Pemental V Nationstar Mortgage Llc et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM With Supporting Memo

D.R.I.September 16, 2016

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND CHRISTOPHER PEMENTAL, Plaintiff v. THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE HOLDERS OF THE CERTIFICATES, FIRST HORIZON MORTGAGE PASS-THROUGH CERTIFICATES SERIES FHAMA 2004- AA5, ALIAS, NATIONSTAR MORTGAGE, LLC, JOHN DOE, ALIAS, Defendants C.A. No. 16-483-S-PAS MOTION TO DISMISS AMENDED COMPLAINT OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT Now come The Bank of New York Mellon F/K/A The Bank of New York, as Trustee for the Holders of the Certificates, First Horizon Mortgage Pass-Through Certificates Series FHAMA 2004-AA5 (the “Trust”), and Nationstar Mortgage, LLC (“Nationstar,” collectively, the “Defendants”), and respectfully move this Court to dismiss the Amended Complaint, with prejudice, pursuant to Fed. R. Civ. P. 12(b)(6). In the alternative, the Defendants respectfully move this Court to require Plaintiff to file a more definite statement with regards to Counts III and IV of his Amended Complaint. The grounds for this motion are set forth in Defendants’ memorandum of law, which is submitted herewith. Case 1:16-cv-00483-S-PAS Document 2 Filed 09/16/16 Page 1 of 2 PageID #: 170 2 THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE HOLDERS OF THE CERTIFICATES, FIRST HORIZON MORTGAGE PASS-THROUGH CERTIFICATES SERIES FHAMA 2004- AA5, NATIONSTAR MORTGAGE, LLC, By Their Attorneys, PARTRIDGE SNOW & HAHN LLP /s/ Santiago H. Posas David J. Pellegrino (#7326) Santiago H. Posas (#9519) 40 Westminster Street, Suite 1100 Providence, RI 02903 (401) 861-8200 (401) 861-8210 FAX djp@psh.com shp@psh.com DATED: September 16, 2016 CERTIFICATE OF SERVICE I hereby certify that this document, filed through the ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on September 16, 2016. /s/ Santiago H. Posas 2847317_1/5427-635 2847317_2/5427-635 Case 1:16-cv-00483-S-PAS Document 2 Filed 09/16/16 Page 2 of 2 PageID #: 171 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND CHRISTOPHER PEMENTAL, Plaintiff v. THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE HOLDERS OF THE CERTIFICATES, FIRST HORIZON MORTGAGE PASS-THROUGH CERTIFICATES SERIES FHAMA 2004- AA5, ALIAS, NATIONSTAR MORTGAGE, LLC, JOHN DOE, ALIAS, Defendants C.A. No. 16-483-S-PAS MEMORANDUM IN SUPPORT OF MOTION TO DISMISS AMENDED COMPLAINT OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT Now come The Bank of New York Mellon F/K/A The Bank of New York, as Trustee for the Holders of the Certificates, First Horizon Mortgage Pass-Through Certificates Series FHAMA 2004-AA5 (the “Trust”), and Nationstar Mortgage, LLC, (“Nationstar,” collectively, the “Defendants”), and respectfully request this Court dismiss Christopher Pemental’s (“Plaintiff”) Amended Complaint (the “Amended Complaint”) pursuant to Fed. R. Civ. P. 12(b)(6), as Plaintiff fails to state a claim for which relief could be granted. In the alternative, the Defendants respectfully request this Court require Plaintiff to submit a more definite statement with regards to Counts III and IV of Plaintiff’s Amended Complaint pursuant to Fed. R. Civ. P. 12(e). I. FACTS AND TRAVEL Unless otherwise noted, the facts are taken from the Amended Complaint. On or Case 1:16-cv-00483-S-PAS Document 2-1 Filed 09/16/16 Page 1 of 16 PageID #: 172 2 about September 7, 2004, Plaintiff executed a promissory note in favor of First Horizon Home Loan Corporation, (“First Horizon”), in the principal amount of Three Hundred Fifteen Thousand and 00/100 Dollars ($315,000.00) (the “Note”). See Amended Complaint at ¶ 2. A copy of the Note is attached hereto as Exhibit A. 1 Contemporaneously therewith, Plaintiff granted a mortgage to Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for First Horizon, on the property located at 17 and 19 Stanley Avenue, Barrington, Rhode Island (the “Property”) as security for the repayment of the Note (the “Mortgage”). See Amended Complaint at ¶ 2. A copy of the Mortgage is attached hereto as Exhibit B. MERS ultimately assigned the Mortgage to the Trust. Nationstar services the Note and Mortgage for the Trust. Plaintiff defaulted on his obligations under the Note by failing to make the monthly payment due on July 1, 2010, and has remained in default for the past six years. As alluded to in the Amended Complaint, notices were sent to