United States District Court, D. Maryland
Xinis United States District Judge.
Criste Dickson and Rosalyn Brown (“Plaintiffs”)
have filed suit against Nationstar Mortgage, LLC,
(“Nationstar”), alleging violations of the Real
Estate Settlement Procedure Act (“RESPA”) and
breach of contract. ECF No. 1 ¶¶ 11-24; 12 U.S.C.
§ 2605. Now pending before the Court is Nationstar's
partial motion to dismiss for failure to state a claim upon
which relief can be granted pursuant to Federal Rule of Civil
Procedure 12(b)(6). ECF No. 8. The motion is fully briefed,
and no hearing is necessary. See Loc. R. 105.6. For
the reasons that follow, the Court GRANTS Nationstar's
2007, Plaintiffs purchased a property located at 6374
Greenfield Road, NE, Elkridge, Maryland 21075
(“Property”). ECF No. 1 ¶ 5. On or about
December 2008, Defendant Nationstar became the Property's
mortgage servicing company. Id. ¶¶ 4, 6.
The loan on the Property was a “federally related
mortgage loan for the purposes of RESPA.” Id.
¶ 13. Pursuant to the loan agreement, Nationstar was
responsible for managing the mortgage escrow account and
timely paying homeowners' insurance premiums and property
taxes from the escrow account. Id. ¶ 7.
Plaintiffs allege that Nationstar failed to make such timely
payments, which led to a tax sale and foreclosure filing
against the Property. Id. ¶¶ 8, 9. As a
result, Plaintiffs aver that the foreclosure action has
negatively impacted their credit rating and prevented
Plaintiffs from refinancing the loan. Id. ¶ 10.
August 15, 2018, Plaintiffs brought this action against
Nationstar for breach of contract as well as violations of
Sections 6(e)(1) and 6(g) of RESPA. Id. ¶¶
11-24. Nationstar has moved to dismiss the alleged violation
of Section 6(e)(1) of RESPA included within Count I of the
Complaint. See ECF No. 8.
Standard of Review
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)
(citation omitted). A complaint need only satisfy the
standard of Rule 8(a), which requires a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). “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, the Court takes as true all well-pleaded factual
allegations, construed in the light most favorable to the
plaintiff. See Albright v. Oliver, 510 U.S. 266, 268
(1994); Harrison v. Westinghouse Savannah River
Co., 176 F.3d 776, 783 (4th Cir. 1999). Bare legal
conclusions couched as factual allegations will not suffice.
See Revene v. Charles Cty. Comm'rs, 882 F.2d
870, 873 (4th Cir. 1989). Ultimately, a complaint must
“‘permit the court to infer more than the mere
possibility of misconduct' based upon ‘its judicial
experience and common sense.'” Coleman v. Md.
Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)
(quoting Iqbal, 556 U.S. at 679).
ensures “that consumers . . . are provided with greater
and more timely information on the nature and costs of the
settlement process and are protected from unnecessarily high
settlement charges caused by certain abusive
practices[.]” 12 U.S.C. § 2601(a). To achieve this
purpose, Section 6(e)(1) of RESPA imposes a duty on loan
servicers to respond to consumers' “qualified
written requests” (“QWR”). 12 U.S.C. §
2605(e)(1); see also Barr v. Flagstar Bank, FSB, 303
F.Supp.3d 400, 417 (D. Md. 2018). A QWR consists of written
correspondence from a borrower that identifies the borrower
and the pertinent account, and “includes a statement of
the reasons for the belief of the borrower . . . that the
account is in error or provides sufficient detail to the
servicer regarding other information sought by the
borrower.” 12 U.S.C. § 2605(e)(1)(B).
RESPA, the servicer of a federally related mortgage loan must
acknowledge receipt of a QWR within five business days. 12
U.S.C. § 2605(e)(1)(A); 12 C.F.R. § 1024.35(d).
Within thirty business days after receiving the QWR,
“the servicer must: (1) make corrections to the
borrower's account; (2) after conducting an
investigation, provide a written explanation stating the
reasons the servicer believes the account is correct; or (3)
conduct an investigation and provide the information
requested by the borrower or an explanation of why the
information is unavailable.” Barr, 303
F.Supp.3d at 417 (citing 12 U.S.C. § 2605(e)(2)). In the
event a servicer fails to comply with these requirements,
RESPA permits the requester to file suit and recover actual
damages arising from such failures. 12 U.S.C. §
2605(f)(1)(A); see also Thomas v. Ocwen Loan Servicing,
LLC, No. ELH-17-218, 2017 WL 2645721, at *6 (D. Md. June
contend that the Complaint does not plausibly aver that
Plaintiffs submitted a QWR to Nationstar. The Court agrees.
Plaintiffs do not expressly allege any facts which permit
this Court to infer that they had submitted a request that
conforms to the QWR prerequisites. See ECF No. 1.
Plaintiffs, for example, have not stated whether they
submitted any written requests or that such requests
substantively included a statement of reasons regarding any
specific errors made to the Plaintiffs' account. Rather,
Plaintiffs aver generally that RESPA compelled Nationstar to
respond to a consumer's written request for information,
to make corrections to a consumer's account, and that
Nationstar failed to do so. Id. ¶¶ 16, 17.
These bare legal allegations, couched as factual assertions,
are insufficient to survive challenge. Thomas, 2017
WL 2645721, at *6 (citation omitted) (“[A] plaintiff
fails plausibly to allege that his or her request sent to the
servicer was a qualified written request.”).
Accordingly, this allegation must be dismissed.
Court notes, however, that Plaintiffs have submitted an
affidavit pursuant to Rule 56(d) of the Federal Rules of
Civil Procedure in which counsel attests that
“Plaintiffs provided communications reflecting
inquiries concerning their mortgage account/servicing
beginning December 16, 2017.” ECF No. 13 ¶ 2.
Counsel further attests: “It appears that Plaintiffs
may not have the complete record of communications. The
complete record is likely in the possession, custody and
control of Defendant and I intend to seek the same during
discovery.” Id. Because this motion is not one
for summary judgment, but rather for dismissal which tests
the sufficiency of the Complaint, the Court will not consider
this affidavit. That said, the case is in its infancy, and
Plaintiffs have not previously sought to amend the Complaint.
The Court, accordingly, dismisses the RESPA Section 6(e)(1)
Count without prejudice and subject to amendment to be filed
within fourteen days of this Memorandum Opinion and Order.
Should Plaintiffs amend their Complaint, the Court directs
that in addition to providing sufficient factual allegations
to support a RESPA Section 6(e)(1) claim, the Plaintiffs must
plead each RESPA violation separately, in two discrete
counts, rather than combined into one count as currently