United States District Court, W.D. Pennsylvania
Barry Fischer United States District Judge
before the Court is the Motion to Dismiss (Docket No. 59)
filed by Rushmore Loan Management Services, LLC
(“Rushmore”), and the Motion to Dismiss (Docket
No. 61) 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 causes of action by Francis Vilkofsky, Jr.
(“Plaintiff”), in his Second Amended Complaint
(Docket No. 58). Plaintiff has therein asserted claims
pursuant to the Real Estate Settlement Procedures Act, 12
U.S.C. §§ 2601, et seq.
(“RESPA”) and the Fair Debt Collection Practices
Act, 15 U.S.C.A. §§ 1692, et seq.
(“FDCPA”). This Court exercises subject-matter
jurisdiction over Plaintiff's claims pursuant to 28
U.S.C. § 1331 (federal question). For the following
reasons, Defendants' Motions shall be GRANTED, in part,
and DENIED, in part.
Standard of Review
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 to
plausible.'” Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 234 - 35 (3d Cir. 2008)
(quoting Bell Atlantic Co. v. Twombly, 550 U.S. 544,
556, 570 (2007)).
assessing the merits of a claim subject to a motion to
dismiss, a court must engage in a two-part analysis.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 - 11 (3d
Cir. 2009). First, factual and legal elements of a claim must
be distinguished. Id. Second, it must be determined
whether the facts as alleged support a “plausible claim
for relief.” Id. In making the latter
determination, the court must be mindful that the matter
pleaded need not include “detailed factual allegations,
” Phillips, 515 F.3d at 231 (quoting
Twombly, 550 U.S. at 555), and the court must
construe all alleged facts, and draw all inferences gleaned
therefrom, in the light most favorable to the non-moving
party. Id. at 228 (citing Worldcom, Inc. v.
Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003)).
a pleading party need only “put forth allegations that
‘raise a reasonable expectation that discovery will
reveal evidence of the necessary element[s].'”
Fowler, 578 F.3d at 213 (quoting Graff v.
Subbiah Cardiology Assoc., Ltd., 2008 WL 2312671 (W.D.
Pa. June 4, 2008)). A well-pleaded complaint, even when
“it strikes a savvy judge that actual proof
of…facts is improbable, ” will not be dismissed
as long as the pleader demonstrates that his or her claim is
plausible. Phillips, 515 F.3d at 234 (quoting
Twombly, 550 U.S. at 555 - 56). To this end, the
Court may consider the “pleadings, public record,
orders, exhibits attached to the complaint, and documents
incorporated into the complaint by reference, ” when
reviewing the sufficiency of a complaint upon a motion
pursuant to Rule 12(b)(6). Brodzki v. Fox
Broadcasting Co., 868 F.Supp.2d 386, 388 (D. Del.
2012) (citing Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007)).
the facts provided do need to raise the expectation of relief
above a purely speculative level, and must include more than
“labels and conclusions, and a formulaic recitation of
the elements of a cause of action.” Phillips,
515 F.3d at 231 - 32 (quoting Twombly, 550 U.S. at
554 - 56). Rule 8(a)(2) “requires a ‘showing'
rather than a blanket assertion of an entitlement to
relief.” Id. at 232. “[T]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Fowler, 578 F.3d at 211 (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)).
explained in the Court's prior Memorandum Opinion of
March 3, 2017, disposing of Defendants' original Motions
to Dismiss, the Court's inquiry as to Plaintiff's
RESPA claims is solely whether or not Plaintiff pled
sufficient factual matter to sustain causes of action for the
improper handling of error notices, and related damages.
(Docket No. 53 at 7).
Response to Notice of Error
Regarding notices of error, RESPA provides the following:
(e) Response to notice of error.
(1) Investigation and response requirements.
(i) In general. Except as provided in paragraphs (f) and (g)
of this section, a servicer must respond to a notice of error
(A) Correcting the error or errors identified by the borrower
and providing the borrower with a written notification of the
correction, the effective date of the correction, and contact
information, including a telephone number, for further
(B) Conducting a reasonable investigation and providing the
borrower with a written notification that includes a
statement that the servicer has determined that no error
occurred, a statement of the reason or reasons for this
determination, a statement of the borrower's right to
request documents relied upon by the servicer in reaching its
determination, information regarding how the borrower can
request such documents, and contact information, including a
telephone number, for further assistance.
12 C.F.R. § 1024.35. RESPA also provides that a mortgage
servicer “may, by written notice provided to a
borrower, establish an address that a borrower must
use” when submitting such a notice. 12 C.F.R. §
1024.35(c). However, the servicer must respond “not
later than 30 days (excluding legal public holidays,
Saturdays, and Sundays) after” receipt, 12 C.F.R.
