “UNALTERED, ORIGINAL WET INK SIGNATURE, PROMISSORY NOTE.” ECF No. 2-5. A second letter, titled as a Qualified Written Request (“QWR”), is also addressed to SPS and seeks information concerning loan servicing. In that letter, Pearson disputes “the identity of a true secured lender/creditor” and “the existence of debt.” ECF No. 2-3. Pearson also provides two identical letters from SPS which inform Pearson that SPS received his correspondence dated October 3, 2016 and “expect[s] to provide a response to you within the next fifteen days.” See ECF Nos. 2-1 & 2-2.

         Based on the Complaint and the attachments, Pearson does not allege any facts specific to SLS. Indeed, all correspondence is between Pearson and SPS. See ECF No. 7; see also ECF Nos. 2-1, 2-2, 2-3, 2-4 & 2-5. Because Pearson's Complaint is devoid of meaningful reference to SLS, no facts support a RESPA violation as to this defendant. See Schaefgen v. O'Sullivan, No. PWG-14-2992, 2015 WL 4572238 (D. Md. July 28, 2015). The Complaint as to SLS therefore must be dismissed.[2]

         As to Defendant SPS, Pearson alleges generally that he sent four letters to SPS regarding the servicing of his loan, but attaches only two letters to the Complaint. See ECF Nos. 2 at ¶ 11, 2-3, 2-5. One of the attached letters is unsigned and not notarized. Its contents are best described as a “show me the note” demand that challenges the mortgagor's ability to enforce the note and requests production of the original promissory note and security instrument. See ECF No. 2-5. Correspondence of this kind is not regulated by RESPA because it does not relate to the servicing of the loan. Compare ECF No. 2-5 with § 1024.36; see, e.g. Bullock v. Ocwen Loan Servicing, LLC, No. PJM-14-3836, 2015 WL 5008883, at *10 (D. Md. Aug. 20, ...


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