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Motosko v. Nationstar Mortgage, LLC

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

July 18, 2018




         This 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.


         Pro se 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 12(b)(6).


         The relevant facts alleged in plaintiff's verified complaint may be summarized as follows.

         In 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).

         On May 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. 77).

         On June 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).

         Defendant 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 calendar request)).[1]

         Thereafter, 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. 85).

         On 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 [10] 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. ¶ 37).

         On 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 following information:

         Dear 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 of Foreclosure)
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 ...

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