United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United States District Judge
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. For the reasons that follow, both motions
to dismiss will be granted.
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.
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.
in October 2015, plaintiff contacted Seterus to ask about the
status of her loan, among other questions. 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.
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.
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.
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
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.
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.
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.