United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (Motion to Dismiss)
HENRY E. HUDSON, District Judge.
THIS MATTER is before the Court on Defendants Wells Fargo Bank, National Association's ("Wells Fargo") and Ocwen Loan Servicing, LLC's ("Ocwen") (collectively "Defendants") Motion to Dismiss (ECF No. 2), filed on October 27, 2015. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and Local Rule 7, Defendants provided the required notice to pro se Plaintiff Lokesh Babu Vuyurru ("Plaintiff') that he had twenty-one days to respond and the Court could dismiss his suit should he not respond. Plaintiff failed to file any response. For the reasons set forth below, the Court will grant Defendants' motion.
On a motion to dismiss, the Court takes the well-pleaded allegations as true and views them in light most favorable to the plaintiff. T.G. Slater & Son, Inc. v. Donald P. and Patricia Brennan LLC, 385 F.3d 836, 841 (4th Cir. 2004). Accordingly, the Court finds as follows:
The Home Affordable Modification Program ("HAMP") provides eligible homeowners with the opportunity to modify their mortgages to make them more affordable. (Compl. 3, ECF No. 1.) To further the HAMP's goals, the Department of the Treasury entered into servicer participation agreements ("SPA") with mortgage servicers. ( Id at 3.) Defendants both entered into SPAs with the federal government that incorporated HAMP guidelines. ( Id. )
HAMP guidelines set forth processes for determining whether a borrower qualifies for a loan modification. ( Id. at 4-5.) If a borrower is eligible, that borrower proceeds under a Trial Period Plan ("TPP"). ( Id. at 5.) During this period, if the borrower satisfies certain conditions precedent-including making three modified trial payments over the course of three months and remaining otherwise eligible under the HAMP criteria-the borrower is provided with a permanent loan modification. ( Id )
Since 2010, Plaintiff has filed for several mortgage loan modifications pursuant to the HAMP. ( Id at 22.) Plaintiff was asked for updates and resubmissions approximately every three months. ( Id. ) According to Plaintiff, he finally complied with all requirements in October 2014. ( Id. ) A letter was issued providing an income verification statement and sent under an alleged TPP. ( Id. )
Plaintiff sent his first payment as detailed in the letter; however, Plaintiff received a call informing him that his payment was ninety-two dollars short. ( Id ) On December 19, 2014, Plaintiff sent that amount through Western Union as specified by Ocwen. ( Id ) Ocwen reported that it had not received Plaintiff's ninety-two dollars. ( Id. at 23.) Accordingly, Plaintiff sent another payment of ninety-two dollars. ( Id. ) Plaintiff asserts this second payment "is still sitting at Western Union." ( Id. )
On February 18, 2015, Ocwen notified Plaintiff by letter that he was "out of modification" and Ocwen would be foreclosing on his house. ( Id ) Plaintiff again applied for a modification pursuant to HAMP rules but was denied. ( Id ) Plaintiff contemplated filing for bankruptcy and "demanded an investigation [in]to the actions of Ocwen employees and the systematic problem [of] not willing to help plaintiff." ( Id. ) In March 2015, the foreclosure proceedings stopped. ( Id )
Plaintiff again submitted documents pursuant to HAMP regulations. ( Id. ) Although Plaintiff states he had the required documentation, Plaintiff's loan was not put back under HAMP regulations. ( Id. ) Plaintiff allegedly spoke to an Ocwen employee, Mr. Mayur, on September 3, 2015, who informed Plaintiff the foreclosure would be stopped. ( Id. ) Plaintiff stated that he would file for bankruptcy if the foreclosure went forward. ( Id )
On September 9 and 10, 2015, Plaintiff was again notified of the intention to move forward with the foreclosure. ( Id. ) Plaintiff was informed that the foreclosure was not going to be stopped because he had been denied modifications twice. ( Id. ) Plaintiff states that he was out of the country and unable to file for bankruptcy to protect his house from foreclosure. ( Id. ) Upon his return, the foreclosure had already happened, and Plaintiff claims that he lost an iPad and cash. ( Id. at 24.)
Plaintiff now brings seven counts against Defendants. Plaintiff brings common law breach of contract and fraud claims. He asserts Defendants violated the Virginia Consumer Protection Act ("VCPA"), Virginia Code § 6.2-1629 ("Section 1629"),  the Fair Debt Collection Practices Act ("FDCPA"), and the Real Estate Settlement Procedures Act ("RESPA"). Plaintiff also seeks declaratory and injunctive relief. Defendants have moved to dismiss each of Plaintiffs claims. (Defs.' Mem. Supp. Mot. Dismiss ("Defs.' Mem.") 1, ECF No. 3.)
II. STANDARD OF REVIEW
The well-pleaded facts contained within the Complaint both inform and constrain this Court's review of a motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(6). The task at hand is to determine the sufficiency of the complaint, "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). In considering a motion to dismiss, plaintiffs well-pleaded allegations are taken as true and the complaint must be viewed in the light most favorable to the plaintiff. T.G. Slater & Son, Inc., 385 F.3d at 841. The Court, however, "need not accept the legal conclusions drawn from the facts, " nor must the Court "accept as true unwarranted inferences, unreasonable conclusions or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (quoting Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008)).
To survive Rule 12(b)(6) scrutiny, a plaintiff must provide more than merely "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Bell All. Corp. v. Twombly, 550 U.S. 554, 555 (2007) (citations omitted). Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the speculative level, " stating a claim that is "plausible on its face, " rather than merely "conceivable." Id. at 555, 570 (citations omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable ...