United States District Court, E.D. North Carolina, Southern Division
Earl Britt Senior U.S. District Judge
matter is before the court on the 3 October 2016 motion to
dismiss filed by defendants Nationstar Mortgage LLC
("Nationstar") and U.S. Bank National Association,
as Indenture Trustee for Springleaf Mortgage Loan Trust
2013-2 ("U.S. Bank") (collectively
"defendants"). (DE # 18.) Plaintiff filed a
memorandum in opposition on 27 October 2016. (DE # 21).
Defendants did not file a reply brief, and the time within
which to do so has expired. This matter is therefore ripe for
case concerns foreclosure proceedings involving a house
("the Property") that was purchased by plaintiffs
deceased father, Danny Chambers, in Jacksonville, North
Carolina. Plaintiff lived at the Property with Chambers,
along with her husband, daughter, and brother. (Am. Compl.,
DE # 16, ¶ 11.) In August 2007, Chambers refinanced the
mortgage on the Property and executed a promissory note to
Equity One, Incorporated d/b/a Equity One Mortgage Services,
Inc. in the amount of $24, 581.41. (Id. ¶¶
8-10; see also Ex. 1, DE # 16-1, at 3.) The mortgage loan was
initially serviced by Springleaf Financial Services
("Springleaf'). (Am. Compl., DE # 16, ¶ 13.)
Chambers designated plaintiff as an authorized third party on
the account, and she would occasionally make mortgage
payments for her father. (Id. ¶¶ 12-13.)
March 2010, Chambers passed away. (Id. ¶ 14.)
Plaintiff and her three siblings thereafter became co-owners
of the Property through intestate succession. (Id.
¶ 1.) Following Chambers's death, plaintiff
continued to make mortgage payments on the account and
continued communicating with Springleaf about the account.
(Id. ¶ 15.) At some point, plaintiff fell
behind on the mortgage payments. (Id. ¶ 16.)
Plaintiff eventually sent in $2, 000 to Springleaf on 5
August 2014. (Id.) Based on the records from
Springleaf, this payment brought the account current through
the August 2014 payment. (Id.)
September 2014, Springleaf sent a letter addressed to
Chambers to the Property advising him that Nationstar would
become the servicer of the loan effective 1 October 2014.
(Id. ¶ 17; see also Ex. 2, DE # 16-2.)
Plaintiff alleges that Nationstar refused to communicate with
her or accept payments from her upon learning of
Chambers's death. (Am. Compl, DE # 16, ¶¶
21-26.) She further alleges that Nationstar has prevented her
from assuming the loan through loss mitigation procedures.
(Id. ¶¶ 47-50.)
2015, defendants initiated foreclosure proceedings in the
North Carolina Superior Court, Onslow County, seeking to
enforce the power of sale in the deed of trust for the
mortgage loan. (Id. ¶¶ 1, 33-34.) On 9
June 2016, the Assistant Clerk of Court for Onslow County
entered an order authorizing foreclosure. (Id ¶
56.) Plaintiff filed a notice of appeal on 15 June 2016, and
subsequently paid a bond to stay the foreclosure pending
appeal. (Id ¶¶ 57-58.)
July 2016, plaintiff commenced this action in the North
Carolina Superior Court, Onslow County. (See Ex. 1,
DE #1-1.) On 25 August 2016, defendants removed the action to
this court based on federal question jurisdiction and
supplemental jurisdiction. (DE #1.) On that same day,
defendants filed a motion to dismiss plaintiffs complaint.
(DE #3.) On 19 September 2016, plaintiff filed an amended
complaint, alleging six counts. (DE # 16.) Counts two and
three allege violations of the Garn-St. Germain Depository
Institutions Act of 1982 ("Garn-St. Germain Act"),
12 U.S.C. § 1701J-3, and the Real Estate Settlement
Procedure Act ("RESPA"), 12 U.S.C. § 2601
et seq. (Id.) The remaining counts allege
the following state law claims: violation of the North
Carolina Mortgage Debt Collection and Servicing Act, N.C.
Gen. Stat. § 45-90 et seq. (count one);
violation of the North Carolina Unfair and Deceptive Trade
Practices Act, N.C. Gen. Stat. § 75-1.1 et seq.
(count four); declaratory relief (count five); and injunctive
relief (count six). (Id.) On 3 October 2016,
defendants filed the instant motion to dismiss plaintiff s
complaint. (DE #18).
move to dismiss plaintiffs complaint pursuant to Rules 8(a)
and 12(b)(6) of the Federal Rules of Civil Procedure.
Defendants argue that plaintiff lacks standing to assert her
various mortgage-related claims, and that she has otherwise
failed to set forth any claim upon which relief can be
granted. (Defs.' Mem. in Support, DE # 19, at 2.)
Standard of Review
to Rule 12(b)(6), a court may dismiss a complaint for
"failure to state a claim upon which relief can be
granted." Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion
challenges the legal sufficiency of a complaint, and the
relevant inquiry is whether the plaintiffs factual
allegations are "enough to raise a right to relief above
the speculative level." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A complaint attacked
by a Rule 12(b)(6) motion to dismiss will survive 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 Twombly, 550 U.S. at 570);
see also Robinson v. Am. Honda Motor Co., 551 F.3d
218, 222 (4th Cir. 2009). In reviewing a motion to dismiss,
"[the] court accepts all well-pled facts as true and
construes these facts in the light most favorable to the
plaintiff." Nemet Chevrolet Ltd. v.
Consumeraffairs.com. Inc., 591 F.3d 250, 255 (4th Cir.
2009) (citations omitted).
pleading standard set forth in Rule 8(a)(2) requires
'"a short and plain statement of the claim showing
that the pleader is entitled to relief" Iqbal,
556 U.S at 677-78 (quoting Fed.R.Civ.P. 8(a)(2)). However,
"[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." Id. at 678. Therefore, while
"the pleading standard Rule 8 announces does not require
'detailed factual allegations, ' ... it demands more
than unadorned, the-defendant-unlawfully-harmed-me
accusation." Id. (citing Twombly, 550
U.S. at 555). "[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
'show[n]'-'that the pleader is entitled to
relief, ' as required by Rule 8 . . ." Francis
v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)
(quoting Iqbal, 556 U.S. at 678).