§ 1024.35(e)(3)(i)(C), unless an “asserted error
is substantially the same as an error previously asserted by
the borrower for which the servicer has previously complied
with its obligation to respond.” 12 C.F.R. §
1024.35(g)(1)(i). In the latter circumstance, the servicer
need only inform the borrower that it will not reply to the
duplicative notice within five days of making such a
determination. 12 C.F.R. § 1024.35(g)(2).
prior Motion to Dismiss (Docket No. 15), and as previously
noted by this Court (Docket No. 53 at 8), Rushmore made
“no argument regarding its treatment of Plaintiff's
notices of error.” Presently, Rushmore contends that
Plaintiff's RESPA claim against it must be dismissed
because Plaintiff did not send any error notices to the
appropriate address designated pursuant to 12 C.F.R. §
1024.35(c). (Docket No. 59 at 7 - 9). Whatever merits
this argument may have, Rushmore may not assert it at this
juncture. The Third Circuit Court of Appeals has held that
the Federal Rules of Civil Procedure impose certain
restrictions on the filing of successive motions to dismiss;
namely, that a party that makes a motion under Rule 12 cannot
make a subsequent motion under Rule 12 raising a defense or
objection that could previously have been asserted. Leyse
v. Bank of America Nat'l Ass'n, 804 F.3d 316,
320 (3d Cir. 2015) (citing Fed.R.Civ.P. 12(g)(2)). See
also Oliver v. Roquet, -- F.3d --, 2017 WL 2260961, at
*4 n. 3 (3d Cir. 2017) (A party, “with limited
exceptions, ‘must not make another such motion raising
a defense or objection that was available to the party but
omitted from its earlier motion.'”); Dicio v.
Wells Fargo Bank, N.A., 2015 WL 8276585, at *17 (W.D.
Pa. Nov. 4, 2015) report and recommendation adopted,
2015 WL 8207486 (W.D. Pa. Dec. 7, 2015) (Fischer, J.) (In
case in which a motion to dismiss was denied following the
filing of an amended complaint, a subsequent motion to
dismiss could not raise defenses not raised - although
available - in the first motion.). As noted in
Plaintiff's Response, “Plaintiff's Second
Amended Complaint incorporates in its entirety and verbatim
the same RESPA allegations made against Rushmore that were in
the Amended Complaint.” (Docket No. 64 at 2). Rushmore
has failed to provide any intervening justification for its
failure to raise this argument in an identical prior
pleading. Accordingly, the Court will not now consider it.
Having raised no other objection to Plaintiff's RESPA
claim, Rushmore's Motion to Dismiss will be denied as to
also argues that its duties under RESPA were not triggered
due to Plaintiff's failure to send notices of error to
the address designated pursuant to 12 C.F.R. §
1024.35(c). (Docket No. 62 at 8 - 12). In response to the
same argument in its prior Motion to Dismiss (Docket No. 26),
this Court stated that Plaintiff “failed to
affirmatively plead that he used the correct post office box
number and that said number was designated by SLS as the
appropriate means of delivering an error notice.”
(Docket No. 53 at 15). However, the Court did note that the
fact that the address used by Plaintiff was so similar to
that designated by SLS lent credence to Plaintiff's argument
that he used an acceptable address. (Id. at n. 4).
Second Amended Complaint now states that Plaintiff sent his
error notice to SLS at P.O. Box 636005 which, while not the
P.O. Box claimed by SLS in the Motion to Dismiss to be
designated for receipt of same, was nonetheless previously
provided to Plaintiff by SLS for sending error notices.
(Docket No. 58 ¶¶ 42 - 46). Plaintiff also argues
that SLS's response to his error notice - without any
mention of the need to use another address - is further
evidence that he utilized the correct address. (Id.
¶ 47 - 48). The Court agrees. A pleading party need only
“put forth allegations that ‘raise a reasonable
expectation that discovery will reveal evidence of the
necessary element[s].'” Fowler, 578 F.3d
at 213 (citation omitted). For purposes of surviving a motion
under Rule 12(b)(6), Plaintiff has pled a sufficient factual
basis as to this issue so that it may proceed through
SLS still asserts that a RESPA claim cannot be maintained
because Plaintiff has pled no actual damages beyond
generalized claims of harm to his emotional health. (Docket
No. 62 at 12 - 15). As this Court noted in its prior Opinion,
a “plaintiff claiming a RESPA violation must allege not
only a breach of a duty required to be performed under RESPA,
but must also show that the breach caused him to suffer
damages.” Wilson v. Bank of America, N.A., 48
F.Supp.3d 787, 799 (E.D. Pa. 2014). In order to advance a
claim under RESPA, a plaintiff must “sufficiently
allege one of two types of damages: (1) actual
damages to the borrower as a result of the failure
to comply with § 2605; or (2) statutory
damages in the case of a pattern or practice of
noncompliance with the requirements of § 2605.”
Giordano v. MGC Mortgage, Inc., 160 F.Supp.3d 778,
781 (D.N.J. 2016) (citations omitted). “[W]hen basing a
claim on actual damages, ‘the borrower has the
responsibility to present specific evidence to establish a
causal link between the financing institution's violation
and their injuries.'” Id. (quoting
Straker v. Deutsche Bank Nat'l Trust, 2012 WL
7829989 *11 (M.D. Pa Apr. 26, 2012)).
believes that his revised allegations of emotional
distress-related damages are sufficient to survive dismissal.
He relies primarily upon the following comments made in a May
9, 2016, error notice to SLS:
SLS has not cashed 5 monthly payments.
SLS is charging me $29.14 as a late fee for each check not
cashed for a total of $524.52. I am also being charged
interest on unpaid interest that would have been paid