United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck United States District Judge
matter comes before the Court on Defendant Samuel I. White,
P.C.'s ("White") Motion to Dismiss for Failure
to State a Claim(the "Motion to Dismiss")
pursuant to Federal Rule of Civil Procedure
12(b)(6). (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.For the reasons that follow, the Court
GRANTS the Motion to Dismiss. (ECF No. 44.).
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).
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.
her First Complaint, Urrego alleges that White did not have
authority to collect on the mortgage debt or initiate
foreclosure proceedings against her property. Construing the
allegations liberally, as this Court must given Urrego's
pro se status,  Urrego appears to allege three distinct
claims to relief.
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.)
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.)
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.)
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
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.
Analysis; Motion to Dismiss
Court will grant White's Motion to Dismiss. 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.
The Court Must Dismiss Urrego's FDCPA Claim Because the
Notice Letter Directly Contradicts Her Allegations
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.
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. ...