United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
claim that their mortgage loan servicer, Rushmore Loan
Management Services, LLC (“Rushmore”), violated
the Fair Debt Collection Practices Act (FDCPA), the Real
Estate Settlement Procedures Act (RESPA), and the Truth in
Lending Act (TILA) with respect to plaintiffs' loan, and
also committed acts constituting fraudulent misrepresentation
and breach of contract. The matter is now before the court on
Rushmore's motion to dismiss the complaint.
Summary of the Complaint.
following allegations are taken from plaintiffs'
complaint (Dkt. 1). Plaintiffs were behind on their home
mortgage loan and contacted Rushmore for help in getting the
loan current. On January 11, 2016, Rushmore sent plaintiffs a
Reinstatement Payment Plan to bring their loan current and
avoid foreclosure. The Plan stated in part that “the
amount required to reinstate your loan in full as of 7392.91
[sic] is $6686.55.” Id., ¶17. Plaintiffs
were confused by the Plan and spoke to a Rushmore
representative, but the amount they were told was in arrears
was not consistent with the statements that Rushmore sent.
Serenity Boedicker obtained her credit report from Equifax on
February 2, 2016. In it, Rushmore reported that $8, 449 was
past due on the account as of January 7, 2016. Plaintiffs
continued to try to clarify the information from Rushmore
about the amount of the debt but “could never get a
to September 1, 2016, plaintiffs sent an application for loss
mitigation (“LM #1”) to Rushmore in which they
listed their monthly gross income as $6, 766.00. Plaintiffs
received correspondence from Rushmore indicating that LM #1
was denied a review under the Home Affordable Modification
Program (HAMP) because their debt-to-income ratio was outside
of the acceptable (25-42%) range. Rushmore stated in the
letter that plaintiffs' gross monthly income was $8,
378.50, although plaintiffs' application indicated it was
September 6, 2016, plaintiffs received a letter from Rushmore
offering a “Trial Modification Agreement.” This
letter stated that the amount in arrears through September
30, 2016, was $14, 450.09. It offered a repayment proposal
calling for an initial payment of $2, 950.00, payments of $1,
160.00 in the months of October-December 2016, and monthly
payments thereafter of $1, 160.00 until confirmation of a
permanent modification. The proposal was silent as to the
terms of a permanent modification. Plaintiffs had 14 days
from the date of the letter to accept.
contacted counsel, who sent a Notice of Error/Request for
Information (“NOE #1”) to Rushmore requesting an
explanation why the loan was ineligible for HAMP. Counsel
requested the “waterfall analysis” used in the
determination. Rushmore never provided plaintiffs with the
requested waterfall analysis.
counsel sent a second Notice of Error/Request for Information
dated September 14, 2016, requesting information about
whether the trial loan modification agreement was a
forbearance agreement or a modification agreement. Rushmore
allegedly never acknowledged whether it was a forbearance
agreement or a loan modification, and plaintiffs did not
tender payment to Rushmore “because they did not have
sufficient information to make an informed decision to
determine if the trial loan modification was in their best
interest.” Dkt. 1, ¶40.
October 1, 2016, plaintiffs received a letter from Rushmore
indicating that their trial loan modification was denied due
to a failure to return documents in a timely manner.
November 3, 2016, plaintiffs received an acknowledgement of
receipt from Rushmore of the two Notice of Error letters sent
by plaintiffs, but Rushmore did not address the requested
waterfall analysis or whether the trial modification was in
fact a loan modification or a forbearance agreement.
November 4, 2016, plaintiffs received a Notice of
Acceleration of their mortgage from a law firm representing
complaint contains eight counts. The first three counts
allege violations of Regulation X of RESPA (12 CFR Part
1024). Counts four and five allege, respectively, fraudulent
misrepresentation and breach of contract. The last three
counts allege violations of the FDCPA. Rushmore moves to
dismiss all of the counts for failure to state a claim upon
which relief can be granted. See Fed. R. Civ. P.
Standards Governing Motion to Dismiss - Rule 12(b)(6).
12(b)(6) allows dismissal of a complaint where the facts
alleged fail to state a claim to relief “that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly,550 U.S. 544, 570 (2007)). “A 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.”
Id. at 678. Complaints containing no more than
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action” may
not survive a motion to dismiss. Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). All
well-pleaded factual allegations in the complaint are
accepted as true and viewed in the light most favorable to
the plaintiff for purposes of determining whether the
complaint states a plausible ...