United States District Court, S.D. Ohio, Western Division
MELISSA L. LOHMAN & ROBERT LOHMAN, Plaintiffs,
BENEFICIAL FINANCIAL I, INC., et al., Defendants.
OPINION AND ORDER
Michael R. Barrett, Judge, United States District Court.
matter is before the Court on Defendants Beneficial Financial
I, Inc. (“Beneficial”), and Household Realty
Corporation's (“HRC”) (collectively,
“Defendants”) Motion to Dismiss Complaint
Pursuant to Fed. Civ. R. Proc. 12(b)(6). (Doc. 4). Plaintiffs
Robert and Melissa Lohman (collectively,
“Plaintiffs”) filed a response in opposition
(Doc. 7), and Defendants filed a reply. (Doc. 8). In
addition, Plaintiffs, believing that Defendants raised new
arguments in their reply brief, filed a Motion for Leave to
File a Sur-Reply. (Doc. 9). Defendants did not substantively
oppose Plaintiffs' Motion (Doc. 9), though they do raise
a couple of additional points in their response (Doc. 12).
This matter is now ripe for review.
entered into a mortgage loan agreement in December 2000.
(Doc. 1, PageID 3). The loan was owned and serviced by
Defendant Beneficial (Id. at PageID 3-4). In July
2014, Plaintiffs sough a loan modification, but their request
was denied because Plaintiffs' “disposable income
exceeded the modification guidelines.” (Doc. 4-2,
25, 2015, Plaintiffs sent a Qualified Written Request and
Notice of Error (“QWR”) to Defendants requesting
certain information related to the mortgage. (Doc. 1, PageID
4). Pursuant to the Real Estate Settlement and Procedures Act
(“RESPA”), Defendants were required to provide
the identity and contact information of the owner of
Plaintiffs' loan within 10 business days of receiving the
QWR. 12 U.S.C. § 2605(e).
responded on August 8, 2016 (Doc. 4-2, PageID 32). Defendants
identified HFC as “[t]he current note holder and
servicer of the loan, ” and provided the mailing
address for any subsequent QWRs. (Id.). In addition,
Defendants provided Plaintiffs copies of 1) the Mortgage; 2)
the Loan Repayment and Security Agreement; 3) the Notice of
Right to Cancel; 4) the Property Tax & Homeowners
Insurance Notice; and 5) the Servicing Transfer &
Disclosure Statement. (Doc. 4-2). Defendants denied
Plaintiffs' request for written correspondence or other
communications, categorizing this information as
“confidential, proprietary, and/or privileged
information.” (Doc. 4-2, PageID 32-33). Plaintiffs'
request for a “copy of all appraisals, property
inspections, and risk assessments completed for this account,
” also went unanswered, but without an accompanying
bring the following claims against Defendants: (1) Violation
of 12 U.S.C. §§ 2605(e) and 2605(k) of the Real
Estate Settlement Procedures Act (“RESPA”), and
12 C.F.R. §§ 1024.35 and 1024.36 of Regulation X;
(2) Violation of 15 U.S.C. § 1641(f)(2) of the Truth in
Lending Act (“TILA”). Defendants move to dismiss
Plaintiffs' Complaint pursuant to Federal Rule of Civil
for relief requires “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed. R. Civ. Proc. 8(a)(2). When reviewing a Fed. Civ. R.
Proc. 12(b)(6) motion to dismiss for failure to state a
claim, this Court must “construe the complaint in the
light most favorable to the plaintiff, accept its allegations
as true, and draw all reasonable inferences in favor of the
plaintiff.” Bassett v. Nat'l Collegiate
Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008)
(quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476
(6th Cir. 2007)). However, this Court does not “need to
accept as true legal conclusions couched as factual
allegations.” Campbell v. Nationstar Mortg.,
611 Fed. App'x 288, 291 (6th Cir. 2015).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)).
did not attach a copy of the QWR or Defendants' response
thereto to their Complaint. Defendants, however, attached the
QWR and Defendants' response to its Motion. (Docs. 4-1,
4-2). This Court may consider “exhibits attached to
defendant's motion to dismiss so long as they are
referred to in the Complaint and are central to the claims
contained therein.” Bassett, 528 F.3d at 430
(citing Amini v. Oberlin Coll., 259 F.3d 493, 502
(6th Cir. 2001)). Because there is no question the attached
documents are central to Plaintiffs' claims, the Court
will consider them.
to RESPA, QWR is “a correspondence that identifies a
borrower's account and includes a statement of the
reasons for the belief of the borrower, to the extent
applicable, that the account is in error or provides
sufficient detail to the servicer regarding other information
sought by the borrower.” Valandingham v. Springleaf
Fin. Servs., 2016 U.S. Dist. LEXIS 150434, at *4 (S.D.
Ohio Oct. 31, 2016). RESPA requires a mortgage servicer to do
one of the following upon receipt of a QWR: 1) correct the
errors identified in the QWR; or 2) provide the borrower with
a written explanation or clarification stating that the
servicer believes the account is accurate. 12 U.S.C. §
2605(e)(2). Moreover, RESPA requires certain information
related to loan servicing to be provided to the borrower. 12
C.F.R. § 1024.36(f). Mortgage loan servicers who fail to
adequately respond to a QWR risk liability for damages under
under RESPA can survive a 12(b)(6) dismissal when an entity
fails to respond to a valid QWR. E.g., Moore v.
Caliber Home Loans, Inc., 2015 U.S. Dist. LEXIS
117737, *17-21 (S.D. Ohio, Sept. 3, 2015). Plaintiffs do not
dispute that Defendants properly responded to their notice of
error within the QWR. (Doc. 7, PageID 93). Therefore, the
plausibility of this claim only concerns the latter part of
§ 2605(e)(1)(B)(ii) - that ...