Plaintiff notifying him of his default. See Amended Complaint at ¶ 14. Specifically, agents of the Trust sent to Plaintiff a notice of default on November 8, 2013. A copy of the November 8, 2013 Notice of Default (the “Notice of Default”) is hereby attached as Exhibit C. The Trust scheduled a foreclosure of the Mortgage for April 13, 2015. See Amended Complaint at ¶ 6. That foreclosure was cancelled; in order to foreclose the Trust would have to re-notice the foreclosure from the start, in accordance with state law. See Amended Complaint at ¶ 15. Plaintiff filed the original complaint on March 16, 2015 seeking an injunction on 1 This Court need not convert this matter into a Rule 56 motion, but may take facts outside the four corners of the Complaint into consideration under a Rule 12(b) standard because the Court “may augment the[] facts and inferences with data points gleaned from documents incorporated by reference into the complaint, matters of public record, and facts susceptible to judicial notice.” A.G. ex rel. Maddox v. v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir.2011)). Case 1:16-cv-00483-S-PAS Document 2-1 Filed 09/16/16 Page 2 of 16 PageID #: 173 3 the limited basis that Plaintiff was entitled to receive notice under R.I. Gen. Laws § 34-27-3.2 (hereinafter, the “Original Complaint”). Plaintiff moved to amend his complaint on August 13, 2016. Plaintiff’s motion was granted, and Plaintiff filed his Amended Complaint on August 26, 2016. Nationstar waived service, and the Defendants subsequently jointly removed the case to this Court on August 30, 2016. II. STANDARD OF REVIEW “[T]he Court must construe the complaint in the light most favorable to the plaintiff, taking all well-pleaded allegations as true and giving the plaintiff the benefit of all reasonable inferences.” Lessard v. Tyco Elecs. Corp., No. 09-112 S, 2009 WL 3319784, at *3 (D.R.I. 2009) (internal citations omitted). “While well-pleaded facts are accepted as true, unsupported conclusions or interpretations of law are rejected.” Ward v. Lotuff, 2009 WL 3615970, at *1 (D.R.I. 2009) (internal quotations omitted). Similarly, the Court is not “required to take every single allegation at face value.” Wilson v. HSBC Mortg. Servs. Inc., 744 F.3d 1, 7 (1st Cir. 2014). Instead, the general rule of accepting well-pleaded facts as true exempts facts that are “conclusively contradicted by . . . concessions or otherwise.” Id. (citing Soto-Negrón v. Taber Partners I, 339 F.3d 35, 38 (1st Cir. 2003)). Moreover, “[w]hen allegations, though disguised as factual, are so threadbare that they omit any meaningful factual content, we will treat them as what they are: naked conclusions.” A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 81 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); Peñalbert-Rosa v. Foruno-Burset, 631 F.3d 592, 595; see also, Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 9 (1st Cir. 2011) (explaining that even though an averment may be couched as a factual allegation, it can be “so subjective that it fails to cross ‘the line between the conclusory and the factual’”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 n. 5 (2007)). Case 1:16-cv-00483-S-PAS Document 2-1 Filed 09/16/16 Page 3 of 16 PageID #: 174 4 Accordingly, to survive a motion to dismiss, a complaint “must allege ‘a plausible entitlement to relief.’” Thomas v. Rhode Island, 542 F.3d 944, 948 (1st Cir. 2008) (quoting Twombly, 550 U.S. at 559). That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555; see Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (“Plausible, of course, means something more than merely possible . . . .”) (citing Iqbal, 556 U.S. at 678-79). Further, the plaintiff must allege facts supporting “each material element necessary to sustain recovery under some actionable legal theory.” Campagna v. Mass. Dep’t of Envtl. Prot., 334 F.3d 150, 155 (1st Cir. 2003) (internal quotation marks omitted). This requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Thomas, 542 F.3d at 948. III. ARGUMENT A. Plaintiff Cannot State A Claim For Breach of Contract Where the Notice Provided Complied with the Contract’s Terms. Plaintiff claims that the Trust breached its contract with him by failing to send certain required notices under the Note and Mortgage. See Amended Complaint at ¶¶ 10-11, 23- 24, 30-31. Plaintiff’s claims fail because the notices adhere to the terms of the Note and Mortgage. The