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Urrego v. Samuel White, P.C.

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

December 30, 2019

SAMUEL WHITE, P.C., Defendant.


          M. Hannah Lauck United States District Judge

         This matter comes before the Court on Defendant Samuel I. White, P.C.'s ("White") Motion to Dismiss for Failure to State a Claim[1](the "Motion to Dismiss") pursuant to Federal Rule of Civil Procedure 12(b)(6).[2] (ECF No. 44.) Plaintiff Nazira Urrego, proceeding pro se, responded. (ECF No. 46.) White replied, (ECF No. 47), and Urrego filed a sur-reply, (ECF No. 48). The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. Accordingly, the matter is ripe for disposition. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331.[3]For the reasons that follow, the Court GRANTS the Motion to Dismiss. (ECF No. 44.).

         I. Background

         A. Procedural Background

         On June 12, 2017, Urrego, pro se, brought the instant suit against White. (ECF No. 1.) On November 2, 2018, the Court dismissed Urrego's First Complaint without prejudice. (See ECF No. 35.) Urrego appealed, (ECF No. 36), and the United States Court of Appeals for the Fourth Circuit dismissed the appeal "because an amendment could potentially cure the pleading defects identified in Urrego's complaint." Urrego v. White, 764 Fed.Appx. 304 (4th Cir. Va. April 8, 2019). Accordingly, the Fourth Circuit remanded the case "with instructions to allow Urrego to amend her complaint." Id. Consistent with that Judgment, this Court "allow[ed]... Urrego to amend her Complaint." (May 1, 2019 Order 1, ECF No. 42).

         On May 13, 2019, Urrego filed her Amended Complaint. (ECF No. 43.) On May 30, 2019, White filed its Second Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Urrego initially failed to respond. On June 25, 2019, this Court issued an Order requiring "Urrego to show cause why the Court should not grant White's Second Motion to Dismiss on the merits." (June 25, 2019 Order 2, ECF No. 45.) Urrego timely responded to the June 25, 2019 Order and on July 8, 2019, Urrego filed her response to the Motion to Dismiss. Although Urrego did not explain her failure to timely respond, her Response certified that "on JUNE 25, 2019" she "served true and accurate copies of the foregoing document" on defense counsel. (Resp. Mot. Dismiss 10, ECF No. 46.) White replied, and Urrego filed-without authorization-a sur-reply.

         B. Factual Background

         As in her First Complaint, Urrego alleges that White did not have authority to collect on the mortgage debt or initiate foreclosure proceedings against her property.[4] Construing the allegations liberally, as this Court must given Urrego's pro se status, [5] Urrego appears to allege three distinct claims to relief.

         First, Urrego alleges that White fraudulently began foreclosure on her home in violation of the Fair Debt Collection Practices Act (the "FDCPA"), 15 U.S.C. § 1692. Specifically, Urrego alleges that White qualifies as a "debt collector" under the FDCPA, and was therefore required to send a letter "within five days of its first communication with the debtor containing ... the amount of the debt[;] the name of the creditor to whom the debt is owed[;] a statement that unless the consumer, within 30 days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector." (Am. Compl 2, ECF No. 43.) Urrego submits that White "failed to do" these actions. (Id. 3.)

         Second, Urrego claims that White "fraudulently attempt[ed] to initiate a foreclose [sic] proceeding on [her] property." (Id.) Urrego contends that White "lacked standing" to initiate the foreclosure because "the foreclosing PARTY like the defendant in this case must produce the note as well as an assignment showing that the loan was transferred to that entity." (Id. 5.) According to Urrego, because the "defendant never held both the note or the mortgage before their attempt on... foreclosure," the attempt to foreclose was unlawful. (Id.)

         Third, Urrego claims that White "is... in violation of unfair lending practices" in violation of the Truth in Lending Act (TIL A) and the Home Ownership and Equity Protection Act (HOEPA). (Id. 6.) Urrego lists several examples of unfair lending practices and other requirements under TILA and HOEPA, but does not offer any factual allegations as to how White engaged in those unfair lending practices or violated those statutes. (See Id. 67.)

         II. Legal 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 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). To survive Rule 12(b)(6) scrutiny, a complaint must contain sufficient factual information to "state a claim to relief that is plausible on its face." Bell All. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Fed. R. Civ. P. 8(a)(2) ("A pleading that states a claim for relief must contain... a short and plain statement of the claim showing that the pleader is entitled to relief.") Mere labels and conclusions declaring that the plaintiff is entitled to relief are not enough. Twombly, 550 U.S. at 555. Thus, "naked assertions of wrongdoing necessitate some factual enhancement within the complaint to cross the line between possibility and plausibility of entitlement to relief." Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted).

         A complaint achieves facial plausibility when the facts contained therein support a reasonable inference that the defendant is liable for the misconduct alleged. Twombly, 550 U.S. at 556; see also Ashcroft v. Iqbal, 556 U.S. 662 (2009). This analysis is context-specific and requires "the reviewing court to draw on its judicial experience and common sense." Francis, 588 F.3d at 193. The Court must assume all well-pleaded factual allegations to be true and determine whether, viewed in the light most favorable to the plaintiff, they "plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 676-79; see also Kensington Volunteer Fire Dep't, Inc. v. Montgomery Cty, Md, 684 F.3d 462, 467 (4th Cir. 2012) (finding that the court in deciding a Rule 12(b)(6) motion to dismiss "must accept as true all of the factual allegations contained in the complaint' and 'draw all reasonable inferences in favor of the plaintiff) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)). 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." Iqbal, 556 U.S. at 679.

         III. Analysis; Motion to Dismiss

         The Court will grant White's Motion to Dismiss.[6] Even liberally construed, Urrego fails to state a claim under the FDCPA, Virginia law, or federal lending statutes. The Court will address these claims seriatim.

         A. The Court Must Dismiss Urrego's FDCPA Claim Because the Notice Letter Directly Contradicts Her Allegations

         Urrego contends that White failed to provide her with statutorily required information prior to initiating foreclosure proceedings. Because the record shows that White did provide Urrego with that information, Urrego fails to state a claim under the FDCPA.

         "The FDCPA protects consumers from abusive and deceptive practices by debt collectors, and protects non-abusive debt collectors from competitive disadvantage.'" Lembach v. Bierman,528 Fed.Appx. 297, 301 (4th Cir. 2013) (quoting United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131, 135 (4th Cir. 1996)). To prevail on an FDCPA claim, a plaintiff must allege that: (1) he or she was the object of collection activity arising from a consumer debt as defined by the FDCPA; (2) the defendant is a debt collector as defined by the FDCPA; and, (3) the defendant engaged in an act or omission prohibited by the FDCPA, such as using a false, deceptive, or misleading representation or means in connection with the collection of any debt. See Moore v. Commonwealth Trs., LLC, No. ...

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