United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
This matter is before the court on defendant's motion to dismiss for insufficient process, insufficient service of process, and failure to state a claim upon which relief can be granted, pursuant to Federal Rules of Civil Procedure 12(b)(4), 12(b)(5), and 12(b)(6). (DE 22). Defendant has submitted a memorandum in support of its motion, and plaintiff's time for response has passed. In this posture, the issues raised are ripe for ruling. For the reasons that follow, defendant's motion is granted.
Plaintiff filed suit in in Wake County Superior Court on December 17, 2014. Plaintiff alleges defendant, a mortgage servicing company, violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq., as well as the North Carolina Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75-1 et seq.
Defendant removed the case to this court on January 20, 2015, invoking the court's federal question jurisdiction. 28 U.S.C. § 1331. On January 27, 2015, defendant filed a motion to dismiss the complaint, or, in the alternative, for a more definite statement. In support of its motion to dismiss, defendant argued that plaintiff had not served it properly with both complaint and summons, where the summons was mailed to "Seterus, " at its Oregon headquarters. (See DE 1-1, at 8). The court granted defendant's motion for a more definite statement, and gave plaintiff 60 days to file a more particularized complaint and complete service on defendant. (DE 16, at 3).
The operative complaint was entered on the docket on April 6, 2015. (Am. Compl. DE 18). As derived from the amended complaint, in or around 2002, plaintiff purchased a mobile home for approximately $63, 000.00. (Id. at 4). Plaintiff financed this transaction by granting Conseco Finance a security interest in the home, as mortgagee. (Id.). Subsequently, plaintiff refinanced the loan with Green Point Mortgage, granting it a security interest in the home as mortgagee and extinguishing Conseco Finance's interest. (Id.). Later, defendant became the loan servicer. (Id.). On January 26, 2015, defendant initiated foreclosure proceedings, which currently are pending before the Wake County, North Carolina, Clerk of Court, with hearing scheduled for May 29, 2015. (Id. at 1-2).
The amended complaint contains a number of new and various causes of action against defendant, including, violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601, et seq.; violation of the FDCPA, 15 U.S.C. § 1692 et seq.; violation of "North Carolina HB 654, " Homeowner/Homebuyer Protection Act; breach of contract; breach of the implied covenant of good faith and fair dealing; and unjust enrichment. Plaintiff also asserts two causes of action for unjust enrichment and aiding and abetting against "Argent, " who is not a party to this litigation.
Plaintiff's amended complaint was served on defendant's counsel electronically. In response to plaintiff's amended complaint, on April 24, 2015, defendant filed the instant motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(4), 12(b)(5), and 12(b)(6), for insufficient process, insufficient service of process, and failure to state a claim upon which relief can be granted. (DE 22). Defendant contends plaintiff has yet to serve it properly with summons, and that plaintiff's claims either fail as a matter of law as pleaded, or are not supported by sufficient facts. On May 18, 2015, plaintiff's response deadline passed with no filing by plaintiff.
A. Standard of Review
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint but "does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992); see also Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir.1999). A complaint states a claim under 12(b)(6) if it contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
"Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. In evaluating the complaint, "[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff, " but does not consider "legal conclusions, elements of a cause of action, ... bare assertions devoid of further factual enhancement[, ]... unwarranted inferences, unreasonable conclusions, or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).
Defendant contends plaintiff's complaint is both legally insufficient and fails to plead sufficient facts under the plausibility pleading standard. The court agrees. Plaintiff's complaint must be dismissed, because plaintiff has not pleaded sufficient ...