United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
G. DOUMAR, UNITED STATUES DISTRICT JUDGE.
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.
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).
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,
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.
Attempts to Obtain Additional Loss Mitigation
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:
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.
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.
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
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
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.
Denial of ...