United States District Court, S.D. Ohio, Western Division, Dayton
WILLIAM R. MILLER, et al., Plaintiffs,
U.S. BANK, N.A., et al., Defendants.
H. Rice District Judge
REPORT AND RECOMMENDATION  THAT
DEFENDANTS' MOTION TO DISMISS (DOC. 5) BE GRANTED IN PART
AND DENIED IN PART
MICHAEL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
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' 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.
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and appropriately applied the withdrawn sums toward the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.
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
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