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Thurmond v. Bayview Loan Servicing, LLC

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

December 12, 2017




         This matter comes before the Court on Defendant Bayview Loan Servicing, LLC's ("Bayview") Motion to Dismiss, [1] filed pursuant to Federal Rule of Civil Procedure 12(b)(6).[2](ECF No. 14.) Thurmond responded, [3] (ECF No. 18), and Bayview replied, (ECF No. 19). Accordingly, the matter is ripe for disposition. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331[4] and 28 U.S.C. § 1367.[5] The Court dispenses with oral argument because the materials before the Court adequately present the facts and legal contentions, and argument would not aid the decisional process. For the reasons that follow, the Court will grant the Motion to Dismiss.

         I. Standard of Review

         A. Federal Rule of Civil Procedure 12(b)(6) 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) (citing 5 A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiffs well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

         The Federal Rules of Civil Procedure "require[] only 'a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (omission in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations omitted). Instead, a plaintiff must assert facts that rise above speculation and conceivability to those that "show" a claim that is "plausible on its face." Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 570; Fed.R.Civ.P. 8(a)(2)). "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." Id. at 678 (citing Twombly, 550 U.S. at 556). Therefore, in order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citations omitted).

         B. Obligation to Construe Pro Se Pleadings Liberally

         District courts have a duty to construe pro se pleadings liberally. Bracey v. Buchanan, 55 F.Supp.2d 416, 421 (E.D. Va. 1999). A pro se plaintiff must nevertheless allege facts sufficient to state a cause of action. Id. (citation omitted). The Court cannot act as a pro se litigant's "advocate and develop, sua sponte, statutory and constitutional claims that the [litigant] failed to clearly raise on the face of [the] complaint." Newkirk v. Circuit Court of Hampton, No. 3:14cv372, 2014 WL 4072212, at *1 (E.D. Va. Aug. 14, 2014).

         C. Effect of Extrinsic Documents

         "If, on a motion under Rule 12(b)(6)..., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56, " and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d); see Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 260-61 (4th Cir. 1998); Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985). However, "a court may consider official public records, documents central to plaintiffs claim, and documents sufficiently referred to in the complaint [without converting a Rule 12(b)(6) motion into one for summary judgment] so long as the authenticity of these documents is not disputed." Witthohn v. Fed. Ins. Co., 164 Fed.Appx. 395, 396-97 (4th Cir. 2006) (citations omitted). "[I]n the event of conflict between the bare allegations of the complaint and any attached exhibit..., the exhibit prevails." Fayetteville Inv'rs v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991).

         Thurmond attaches four exhibits-two of which are identical-to her response: (1) her "Demand for Acceptance Notice, " addressed to the Chief Financial Officer of Bayview (the "Demand for Acceptance"), (ECF No. 18-1); (2) the Deed of Trust governing her loan (the "Deed of Trust"), (ECF No. 18-2); (3) an identical copy of the Demand for Acceptance, (ECF No. 18-3); and, (4) a March 24, 2016 letter addressed to Thurmond from M. Richard Epps, P.C., informing Thurmond that the firm has been retained to initiate foreclosure proceedings and advising Thurmond of the amount remaining on her loan (the "Epps Letter"), (ECF No. 18-4). The Court will consider the Demand for Acceptance, (ECF No. 18-1), and the Deed of Trust, (ECF No. 18-2), in ruling on the Motion to Dismiss because both of those documents are sufficiently referred to in the Amended Complaint and neither party disputes their authenticity. The Court will not consider the Epps Letter in ruling on the Motion to Dismiss because, although neither party disputes its authenticity, Thurmond's Amended Complaint omits reference to that letter altogether.

         II. Procedural and Factual Background

         A. Summary of Allegations in the Complaint[[6]]

         Thurmond's Amended Complaint contains numerous conclusory statements asserting that Bayview violated the law and her rights in multiple ways. At base, Thurmond appears to challenge various actions by Bayview related to her home mortgage loan and Bayview's supposed attempts to foreclose on it.

         Thurmond alleges that, on April 6, 2016, she mailed Bayview a "Notice of Dispute and Validation of Debt, " and that Bayview then failed to "send out the required 1692(g)[7] letter." (Am. Compl 2.) She contends that it is Bayview's practice "to maliciously, willfully, reckless, wantonly [, ] and/or negligently ignore and refuse to follow the requirements of the FDCPA 1692(e)[8] by providing false and misleading representation, and state law."[9] (Am. Compl. 2.)