Mortgage states that: Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument . . . . The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale. . . . Case 1:16-cv-00483-S-PAS Document 2-1 Filed 09/16/16 Page 4 of 16 PageID #: 175 5 If Lender invokes the STATUTORY POWER OF SALE, Lender shall mail a copy of a notice of sale to Borrower as provided in Section 15. Exhibit B, p.10. Similarly, the Note provides that: If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal which has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is mailed to me or delivered by other means. Exhibit A, p. 2. The Plaintiff alleges that he did not receive the initial notice of default contemplated in the Mortgage and the Note. See Amended Complaint, at ¶ 24. However, agents of the Trust sent to the Plaintiff the Notice of Default, 2 which clearly conforms to the contractual requirements. See Exhibit C at p. 2. The Notice of Default specified the default, the action required to cure the default, a cure date not less than thirty days from the date of the default notice, and that failure to cure the default may result in acceleration of all sums owed and secured by the Security Instrument. See Exhibit C, p. 1. Furthermore, the Notice of Default also includes both a notice of the right to reinstate after acceleration, and a notice of a right to appear in a court action to assert defenses to the foreclosure. See Exhibit C, p. 4. Thus, the Notice of Default perfectly meets the requirements laid out in the Note and Mortgage. See Exhibit A, p. 2; Exhibit B, p. 10; Exhibit C, p. 2. Where the Trust complied with the requirements of the Mortgage and Note regarding the notice of default, the Trust cannot have breached its contract. Thus, this Court should dismiss 2 The Mortgage also provides that “Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means.” See Exhibit B, p. 8. Case 1:16-cv-00483-S-PAS Document 2-1 Filed 09/16/16 Page 5 of 16 PageID #: 176 6 Count I with prejudice. B. Plaintiff Cannot State A Claim For Violation Of The Implied Covenant Of Good Faith And Fair Dealing. Plaintiff further alleges that the Trust violated the covenant of good faith and fair dealing by (1) failing to comply with the express notice requirements of the Note and Mortgage, and; (2) failing to send a notice of right of mediation pursuant to R.I. Gen. Laws § 34-27-3.2 (a “Mediation Notice”). See Amended Complaint at ¶¶ 30-31. Plaintiff’s claims under Count II fail as a matter of law for the following reasons: (1) there is no separate cause action for the breach of the covenant of good faith and fair dealing because there was no underlying breach of contract; (2) there is no mediation requirement for Plaintiff’s loan under contract or law, and; (3) there are no recognizable damages. 1. Plaintiff Cannot Sustain A Claim For Breach Of The Implied Covenant Of Good Faith And Fair Dealing Because That Is Not A Separate Cause Of Action Under Rhode Island Law. Plaintiff alleges that by failing to send the Notice of Default and Mediation Notice, the Trust breached the implied covenant of good faith and fair dealing. See Amended Complaint at ¶¶ 29. However, the Notice of Default was sent in compliance with the requirements of the Note and Mortgage. See Exhibit A, p. 2; Exhibit B, p. 10; Exhibit C, p. 1. It is well established that the implied covenant of good faith and fair dealing cannot be used to rewrite the contract-the duty of good faith merely requires parties to perform the obligations actually expressed in the contract. See T.G. Plastics Trading Co. Inc. v. Toray Plastics (America), Inc., 958 F.Supp.2d 315, 327 (D.R.I. 2013). Moreover, it is also settled that in Rhode Island such a violation does not give rise to a separate tort, but rather only gives rise to an action for breach of contract. See Ross-Simons of Warwick v. Baccarat, Inc., 66 F.Supp.2d 317, 329 (D.R.I. 1999); A.A.A. Pool Service & Supply, Inc. v. Aetna Cas. & Sur. Co., 395 A.2d 724, 725 Case 1:16-cv-00483-S-PAS Document 2-1 Filed 09/16/16 Page 6 of 16 PageID #: 177 7 (R.I. 1978). In this case, where no breach of contract took place, no breach of the covenant of good faith and fair dealing can be found. T.G. Plastics Trading Co. Inc., 958 F.Supp.2d at 326- 27; Ross-Simons of Warwick v. Baccarat, Inc., 66 F.Supp.2d at 329-30. 