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Stanley v. Citimortgage, Inc.

United States District Court, S.D. Ohio, Western Division, Dayton

October 30, 2017

SHAWN STANLEY, et al., Plaintiffs,
v.
CITIMORTGAGE, INC., Defendant.

          Walter H. Rice, District Judge

          REPORT AND RECOMMENDATION [1] THAT: (1) DEFENDANT'S MOTION TO DISMISS (DOC. 12) BE GRANTED; AND (2) THIS CASE BE TERMINATED ON THE COURT'S DOCKET

          Michael J. Newman, United States Magistrate Judge

         This 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.

         I.

         Shawn 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. See infra.

         The 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.

         When 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 pending. Id.

         The 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. Doc. 1.

         II.

         A 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, the-defendant-unlawfully-harmed-me accusation.” 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).

         In 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 level.” Id.

         In 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).

         A claim 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 ...


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