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Miller v. U.S. Bank, N. A.

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

January 18, 2018

WILLIAM R. MILLER, et al., Plaintiffs,
v.
U.S. BANK, N.A., et al., Defendants.

          Walter H. Rice District Judge

          REPORT AND RECOMMENDATION [1] THAT DEFENDANTS' MOTION TO DISMISS (DOC. 5) BE GRANTED IN PART AND DENIED IN PART

          MICHAEL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         This civil case, brought against Defendants U.S. Bank, N.A. (“U.S. Bank”) and U.S. Bank Home Mortgage (“Home Mortgage”) is before the Court on Defendants'[2] Fed.R.Civ.P. 12(b)(6) partial motion to dismiss. Doc. 5. Plaintiffs filed a memorandum in opposition (doc. 9) and Defendants submitted a reply (doc. 10). The undersigned has considered all of the foregoing, and Defendants' motion is now ripe.

         I.

         Plaintiffs, William and Stacy Miller (the “Millers”), a husband and wife, reside in a home in Waynesville, Ohio which, between June 2006 and August 2015, was subject to a mortgage held by U.S. Bank. Doc. 1 at PageID 1-2. Until approximately January 2014, Plaintiffs' mortgage was serviced by U.S. Bank itself. Id. at PageID 2-3. During the time the mortgage was serviced by U.S. Bank, payments were automatically deducted by U.S. Bank from Plaintiffs' separate U.S. Bank joint checking account. Id. at PageID 2. From February 2012 until January 2014, at U.S. Bank's request and with approval of Plaintiffs, U.S. Bank automatically withdrew payments from Plaintiffs' joint checking account on a bi-weekly basis and appropriately applied the withdrawn sums toward the principal and interest owed on the note. Id.

         Beginning in January 2014, the relationship between the parties changed and soured. Id. Effective January 18, 2014, U.S. Bank transferred servicing of the mortgage to Home Mortgage. Id. at PageID 3. Plaintiffs allege that shortly thereafter, a number of errors and irregularities were made by both Defendants with regard to the administration and servicing of the mortgage. Id. at PageID 3-9. In a thirteen count complaint, they allege:

Count 1: Home Mortgage violated the terms of the note and mortgage (i.e., breached the parties' agreements) by unilaterally creating an escrow account for the payment of taxes on the property. Doc. 1 at PageID 9-10. Plaintiffs further allege that such actions violated RESPA, 12 U.S.C. § 2605;
Count 2: The administration of the mortgage note by both Defendants was improper in that they, inter alia, failed to withdraw the correct amounts at the correct times for mortgage payments and improperly establishing an escrow account for the payment of property taxes. Id. at PageID 10-11. Plaintiffs allege that such improper administration violated 12 U.S.C. § 2605;
Count 3: Home Mortgage tortiously interfered with Plaintiff William Miller's ability to operate his law practice, resulting in Mr. Miller's decision to close a number of U.S. Bank accounts (including accounts he managed on behalf of his clients), and resulted in the loss of business (including the loss of at least one client);
Count 4: Home Mortgage improperly applied the incorrect amounts toward the principal and interest owed on the note, attempted to unilaterally change the provisions of the original note and, ultimately, charged interest on an incorrect principal balance;
Count 5: Home Mortgage violated 12 U.S.C. § 2605(e) by failing to provide a payment history as requested on numerous occasions;
Count 6: U.S. Bank recorded numerous phone conferences with William Miller between February 3, 2014 and August 2015, and violated 12 U.S.C. § 2605 by failing to provide copies of the telephone conference recordings after they were requested in writing and orally on numerous occasions;
Count 7: Home Mortgage violated 12 U.S.C. § 2605(e) by failing to respond at all, or within a reasonable time, to William Miller's inquiries regarding account errors;
Count 8: Home Mortgage, without notice or explanation, withdrew amounts from a separate checking account for mortgage payments at irregular intervals and made other changes to the mortgage account without notice or explanation. Id. at PageID 16-17. Because of Home Mortgage's conduct, Plaintiffs allege that they could not ...

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