2. Plaintiff Is Not Entitled To A Mediation Notice Under Law Or Contract. Plaintiff specifically alleges that the Trust violated the implied covenant of good faith and fair dealing by failing to send a Mediation Notice. See Amended Complaint at ¶¶ 29- 30. However, there is no underlying violation of the implied covenant of good faith and fair dealing, as there is no right to a Mediation Notice. See Ross-Simons of Warwick v. Baccarat, Inc., 66 F.Supp.2d at 329-30. In this case, the Note and Mortgage provide for certain, distinct notices to be provided; a right to mediation is not one such notice. See Exhibit A, p. 2; Exhibit B, p. 10. There is also no legal requirement to offer mediation or send a Mediation Notice in order to foreclose this mortgage. See R.I. Gen. Laws § 34-27-3.2(o) (“The provisions of this section shall not apply if: . . . (2) The date of default under the mortgage is on or before May 16, 2013.”). While it is true that the Fontaine court 3 determined that the amendment to § 34-27-3.2 was retroactive, the General Assembly overturned the Fontaine decision when it amended § 34- 27-3.2 to expressly exempt Plaintiff’s Note and Mortgage from any right to a Mediation Notice. Since the original foreclosure was canceled and did not proceed in light of Fontaine, the General Assembly’s re-writing of the statute moots any claim Plaintiff has to receive a Mediation Notice. Therefore, the claim that, with no current foreclosure underway and having no explicit obligation under the contract to offer mediation the Trust has nevertheless violated its implied covenant of 3 The Rhode Island Superior Court decided, in Fontaine v. US Bank Nat'l Ass'n, No. PC 2015-0216, 2015 WL 2449536, at *1, *9 (R.I. Super. Ct. May 15, 2015) that a 2014 amendment to R.I. Gen. Laws § 34-27-3.2 functioned to retroactively require all foreclosures, regardless of default date, to first include a Mediation Notice. Case 1:16-cv-00483-S-PAS Document 2-1 Filed 09/16/16 Page 7 of 16 PageID #: 178 8 good faith and fair dealing by failing to send a notice to Plaintiff cannot succeed. See T.G. Plastics Trading Co. Inc., 958 F.Supp.2d at 327; Ross-Simons of Warwick v. Baccarat, Inc., 66 F.Supp.2d at 329. 3. Plaintiff Cannot Sustain A Claim for Breach Of The Implied Covenant Of Good Faith And Fair Dealing Because He Has No Recognizable Damages. Finally, Plaintiff fails to state a claim for which relief can be granted where the foreclosure in question was voluntarily stopped prior to court order. Without a foreclosure pending, and a year and a half since the last foreclosure was pending, there are no damages for breach of contract even if such a breach existed. Without damages, Plaintiff cannot sustain a breach of contract action. See Capalli v. BJ’s Wholesale Club, Inc., 904 F.Supp.2d 184, 193 (D.R.I. 2012) (granting motion for summary judgment in favor of defendant, who allegedly breached contract to provide 12 months of membership due to allegedly improper renewal policies, as against instances where no damages had occurred) (citing Guzman v. Jan-Pro Cleaning Systems, Inc., 839 A.2d 504, 508 (R.I. 2003)); DiMartino v. Aquidneck Court Associates (In re DiMartino), 108 B.R. 394, 403 (D.R.I. 1989) (holding that warranty given and breached by seller of building to buyer of building did not give rise to triable cause of action where bankruptcy court found no damages resulting from said breach). In this case, Plaintiff’s only alleged damages are attorneys’ fees and costs. See Amended Complaint at ¶ 32. In Rhode Island those are not recognizable damages absent a contractual or statutory basis for them, which in this case does not exist. See In re Janet S. Bagdis Living Trust, 136 A.3d 1122, 1129 (R.I. 2016) (“we have recently affirmed the proposition that “we typically adhere steadfastly to the American Rule that, in the absence of a statute providing otherwise, each litigant is responsible for the litigant's own legal expenses.”) (citing Shine v. Moreau, 119 A.3d 1, 9 (R.I. 2015)); see also R.I. Gen. Laws § 34-27-3.2 (making Case 1:16-cv-00483-S-PAS Document 2-1 Filed 09/16/16 Page 8 of 16 PageID #: 179 9 no reference to attorneys’ fees and costs); Exhibit A (same); Exhibit B (providing that mortgagee may charge costs of defending default to mortgagor). Thus, even if a failure to send a Mediation Notice were a violation of the implied covenant of good faith and fair dealing, Plaintiff cannot sustain the cause of action where there are no damages. C. Count IV Fails To State A Claim For Which Relief Can Be Granted. Plaintiff alleges in Count IV that he has suffered violations of the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”), because of charges improperly made to his account by Nationstar. See Amended Complaint at ¶¶ 55-56. Count IV fails for the following reasons: (1) the Amended Complaint fails to meet the appropriate pleading standard, and; (2) the entire count is derivative of Counts I and II, whose failure removes any basis for this claim. 