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Brannen v. Selene Finance LP

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

February 11, 2019

DARIEN BRANNEN, Plaintiff,
v.
SELENE FINANCE LP, Defendant.

          OPINION AND ORDER

          ROBERT G. DOUMAR, UNITED STATUES DISTRICT JUDGE.

         This lawsuit arises out of a mortgage loan dispute between Darien Brannen ("Plaintiff), the borrower, and Selene Finance LP ("Defendant" or "Selene"), his loan servicer, after Plaintiff fell behind on his mortgage payments. Plaintiffs complaint alleges that Defendant violated two federal laws in connection with Plaintiffs attempts to obtain loan modification relief from the Defendant. Defendant now moves to dismiss Plaintiffs complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. ECF No. 6. For the reasons set forth herein, Defendant's Motion to Dismiss Plaintiffs Complaint is GRANTED, and Plaintiffs complaint is DISMISSED consistent with the directives of this Opinion and Order.

         I. FACTUAL BACKGROUND

         The facts recited herein are drawn from the Plaintiffs complaint and are assumed true only for purposes of deciding the motion to dismiss currently before the Court. They are not to be considered factual findings by this Court. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         On May 15, 2006, Plaintiff entered into a mortgage loan contract to purchase property in Suffolk, Virginia. Complaint, ECF No. 1-1 ("Compl."), ¶ 4. Plaintiffs loan was for $467, 800.00, and it was evidenced by a promissory note ("Note") and secured by a deed of trust ("DOT"). Id; see Note, "Ex. 1" to Compl., ECF No. 1-1, at 10-16; see DOT, Id. at 17-43. The terms of Plaintiffs Note reflect an adjustable rate mortgage, calling for an initial interest rate of 5.25% and initial monthly payments of $2, 046.63 through September 2006, with variable interest rates and monthly payments thereafter. Note, "Ex. 1" to Compl., ECF No. 1-1, at 10-16.

         Plaintiff alleges that, sometime after securing this loan, "[he] fell behind on his payments." Compl. ¶ 6. He further alleges that, on or about August 22, 2014, he entered into a loan modification agreement with Selene, which increased Plaintiffs loan principal to $512, 790.17 but reduced his interest rate to 4% and reduced his owed monthly payments to $1, 532.58 per month. Id. ¶ 7; see Loan Modification Agreement, "Ex. B" to Compl., ECF No. 1-1, at 44-55.

         Plaintiffs Attempts to Obtain Additional Loss Mitigation

         According to the complaint, sometime after Plaintiff obtained this loan modification in 2014, he and his wife again began experiencing financial difficulty due to a decrease in his wife's income. Compl. ¶ 10. Presumably because of this financial difficulty, Plaintiff allegedly contacted the defendant, Selene, on five occasions over a period of approximately two years to request loan modification and/or loss mitigation relief as follows:

         First, on some unalleged date, Plaintiff allegedly "contacted Selene to discuss loss mitigation options." Id. ¶ 11. According to Plaintiff, Selene offered a repayment agreement that he allegedly could not afford, but the terms of such proposal are not alleged. Id.

         Second, sometime in 2016, Plaintiff allegedly submitted "a loss mitigation application" to Selene, which Selene reportedly denied for being incomplete. Id. ¶ 12. Plaintiff does not allege whether he appealed this denial or tried to supplement the application.

         Third, sometime in 2017, Plaintiff allegedly submitted another loss mitigation application to Selene, which Selene reportedly denied "due to insufficient income." Id. ¶ 13. Plaintiff does not allege whether he appealed this denial.

         Fourth, in January 2018, Plaintiff allegedly "contacted" Selene, which reportedly offered Plaintiff another repayment agreement that he allegedly could not afford. Id. ¶ 14. The terms of this proposed agreement are not alleged.

         Fifth, in May of 2018, Plaintiff was once again allegedly "denied for a loan modification" presumably by Selene. Id. ¶ 15. Plaintiff claims that this denial was based on a calculation of his household expenses that included the expenses of his wife, who contributes to household income but is not a borrower on the loan. Id.

         Selene's Denial of ...


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