United States District Court, E.D. North Carolina, Eastern Division
GWENDA G. MOORE, and R. WILTON MOORE, Plaintiffs,
SETERUS, INC.; FEDERAL NATIONAL MORTGAGE ASSOCIATION; THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK, and TRUSTEE SERVICES OF CAROLINA, LLC, Defendants.
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on motion to dismiss pursuant to
Federal Rule 12(b)(6) for failure to state a claim and
pursuant to Rule 8(a) for failure to provide a short, plain
statement of the claim. (DE 7). The motion has been fully
briefed, and the issues presented are ripe for ruling. For
the reasons that follow, the motion is granted.
OF THE CASE
commenced this action November 18, 2016, in the General Court
of Justice, Superior Court Division for Beaufort County,
North Carolina, asserting breach of contract and various
torts against defendants Seterus, Inc.
(“Seterus”), Federal National Mortgage
Association (“Fannie Mae”), and The Bank of New
York Mellon (“Bank of New York”) (collectively,
“the lender defendants”). Plaintiffs' claims
arise from an offer of modification to a promissory note
secured by property located at 129 Goose Creek Drive,
Washington, North Carolina (“Goose Creek Drive
Property”) and defendant Seterus's procurement of
allegedly excessive insurance policies and inspection
services pertaining to the Goose Creek Drive Property.
Defendants removed the action to this court December 19,
2016. Plaintiffs seek compensatory and punitive damages from
the lender defendants. Plaintiffs also seek declaratory
judgment that documents attached to the complaint create a
binding contract requiring the lender defendants to modify
the note to require payments not in excess of $1529.55 per
month and permitting plaintiffs to retain the Goose Creek
Drive Property. The lender defendants filed the instant
motion December 20, 2016, asserting that all claims fail as a
matter of law and should be dismissed pursuant to Federal
Rules of Civil Procedure 8(a) and 12(b)(6).
OF THE FACTS
facts alleged in the verified complaint may be summarized as
follows. On or about May 10, 2002, plaintiff Gwenda Moore
(“Gwenda”) executed a promissory note (“the
note”) payable to the order of non-party RBC Centura
Bank. Gwenda borrowed $220, 000 at an interest rate of 6.875
percent per annum. (DE1-1 at 28). To secure payment of the
note, plaintiffs concurrently signed a deed of trust
conveying the Goose Creek Drive Property to non-party CB
Services Corp. as trustee under the deed of trust.
(Id. at 31). The initial monthly payment under the
note was $1, 445.24, exclusive of escrow fees, (id.
at 28), later reduced to $1, 220.49 beginning June 1, 2013,
pursuant to a modification allowed by then-holder of the
note, JP Morgan Chase Bank, N.C. (Id. at 46).
Following modification, Gwenda defaulted on her repayment
obligations. (DE 1-1 at 4 ¶ 14).
lender defendants are engaged in the business of consumer
lending. (Id. at 2-3 ¶¶ 2-4). Defendant
Fannie Mae underwrites consumer loans and is current holder
of the note. (Id. at 2-3 ¶ 3, 4 ¶ 17)
Defendant Bank of New York is a banking institution and
currently has custody of the original document evidencing the
note. (Id. at 3 ¶ 4). Defendant Seterus
services the note on behalf of Fannie Mae. (Id. at 1
¶ 2, 4 ¶ 17). Seterus hired defendant Trustee
Services to initiate and prosecute foreclosure against the
Goose Creek Drive Property following Gwenda's default.
(Id. at 9 ¶ 43).
about June 5, 2014, defendant Seterus sent to plaintiff
Gwenda a document styled as an offer for a “Trial
Period Plan” (“TPP”). (Id. at 52).
The TPP consists of a three-page letter endorsed by Seterus,
an accompanying three-page document titled “Fannie Mae
Loan Modification - Frequently Asked Questions[, ]” a
one-page document titled “Fannie Mae Loan Modification
- Important Program Information Additional Trial Period Plan
Information and Legal Notices[, ]” and two additional
one-page documents including a table of miscellaneous
definitions and information about avoiding credit and lending
scams. (Id. at 52-60). The first page of the TPP
includes the following information:
(Id at 52). The second page includes a payment
schedule and section titled “modification terms[,
]” as follows:
(Id at 53).
third page includes defendant Seterus's endorsement
appearing on the signature line. (Id at 54). The
“frequently asked questions” enclosure includes
information about the nature of the trial period plan and
contemplated permanent modification:
(id at 55), the purpose of the trial ...