1. Plaintiff Fails To Plead Sufficient Facts To Establish An FDCPA Violation. Count IV of the Amended Complaint fails to state a claim upon which relief can be granted, because it does not present a plausible claim for relief under the FDCPA. See Elsevier, Inc., 732 F.3d at 81; Campagna, 334 F.3d at 155; Thomas, 542 F.3d at 948. In his complaint, Plaintiff alleges the following in support of Count IV: 52. Nationstar, in the past year prior to the filing of the amended complaint, has committed several violations of the FDCPA and is liable to the Plaintiff for compensatory damages, statutory damages, and attorney fees and costs for violations. 53. Nationstar has used multiple followings [sic] unfair and unconscionable means to collect or attempt to collect a debt against the Plaintiff. 54. On each of the periodic statements sent to the Plaintiff in an attempt to collect a debt in the past year prior to the filing of the amended complaint, Nationstar has violated 15 U.S.S. 1692e [sic] by misstating the amount of the debt due to the owner of the mortgage note. Case 1:16-cv-00483-S-PAS Document 2-1 Filed 09/16/16 Page 9 of 16 PageID #: 180 10 55. Each of these periodic monthly statements sent to the Plaintiff referenced amount due to the owner of the mortgage note which contained legal fees and costs and expenses improperly charged to the Plaintiff’s mortgage loan. As a result, Nationstar made a false statement as to the amount of the debt due to the owner of the mortgage note on each statement sent to the Plaintiff or his attorney in an attempt to collect a debt. Amended Complaint, ¶¶ 52-55. None of these allegations can rise above “the speculative level” to actually serve as facts which can sustain a “material element necessary to sustain recovery under” the FDCPA. See Elsevier, Inc., 732 F.3d at 81; Campagna, 334 F.3d at 155; Thomas, 542 F.3d at 948. Paragraphs 52 and 53 contain nothing more than conclusory allegations stating that “Nationstar has committed several violations of the FDCPA” and “has used multiple . . . unfair and unconscionable means to collect or attempt to collect a debt.” See Amended Complaint at ¶¶ 52-53. Paragraph 54 similarly contains a conclusory allegation: that the amount owed by the Plaintiff is mis-stated in the monthly statements purportedly received by the Plaintiff. See id. at ¶ 54. This paragraph contains no further support for the allegation than the bare statement “Nationstar has violated [the FDCPA] by misstating the amount of the debt due.” See id. This is akin to the “labels and conclusions” and the “formulaic recitation of the elements of a cause of action” which the First Circuit has already rejected. See Thomas, 542 F.3d at 948. There is no fact alleged to explain, for example, what basis Plaintiff has to determine that the amounts quoted are incorrect, or even on what date the alleged improper charge or charges were incurred by the Plaintiff. See Amended Complaint at ¶ 52-55. Finally, Paragraph 55 suffers from the same defect, merely concluding that legal fees and costs charged to the Plaintiff were improper, without further evidence or factual allegations explaining that conclusion. See id. at ¶ 55. Where Plaintiff has failed to offer a single factual predicate for his claims in Count IV, that count cannot be sustained. See Elsevier, Inc., 732 F.3d at 81; Campagna, 334 F.3d at 155; Case 1:16-cv-00483-S-PAS Document 2-1 Filed 09/16/16 Page 10 of 16 PageID #: 181 11 Thomas, 542 F.3d at 948. 