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Michele L. Tieffert v. Equifax Information Services, LLC

United States District Court, E.D. Virginia, Richmond Division

December 19, 2014



HENRY E. HUDSON, District Judge.

Michele L. Tieffert ("Plaintiff') brought claims under the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq., and the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601, et seq., alleging five causes of action against three credit reporting agencies and two causes of action against two loan servicers. The matter is presently before the Court on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by Defendant Nationstar Mortgage LLC ("Nationstar"). For the reasons set forth herein, Nationstar's Motion to Dismiss Plaintiff's Complaint will be granted in part and denied in part.


This case arises from a mortgage loan obtained by Plaintiff in 2007 to which Nationstar thereafter acquired the servicing rights. (Compl. ¶¶ 9-10, ECF No. 1.) Plaintiff applied for a modification from Nationstar under the Department of Treasury's Home Affordable Modification Program ("HAMP"), and was approved in November 2012. ( Id. at ¶¶ 11, 13.) Plaintiff was placed in a temporary trial period plan during which time she was to make four consecutive modified payments. ( Id. at ¶ 13.) She was informed by Nationstar that if she made the payments pursuant to the trial plan, she would be approved for a final HAMP modification. ( Id. at ¶ 14.) Plaintiff successfully made the modified payments in the amount Nationstar directed her to pay. ( Id. at ¶¶ 15-16.) Three of the modified payments were made to Nationstar. ( Id. at ¶ 16.) On the date the fourth payment was due, Nationstar transferred the servicing rights of Plaintiff's loan to SunTrust Mortgage, Inc. ("SunTrust"). ( Id. at ¶ 17.)

Pursuant to her agreement with Nationstar, Plaintiff continued making her modified payments, including the fourth trial plan payment. ( Id. at ¶ 20.) Plaintiff informed SunTrust of the loan modification agreement with Nationstar. ( Id. at ¶ 21.) Nevertheless, SunTrust considered Plaintiff's account in default, claiming that she owed back payments and fees of several thousand dollars, and reported her account as such on Plaintiff's credit reports. ( Id. at ¶¶ 19, 22.) In response, Plaintiff submitted a Qualified Written Request to Nationstar and SunTrust, disputing the payments considered delinquent. ( Id. at ¶ 23.) Plaintiff requested that her account be corrected to delete any late fees or other expenses, and that Nationstar and SunTrust provide her with certain loan history documents. ( Id. at ¶ 24.) Plaintiff also notified the credit reporting agencies by sending written disputes with supporting documentation that her Nationstar and SunTrust accounts were-according to Plaintiff-inaccurately reporting as delinquent, as she had made all of her payments on time in the amount reflected in her loan modification agreement. ( Id. at ¶ 26.) In accordance with their standard investigation procedures, the credit reporting agencies transmitted Plaintiff's disputes to Nationstar and SunTrust. ( Id. at ¶ 27.) Both Nationstar and SunTrust verified Plaintiff's accounts as reporting correctly. ( Id. at ¶ 29.) This suit followed.

As pertinent here, Count Six of Plaintiff's Complaint alleges that Nationstar violated section 1681s-2(b) of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681s-2(b), by publishing inaccurate information within Plaintiff's credit file, failing to fully and properly investigate Plaintiff's disputes, failing to review all relevant information regarding the same, and failing to correctly report the results of an accurate investigation. (Compl. ¶ 67.) Plaintiff also alleges, in Count Seven of her Complaint, that Nationstar violated section 2605(e) of the Real Estate Settlement Procedures Act ("RESPA"). 12 U.S.C. § 2605(e). Specifically, Plaintiff claims that Nationstar violated subsection (2) of section 2605(e) by failing to (1) make appropriate corrections to Plaintiff's account and notify her in writing of the corrections; (2) investigate Plaintiff's account and provide her with a written clarification as to why it believed Plaintiff's account to be correct; and (3) investigate Plaintiff's account and provide the requested information or provide an explanation as to why the requested information was unavailable. (Compl. ¶ 72.) Plaintiff also claims that Nationstar violated subsection (3) of section 2605(e) by providing delinquent information to credit reporting agencies during the sixty-day period following Nationstar's receipt of Plaintiff's Qualified Written Request. ( Id. at ¶ 73.) As a result of Nationstar's conduct, Plaintiff alleges she suffered actual damages. ( Id. at ¶¶ 67, 74.)

Nationstar filed a Motion to Dismiss Plaintiff's Complaint on October 29, 2014 (ECF No. 22). Plaintiff filed a Memorandum in Opposition (ECF No. 31), Nationstar replied (ECF No. 33), and the parties have waived oral argument (ECF Nos. 34, 35). Thus, the motion is ripe for disposition.


"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation omitted). To survive Rule 12(b)(6) scrutiny, a complaint only need contain "enough facts to state a claim to relief that is plausible on its face." Bell All. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Fed.R.Civ.P. 8(a)(2) ("A pleading that states a claim for relief must contain... a short and plain statement of the claim showing that the pleader is entitled to relief."). Mere labels and conclusions declaring that the plaintiff is entitled to relief are not enough. Twombly, 550 U.S. at 555. Thus, "naked assertions of wrongdoing necessitate some factual enhancement within the complaint to cross the line between possibility and plausibility of entitlement to relief." Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted).

A complaint achieves facial plausibility when the facts contained therein support a reasonable inference that the defendant is liable for the misconduct alleged. Twombly, 550 U.S. at 556; see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). This analysis is context-specific and requires "the reviewing court to draw on its judicial experience and common sense." Francis, 588 F.3d at 193. The court must assume all well-pleaded factual allegations to be true and determine whether, when viewed in the light most favorable to the plaintiff, they "plausibly give rise to an entitlement to relief." Iqbal, 129 S.Ct. at 1950; see also Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).

Generally, the district court does not consider extrinsic materials when evaluating a complaint under Rule 12(b)(6). The court may, however, consider "documents incorporated into the complaint by reference, " Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007), as well as documents attached to a motion to dismiss, so long as they are integral to or explicitly relied upon in the complaint, and the authenticity of such documents is not disputed. Philips v. Pitt Cnty Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009); Phillips v. LCI Int'l, Inc. 190 F.3d 609, 618 (4th Cir. 1999).


At the outset, the Court notes that it will exclude from consideration the exhibits attached to the parties' briefs submitted in support of their respective positions. In support of its Motion to Dismiss, Nationstar attached the terms of the trial period plan agreed to by the parties. (Def.'s Mem. Support, Ex. A., ECF No. 23-1.) While Plaintiff does not dispute the authenticity of Nationstar's exhibit, she contends that the terms of the plan present an incomplete picture when reviewed in isolation. (Pl.'s Mem. Opp'n at 4-5, ECF No. 31.) Plaintiff appended to her brief two exhibits which she contends are necessary to comprehend the trial period plan: (1) Fannie Mae HAMP Servicing Guide Announcement, and (2) the Consumer Data Industry Association's Mortgage & Home Equity Reporting Guidelines. (Pl.'s Mem. Opp'n, Ex. 1-2, ECF Nos. 31-1, 31-2) Consideration of these three documents would require the Court to engage in ...

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