United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice, District Judge
REPORT AND RECOMMENDATION  THAT: (1)
DEFENDANT'S MOTION TO DISMISS (DOC. 12) BE GRANTED; AND
(2) THIS CASE BE TERMINATED ON THE COURT'S
Michael J. Newman, United States Magistrate Judge
civil case is before the Court on Defendant's motion to
dismiss. Doc. 10. Plaintiff filed a memorandum in opposition
(doc. 13) and, thereafter, Defendant filed a reply (doc. 14).
The Court has carefully reviewed the foregoing, and
Defendant's motion is now ripe for decision.
and Rebecca Stanley bring this civil action against
CitiMortgage. Doc 1. The facts set forth herein include the
allegations plead by the Stanleys viewed in the light most
favorable to them, as well as matters of public record.
Stanleys are a married couple who reside on real property
located at 4395 Navajo Trail, Jamestown, Ohio. PageID 4. The
Stanleys mortgaged the property with Ameristate Bancorp, but
only Shawn Stanley executed the promissory note. PageID
186-89, 190-208. CitiMortgage is the current servicer of the
loan and holder of the note. PageID 209-216.
Shawn Stanley failed to make payments on the note,
CitiMortgage initiated a foreclosure action against him in
the Greene County, Ohio Court of Common Pleas, Case No.
2015-cv-0256, on April 9, 2015. PageID 4. CitiMortgage joined
Rebecca Stanley as a defendant in that case because she
possessed a possible interest in the real property. PageID
179-185. The Stanleys did not defend the foreclosure
proceeding and CitiMortgage ultimately received a default
judgment in its favor on September 17, 2015. PageID 4.
Thereafter, the Stanleys moved to vacate the judgment arguing
that their failure to defend the action was the result of
representations made by CitiMortgage that it was considering
Shawn Stanley for a loan modification, and would not proceed
with foreclosure while the modification remained pending.
PageID 5. The Stanleys' motion to vacate the final
judgment of the Greene County Common Pleas Court remains
Stanleys, through counsel, now seek relief in this Court
against CitiMortgage asserting claims under the Real Estate
Settlement Procedures Act (“RESPA”), 12 U.S.C.
§ 2605(f), as well as a claim for breach of contract.
motion to dismiss filed pursuant to Fed.R.Civ.P. 12(b)(6)
operates to test the sufficiency of the complaint and permits
dismissal for “failure to state a claim upon which
relief can be granted.” To show grounds for relief,
Fed.R.Civ.P. 8(a)(2) requires that the complaint contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” While Fed.R.Civ.P.
8 “does not require ‘detailed factual
allegations' . . . it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Pleadings offering mere “‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.”
Id. (citing Twombly, 550 U.S. at 555).
determining a motion to dismiss, “courts ‘are not
bound to accept as true a legal conclusion couched as a
factual allegation.'” Twombly, 550 U.S. at
555 (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)). Further, “[f]actual allegations must be enough
to raise a right to relief above the speculative
order “[t]o survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678. In
addition to well-pleaded allegations in the complaint, the
Court may also consider “matters of public record,
orders, items appearing in the record of the case, and
exhibits attached to the complaint, ” as well as
documents attached to a defendant's motion to dismiss
that are important to the plaintiff's claims or if
referred to in the complaint. Amini v. Oberlin
College, 259 F.3d 493, 502 (6th Cir. 2001) (citation
omitted); Composite Tech., L.L.C. v. Inoplast Composites
S.A. de C.V., 925 F.Supp.2d 868, 873 (S.D. Ohio 2013).
is plausible where “plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. Plausibility “is not
akin to a ‘probability requirement, ' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. “[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 ...