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Vilkofsky v. Rushmore Loan Servicing, LLC

United States District Court, W.D. Pennsylvania

March 3, 2017

FRANCIS VILKOFSKY, JR., Plaintiff,
v.
SPECIALIZED LOAN SERVICING, LLC, U.S. BANK, N.A., and RUSHMORE LOAN MANAGEMENT SERVICES, LLC, Defendants.

          MEMORANDUM OPINION

          Nora Barry Fischer, United States District Judge

         I. Introduction

         Presently before the Court is the Partial Motion to Dismiss (Docket No. 15) filed by Rushmore Loan Management Services, LLC (“Rushmore”), and the Motion to Dismiss (Docket No. 26) filed by Specialized Loan Servicing, LLC (“SLS”) and U.S. Bank, N.A. (“USB”) (collectively, “Defendants”), pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants seek dismissal of all or a portion of the claims asserted by Francis Vilkofsky, Jr. (“Plaintiff”) in his Amended Complaint (Docket No. 13). Plaintiff has therein asserted claims pursuant to the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601, et seq. (“RESPA”), the Truth in Lending Act, 15 U.S.C. §§ 1601, et seq. (“TILA”), the Fair Debt Collection Practices Act, 15 U.S.C.A. §§ 1692, et seq. (“FDCPA”), and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. Stat. §§ 201-1, et seq. (“PUTPCPL”). Plaintiff also seeks an accounting from all Defendants. This Court exercises subject-matter jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. §§ 1331 (federal question) and 1367(a) (supplemental). For the following reasons, Defendants' motions shall be GRANTED, in part, and DENIED, in part.

         II. Factual and Procedural Background

         Plaintiff is the owner of a home in McKeesport, Pennsylvania. (Docket No. 13 ¶ 4). On or about January 18, 2011, Wells Fargo Bank - the holder of the mortgage at that time - commenced a foreclosure action in the Court of Common Pleas of Allegheny County. (Docket No. 13 ¶ 11). A modification to the mortgage was ultimately executed on or about January 3, 2013. (Docket No. 13 ¶ 12). The balance of the mortgage on the home was $137, 975.97 as of that date. (Docket No. 13 ¶ 12). The monthly mortgage payment was set at $582.98, exclusive of incidental fees and tax escrows. (Docket No. 13 ¶ 13).

         Upon execution of the modification, Wells Fargo Bank transferred the mortgage to USB. (Docket No. 32 at 1). USB thereafter employed Rushmore to service the loan. (Docket No. 32 at 1). Rushmore accepted all of Plaintiff's mortgage payments for the 2013 calendar year. (Docket No. 13 ¶ 16). This continued until August 2014, when Rushmore allegedly returned Plaintiff's mortgage payment without explanation. (Docket No. 13 ¶ 18). Correspondence between Plaintiff and Rushmore in September and October 2014 reveals that Rushmore had increased the amount of Plaintiff's monthly payments. (Docket Nos. 13-1 - 13-6). It was Rushmore's contention that Plaintiff had been notified of the increase - effective June 1, 2014 - in an Annual Escrow Account Disclosure Statement and Change of Payment Notice, dated April 4, 2014. (Docket No. 13-6). Plaintiff claims he did not receive the notice, and did not pay the increased amount as of the effective date. As such, Rushmore considered the account to be two months delinquent as of October 23, 2014, with the payment due September 1, 2014 still outstanding. (Docket No. 13-6).

         Plaintiff states that he sent the correct amount to Rushmore in September and October 2014, but that his November check was again returned to him without explanation. (Docket No. 13-7). Checks continued to be sent to Rushmore, but were either held without being cashed, or were returned. Plaintiff also indicated that Rushmore had sent “inspectors” to his home to harass him. As of November 4, 2015, Rushmore considered Plaintiff to be fifteen payments delinquent. (Docket No. 13-16). Regular correspondence between Plaintiff and Rushmore did not resolve the matter. (Docket Nos. 13-8 - 13-17).

