United States District Court, S.D. Florida
ORDER ON MOTION TO DISMISS
BLOOM UNITED STATES DISTRICT JUDGE
CAUSE is before the Court on Defendant Ocwen Loan Servicing,
LLC's (“Defendant”) Motion to Dismiss, ECF
No.  (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.
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
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.
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.
. Plaintiff's Response and Defendant's Reply
timely followed. See ECF Nos. , .
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
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).
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)).
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
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 ...