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Vuyyuru v. Wells Fargo Bank, N.A.

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

July 28, 2016




         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. 11), filed on June 14, 2016. Defendants seek to dismiss the Amended Complaint, which represents pro se Plaintiff Lokesh Babu Vuyurru's ("Plaintiff) second attempt to bring suit against Defendants for common law and statutory violations related to the foreclosure on Plaintiffs home. The Court previously dismissed many of Plaintiff s claims without prejudice, allowing him to augment their factual underpinnings.

         Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and Local Rule 7, Defendants provided the required notice to Plaintiff that he had twenty-one days to respond and the Court could dismiss his suit should he fail to do so. Plaintiff twice moved for an extension of time to file his response to the Motion to Dismiss. The Court granted each request, ultimately allowing Plaintiff until July 19, 2016, to file his response. Despite those extensions, Plaintiff failed to file any response.[1] For the reasons set forth below, the Court will grant Defendants' Motion to Dismiss.

         I. BACKGROUND

         On a motion to dismiss, the Court takes the well-pleaded allegations as true and views them in the light most favorable to the plaintiff. T.G. Slater & Son, Inc. v. Donald P. & 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. (Am. Compl. 3, ECF No. 10.)[2] To further the HAMP's goals, the Department of the Treasury entered into servicer participation agreements ("SPA") with mortgage servicers. (Id.) Defendants both entered into SPAs with the federal government that incorporated HAMP guidelines. (Id. at 3-4.)

         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.)

         In June 2003, Plaintiff refinanced his mortgage. (Id. at 22.) In 2009, Plaintiff listed the residence for sale, and he received an offer on the home. (Id. at 23.) The sale fell through, however, because his loan servicer at the time, American Home Mortgage Service ("AHMSI"), did not respond to Plaintiffs request for approval of the sale. (Id.) Eventually, Plaintiff was unable to make his required payments, and a corrected deed of foreclosure was recorded in January 2011. (Id. at 22.)

         According to Plaintiff, he attempted to modify his loan with AHMSI, but AHMSI either misplaced or could not locate Plaintiffs documents. (Id. at 23.) Ocwen eventually became the servicer of Plaintiff s loan. (Id.) Plaintiff alleges that he also requested a loan modification from Ocwen. (Id.) He submitted loan modification documents, and Ocwen informed Plaintiff "that the request of approval of the Loan Modifications had been completed." (Id. at 24.)

         Plaintiff claims that he and Mr. Savich[3] were in constant contact with AHMSI and Ocwen from March 2011 until September 2015 about a loan modification. (Id.) Neither Plaintiff nor Mr. Savich had been informed that AHMSI or Ocwen was "missing any documents or was in need of any further information to evaluate" Plaintiffs request for a mortgage modification. (Id.)

         Plaintiff allegedly began a TPP in October 2014. (Id. at 25.) According to Plainitff, he sent his first payment to Ocwen as directed, but he received a call stating his payment was $92 short. (Id.) Plaintiff then sent $92, and that money "is still sitting at Western Union." (Id.) In February 2015, Ocwen informed Plaintiff that he was out of the modification and that Ocwen would be foreclosing. (Id.) Plaintiff again applied for a modification under the HAMP, which was denied. (Id.)

         Plaintiff states that he then attempted to file for bankruptcy protection to prevent foreclosure proceedings on his house. (Id.) Mr. Mayur, a manager at Ocwen, allegedly told Plaintiff that there was no need to file for bankruptcy, and the scheduled foreclosure sale would be cancelled. (Id. at 25-26.) Six days later, however, Plaintiff was informed that the foreclosure would not be called off because he had once again been denied a modification pursuant to the HAMP. (Id. at 26.) Although Plaintiff requested alternative means of avoiding the foreclosure, Ocwen offered none. (Id.) According to Plaintiff, he was out of the country and unable to file his bankruptcy paperwork to prevent foreclosure. (Id.)

         Plaintiff returned to the United States after the foreclosure. (Id.) According to Plaintiff, Ocwen had changed the locks, destroyed the alarm system, electric circuits, kitchen and refrigerator power supplies, and generally made a mess of the house. (Id.) Plaintiff contends that cash and an iPad were stolen from the house. (Id.) Plaintiff ...

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