United States District Court, N.D. Ohio, Eastern Division
JASON A. WHITACRE, Plaintiff,
NATIONS LENDING CORPORATION, et al., Defendants.
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO.
Y. PEARSON UNITED STATES DISTRICT JUDGE
action was removed to this Court from the Summit County,
Ohio, Court of Common Pleas on April 11, 2019, on the basis
of federal-question jurisdiction pursuant to 28 U.S.C. §
1331 and supplemental jurisdiction pursuant to 28 U.S.C.
§ 1367. ECF No. 1. Following removal, Plaintiff filed an
amended complaint (ECF No. 4), to which Defendants filed a
motion to dismiss for failure to state a claim on which
relief can be granted. ECF No. 8. Plaintiff responded (ECF
No. 15), and Defendants replied (ECF No. 16). For the reasons
stated in this Order, Defendants' motion to dismiss is
granted in part. Count Eleven as to Defendant LoanCare, Count
One as to Defendant Nations Lending, and Count Five as to
Defendants LoanCare and Nations Lending remain. All other
claims alleged in the Amended Complaint are dismissed.
March 2015, Plaintiff purchased a house. ECF No. 4 at PageID
#: 52. To pay for the house, Plaintiff obtained a mortgage
through Defendant Nations Lending Corporation (“Nations
Lending”). Id. Defendant LoanCare, LLC
(“LoanCare”) serviced the loan on behalf of
Nations Lending. Id. Plaintiff alleges an
agency-principal relationship exists between Nations Lending
and LoanCare. Id. at PageID #: 53. The mortgage loan
is insured by the Federal Housing Authority. Id.
December 2017, Plaintiff was separated from his employment.
Id. at PageID #: 54. He alleges that he immediately
notified LoanCare of this. Id. He also applied for
complete forbearance of his loan. Id. LoanCare
advised Plaintiff that he would be eligible for a forbearance
because of his unemployment. Id. at PageID #: 55. He
avers that LoanCare did not respond to his application for
several weeks, then admitted to losing his application
package. Id. LoanCare instructed Plaintiff to submit
a new application package, and Plaintiff complied.
secured employment in April 2018. Id. LoanCare
allegedly determined that, because Plaintiff was now
employed, he was no longer eligible for forbearance.
Id. at PageID #: 56.
“eventually did fall behind on the payments.”
Id. He claims that, during a conversation with
LoanCare staff, he was instructed to pay $5, 864.95 to bring
the account current. Id. Plaintiff made the payment.
Id. Instead of bringing his account current,
however, LoanCare allegedly applied only a single mortgage
payment to Plaintiff's account. Id. Plaintiff
claims that LoanCare waited three days before applying the
second monthly payment to Plaintiff's account.
Id. at PageID #: 57. Plaintiff also avers that,
instead of applying the balance of the monies to
Plaintiff's third monthly payment, LoanCare applied this
amount to “other items, including but not limited to
the escrow account, a ‘Suspense Sweep,' and alleged
‘Late Charges.'” Id.
determined that Plaintiff's account was delinquent.
Id. Accordingly, LoanCare reported to credit
reporting agencies that Plaintiff was late on his mortgage
payments. Id. LoanCare demanded an additional $5,
905.50 from Plaintiff to bring his account up to date.
Id. at PageID #: 58. Plaintiff claims he
unsuccessfully attempted to call LoanCare to discuss the
status of his account. Id.
also claims that LoanCare calls him six days a week through
an automated voice messaging system. Id. at PageID
#: 58-59. He avers that he never consented to these calls,
and, alternatively, revoked any consent to these calls.
Id. at PageID #: 58-59. He additionally alleges that
LoanCare has, on multiple occasions, sent a representative to
Plaintiff's home to collect the balance allegedly due on
his loan. Id.
deciding a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), the Court must take all well pleaded allegations in
the complaint as true and construe those allegations in a
light most favorable to the plaintiff. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citations omitted). A
cause of action fails to state a claim upon which relief may
be granted when it lacks “plausibility in th[e]
complaint.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 564 (2007). A pleading must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” Ashcroft v.
Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed.R.Civ.P.
8(a)(2)). Plaintiff is not required to include detailed
factual allegations, but must provide more than “an
accusation.” Id. at 678. A pleading that
offers “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. Nor
does a complaint suffice if it tenders “naked
assertion[s]” devoid of “further factual
enhancement.” Id. at 557. It must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.”
Id. at 570.
claim has facial plausibility when the 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. The
plausibility standard is not akin to a “probability
requirement, ” but it asks for more than a sheer
possibility that a defendant has acted unlawfully.
Twombly, 550 U.S. at 556. Where a complaint pleads
facts that are “merely consistent with” a
defendant's liability, it “stops short of the line
between possibility and plausibility of ‘entitlement to
relief.'” Id. at 557 (brackets omitted).
“[When] 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 ‘show[n]'
‘that the pleader is entitled to relief.'”
Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)). The
Court “need not accept as true a legal conclusion
couched as a factual allegation or an unwarranted factual
inference.” Handy-Clay v. City of Memphis,
Tenn., 695 F.3d 531, 539 (6th Cir. 2012) (citations and
internal quotation marks omitted).
alleges sixteen counts in his Amended Complaint against
Defendants Nations Lending and LoanCare. Six of his claims
arise under federal law. Count Nine alleges violations of the
Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227. ECF No. 4 at PageID #: 66-67. Counts
Eleven, Twelve, Thirteen, Fourteen, and Fifteen allege
violations of federal regulations promulgated by the Consumer
Finance Protection Bureau (“CFPB”). Id.
at PageID #: 67-71. Plaintiff's remaining ten counts
arise under state law. Defendants move to dismiss all of
Plaintiff's claims under Fed.R.Civ.P. 12(b)(6) for
failure to state a claim on which relief can be granted.
Telephone Consumer Protection Act (Count Nine)
succeed on his TCPA claim, Plaintiff must demonstrate that:
“(1) a call was placed to a cell or wireless phone, (2)
by the use of any automatic dialing system and/or leaving an
artificial or prerecorded message, and (3) without prior
[express] consent of the recipient.” Rodriguez v.
Premier Bankcard, LLC, 2018 WL 4184742, at *3 (N.D. Ohio
Aug. 31, 2018) (quoting Brown v. Hosto & Buchan,
PLLC, 748 F.Supp.2d 847, 859 (W.D. Tenn. 2010)
(alteration in original)).
argue that Plaintiff's TCPA claim (Count Nine) must be
dismissed because its factual allegations are insufficient as
a matter of law. Plaintiff pleads:
127. Defendants have made repeated calls to Plaintiff's
cellular phone without his authorization using an automated
128. Those calls ring to Plaintiff's cell phone without a
live person on Defendants' end.
129. Plaintiff expressed his lack of consent to automated
calls, but Defendants refused to stop the automated calls.
4 at PageID #: 66. Plaintiff does not describe how he
“expressed his lack of consent, ” nor does he
give any other details about the prerecorded phone calls.
Sixth Circuit, quoting the Federal Communications Commission,
has ruled, “[A] creditor doesn't violate the [TCPA]
when it calls a debtor who has ‘provided [his number]
in connection with an existing debt.” Hill v.
Homeward Residential, Inc., 799 F.3d 544, 551 (6th Cir.
2015) (quoting In the Matter of Rules and Regulations
Implementing the Tel. Consumer Prot. Act of 1991, 23
F.C.C. Rcd. 559, 564 (2008) (latter alteration in original)).
Plaintiff concedes that LoanCare services his existing debt
on behalf of Nations Lending. ECF No. 4 at PageID #: 52.
“persons who knowingly release their phone numbers have
in effect given their invitation or permission to be called
and the number which they have given, absent instructions to
the contrary.” Baisden v. Credit Adjustments,
Inc., 813 F.3d 338, 342 (6th Cir. 2016) (quoting 7
F.C.C. Rcd. 8752, 8769 (1992)). “Debtors
‘typically give their cell phone number as part of a
credit application . . . .'” Rodriguez,
2018 WL 4184742, at *5 (quoting Hill, 799 F.3d at
551) (alterations omitted). Plaintiff makes no suggestion in
his Amended Complaint that he did not provide this routine
datum to Defendants. Even if he did not, however, Plaintiff
acknowledges that he voluntarily contacted LoanCare in
December 2017 to request a forbearance in loan payment
obligations. ECF No. 4 at PageID #: 54. Plaintiff does not
allege, and it is implausible to infer, that he did not
surrender his phone number to LoanCare or Nations Lending
during one or both of those interactions.
conclusory fashion, Plaintiff states that he “expressed
his lack of consent to automated calls . . . .” ECF No.
4 at PageID #: 66. But a pleading that offers “labels
and conclusions” or “a formulaic recitation of
the elements of a cause of action” does not suffice to
state a claim. Twombly, 550 U.S. at 555. Nor may a
pleading offer “naked assertion[s]” devoid of
“further factual enhancement.” Id. at
the Court grants Defendants' motion to dismiss
Plaintiff's claim under the TCPA.
Claims Under Consumer Finance Protection Bureau
alleges five causes of action under CFPB federal regulations.
His claims under 12 C.F.R. §§ 1024.39, 1024.40, and
1024.41 arise from the Real Estate Settlement Procedures Act,
12 U.S.C. § 2601 et seq. His claims under 12
C.F.R. §§ 1026.36 and 1026.41 arise from the Truth
in Lending Act, 15 U.S.C. § 1601 et seq.
12 C.F.R. § 1026.36 (Count Eleven)
servicer is generally prohibited from “fail[ing] to
credit a periodic payment to the consumer's loan account
as of the date of receipt.” 12 C.F.R. §
1026.36(c)(1)(i). A period payment is “an amount
sufficient to cover principal, interest, and escrow (if
applicable) for a given billing cycle.” Id.
alleges that LoanCare instructed him to pay $5, 864.95 in
order to bring his account current. ECF No. 4 at PageID #:
56. He claims that he made this payment in full, but that the
final period payment was “applied to other items,
including but not limited to the escrow account, a
‘Suspense Sweep,' and alleged ‘Late
Charges.'” Id. at PageID #: 57. Taken as
true, these allegations indicate that Plaintiff made the
applicable period payments, but that the final period payment
was not ...