2. Plaintiff Cannot Sustain Actions Under The FDCPA Where Such Actions Are Dependent On The Meritless Breach Of Contract Claims. Finally, Count IV of the Amended Complaint fails to state a claim upon which relief can be granted, as it is completely derivative of Counts I and II. Under the terms of the Mortgage, at Section 9, If (a) Borrower fails to perform the covenants and agreements contained in this Security Instrument, [or] (b) there is a legal proceeding that might significantly affect Lender’s interest in the Property and/or rights under this Security Instrument . . . . Lender’s actions can include . . . paying reasonable attorneys’ fees to protect its interest in the Property and/or rights under this Security Instrument . . . . Any amounts disbursed by Lender under this Section 9 shall become additional debt of Borrower secured by this Security Instrument. See Exhibit B, p.6. This language gives the Trust the right to charge Plaintiff for reasonable legal fees both where the “Borrower” (defined within the Mortgage as the Plaintiff, see Exhibit B, p. 1) defaults on his obligations and where legal proceedings which might affect the mortgagee’s rights under the Mortgage are instituted. See Exhibit B, pp. 7-8. In this case, both of these conditions are true; Plaintiff is in default, and Plaintiff originally instituted this suit in an effort to significantly affect the Trust’s interest in the Mortgage, namely by hampering the ability of the Trust to foreclose on its interest. See Original Complaint at ¶¶ B, D (seeking permanent injunctions preventing foreclosure of the Trust’s interest). As a result, the Trust is entitled to charge Plaintiff its reasonable attorneys’ fees in defending this action and enforcing its rights under the Note and Mortgage. Despite this contractual provision, Plaintiff now seeks to challenge the appropriateness of these charges by claiming that that Trust improperly charged its legal fees and costs to Plaintiff, resulting in inaccurate charges to the Plaintiff’s monthly loan statements which Case 1:16-cv-00483-S-PAS Document 2-1 Filed 09/16/16 Page 11 of 16 PageID #: 182 12 put those statements in violation of the FDCPA. See Amended Complaint at ¶¶ 55-56 (admitting that monthly Mortgage notices were received and specifically pleading that the error in those notices was “legal fees and costs and expenses improperly charged to the Plaintiff’s mortgage loan.”). In short, Plaintiff’s claims appear to work as follows: (1) the Trust allegedly failed to send notices required under the Note and Mortgage and the implied covenant of good faith and fair dealing (Counts I and II), as a consequence; (2) the Trust’s legal fees in enforcing its rights allegedly cannot be charged to the Plaintiff; therefore, (3) the monthly Mortgage notices received by Plaintiff erroneously included charges for legal fees violating the FDCPA (Count IV). In other words, the alleged violation the FDCPA is dependent upon a finding that the legal services charged to Plaintiff were improper. However, where the Trust demonstrably sent Plaintiff the notices required by the Note and Mortgage and upheld the covenant of good faith and fair dealing, where Plaintiff has failed to perform the covenants and agreements contained in the Mortgage, and where no additional violation of the FDCPA is alleged, Count IV is rendered moot by the ineffectiveness of Counts I and II. D. Count III Fails As A Matter Of Law Where No Notices Were Required Under TILA. Plaintiff alleges in Count III that the Trust violated the Truth in Lending Act, 12 U.S.C. § 1601, et seq. (“TILA”), because of alleged deficiencies in periodic notices sent to him. See Amended Complaint at ¶¶ 43-46. However, Count III fails because there is no requirement to send periodic statements to borrowers whose debt was discharged in bankruptcy. See Galle v. Nationstar Mortgage, LLC, No: 2:16-cv-00407-FtM-38CM, 2016 WL 4063274, at *1, *4 (M.D. Fla. June 29, 2016); Roth v. Nationstar Mortgage, LLC, No: 2:15-cv-783-FtM-29MRM, 2016 WL 3570991, at *1, *7 (M.D. Fla. June 1, 2016); Amendments to the 2013 Mortgage Rules Under the Real Estate Settlement Procedures Act (Regulation X) and the Truth in Lending Act Case 1:16-cv-00483-S-PAS Document 2-1 Filed 09/16/16 Page 12 of 16 PageID #: 183 13 (Regulation Z), 78 Fed. Reg. 62,993-01 (October 23, 2013). “The Bureau of Consumer Financial Protection has clarified that a periodic statement is not required for mortgage debts discharged in bankruptcy proceedings.” Roth, 2016 WL 3570991, at *7; see also Galle, 2016 WL 4063274, at *4 (“TILA does not require Defendant to send Plaintiff the loan statements at issue.”). Plaintiff has received a bankruptcy discharge which included this mortgage debt. See Order Discharging Debtor at Docket No. 58, In re Pemental, No. 07-11093 (Bankr. D.R.I. Sept. 21, 2007). As a result, periodic notices are not required by TILA. See Roth, 2016 WL 3570991, at *7; Galle, 2016 WL 4063274, at *4. Because the