United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING MOTION TO
E. Hudson United States District Judge.
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. (ECF No. 25.)
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).
reasons set forth below, the Court will grant Defendants'
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:
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. BANA subsequently transferred the serving
of the loan to Caliber.
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.)
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.)
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.
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.
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.
have moved to dismiss each of Plaintiffs claims.
STANDARD OF REVIEW
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)).
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.
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).
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.
HAMP and PSA Violations
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 ...