         Thurmond further asserts that, on September 12, 2016, she sent Bayview a "Presentment (Notice of Demand for Acceptance) along with tendered payment (Promissory Note No. BV-082516) in the sum of $326, 000.00" via registered mail. (Am. Compl. 3.) She claims that she "is a Secured Party Creditor for her Security Entitlement interest, " and that Bayview "failed to comply with the terms of the Presentment and The Uniform Commercial Code 3-502[10] and 4-302[11]resulting in a Dishonor and breach of agreement." (Am. Compl. 3.)

         She also contends that Bayview "repeatedly threaten[ed] the sale of [her] property by posting in the Richmond Times dispatch unjustly even after [Thurmond] provided material facts that [her account] was tendered and the debt discharged and that [Thurmond] is a secured party." (Am. Compl. 3.)

         Thurmond sets forth three causes of action:

Count One: "F.D.C.P.A. Violations" - Thurmond alleges that Bayview violated "15 USC 1692, Communication in connection with debt collection"; "15 USC 1692(e)(a) False or Misleading Representation"; and, "15 USC 1692(g) Validation of debts, " (the "FDCPA Violations Claim"). (Am. Compl. 4.)
Count Two: "Breach of Agreement" - Thurmond sent Bayview a "Presentment, " and Bayview "dishonored tender of payment via promissory note, " (the "Breach of Agreement Claim"). (Am. Compl. 5.)
Count Three: "Uniform Commercial Code Violations" - Bayview violated "Virginia Code 8.3-603 when they failed to respond causing a Tacit Acquiescence"; Bayview committed a "clear violation of U.C.C. 4-302" by "not appropriately returning the instrument of tender and/or settling the account within forty-eight hours"; and, Bayview "Dishonored the tender" in violation of Virginia Code 8.3A-502, (the "U.C.C. Violations Claim"). (Am. Compl. 6-7.)

         Thurmond asserts that all of Bayview's actions "were done with malice, were done willfully, and were done with either the desire to harm Plaintiff and/or with the knowledge that their actions would very likely harm Plaintiff and/or that their actions were taken in violation of the FDCPA." (Am. Compl. 2.)

         Thurmond requests damages for Bayview's "numerous F.D.C.P.A violations, " "discharge of the dishonored tender equal to the amount of tender, " "satisfaction of mortgage lien associated with the tendered account and discharge within 7 days, " and "to send notarized (Jurat) letters to remove any and all negative entries" on Thurmond's consumer credit reports. (Am. Compl. 8.)

         B. Procedural History

         Thurmond initiated this action by filing a Complaint and a simultaneous Motion for Protective Order. (ECF Nos. 1, 2.) The Court denied the Motion for Protective Order, finding that Thurmond failed to make a clear showing of a likelihood of success on the merits of her claims. (Mar. 8, 2017 O. 3, ECF No. 4.) The next day, Thurmond filed a Motion for a Temporary Restraining Order and a Preliminary Injunction, (ECF No. 7), along with her Amended Complaint, (ECF No. 9). The Court denied Thurmond's Motion for a Temporary Restraining Order and a Preliminary Injunction, finding that Thurmond's Amended Complaint also failed to show a strong likelihood of success on the merits. (Mar. 9, 2017 O. 1, ECF No. 12.) Thurmond served Bay view with a copy of the Amended Complaint, (see ECF No. 17), and Bayview filed a Motion to Dismiss, (ECF No. 14). Thurmond responded, (ECF No. 18), and Bayview replied, (ECF No. 19). For the reasons that follow, the Court will grant Bayview's Motion to Dismiss.

         HI. Analysis: Motion to Dismiss

         A. The Court Will Dismiss Count Two, the Breach of Agreement Claim[12]

         Construed liberally and in the light most favorable to Thurmond, her "Breach of Agreement" Claim rests on her contention that she sent Bayview a "Presentment, " and Bayview "dishonored tender of payment via promissory note" by not either: (1) returning the promissory note within the time Thurmond prescribed for Bayview to do so; or, (2) "crediting [Thurmond's] account or rendering the notice of satisfaction to [Thurmond]." (Am. Compl. 5.) As alleged, however, Thurmond was not entitled to presentment of the promissory note she sent Bayview, no dishonor occurred, and Bayview breached no agreement. The Court will dismiss Count Two, Thurmond's Breach of Agreement Claim.

         1. Legal Standard for "Presentment"

         Title 8.3 A of the Virginia Code governs negotiable instruments.[13] Va Code. § 8.3A-101 et seq. Under Title 8.3 A, a "person entitled to enforce an instrument" may avail him or herself of "Presentment." See Va. Code § 8.3A-501.

"Presentment" means a demand made by or on behalf of a person entitled to enforce an instrument (i) to pay the instrument made to the drawee or a party obliged to pay the instrument or, in the case of a note or accepted draft payable at a bank, to the ...

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