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Brutsky v. Capital One, N.A.

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

January 23, 2018

ROMAN BRUTSKY and LYUBOV BRUTSKY, Plaintiffs,
v.
CAPITAL ONE, N.A., Defendant.

          ORDER

          Honorable Richard A. Jones United States District Judge

         I. INTRODUCTION

         This 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.

         II. BACKGROUND

         The 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 Cir. 2007).

         Plaintiffs 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.

         Defendant 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. ¶ 10.

         In 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.

         On or 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.

         III. LEGAL STANDARD

         Defendant 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).

         A. FRCP 8

         Federal 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).

         B. FRCP 12(b)(6)

         Fed. R. 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).

         A court 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 ...


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