notices were never required in the first place, providing deficient notices cannot be a violation of the law. See Roth, 2016 WL 3570991, at *7; Galle, 2016 WL 4063274, at *4. As a result, the Plaintiff’s Count for violations of TILA should be dismissed with prejudice. E. In The Alternative, This Court Should Order Plaintiff To Present A More Definite Statement With Regards to Counts III and IV. Even if this Court finds that Plaintiff has presented sufficient facts to sustain the claims under Counts III and IV, Defendants request this Court require Plaintiff to file a more definite statement with regards to those Counts, as they lack fundamental facts which would enable the Defendants to determine whether there are any possible threshold defenses to these claims. See Oresman v. G.D. Searle & Co., 321 F.Supp. 449, 458 (D.R.I. 1971); Int’l Harvester Co. v. Gen. Ins. Co. of Am., 45 F.R.D. 4, 7 (E.D. Wis. 1968); see also § 1376 Motion for a More Definite Statement-Scope of Amended Rule 12(e), 5C Fed. Prac. & Proc. Civ. § 1376 (3d ed.) (“Plaintiffs thus have been required to give particulars about the date on which the claim arose, so that the timeliness of the action could be determined, . . .”). Specifically, Plaintiff’s omission of facts such as the dates on which he allegedly received notices, the dates on which allegedly improper charges were allegedly incurred, or the amounts of those allegedly improper charges, Case 1:16-cv-00483-S-PAS Document 2-1 Filed 09/16/16 Page 13 of 16 PageID #: 184 14 makes it impossible for the Defendants to determine whether they have a statute of limitations defense to Counts III and IV, which Defendants must determine in order to know whether that defense is available to them at the time of filing their answer per Fed. R. Civ. P. 8(c). See Oresman, 321 F.Supp. at 458; Int’l Harvester, 45 F.R.D. at 7. Both TILA and the FDCPA have statutes of limitations of one year determined from the date on which an erroneous charge is first made. See Goldman v. First Nat. Bank of Chicago, 532 F.2d 10, 21 (7th Cir. 1976) (holding that under TILA the one year statute of limitations for incorrect charges runs from the date on which a finance charge was first imposed); Simard v. LVNV Funding, Inc., No. 10-11009-NMG, 2011 WL 4543956, at *1, *5 (D. Mass Sept. 9, 2011) (finding that under the FDCPA’s one-year statute of limitations, only the date on which a fraudulent or erroneous charge was incurred counts for the statute of limitations, rejecting continuing violation theory based on new communications referencing old charges) (citing Nutter v. Messerli & Kramer, P.A., 500 F.Supp2d 1219, 1223 (D. Minn. 2007)). Therefore, Plaintiff should at the very least be required to specifically allege the dates on which he alleges erroneous charges were made against his account, so that the Defendants can determine whether they have a statute of limitations defense as against those claims. 4 See Oresman, 321 F.Supp. at 458; Int’l Harvester, 45 F.R.D. at 7. This District has previously granted a Rule 12(e) Motion for a More Definite Statement under nearly identical circumstances, in Oresman v. G.D. Searle and Co. See 321 F.Supp. 458. In that case, the defendant sought a more definite statement in order to obtain, inter alia, the date on which the plaintiff suffered a stroke, allegedly caused by taking birth control 4 The Defendants additionally request that Plaintiff be required to allege the dates on which his notices were received and the amount(s) of the allegedly erroneous charges in order to substantiate, in the absence of Plaintiff having provided any notices, how many such notices were allegedly received and whether the amounts erroneously charged varied at all in the past 12 months. Case 1:16-cv-00483-S-PAS Document 2-1 Filed 09/16/16 Page 14 of 16 PageID #: 185 15 pills manufactured by the defendant, so that it could determine whether it had a statute of limitations defense. See id. The court in that case granted the motion as to that point, stating that “[t]he date of the alleged stroke should be alleged in order that defendant may plead the statute of limitations if it be applicable.” See id. Like the defendant in Oresman, in this case the Defendants seek for this Court to compel the Plaintiff to, at minimum, specifically allege the date on which his claims under TILA and the FDCPA presented in Counts III and IV accrued-in other words, the date or dates on which the