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Kurzban v. Specialized Loan Servicing, LLC

United States District Court, S.D. Florida

March 30, 2018

RICHARD KURZBAN, Plaintiff,
v.
SPECIALIZED LOAN SERVICING, LLC, Defendant.

          ORDER

          DARRIN P. GAYLES UNITED STATES DISTRICT JUDGE

         THIS CAUSE comes before the Court on Defendant Specialized Loan Servicing, LLC's Motion to Dismiss Amended Complaint [ECF No. 21]. The Court has reviewed the Motion and the record and is otherwise fully advised. For the reasons that follow, the Court grants the Motion.

         BACKGROUND

         On December 21, 2005, Plaintiff Richard Kurzban (“Plaintiff”) and his wife, Dalain Kur-zban, executed a Note and Mortgage in favor of Countrywide Home Loans, Inc., for the property at issue in this action (the “Property”).[1] [ECF No. 13-3]. On March 22, 2012, the Mortgage was assigned to The Bank of New York Mellon (the “Bank”). [ECF No. 13-4]. Defendant Specialized Loan Servicing, LLC (“Defendant”), is the loan servicer.

         The Mortgage provides in pertinent part:

Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from the other party's actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action.

[ECF No. 13-3].

         In 2009, Plaintiff filed for bankruptcy, obtained a discharge of his debt under the Note and Mortgage, and agreed to surrender the Property. On February 4, 2016, Defendant sent Plaintiff a Notice of Default and Notice of Intent to Foreclose demanding that Plaintiff pay $193, 520.77 within 33 days or risk a foreclosure action. [ECF No. 15]. On March 29, 2016, the Bank filed an action seeking to foreclose on the Property. [ECF No. 13-4]. On December 9, 2016, Plaintiff sent Defendant a loss mitigation application.

         In Count I of the Amended Complaint, Plaintiff alleges that Defendant failed to timely acknowledge receipt of the loss mitigation application in violation of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. (“RESPA”). In Count II of the Amended Complaint, Plaintiff alleges that Defendant's Notice of Default letter included time-barred debts and other improper fees in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”). Finally, in Count III of the Amended Complaint, Plaintiff alleges that Defendant failed to properly respond to a Qualified Written Request and Notice of Error in violation of RESPA. Defendant has moved to dismiss on several grounds, including that Plaintiff failed to comply with the terms of the Mortgage and provide Defendant with notice and an opportunity to cure the alleged RESPA and FDCPA violations.[2]

         LEGAL STANDARD

         “To 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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although this pleading standard “does not require ‘detailed factual allegations, ' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555).

         Pleadings must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted). Indeed, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iq-bal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). To meet this “plausibility standard, ” a plaintiff must “plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). When reviewing a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross & Blue Shield of Fla. Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). In reviewing a 12(b) motion, the Court is largely limited to the allegations in the Complaint and the attached exhibits. However, “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.” Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 n.3 (11th Cir. 2005).

         DISCUSSION

         Plaintiff does not dispute that he did not provide Defendant with notice of the purported RESPA and FDCPA violations and an opportunity to cure those violations prior to filing this action. Rather, Plaintiff contends that this action does not relate to the Mortgage and that, even if it did, ...


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