United States District Court, E.D. North Carolina, Northern Division
CHARLES S. MOTOSKO, Plaintiff,
NATIONSTAR MORTGAGE, LLC, Defendant.
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court on defendant's 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 in this posture, issues
raised are ripe for ruling. For the following reasons,
defendant's motion is granted.
OF THE CASE
plaintiff commenced this action January 12, 2018 by filing
verified complaint in the North Carolina Superior Court of
Dare County. Plaintiff's claims concern a real estate
construction loan issued to plaintiff for a principal sum of
$296, 250.00, secured by deed of trust on property owned by
plaintiff in Dare County, North Carolina, located at 44
Juniper Trail, Southern Shores, North Carolina, 27949.
Plaintiff asserts the following causes of action: 1) wrongful
initiation of foreclosure proceedings, 2) wrongful refusal to
accept offer of tender, 3) breach of contract, and 4) failure
to provide 45-day pre-foreclosure notice. Plaintiff seeks
monetary damages and to enjoin defendant from proceeding
further with foreclosure action in Dare County, North
Carolina, designated 13-SP-229. Defendant filed notice of
removal to this court on February 2, 2018, and on February 8,
2018, filed the instant motion to dismiss, asserting all
claims are barred by the relevant statute of limitations and
all claims fail as a matter of law and should be dismissed
pursuant to Federal Rules of Civil Procedure 8(a) and
OF THE FACTS
relevant facts alleged in plaintiff's verified complaint
may be summarized as follows.
March 2003, plaintiff executed a $296, 250.00 promissory note
in favor of Countrywide Home Loans, Inc, which note was
secured by a deed of trust on property located at 44 Juniper
Trail, Southern Shores (Dare County), North Carolina, 27949,
property currently owned by plaintiff. (Compl. (DE 1-1)
¶¶ 2, 4-5). On April 17, 2013, following
plaintiff's default under the loan in January 2013,
“Nationstar Mortgage, LLC” mailed to plaintiff
“formal notice . . . that you are in default, ”
which gave notice of impending foreclosure proceedings,
provided instructions on reinstating the loan, and explained
potential options to avoid foreclosure. (Compl. (DE 1-1)
¶ 10; Ex. 14, pgs. 80-82).
23, 2013, Countrywide Home Loans, Inc. assigned
plaintiff's deed of trust to defendant, Nationstar
Mortgage, LLC. (Compl. (DE 1-1) ¶¶ 6-7; Ex. 14, pg.
17, 2013, defendant sent to plaintiff a trial loan
modification offer (the “June 2013 trial plan”)
providing that if plaintiff made three trial payments of $1,
546.78, and otherwise submitted all necessary information and
documentation, plaintiff's “mortgage would then be
reviewed to be permanently modified.” (Compl. (DE 1-1)
¶ 16; Ex. 2, pg. 17). The June 2013 trial plan further
stated that defendant would not “proceed to foreclosure
sale during the trial period.” (Compl. (DE 1-1)
¶¶ 18-20; Ex. 2, pg. 18). Plaintiff made the first
payment under the June 2013 trial plan by money transfer at
1:02 p.m. on June 27, 2013. (Compl. (DE 1-1) ¶ 17; Ex.
1, pg. 16).
filed action for foreclosure in Dare County Superior Court on
July 1, 2013, case number 13-SP-229. (Compl. (DE 1-1) ¶
19). On July 5, 2013, counsel cancelled the foreclosure
hearing that had been set due to “Loss
Mitigation.” (See DE 8-5 (July 5, 2013
plaintiff alleges he complied with the terms of the June 2013
trial plan, but plaintiff's mortgage was not modified.
(Compl. (DE1-1) ¶ 19). Plaintiff received a
pre-foreclosure notice mailed to plaintiff on October 7, 2013
from Trustee Services of Carolina, LLC c/o Brock and Scott,
PLLC, informing plaintiff that “Trustee Services of
Carolina, LLC has been asked as Substitute Trustee to
initiate foreclosure proceedings to foreclose the mortgage on
your property.” (Compl. (DE 1-1) ¶ 45; Ex. 15, pg.
February 7, 2014, at a hearing that was held before the Dare
County Clerk of Superior Court, and over the course of the
next few weeks, plaintiff attempted to tender to defendant
$14, 964.17 to reinstate the loan, which plaintiff alleges
was “more than sufficient to bring the arrearages up to
date and to restore the loan to non-delinquent status.”
(Compl. (DE1-1) ¶¶ 22, 25-36; Ex. 6, pgs. 24-27;
Ex. 7, pgs. 28-34). At the hearing, lender's agents
refused to accept plaintiff's funds, “because they
did not know the correct amount of arrearages”;
plaintiff was told during the hearing that defendant's
agent Claire Collins, Esq. (“Collins”), and
Melissa Westmoreland, an attorney with Brock and Scott, PLLC,
would ascertain the correct amount within one week.
(Id. ¶¶ 26, 31). Plaintiff, in the
following week, additionally contacted via email and USPS,
Amanda Caldwell, defendant's representative, trying to
ascertain the correct amount, in addition to multiple times
trying to ascertain the information from Collins via email.
(Id. ¶¶ 32-36). Ultimately, defendant
“failed to provide a written statement to [plaintiff]
within  days of receipt of a written request detailing
the then current balance due on the loan” and failed to
provide “a detailed statement that identifies and
itemizes all fees and charges assessed.” (Id.
March 11, 2014, defendant sent to plaintiff another trial
loan modification offer (the “March 2014 trial
plan”). (Compl. (DE1-1) ¶ 39; Ex. 11, pg. 42-45).
The first page of the March 2014 trial plan includes the
CHARLES S. MOTOSKO:
We want to continue to work with you to modify the mortgage
and help make the payments more affordable. Based on a
careful review of your Mortgage account, we are offering you
an opportunity to enter into a Trial Period Plan for a
mortgage modification. This is the first step toward
qualifying for more affordable mortgage payments or more
manageable terms. It is important that you read this
information in its entirety so that you completely understand
the actions you need to take to successfully complete the
Trial Period Plan to permanently modify your mortgage. . . .
Proposed Modification Terms
If you successfully complete the Trial Period Plan by making
the required payments, you will receive a modification with
an interest rate of 2.000 %, which will be fixed for
40 years from the date the modification is effective. If we
determine that the unpaid balance of your Mortgage is more
than 115% of the value of your home, you will be eligible to
have up to 30% of your principal balance deferred, and the
deferred amount will not be subject to any interest rate
charges. Moreover, the deferred principal amount will not be
due and payable until the earlier of (a) the end of the
40-year term of the modified mortgage, (b) any sale or
transfer of your interest in the property, or (c) a refinance
of your mortgage loan.
(Compl. (DE1-1), Ex. 11, pg. 42 (underline emphasis added)).
Pages 1 and 2 of the March 2014 trial plan list steps to be
taken to complete the trial plan period including as follows:
Step 1: To Stop the Foreclosure Process (Suspension
In order for us to delay referring your mortgage to
foreclosure, or suspend foreclosure proceedings if your loan
has been referred to foreclosure:
• You may make your first trial period payment by
4/1/2014, which may be earlier than the scheduled due date
described below and we will stop the foreclosure process. . .
Step 2: To Accept This Offer
You must make your first trial period payment by the first
payment due date designated below . . . .
Step 3: Make Trial Period Payments
To successfully complete the trial period plan, you must make
the trial period ...