United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr. United States District Judge.
se plaintiff, George A. Yarid, brings this action arising
from the foreclosure of his home. The complaint names as
defendants Ocwen Loan Servicing, LLC ("Ocwen"), The
Bank of New York Mellon ("BNY"), and Equity
Trustees, LLC ("Equity Trustees"). Yarid's five
counts include: (1) declaratory relief; (2) violation of the
Fair Debt Collection Practices Act ("FDCPA"); (3)
violation of the Truth in Lending Act ("TILA"); (4)
violation of the Real Estate Settlement Procedures Act
("RESPA"); and (5) unjust enrichment. He seeks
damages and injunctive relief. The defendants have moved to
dismiss the case.
complaint runs into a number of legal problems. The first
problem arises under the doctrine of standing-the requirement
that the plaintiff show that he has the legal right to seek
judicial relief. Yarid filed for bankruptcy before the
foreclosure of his home. When he did so, his claims became
the property of his trustee in bankruptcy. Therefore, only
the trustee-not Yarid-can pursue any claims that arose before
or during his bankruptcy; Yarid lacks standing to pursue such
claims. Yarid has standing only to sue for claims that arose
after his bankruptcy ended. Yarid has not pled facts showing
standing to support his claims in part of Count Two and in
all of Counts Four and Five. The Court will grant Yarid leave
to file an amended complaint within twenty-one days to allege
facts establishing his claims arose after his bankruptcy.
Since Yarid's complaint shows conclusively that he cannot
establish standing to pursue Count Three, the Court will
dismiss it without leave to amend.
runs into other problems with respect to Count One, his claim
for declaratory relief. This claim deals with events that
have already happened and cannot be reversed, so the Court
will dismiss this claim as moot.
Court doubts that Yarid can ultimately establish claims for
violations of the FDCPA under Count Two. Nevertheless,
construing the complaint liberally, it is conceivable that
Yarid has alleged facts amounting to limited violations of
the FDCPA, and the Court will allow part of Yarid's FDCPA
claims to proceed.
2005, Yarid purchased his home (the "Property")
with a mortgage from NovaStar Mortgage, Inc. Novastar
assigned the Deed of Trust to BNY in 2012, with Ocwen as the
loan servicer. BNY appointed Equity Trustees as Substitute
Trustee on May 8, 2017.
Yarid claims he had not defaulted "to the point that
foreclosure [was] legally authorized" (Compl., Dk. No.
12, at ¶ 11), he does admit that he failed to pay his
mortgage under the terms of the note. Yarid fell behind on
mortgage payments in 2009, procured a loan modification in
2015, but then fell behind sometime later. Despite his
delinquency, Yarid nonetheless says that Ocwen and BNY failed
to establish any legal authority to foreclose on his house.
He also claims that Ocwen and BNY "falsely threate[ne]d
legal action when [they] claimed a right to foreclosure and
failed to inform Plaintiff that he was lawful." (Compl.,
Dk. No. 12, at ¶ 26.) According to the complaint, Ocwen
and BNY's representatives also misled Yarid by telling
him there was no foreclosure until mere weeks before they
sent a foreclosure notice. When Yarid called about the
notice, Ocwen and BNY denied "[the foreclosure
sale]." (Opp'n, Dk. No. 26, at ¶ 1.) Ocwen and
BNY further misled Yarid "for years" by returning
his loan payments months after he had sent them, which led
Yarid to believe that his loan was in good standing.
Additionally, Yarid sent three Qualified Written Requests
("QWRs") to Ocwen in 2013, 2014, and 2015 to
identify who owned his loan, but Ocwen never responded.
Finally, Yarid says that Ocwen accepted Yarid's partial
mortgage payments but failed to apply them to his mortgage
account, and also collected fees from his monthly payments
that Yarid did not actually owe.
filed for bankruptcy in the U.S. Bankruptcy Court for the
Eastern District of Virginia on October 13, 2016. (No.
3:16-BK-35047-KRH.) The Bankruptcy Court discharged
Yarid's bankruptcy and closed his case on April 10, 2017.
12(b)(6) motion gauges the sufficiency of a complaint without
resolving any factual discrepancies or testing the
evidentiary merits of the claims. Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In
considering the motion, a court must accept all allegations
in the complaint as true and must draw all reasonable
inferences in favor of the plaintiff. Nemet Chevrolet,
Ltd v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th
Cir. 2009) (citing Edwards v. City of Goldsboro, 178
F.3d 231, 244 (4th Cir. 1999)). The principle that a court
must accept all allegations as true, however, does not apply
to legal conclusions. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). To survive a Rule 12(b)(6) motion to
dismiss, a complaint must state facts that, when accepted as
true, state a claim to relief that is plausible on its face.
Id. "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. (citing
Bell Atl Corp. v. Twombly, 550 U.S. 544, 556
in cases where the plaintiff appears pro se, courts do not
expect the plaintiff to frame legal issues with the clarity
and precision expected from lawyers. Accordingly, courts
construe pro se complaints liberally. Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Courts do
not, however, need to discern the unexpressed intent of the
plaintiff or conjure up issues on the plaintiffs behalf
See Laber v. Harvey, 438 F.3d 404, 413 n.3 (4th Cir.
2006); Beaudett, 775 F.2d at 1276.
addressing the merits of the various counts, the Court will
determine Yarid's standing to pursue them.
"is a threshold jurisdictional question," which
ensures that a suit is "appropriate for the exercise of
the courts' judicial powers." Pye v. United
States,269 F.3d 459, 466 (4th Cir. 2001). If a
plaintiff does not have standing, federal courts lack subject
matter jurisdiction. AtlantiGas Corp. v. Columbia Gas
Transmission Corp.,210 Fed.Appx. 244, 247 (4th Cir.
2006) (unpublished). The plaintiff bears the burden to
demonstrate standing. FW/PBS, Inc. v. City of
Dallas,493 U.S. 215, 231 (1990). See also Evans v.
B.F. Perkins Co.,166 F.3d 642, 647 (4th Cir. 1999)
("The plaintiff has the burden of proving that subject