charges Plaintiff alleges are erroneous were charged to his account. See id.; see also Int’l Harvester, 45 F.R.D. at 7 (finding that where statute of limitations defense is a compulsory affirmative defense per Fed. R. Civ. P. 8(c), defendants required a statement of when claim accrued in order to properly frame an answer which could include that defense). Therefore, should this Court decline to dismiss Counts III and IV for the reasons stated above, it should compel Plaintiff to supply the date or dates on which its claims accrued. See Oresman, 321 F.Supp. at 458; Int’l Harvester, 45 F.R.D. at 7. IV. CONCLUSION For the reasons set forth above, the Trust and Nationstar respectfully request that this Court grant their Motion to Dismiss the Plaintiff’s Amended Complaint. Case 1:16-cv-00483-S-PAS Document 2-1 Filed 09/16/16 Page 15 of 16 PageID #: 186 16 THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE HOLDERS OF THE CERTIFICATES, FIRST HORIZON MORTGAGE PASS-THROUGH CERTIFICATES SERIES FHAMA 2004- AA5, NATIONSTAR MORTGAGE, LLC, By Their Attorneys, PARTRIDGE SNOW & HAHN LLP /s/ Santiago H. Posas David J. Pellegrino (#7326) Santiago H. Posas (#9519) 40 Westminster Street, Suite 1100 Providence, RI 02903 (401) 861-8200 (401) 861-8210 FAX djp@psh.com shp@psh.com DATED: September 16, 2016 CERTIFICATE OF SERVICE I hereby certify that this document, filed through the ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on September 16, 2016. /s/ Santiago H. Posas 2842730_5/5427-635 Case 1:16-cv-00483-S-PAS Document 2-1 Filed 09/16/16 Page 16 of 16 PageID #: 187 Case 1:16-cv-00483-S-PAS Document 2-2 Filed 09/16/16 Page 1 of 7 PageID #: 188 Case 1:16-cv-00483-S-PAS Document 2-2 Filed 09/16/16 Page 2 of 7 PageID #: 189 Case 1:16-cv-00483-S-PAS Document 2-2 Filed 09/16/16 Page 3 of 7 PageID #: 190 Case 1:16-cv-00483-S-PAS Document 2-2 Filed 09/16/16 Page 4 of 7 PageID #: 191 Case 1:16-cv-00483-S-PAS Document 2-2 Filed 09/16/16 Page 5 of 7 PageID #: 192 Case 1:16-cv-00483-S-PAS Document 2-2 Filed 09/16/16 Page 6 of 7 PageID #: 193 Case 1:16-cv-00483-S-PAS Document 2-2 Filed 09/16/16 Page 7 of 7 PageID #: 194 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 1 of 22 PageID #: 195 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 2 of 22 PageID #: 196 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 3 of 22 PageID #: 197 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 4 of 22 PageID #: 198 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 5 of 22 PageID #: 199 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 6 of 22 PageID #: 200 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 7 of 22 PageID #: 201 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 8 of 22 PageID #: 202 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 9 of 22 PageID #: 203 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 10 of 22 PageID #: 204 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 11 of 22 PageID #: 205 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 12 of 22 PageID #: 206 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 13 of 22 PageID #: 207 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 14 of 22 PageID #: 208 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 15 of 22 PageID #: 209 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 16 of 22 PageID #: 210 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 17 of 22 PageID #: 211 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 18 of 22 PageID #: 212 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 19 of 22 PageID #: 213 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 20 of 22 PageID #: 214 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 21 of 22 PageID #: 215 Case 1:16-cv-00483-S-PAS Document 2-3 Filed 09/16/16 Page 22 of 22 PageID #: 216 Case 1:16-cv-00483-S-PAS Document 2-4 Filed 09/16/16 Page 1 of 8 PageID #: 217 Case 1:16-cv-00483-S-PAS Document 2-4 Filed 09/16/16 Page 2 of 8 PageID #: 218 Case 1:16-cv-00483-S-PAS Document 2-4 Filed 09/16/16 Page 3 of 8 PageID #: 219 Case 1:16-cv-00483-S-PAS Document 2-4 Filed 09/16/16 Page 4 of 8 PageID #: 220 Case 1:16-cv-00483-S-PAS Document 2-4 Filed 09/16/16 Page 5 of 8 PageID #: 221 Case 1:16-cv-00483-S-PAS Document 2-4 Filed 09/16/16 Page 6 of 8 PageID #: 222 Case 1:16-cv-00483-S-PAS Document 2-4 Filed 09/16/16 Page 7 of 8 PageID #: 223 Case 1:16-cv-00483-S-PAS Document 2-4 Filed 09/16/16 Page 8 of 8 PageID #: 224