United States District Court, E.D. Virginia, Richmond Division
LOKESH B. VUYYURU, et al Plaintiffs,
BANK OF AMERICA, N.A., et al, Defendants.
MEMORANDUM OPINION (GRANTING DEFENDANTS' MOTION
E. Hudson Senior United States District Judge
matter comes before the Court on a motion under Fed.R.Civ.P.
12(b)(6) for failure to state a claim, filed on April 23,
2019, by Defendants Bank of America, Inc. ("BANA"),
Caliber Home Loans, Inc. ("Caliber"), LSF9 Master
Participation Trust, Inc. ("LSF9"), and U.S. Bank
and Trust, Inc. (collectively, "Defendants"). (Mot.
Dismiss, ECF No. 36.) On May 7, 2019, Lokesh B. Vuyyuru
("Vuyyuru") and Virginia Gastroenterology
Associates (collectively, "Plaintiffs") filed a
Response. (Mem. Opp'n Mot. Dismiss, ECF No. 38.) The
Court will dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the Court, and oral argument would not aid in the
decisional process. See E.D. Va. Local Civ. R. 7(J).
For the reasons that follow, the Court will grant
to the Amended Complaint, on August 30, 2004, Vuyyuru
obtained a home equity loan for $225, 000 from BANA, using
property at 12200 Ganesh Lane, Chester, VA 23836 as
collateral. (Am. Compl. ¶ 7, ECF No. 34.) Vuyyuru
stopped making payments on the home equity loan in 2009.
(Id. ¶ 10.) Thereafter, BANA allegedly
requested that Vuyyuru "submit documentation of loan
every three to four months in order to qualify for loan
modification." (Id. ¶ 11.) According to
Vuyyuru, he provided BANA with loan modification documents on
multiple occasions, however he received no response.
(Id. ¶¶ 11-12.) Vuyyuru also claims that a
BANA representative promised to "reinstate the loan ...
but never sent approved loan modification documents."
(Id. ¶ 14.)
2014, BANA appointed Caliber to represent BANA on loan
modifications and informed Vuyyuru that Caliber was the
principle contact. (Id. ¶ 17.) Plaintiffs claim
Caliber received the documents required for a loan
modification but did not act on them. (Id. ¶
19.) In 2015, LSF9 allegedly acquired the deed of trust and
"appointed Caliber as substitute trustee for loan
modifications." (Id. ¶ 18.)
January 6, 2016, LSF9 allegedly foreclosed on the property,
while Vuyyuru was hospitalized in India. (Id. ¶
22.) At the time of foreclosure, Vuyyuru owed $265, 988 on
the loan. (Id. ¶ 23.) After foreclosure, U.S.
Bank and Trust, Inc. was allegedly appointed as substitute
trustee for LSF9. (Id. ¶ 24.) LSF9 allegedly
purchased the home for $361, 233 through the foreclosure
process. (Id. ¶ 25.) Vuyyuru alleges that LSF9
also acquired some of his personal belongings, although they
are not identified. (Id. ¶ 26.)
filed their Amended Complaint against Defendants on April 9,
2019. This filing represents Vuyyuru's third attempt to
sue Defendants with respect to this transaction. Notably,
Vuyyuru previously filed two related complaints, both of
which were dismissed at the motion to dismiss stage for
failure to state a claim. See Vuyyuru v. Bank of Am.,
N.A., No. 3:16-CV-638-HEH, 2017 WL 1740020 (E.D. Va. May
3, 2017) ("Vuyyuru F); Vuyyuru v. Bank of Am.,
N.A., No. 3:17-CV-746-HEH (E.D. Va. Jan. 3, 20\S)
STANDARD OF REVIEW
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) (citation
omitted). 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.'"
BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
A complaint need not assert "detailed factual
allegations," but must contain "more than labels
and conclusions" or a "formulaic recitation of the
elements of a cause of action." Twombly, 550
U.S. at 555 (citations omitted). Thus, the "[f]actual
allegations must be enough to raise a right to relief above
the speculative level," id. (citation omitted),
to one that is "plausible on its face,"
id. at 570, rather than merely
"conceivable." Id. In considering such a
motion, a plaintiffs well-pleaded allegations are taken as
true and the complaint is viewed in the light most favorable
to the plaintiff. T.G. Slater & Son, Inc. v. Donald
P. & Patricia Brennan LLC, 385 F.3d 836, 841 (4th
Cir. 2004) (citation omitted). Legal conclusions enjoy no
such deference. Ashcroft v. Iqbal, 556 U.S. 662, 678
the district court does not consider extrinsic materials when
evaluating a complaint under Rule 12(b)(6). The court may,
however, consider "documents incorporated into the
complaint by reference," Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007), as
well as documents attached to a motion to dismiss, so long as
they are integral to or explicitly relied upon in the
complaint, and the authenticity of such documents is not
disputed. Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d
176, 180 (4th Cir. 2009); Phillips v. LCI Int'l,
Inc., 190 F.3d 609, 618 (4th Cir. 1999).
lodge three counts against Defendants pursuant to the Truth
in Lending Act ("TILA"), the Real Estate Settlement
Procedures Act ("RESPA"), and Virginia contract
law. (Am. Compl. ¶¶ 27-40.) The Court will address
each count in turn.
Plaintiffs contend that Defendants have violated TILA. They
present two theories under which Defendants violated the
statute: (1) by "failing to communicate with Plaintiffs
and provide statutorily required disclosures" pertaining
to "a rescission within [a] three year period to which
the lender consented, or alternatively that the Court should
grant, that indicated plaintiffs ability to enter into the
new contract" and (2) by failing "to disclose
assignments of the loans or trust deeds" in violation of
15 U.S.C. § 1641(g). (Id. ¶¶ 29-31.)
Plaintiffs fail to state a claim under either theory.
first theory fails because they do not allege that Vuyyuru
attempted to rescind within the statutorily permitted period.
Defendants direct the Court to 15 U.S.C. § 1635, which
permits a borrower to rescind a loan, under certain
circumstances, and establishes the procedural requirements
for doing so. Importantly, the relevant portion of the
statute provides that the "right of rescission shall
expire three years after the date of ...