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Vuyyuru v. Bank of America, N.A.

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

May 3, 2017

BANK OF AMERICA, N.A., 9 Defendants.


          Henry E. Hudson United States District Judge.

         THIS MATTER is before the Court on Defendants Bank of America, N.A.'s ("BANA") and Caliber Home Loans, Inc.'s ("Caliber") (collectively "Defendants") Motion to Dismiss (ECF No. 18), filed on February 2, 2017, pursuant to Federal Rule of Civil Procedure 12(b)(6). In compliance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and Local Rule 7(K), Defendants provided the required notice Xopro 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 filed an untimely response on March 3, 2017.[1] (ECF No. 25.)

         The Court will dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court, and oral argument would not aid in the decisional process. E.D. Va. Loc. Civ. R. 7(J).

         For the reasons set forth below, the Court will grant Defendants' Motion.

         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. and Patricia A. Brennan LLC, 385 F.3d 836, 841 (4th Cir. 2004). Accordingly, the Court determines that the relevant facts are as follows:

         Since the early 2000's, Plaintiff and his family have resided in a house located at 12200 Ganesh Lane, Chester, Virginia. (Compl. ¶ 57.) In August 2004, Plaintiff obtained a mortgage loan from BANA in the amount of $265, 988, secured by that property.[2] BANA subsequently transferred the serving of the loan to Caliber.[3]

         Plaintiff alleges that he applied for a Home Affordable Modification Program ("HAMP") loan modification with Caliber, but that Caliber proceeded with a foreclosure sale on September 10, 2015, while the review was pending. (Id. ¶¶ 61-62.) Plaintiff claims that he was never advised that there were documents missing for the modification review. (Id. ¶¶ 66-67.) Rather, he contends that Caliber informed him that "the request of approval of the Loan Modifications had been completed." (Id. ¶ 67.) Despite asserting that he had a loan modification pending, Plaintiff later concedes that his request for a HAMP modification was denied. (Id. ¶¶ 72, 84.)

         However, Plaintiff appears to also allege that he did in fact enter into a loan modification agreement with BANA in October 2014 (Id. ¶¶ 87, 100), and that he has been making temporary and modified mortgage payments since November 2014 (Id. ¶ 89). Plaintiff asserts that Caliber initially informed him that it had no intention of foreclosing, presumably because Plaintiff was making his modified mortgage payments. (Id. ¶ 76.) Relying on this assertion, Plaintiff did not file for Bankruptcy, despite his poor financial situation. (Id. ¶¶ 63, 88.) Yet Caliber refused to honor the loan modification agreement and foreclosed on Plaintiffs mortgage. (Id. ¶¶ 62, 88.)

         Plaintiff further alleges that Caliber changed the locks on the Property but left it unlocked, resulting in the theft of an iPad and cash. (Id. ¶¶ 79-80.) Additionally, Plaintiff claims that Caliber "destroyed" all of the locks and alarm systems, electric circuits, kitchen and refrigerator power supplies, and "made a mess in the house." (Id. ¶ 81.)

         Later in the Complaint, Plaintiff claims that Caliber failed to respond to an alleged qualified written request, made pursuant to the Real Estate Settlement Procedures Act ("RESPA"), in 2013. (Id. ¶ 119.) The Complaint is silent as to when exactly this purported request was sent, whether and when it was received, or how exactly Caliber failed to respond.

         Plaintiff asserts six counts in his Complaint. He raises claims for declaratory and injunctive relief (Count I), violation of the Virginia Consumer Protection Act ("VCPA") (Count II), violation of the Fair Debt Collection Practices Act ("FDCPA") (Count III), violation of the RESPA (Count IV), fraud (Count V), and breach of contract (Count VI). He seeks $10, 000, 000.00 in damages.

         Defendants have moved to dismiss each of Plaintiffs claims.


         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., 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." BellAtl. Corp. v. Twombly, 550 U.S. 544, 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 inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

         The Court acknowledges thai pro se complaints are afforded a liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007); De'lonta v. Johnson, 708 F.3d 520, 524 (4th Cir. 2013). However, a pro se complaint still must "present factual allegations that 'state a claim to relief that is plausible on its face.'" Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). The Court need not attempt "to discern the unexpressed intent of the plaintiff." Laber v. Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006). Nor does the requirement of liberal construction excuse a clear failure in the pleading to allege a federally cognizable claim. See Wetter v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990). As the Fourth Circuit explained in Beaudett v. City of Hampton, "[t]hough \pro se] litigants cannot, of course, be expected to frame legal issues with the clarity and precision ideally evident in the work of those trained in law, neither can district courts be required to conjure up and decide issues never fairly presented to them." 775 F.2d 1274, 1276 (4th Cir. 1985).


         The Court addresses each of Plaintiff s claims in turn. As an initial matter, however, the Court notes that throughout the Complaint, Plaintiff references "class members." (See, e.g., Compl. ¶ 13.) Other than sparsely mentioning these purported "class members, " Plaintiffs Complaint lacks any factual underpinning supporting the conclusion that Plaintiff properly brings suit on a class basis in accordance with Federal Rule of Civil Procedure 23. Accordingly, the Court treats and addresses Plaintiffs claims as individual ones.[4]

         a. HAMP and PSA Violations

         While not included in his enumerated counts, Plaintiff asserts, throughout the Complaint, that Defendants failed to comply with HAMP and the operative pooling and servicing agreement ("PSA") for ...

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