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Bowman v. Vantium Capital, Inc.

United States District Court, Fourth Circuit

January 13, 2014

BRENDA M. BOWMAN, Plaintiff,



Plaintiff Brenda M. Bowman (“Plaintiff”) filed a Complaint in state court alleging that Defendant Vantium Capital, Inc., doing business as Acqura Loan Services (“Vantium”), violated the Real Estate Settlement Procedures Act (“RESPA”). (See Compl. ¶¶ 10-11 [ECF No. 1 Ex. A].) Vantium removed the action to this Court and moved to dismiss the Complaint for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Mot. to Dismiss, Nov. 4, 2013 [ECF No. 6].) Plaintiff responded, and the issues were fully briefed by the parties. I heard oral arguments on January 6, 2014, and the matter is now ripe for decision. For the reasons stated below, I will GRANT Vantium’s Motion to Dismiss and allow Plaintiff leave to amend her Complaint.


Plaintiff and her husband, Harold Bowman (who is not a party to this action), reside at a home on Bagwell Drive in Scottsburg, Virginia (“the house”). (Compl. ¶ 1.) When the Bowmans purchased the house, they applied for and received a mortgage loan from Bank of America (“the lender”). (Compl. ¶ 4.) The mortgage loan was evidenced by a note and secured by a deed of trust. (Id.) The lender engaged Vantium to service the loan. (Compl. ¶ 6.)

On June 12, 2013, Plaintiff’s counsel sent Vantium a letter that purported, on its face, to be a “Qualified Written Request Re: 12 U.S.C. § 2605(e)(1)(B)(2); 24 C.F.R. § 500.21(e).” (Compl. ¶ 7; Compl. Ex. A.) The letter was attached as an exhibit to the Complaint and was directly referenced in the Complaint, even though the content of the letter was not directly stated in the body of the Complaint. In the letter, Plaintiff implored Vantium to correct what she believed was a failure to credit properly payments made on her loan. (See Compl. Ex. E.) Her letter included copies of money orders Plaintiff alleges represented payments that she made on the loan but which were not credited to her account. In accordance with prior correspondence to Vantium in which she repeatedly raised the same issue, Plaintiff asked Vantium to investigate her claims, “correct the status of this loan, ” and credit payments she contends she made but which were not reflected on her account. (Id.) At the time Plaintiff sent the June 12, 2013, letter, the Bowman’s home was in foreclosure. (See id.)

On June 25, 2013, Vantium responded to Plaintiff’s letter. (See Compl. ¶ 9; Compl. Ex. B.) Vantium asserted in its response that it only serviced the loan between February 1, 2010, and October 11, 2012, and that all of the payments which Plaintiff claims were not properly credited fell outside those dates.[2] (Compl. Ex. B.) Additionally, Vantium claimed that “some of these receipts are difficult to read if not completely illegible while others are not relevant to mortgage payment research.” (Id.) Plaintiff asserts in her Complaint that Vantium was required, pursuant to the Real Estate Settlement Procedures Act (“RESPA”), “to make appropriate corrections to the account of the Bowmans as requested . . . but failed to do so.” (Compl. ¶ 10.) Despite Vantium’s June 25 response, Plaintiff asserts that she “has been subjected to negative credit reports regarding the loan, the note, and the deed of trust, which has reduced her credit scores, which has caused her economic harm.” (Compl. ¶ 12.) She seeks compensatory damages totaling $10, 000.00, and statutory damages totaling $1, 000.00.

Although not set forth in the Complaint, Plaintiff’s husband filed for bankruptcy on April 21, 2009. (See Def.’s Mem. in Supp. of its Mot. to Dismiss pg. 1 [ECF No. 7] [hereinafter “Def.’s Mem.”].)[3] Plaintiff did not join in her husband’s filing, but she was listed as a joint debtor with respect to the house. (Id. at pg. 1-2.) As a result, creditors such as the lender were prohibited from proceeding against the jointly held assets of the Bowmans pursuant to the co-debtor stay set forth in 11 U.S.C. § 1301.

In October 2009, almost four years before Plaintiff sent the letter to Vantium (see Compl. ¶ 7), the lender filed a motion with the Bankruptcy Court seeking relief from the automatic stay in order to initiate foreclosure proceedings “because the Bowmans were delinquent on payments due under [the] note secured by [the] deed of trust on the Property.”[4] (Def.’s Mem. pg. 2.) The Bankruptcy Court gave Plaintiff special notice of the lender’s motion, and the Order required Plaintiff to file any objections to the lender’s request within twenty (20) days. (Id.) She did not file any objections. (See id.) Likewise, during her husband’s bankruptcy proceedings, Plaintiff never contested the lender’s contention that the Bowmans were delinquent under the note. (See id.) Mr. Bowman and the lender subsequently agreed to a Consent Order which prevented the lender from initiating foreclosure proceedings at that time. (See Def.’s Reply Br. in Supp. of its Mot. to Dismiss pg. 7 [ECF No. 11].)


To survive a Rule 12(b)(6) 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)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In determining facial plausibility, I must accept all factual allegations in the complaint as true. Id. The complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief” and sufficient “[f]actual allegations . . . to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (internal quotation marks omitted). Therefore, the complaint must “allege facts sufficient to state all the elements of [the] claim.” Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). Although “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ” a pleading that merely offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.


The Real Estate Settlement Procedures Act (“RESPA”) was passed in 1974 in an effort to reform the real estate settlement process to “insure that consumers throughout the Nation 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 that have developed in some areas of the country.” 12 U.S.C. § 2601(a) (2013). To that end, RESPA empowers borrowers to request certain information from their loan servicers regarding their loans by way of a Qualified Written Request (“QWR”):

[A QWR is] a written correspondence, other than notice on a payment coupon or other payment medium supplied to the servicer, that— (i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and (ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.
12 U.S.C. ยง 2605(e)(1)(B). RESPA also establishes the action a servicer is legally required to take ...

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