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Todd v. Ocwen Loan Servicing, LLC

United States District Court, S.D. Florida

May 1, 2017

SHELISA TODD, Plaintiff,



         THIS CAUSE is before the Court on Defendant Ocwen Loan Servicing, LLC's (“Defendant”) Motion to Dismiss, ECF No. [13] (the “Motion”), seeking dismissal of Plaintiff Shelisa Todd's (“Plaintiff”) Complaint, ECF No. [1-2]. The Court has carefully reviewed the record, the parties' briefs, and the applicable law. For the reasons set forth below, the Motion is granted.

         I. BACKGROUND

         Plaintiff initially filed this action on January 26, 2017 in the Seventeenth Judicial Circuit, in and for Broward County, Florida, seeking relief for Defendant's alleged violation of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601, et. seq. (“RESPA”), and its implementing regulation 12 C.F.R. § 1024, et. seq. (“Regulation X”). See ECF No. [1-2] at ¶¶ 1-3. Specifically, Plaintiff seeks damages resulting from Defendant's alleged failure to comply with section 2605(k) of RESPA and section 1024.36 of Regulation X. Id. at ¶ 3. Defendant timely removed the matter to this Court, and now moves to dismiss the Complaint with prejudice.

         Plaintiff's claim stems from her attorney's mailing of a written request for information (“RFI”) to Defendant-which services the loan obligation secured by a mortgage on Plaintiff's property-pursuant to Regulation X. Id. at ¶¶ 12, 15. Plaintiff's attorney sent the RFI by mail on November 18, 2016, which Plaintiff and her attorney tracked through a tracking number. Id. at Exh. B. The RFI was delivered to Defendant on November 21, 2016. Id. at ¶ 16. Plaintiff alleges that her attorney did not receive a written acknowledgment to her RFI within the required statutory timeframe-i.e., by November 29, 2016-and, consequently, Plaintiff's attorney sent a follow-up Notice of Error Letter (“NOE”) to Defendant on December 01, 2016. Id. at ¶¶ 18-19, Exh. A.

         Plaintiff brings one count against Defendant for Defendant's alleged violation of 12 U.S.C § 2605(k), under which Plaintiff specifically alleges that Defendant violated 12 C.F.R. §1024.36(c) by failing to acknowledge receipt of the RFI within five business days. Id. at ¶¶ 22-23. As to damages, Plaintiff claims that as a result of Defendant's failure to comply with RESPA and Regulation X, she has incurred “actual damages in the amount of $6.45 for postage for mailing the NOE along with other related costs.” Id. at ¶ 25. Defendant filed the instant Motion on March 29, 2017. ECF No. [13]. Plaintiff's Response and Defendant's Reply timely followed. See ECF Nos. [15], [18].


         A pleading in a civil action must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To satisfy the Rule 8 pleading requirements, a complaint must provide the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, (2002). While a complaint “does not need detailed factual allegations, ” it must provide “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that the Rule 8(a)(2) pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). Nor can a complaint rest on “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)). The Supreme Court has emphasized that “[t]o survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570); see also Am. Dental Assoc. v. Cigna Corp., 605 F.3d 1283, 1288-90 (11th Cir. 2010).

         When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349, 1353 (S.D. Fla. 2009) (“On a motion to dismiss, the complaint is construed in the light most favorable to the non-moving party, and all facts alleged by the non-moving party are accepted as true.”); Iqbal, 556 U.S. at 678. A court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint and attached exhibits, including documents referred to in the complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); see also Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the four corners of the complaint may still be considered if it is central to the plaintiff's claims and is undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)). While the court is required to accept as true all allegations contained in the complaint, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. “Dismissal pursuant to Rule 12(b)(6) is not appropriate ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'” Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).


         Defendant moves the Court to dismiss the Complaint on three separate grounds: (1) Defendant did in fact timely respond to Plaintiff's RFI with a letter of acknowledgment that was sent to Plaintiff's address; (2) Plaintiff fails to allege an injury in fact and therefore lacks standing; and (3) Plaintiff fails to sufficiently allege actual damages.[1]

         Plaintiff claims that Defendant violated RESPA § 2605(k) through its violation of Regulation X. See ECF No. [1-2] at ¶¶ 22-23. Section 2605 of RESPA governs the “serving of mortgage loans and administration of escrow accounts, ” and implicates Regulation X by providing in relevant part that “[a] servicer of a federally related mortgage shall not . . . fail to comply with any other obligation found by the Bureau of Consumer Financial Protection, by regulation, to be appropriate to carry out the consumer protection purposes of this chapter.” See 12 U.S.C. § 2605(k)(1)(E). Section 1024.36(c) of Regulation X, under the title “Acknowledgement of receipt, ” provides that

Within five days (excluding legal public holidays, Saturdays, and Sundays) of a servicer receiving an information request from a borrower, the servicer shall provide to the borrower a written response ...

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