         On December 28, 2015, SLS was employed by USB to service Plaintiffs mortgage instead of Rushmore. (Docket No. 32). Following a review of the financial records related to the mortgage, SLS concluded that there were no errors, the delinquency was proper, and that all fees due and owing to Rushmore were valid. (Docket No. 13-19). SLS also provided its summary of customer account activity. (Docket No. 13-20). SLS eliminated Rushmore's “excessive tax escrow, ” but still refused to cash Plaintiffs checks. (Docket No. 13 ¶¶ 39 - 40). SLS also charged late fees, and failed to use escrowed money to pay taxes. (Docket No. 13 ¶¶ 41, 44 - 45). SLS informed Plaintiff that it would not accept payment in any amount less than the full amount due and owing: $23, 414.14 as of June 13, 2016. (Docket No. 13-19).

         Plaintiff filed a Complaint (Docket No. 1) in this Court on August 24, 2016. An Amended Complaint (Docket No. 13) followed on October 20, 2016. The Amended Complaint contains the following claims:

• Count I - violation of RESPA by Rushmore for failing to timely disburse escrow money to pay real estate taxes, failing to properly respond to notices of errors, failing to correct errors, and failing to explain decisions;
• Count II - violation of TILA by Rushmore for failing to credit on-time payments, incorrectly assessing late fees, and failing to provide an accurate balance statement upon request;
• Count III - violation of the FDCPA by Rushmore for attempting to collect unauthorized or unlawful fees, misrepresenting Plaintiffs debt balance, and conducting harassing home inspections;
• Count IV - violation of the PUTPCPL by Rushmore for utilizing unfair and deceptive practices;
• Count V - requesting an accounting by Rushmore;
• Count VI - violation of RESPA by SLS for failing to timely disburse escrow money to pay real estate taxes, failing to properly respond to notices of errors, failing to correct errors, and failing to explain decisions;
• Count VII - violation of TILA by SLS for failing to credit on-time payments, incorrectly assessing late fees, and failing to provide an accurate balance statement upon request;
• Count VIII - violation of the FDCPA by SLS for attempting to collect unauthorized or unlawful fees, misrepresenting Plaintiffs debt balance, and conducting harassing home inspections;
• Count IX - violation of the PUTPCPL by SLS for utilizing unfair and deceptive practices;
• Count X - requesting an accounting by SLS; and,
• Count XI - claiming that USB shares respondeat superior liability with SLS.

         In response, Rushmore filed a Partial Motion to Dismiss (Docket No. 15) on November 8, 2016. SLS and USB also filed a joint Motion to Dismiss (Docket No. 26) on November 30, 2016. Plaintiffs Response in Opposition (Docket No. 32) followed, as did a Reply by SLS and USB (Docket No. 43). On January 30, 2017, the Court entered an Order dismissing a number of Plaintiffs claims following a series of concessions made in his Response in Opposition. (Docket No. 45). The claims dismissed are as follows:

• All claims asserted against any Defendant pursuant to the PUTPCPL;
• All claims asserted against any Defendant pursuant to RESPA for alleged mishandling of Plaintiff s escrow account;
• All claims asserted against USB pursuant to TILA;
• All claims asserted against USB pursuant to RESPA;
• All claims asserted against Rushmore pursuant to the FDCPA for conduct occurring prior to August 25, 2015; and,
• All claims asserted against Rushmore pursuant to TILA for conduct occurring prior to August 25, 2015.

(Id.). A motion hearing and case management conference were convened on January 31, 2017. (Docket No. 46). Subsequently, the parties filed respective supplemental briefs. (Docket Nos. 50 - 52). The matter is now ripe for disposition.

         III. Standard of Review

         Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain a short and plain statement of a claim, and show that the pleader is entitled to relief. Dismissal of a complaint or portion of a complaint is warranted under Federal Rule of Civil Procedure 12(b)(6) when a claimant fails to sufficiently state a claim upon which relief can be granted. Avoiding dismissal under Rule 12(b)(6) requires a pleading party's complaint to provide “enough factual matter” to allow the case to move beyond the pleading stage of litigation; the pleader must “‘nudge his or her claims across the line from conceivable ...


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