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Greer v. Ocwen Loan Servicing LLC

United States District Court, W.D. Washington, Tacoma

April 21, 2014

RICK GREER, Plaintiff,
v.
OCWEN LOAN SERVICING LLC, Defendant.

ORDER

RONALD B. LEIGHTON, District Judge.

I. INTRODUCTION

This matter is before the Court on Defendant Ocwen Loan Servicing LLC's Fed.R.Civ.P. 12(b)(6) Motion to Dismiss. [Dkt #7] Ocwen was Plaintiff Rick Greer's mortgage loan servicer. Greer alleges that Ocwen failed to prove it owned his loan, failed to respond to his concerns, and issued a Notice of Default without the authority to do so. Greer has asserted claims under the Fair Debt Collection Practices Act (FDCPA), the Truth in Lending Act (TILA), the Washington Collection Agency Act (WCAA), and the Washington Consumer Protection Act (WCPA). Ocwen moves to dismiss all of Greer's claims, arguing that the FDCPA and TILA do not apply, that the alleged WCAA violations are only actionable under the WCPA, and that Greer has not alleged an injury cognizable under the WCPA.

II. BACKGROUND

In 2004 Greer borrowed $148, 000 to purchase residential property, executing both a Promissory Note and Deed of Trust in the process. The Deed named Homecomings Financial Network, Inc. as the lender and Mortgage Electronic Registration System, Inc., (MERS) as the beneficiary, acting solely as nominee for the lender and its assigns.

On February 7, 2013, Greer received a letter from his loan's prior servicer, GMAC Mortgage, LLC, entitled "Notice of Transfer and Welcome to Ocwen Loan Servicing, LLC." Greer, attempting to validate a proper chain of ownership of his note, sent Ocwen multiple letters in February, June, and July of 2013, including a Qualified Written Request. As required, Ocwen responded to Greer's Qualified Written Request, and stated that GMAC had sold certain assets to Ocwen.

Ocwen sent a number of letters during September and October of 2013 warning of default and threatening foreclosure. The footers of Ocwen's letters stated "[t]his communication is from a debt collector attempting to collect a debt; any information obtained will be used for that purpose."

On October 17, 2013, Ocwen issued a "Notice of Default" and requested Greer pay $64, 180.70. This letter gave Greer 30 days to dispute the debt in writing. It also stated "[t]he debt is owed to Ocwen as the owner or servicer of your home loan and mortgage." On November 4, 2013, Greer looked up his account on the MERS website. The website showed that GMAC was the alleged servicer of record.

Greer filed this Complaint the next day. He alleges that Ocwen violated the FDCPA, TILA, the WCAA, and the WCPA, and seeks actual, statutory, treble, and punitive damages, and attorney's fees.

Ocwen moves to dismiss, arguing that it was not subject to the FDCPA because it is a loan servicer, not a debt collector; that TILA doesn't apply to loan servicers; that the alleged WCAA violations are only actionable under the WCPA; and that Greer has not pled facts to support his WCPA claim or a cognizable injury.

Greer argues that Ocwen stated in its correspondence that it is a debt collector and is subject to and has violated both FDCPA and TILA. He also argues that his WCAA claims are separate from his WCPA claims and that Ocwen's actions injured him through lost time and energy while preparing for this lawsuit.[1]

III. DISCUSSION

A. Fed.R.Civ.P. 12(b)(6) Standard.

Dismissal under Rule 12(b)(6) may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A complaint must allege facts to state a claim for relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662 (2009). A claim has "facial plausibility" when the party seeking relief "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. Although the Court must accept as true a complaint's well-pled facts, conclusory allegations of law and unwarranted inferences will not defeat an otherwise proper Rule 12(b)(6) motion. Vasquez v. L.A. County, 487 F.3d 1246, 1249 (9th Cir. 2007); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). "[A] plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to ...


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