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Nelson v. Nationstar Mortgage LLC

United States District Court, E.D. North Carolina, Southern Division

March 28, 2017

SANDRA KAY NELSON, Plaintiff,
v.
NATIONSTAR MORTGAGE LLC, U.S. BANK NATIONAL ASSOCIATION AS INDENTURE TRUSTEE FOR SPRINGLEAF MORTGAGE LOAN TRUST 2013-2, and GRADY I. INGLE and ELIZABETH B. ELLS, in their capacity as Substitute Trustee, Defendants.

          ORDER

          W. Earl Britt Senior U.S. District Judge

         This 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 disposition.

         I. FACTS

         This 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.)

         On 8 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.)

         On 16 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.)

         In 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.)

         On 27 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).

         II. ANALYSIS

         Defendants 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.)

         A. Standard of Review

         Pursuant 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).

         The 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).

         B. ...


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