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Manzaneda v. Seterus, Inc.

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

May 24, 2017

SETERUS, INC., et al. Defendants.


          Leonie M. Brinkema United States District Judge

         Before the Court are Motions to Dismiss by defendants Samuel I. White, P.C. ("SIWPC") and Seterus, Inc. ("Seterus"). Plaintiff pro se Carmen Manzaneda ("plaintiff' or "Manzaneda") has responded to SIWPC's motion, which was filed on February 15, 2017. Seterus, which was not served until March 31, 2017, filed its motion to dismiss, including a proper Roseboro notice, on May 4, 2017, which adopts the same arguments as SIWPC's motion. On May 23, 2017, plaintiff responded to Seterus' motion.[1] For the reasons that follow, both motions to dismiss will be granted.

         I. BACKGROUND

         On March 7, 2007, plaintiff executed a deed of trust and note to secure a $350, 000 mortgage loan from Mortgagestar, Inc. ("Mortgagestar"), to finance her purchase of property located at 2268 Wheelwright Court in Reston, Virginia ("the Property"). Compl. Ex. A, [Dkt. 1-1] at 10. The note was an "Interest Only Fixed Rate Note, " under which plaintiff was to pay interest only, at a yearly rate of 7%, for the first 120 months. [Dkt. 29-1] at 31. The Mortgage Electronic Registration Systems, Inc. ("MERS") acted as Mortgagestar's nominee. Thomas J. Salen ("Salen") was named as the original trustee for the Deed of Trust. Compl., [Dkt. 1] at 2.

         On October 6, 2011, MERS assigned the loan to Bank of America, N.A. ("BoA"), which appointed defendant SIWPC as substitute trustee on June 14, 2013. Compl. Ex. A, [Dkt. 1-1] at 8-9. On July 17, 2015, BoA assigned the loan to the Federal National Mortgage Association ("Fannie Mae"), which appointed defendant Seterus as the servicer of the loan. Id. at 10. According to Seterus' records, plaintiff has been "contractually delinquent" on all payment installments since February 1, 2008. Compl. Ex. A, [Dkt. 1-1] at 26.

         Sometime in October 2015, plaintiff contacted Seterus to ask about the status of her loan, among other questions.[2] gee Compl. Ex. A, [Dkt. 1-1] at 17. On October 24, 2015, Seterus responded that they were reviewing the request and would respond shortly. Id. While that request was pending, on October 30, 2015, Seterus sent plaintiff an updated account statement stating that the amount required to pay off her loan was $629, 675.24. Id. at 19. Seterus directly responded to plaintiffs inquiries on December 1, 2015, explaining the series of assignments that led to Fannie Mae's ownership of the loan and enclosing a variety of documents that BoA sent to Seterus in connection with the most recent transfer. Id. at 26-27.

         On February 18, 2016, SIWPC sent plaintiff a notice on behalf of Fannie Mae stating: "You have defaulted under the terms of the deed of trust by failing to make timely monthly payments. As a result, upon the expiration of fourteen (14) days from the date of mailing this notice, the Trustee, or Substitute Trustee, will be requested to schedule the sale of the secured property." Compl. Ex. A, [Dkt. 1-1] at 30.

         On September 6, 2016, SIWPC sent plaintiff a notice that her Property would be sold on September 26, 2016. Compl. Ex. A, [Dkt. 1-1] at 5-7. In response, plaintiff sent a flurry of correspondence on September 20, 2016. First, she sent a notice of dispute to Seterus and SIWPC, asking those entities to "validate" their interest in her loan and challenging their ability to contact her and use her banking, credit, and financial information. Id. at 2. Second, she sent Fannie Mae a letter asking whether Fannie Mae had the promissory note she had executed in connection with the mortgage and whether MERS had ever had "control or custody of both the trust deed and note." Id. at 3. Finally, she sent Salen, the original trustee, a letter asking whether he had transferred his authority as trustee to SIWPC. Id. at 4.

         Plaintiffs letter to Seterus and SIWPC included a QR code, an image that can be scanned by a mobile phone to send the phone's user to an associated website. Compl. Ex. A, [Dkt. 1-1] at 2. The QR code on plaintiffs letter links to ", " which hosts a document entitled "Data Retention License" ("DRL"), which is attached as Exhibit B to the Complaint. The DRL begins: "Please be advised that upon receiving notification of the QR code for the following content and license terms, you are subject to the terms and conditions set forth herein." Compl. Ex. B, [Dkt. 1-2] at 1. The substance of the putative agreement is set out as follows:

You agree that upon the moment of disclosure of my identifying information to you, or the moment you obtain my identifying information, whether with or without my consent, that you are in sole custody and control of my identifying information and that these terms apply. This agreement is perpetual and shall continue in perpetuity. If this agreement conflicts with any of your policies, the terms of this agreement shall be controlling and notwithstanding any of your policies or previous agreements, terms or conditions [sic].

Id. at 2. Although there is no indication that Seterus or SIWPC ever solicited or responded to the DRL, Plaintiff alleges that it is valid and enforceable. Compl., [Dkt. 1] at 13-15.

         On September 29, 2016, Seterus replied to plaintiffs September 26 letter, stating that a full "written explanation" was forthcoming, alerting her that the owner of her loan was Fannie Mae, and giving her Fannie Mae's address. [Dkt. 29-1] at 1. On October 17, 2016, SIWPC responded to plaintiff, explaining that it had forwarded her letter to Seterus, which would "address any issues raised therein." [Dkt. 19]. On October 27, 2016, Seterus sent a more detailed letter to plaintiff, explaining what steps she needed to take if she "intend[ed] to keep the property, " including establishing an escrow account to cover taxes and insurance. [Dkt. 29-1] at 2. Seterus' October 27 letter also included a complete list of the documents it needed to evaluate any request by plaintiff to keep the property, and included a notice reminding plaintiff that Fannie Mae owned her loan. Id. at 3, 5. Seterus sent another letter on November 3, 2016, reiterating that Fannie Mae was then the owner of the loan and enclosing documentation of all the transfers in ownership that her loan had undergone dating back to Mortgagestar. [Dkt. 29-1] at 15.

         Plaintiff filed her complaint on September 26, 2016. Counts 1 and 2 allege violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. against each defendant, and Counts 3 and 4 allege breach of contract against each defendant for breaching the DRL. Plaintiff seeks actual and statutory damages for the FDCPA violations and, on the breach of contract claims, "liquidated damages in the amount of 2.46 ounces of gold (Au) per diem beginning on December 21, 2015, or its equivalent in Bitcoin (XBT), plus court costs, attorney fees and for other relief as the court deems appropriate." Compl., pkt. 1] at 16.

         II. ...

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