United States District Court, E.D. Virginia, Alexandria Division
M. FRANCINE MODDERNO, et al., Plaintiffs,
OCWEN LOAN SERVICING, LLC, et al., Defendants.
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on Defendant Ocwen Loan Servicing,
LCC's (“Ocwen”) Motion to Dismiss [Dkt. 3]
and Defendant Surety Trustees, LLC's
“Defendants”) Motion to Dismiss [Dkt. 6]. For the
reasons that follow, the Court will grant both motions and
dismiss Plaintiff's Complaint with prejudice.
Francince Modderno brings this suit pro se on behalf
of herself and the estate of Claude V. Bache(collectively,
“Plaintiffs”) against Defendants, seeking damages
and equitable relief in connection with a non-judicial
foreclosure sale of real property located in Loudoun County,
Virginia. The Complaint alleges specific violations of
“the laws prohibiting unfair and deceptive loan
practices, including the Consumer Financial Protection Act
(“CFPA”) of 2010, 12 U.S.C. §§ 5481
et. seq., with regard to loan servicing . . . and
foreclosure processing.” Compl. ¶ 4. The following
facts are taken from Plaintiff's Complaint and the
original documents referenced by that Complaint. For the
purposes of this motion, the facts are presumed true.
about October 20, 2003, Plaintiffs obtained a home mortgage
loan, as evidenced by a promissory note in the original
principal amount of $600, 000, which was made payable to
First Savings Mortgage Corporation (“First
Savings”) as the original lender (the
“Note”). Compl. ¶ 2. The Note, which
Plaintiffs signed, included specific language regarding the
possibility of transfer. Id.; Ocwen Mot. to Dismiss
[Dkt. 3], Exh. A, ¶ 1. To secure repayment of this debt,
Plaintiffs executed a deed of trust on October 20, 2003,
encumbering the real property known as 17417 Needles Court,
Leesburg, Virginia 20176 (the “Property”).
Id. This security instrument was then recorded in
the public land records of Loudoun County, Virginia (the
“Deed of Trust”). Id. The Deed of Trust
identified First Savings as the original lender and Mortgage
Electronic Registration Systems, Inc. (“MERS”) as
the original beneficiary. Ocwen Mot. to Dismiss, Exh. B at 2.
It also included the following language: “The Note or
partial interest in the Note (together with this Security
Instrument) can be sold one or more times without prior
notice to the Borrower” and that any such transactions
“shall bind . . . and benefit the successors and
assigns of Lender.” Id., ¶¶ 13, 20.
the Note and Deed of Trust were executed, First Savings, the
original lender, transferred its interest in the loan to
Residential Funding Corporation. Compl. ¶ 3. Two
endorsements appear on the Note: (1) a specific endorsement
from First Savings to Residential Funding Corporation signed
by Peggy Cliff (the “First Savings Endorsement”)
and (2) a blank endorsement signed by Judy Faber, a Vice
President of Residential Funding Corporation (the “RFC
Endorsement”). Ocwen Mot. to Dismiss, Exh. A at 4. On
June 23, 2011, MERS, acting as nominee for First Savings,
executed and acknowledged an assignment of the Deed of Trust
to Residential Funding Company, LLC, f/k/a Residential
Funding Corporation (hereafter “RFC”).
Id., Exh. C. This instrument was recorded in the
Loudoun County land records on June 30, 2011 (the
September 6, 2011, Plaintiff Modderno filed a
“Complaint of Wrongful Foreclosure” in the
Loudoun County Circuit Court, naming RFC and ETS of Virginia,
Inc. (“ETS”) as defendants (the “2011
Lawsuit”). Ocwen Mot. to Dismiss, Exh. E. She chose not
to include the estate of Plaintiff Bache at that time,
although he was deceased and she had already been appointed
as executrix of his estate. On September 29, 2011, the named
defendants removed the 2011 Lawsuit to this Court. On
December 20, 2011, after briefing, Plaintiff's claims
were dismissed for failure to state a claim upon which relief
can be granted. Id., Exh. F.
2, 2012, RFC executed an instrument appointing Surety as
substitute trustee in place of ETS under the Deed of Trust.
Ocwen Mot. to Dismiss, Exh. G. This instrument was thereafter
recorded in the Loudoun County land records. Id.
Surety then sent Plaintiffs a notice that included a copy of
a lost note affidavit signed by Jeffrey Dunn on behalf of
Ocwen on April 29, 2013. Compl. ¶ 6; Ocwen Mot. to
Dismiss, Exh. H. Plaintiffs describe the notice they received
as a “notice letter of foreclosure.” Compl.
¶ 6. The Complaint fails to provide any additional
details, however, including who scheduled the foreclosure
sale and the date of the alleged sale. See id.
addition, Plaintiffs' Complaint alleges that they
recently received an account history from Ocwen covering the
period from July 13, 2015 to July 11, 2016. Compl. ¶ 7.
The account history shows that Ocwen paid Loudoun County real
estate taxes for the Property on behalf of Plaintiffs.
Id. Plaintiffs claim that they qualified for tax
relief “for five out of the last six years.”
Id. No additional details are given.
January 4, 2017, Plaintiffs filed the instant Complaint
against Ocwen and Surety in the Loudoun County Circuit Court.
The Complaint seeks injunctive relief to stop foreclosure of
the Property, quiet title to the Property, and $1, 000, 000
in damages. Compl. at 3. Defendant Ocwen filed a notice of
removal on January 20, 2017. [Dkt. 1.] On January 27, 2017,
Ocwen filed a motion to dismiss, based primarily on the
doctrine res judicata. [Dkt. 3.] Defendant Surety
filed its own motion to dismiss on February 13, 2017, arguing
improper service of process and failure to state a claim.
[Dkt. 6.] Rather than filing a memorandum in opposition,
Plaintiffs filed a Motion to Extend Time to File Answer to
Motion to Remove. [Dkt. 9.] The Court ordered Plaintiffs to
file an appropriate response by March 15, 2017. [Dkt. 10.] No
response was ever filed. Following the waiver of oral
argument by both Defendants, this matter is now ripe for
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). The Supreme Court has stated that in
order “[t]o survive a motion to dismiss, a [c]omplaint
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 pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
whether a complaint states a plausible claim for relief [is]
. . . a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679 (citations
omitted). While legal conclusions can provide the framework
for a complaint, all claims must be supported by factual
allegations. Id. Based upon these allegations, the
court must determine whether the plaintiff's pleadings
plausibly give rise to an entitlement to relief. Id.
Legal conclusions couched as factual allegations are not
sufficient, Twombly, 550 U.S. at 555, nor are
“unwarranted inferences, unreasonable conclusions, or
arguments, ” E. Shore Mkts., Inc. v. J.D. Assocs.
Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). The
plaintiff, however, does not have to show a likelihood of
success; rather, the complaint must merely allege - directly
or indirectly - each element of a “viable legal
theory.” Twombly, 550 U.S. at 562-63.
motion to dismiss stage, the court must construe the
complaint in the light most favorable to the plaintiff, read
the complaint as a whole, and take the facts asserted therein
as true. Iqbal, 556 U.S. at 678. Generally, a
district court does not consider extrinsic materials when
evaluating a complaint under Rule 12(b)(6). It may, however,
consider “documents incorporated into the complaint by
reference.” Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007); see also
Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir.
2006). In addition, the court may consider documents attached
to the defendant's motion to dismiss if those documents
are central to the plaintiff's claim or are