United States District Court, W.D. Washington, Seattle
Honorable Richard A. Jones United States District Judge
matter comes before the Court on Defendant's Motion to
Dismiss Plaintiffs' Complaint. Dkt. # 11. Plaintiffs
Roman Brutsky and Lyubov Brutsky oppose the Motion. Dkt. #
17. For the reasons set forth below, the Court
GRANTS Defendant's Motion.
following is taken from Plaintiff's Complaint, which is
assumed to be true for the purposes of this motion to
dismiss. Sanders v. Brown, 504 F.3d 903, 910 (9th
bring this action against Defendant Capital One, N.A. for
alleged violations of the Real Estate Civil Settlement
Procedure Act, 12 U.S.C. § 2605 (“RESPA”),
the Fair Debt Collection Practices Act, 15 U.S.C. §
1692e(2)(A) (“FDCPA”), the Fair Credit Reporting
Act, 15 U.S.C. § 1681s-2 et seq.
(“FCRA”), the Washington Consumer Protection Act
(“CPA”), the Washington Mortgage Loan Servicing
Act (“MLSA”), and for breach of contract. Dkt. #
1 ¶¶ 1, 47.
is a national banking association that offers mortgages in
the state of Washington. Dkt. # 1 ¶ 5. Plaintiffs own
two adjacent lots of real property located in King County,
Washington. Id. ¶ 6. On or about October 25,
2007, Plaintiffs obtained an “interest only”
mortgage loan from ING Bank, FSB to refinance their home. The
mortgage was secured by the two lots of real property.
Id. ¶¶ 7, 11. Plaintiffs' home was
located on one of the lots. Plaintiffs subdivided the empty
lot and constructed a house which was then used as rental
property. Id. ¶ 11. Plaintiffs fell behind on
their mortgage payments and in or around May 2012, Defendant
acquired Plaintiffs' loan. Id. ¶¶ 8,
9; Dkt. # 11. On or about November 8, 2012, Plaintiffs
obtained a loan modification from Defendant. Id.
2016, Plaintiffs paid their mortgage payments in a timely
manner. Id. ¶ 13. In March 2016, Defendant paid
the property taxes due on one property securing the mortgage.
During the same month, Plaintiffs also paid the property
taxes due on that property. Id. ¶¶ 15, 16.
That same year, Plaintiffs decided to sell their rental home.
On or about June 27, 2016, Plaintiffs received a written
offer to purchase their rental property. Id. ¶
17. The amount of the offer was not enough to pay off the
mortgage, so Plaintiffs applied for a new mortgage, secured
by their residence, to pay off the original mortgage.
Id. ¶ 18. Plaintiffs' application for a new
mortgage was denied because Defendant reported that
Plaintiffs' original mortgage was delinquent.
Id. ¶ 19. Plaintiffs allege that they
communicated via phone and in writing with Defendant numerous
times throughout 2016 to inform Defendant of the issue and to
request adjustments to their account. Id. ¶ 22.
about August 19, 2016, Plaintiffs sent a written request to
Defendant to correct the errors in their account. Defendant
did not respond to that written request. Id.
¶¶ 23, 24. At some point in November 2016, the
buyer for the rental home withdrew the offer. Id.
¶ 30. On November 9, 2016, Plaintiffs sent written
requests to credit reporting agencies disputing their payment
history with Defendant and requesting corrections to their
credit reports. Id. ¶ 31. In January of 2017,
Plaintiffs, this time through their counsel, again contacted
Defendant and requested that the payment history errors be
corrected. Id. ¶ 37. Defendant did not respond
to that letter. Id. ¶ 38. Plaintiffs filed this
action on March 28, 2017. Dkt. # 1.
filed its Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 8, but cites to case law setting out the legal
standards for a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6). Dkt. # 11 at 2, 3. As such, the
Court will construe Defendant's Motion as a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
Rule of Civil Procedure 8(a) states that “[a] pleading
which sets forth a claim for relief ... shall contain ... a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8.
“A claim is the aggregate of operative facts which give
rise to a right enforceable in the courts.”
Bautista v. Los Angeles Cty., 216 F.3d 837, 840 (9th
Cir. 2000). To comply with Rule 8, Plaintiffs must plead a
short and plain statement of the elements of their claims,
identifying the transaction or occurrence giving rise to the
claim and the elements of the prima facie case. Id.
Accordingly, Plaintiffs must set forth “who is being
sued, for what relief, and on what theory, with enough detail
to guide discovery.” McHenry v. Penne, 84 F.3d
1172, 1179-80 (9th Cir. 1996).
Civ. P. 12(b)(6) permits a court to dismiss a complaint for
failure to state a claim. The rule requires the court to
assume the truth of the complaint's factual allegations
and credit all reasonable inferences arising from those
allegations. Sanders v. Brown, 504 F.3d 903, 910
(9th Cir. 2007). A court “need not accept as true
conclusory allegations that are contradicted by documents
referred to in the complaint.” Manzarek v. St. Paul
Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th
Cir. 2008). The plaintiff must point to factual allegations
that “state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 568 (2007). If the plaintiff succeeds, the complaint
avoids dismissal if there is “any set of facts
consistent with the allegations in the complaint” that
would entitle the plaintiff to relief. Id. at 563;
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
typically cannot consider evidence beyond the four corners of
the complaint, although it may rely on a document to which
the complaint refers if the document is central to the
party's claims and its authenticity is not in question.
Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006).
A court may also consider ...