United States District Court, N.D. Ohio, Eastern Division
PETER L. SMITH, Plaintiffs,
NATIONSTAR MORTGAGE, et al., Defendants.
MEMORANDUM OPINION AND ORDER
C. Nugent, United States District Judge.
matter is before the Court on Defendants' Motion to
Dismiss Plaintiffs Complaint With Class Action Allegations
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (ECF #8). Plaintiff filed an Opposition Brief, and
Defendants filed a Reply in Support of their motion. (ECF
#15, 16). After careful consideration ef the briefs and the
Complaint, and a review of all relevant authority,
Defendant's motion to dismiss is GRANTED in part.
evaluating a motion for dismissal under Rule 12(b)(6), the
district court must "consider the pleadings and
affidavits in a light most favorable to the [non-moving
party]." Jones v. City of Carlisle, Ky., 3
F.3d. 945, 947 (6th Cir. 1993) (quoting Welsh v.
Gibbs, 631 F.2d 436, 439 (6th Cir. 1980)). However,
though construing the complaint in favor of the non-moving
party, a trial court will not accept conclusions of law or
unwarranted inferences cast in the form of factual
allegations. See City of Heath Ohio v. Ashland Oil,
Inc., 834 F.Supp. 971, 975 (S.D. Ohio 1993). "A
plaintiffs obligation to provide the 'grounds' of his
'entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Bell AtV Corp. v.
Twombly, 550 U.S. 544, 555 (2007)(quoting Papasan v.
Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d
209 (1986)). "Factual allegations must be enough to
raise a right to relief above the speculative level."
Twombly at 555. In deciding a Rule 12(b)(6) motion,
this Court must determine not whether the complaining party
will prevail in the matter but whether it is entitled to
offer evidence to support the claims made in its complaint.
See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Plaintiff brought an action alleging nine causes of action,
some of which are individual claims, and some which were
brought as putative class action claims. The underlying
gravamen of the Complaint is Plaintiffs allegation that
Nationstar, together with its wholly owned subsidiary
Solutionstar, imposed unnecessary, unreasonable, and
otherwise improper fees, including inspection fees and late
fees, on him and others who are similarly situated, when they
fell behind in their mortgage payments. Plaintiff claims that
in his case, the amounts he owed were improperly inflated by
the addition of inspection and late fees. He argues that the
fees assessed by the Defendants were improper and
unwarranted, and that their imposition violated several state
and federal laws, as well as Ohio common law principles.
Court will look first to the federal claims asserted in the
Complaint. Count One alleges a claim under the Fair Debt
Collection Practices Act ("FDCPA"); Count Three
asserts claims under the Fair Credit Reporting Act
("FCRA"); and, Count Six request relief under the
Federal RICO statute, 18 U.S.C. § 1961, et seq.
Fair Debt Collection Practices Act
claims that Nationstar violated 15 U.S.C. §1692e by
"falsely representing the character, amount, or legal
status of debt, among other things, including, without
limitation, attempt to and/or collecting upon an unlawful
debt." (Complaint, ¶ 121). He also claims, among
other things, that Defendants violated the FDCPA by
"continuing to collect a debt or any disputed portion
thereof after failure to properly respond to Plaintiffs
verification request." (Complaint, 1123(d)).
FDCPA expressly states that all claims must be brought
"within one year from the date on which the violation
occurs." 15 U.S.C. § 1692k. Plaintiff filed this
Complaint on June 9, 2017, thus, he is out of time for any
violations occurring prior to June 9, 2016. Although this was
a re-filed case, having first been filed in the Cuyahoga
Court of Common Pleas on February 10, 2016 and dismissed
without prejudice on December 27, 2016, the Ohio Savings
Statute does not operate to waive or extend the statute of
limitations periods for federal claims which have their own
statutorily assigned statute of limitations. Ruth v.
Unifund CCR Partners, 2009 WL 585847, at *6 (N.D. Ohio
2009); Higginbotham v. Ohio Dep't of Mental
Health, 412 F.Supp.2d 806, 811-12 (S.D.Ohio 2005).
Complaint cites only three communications, after June 9,
2016, alleged to be part of the factual basis for Plaintiffs
claims: (1) Defendant Nationstar sent Plaintiff a notice that
his request for loss mitigation assistance was denied because
"Offer not accepted by Borrower/Request Withdrawn;"
(2) Defendants issued a default notice to Plaintiff advising
that he was in default in the amount of $10, 959.01,
including late fees, NSF fees, and other fees (which include
property inspection fees); and, (3) Defendants sent Plaintiff
a mortgage statement that reflected $195.00 in total property
inspection fees. (Complaint, ¶ 103-105).
FDCPA does not apply to every communication between a debtor
and debt collector. Grden v. Leikin Ingber & Winters
PC, 643 F.3d 169, 173 (6th Cir. 2011).
"For a communication to be in connection with the
collection of a debt, an animating purpose of the
communication must be to induce payment by the debtor."
Id. The communication sent by Nationstar notifying
Plaintiff that his request for loss mitigation assistance was
denied because it wasn't accepted or was withdrawn, does
not fit into the category of communications with the purpose
of inducing payment. It appears to be simply a communication
noting Nationstar's understanding that Plaintiff did not
intend to pursue the loss mitigation options presented to
him. Further, Plaintiff does not allege that this
communication was false, deceptive or misleading. In fact, in
his Opposition to the Defendants' Motion to Dismiss,
Plaintiff contends that he had no need such options because
he had already entered into a loan modification.
claims that the other two statements within the statute of
limitations constitute unlawful, misleading, and deceptive
statements because they seek to collect on a debt that
includes some amount of improperly assessed inspection fees.
Nowhere in Plaintiffs Complaint does he claim that he was not
in default on his mortgage, or that Nationstar's notices
of default were incorrect based upon the amount owed if the
inspection and late fees were included in the debt's
tally. Nor does he dispute that the mortgage contract allowed
the imposition of reasonable inspection fees upon default. He
also does not dispute ...