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Modderno v. Ocwen Loan Servicing, LLC

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

April 4, 2017

M. FRANCINE MODDERNO, et al., Plaintiffs,
OCWEN LOAN SERVICING, LLC, et al., Defendants.



         This matter is before the Court on Defendant Ocwen Loan Servicing, LCC's (“Ocwen”) Motion to Dismiss [Dkt. 3] and Defendant Surety Trustees, LLC's (“Surety”) (collectively, “Defendants”) Motion to Dismiss [Dkt. 6]. For the reasons that follow, the Court will grant both motions and dismiss Plaintiff's Complaint with prejudice.

         I. Background

         M. Francince Modderno brings this suit pro se on behalf of herself and the estate of Claude V. Bache[1](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.

         On or 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.

         After 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 “Assignment”).

         On 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.

         On July 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.

         In 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.

         On 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 disposition.

         II. Legal Standard

         “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). 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.

         “Determining 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.

         At the 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 ...

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