United States District Court, M.D. Alabama, Eastern Division
MICHAEL PATRICK, Plaintiffs, CITIFINANCIAL CORP., LLC, Defendant.
MEMORANDUM OPINION AND ORDER
W. HAROLD ALBRITTON, Senior District Judge.
This cause is before the court on a Partial Motion to Dismiss (Doc. #6) filed by CitiFinancial Corp., LLC.
The Plaintiff filed a Complaint bringing claims for breach of contract (Count One), violation of the Real Estate Settlement Procedures Act ("RESPA") (Count Two), violation of the Fair Debt Collection Practices Act ("FDCPA") (Count Three), and violation of the Fair Housing Act ("FHA") (Count Four). The Plaintiff has brought claims for violation of federal law, therefore, this court has federal question subject matter jurisdiction, 28 U.S.C. §1331, and can exercise supplemental jurisdiction over the state law claim. 28 U.S.C. §1367.
For reasons to be discussed, the Motion to Dismiss is due to GRANTED, the FDCPA claim dismissed with prejudice, and the RESPA and FHA claims dismissed without prejudice, with leave to amend.
II. MOTION TO DISMISS STANDARD
The court accepts the plaintiff's factual allegations as true, Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), and construes the complaint in the plaintiff's favor, Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). In analyzing the sufficiency of pleading, the court is guided by a two-prong approach: one, the court is not bound to accept conclusory statements of the elements of a cause of action and, two, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to entitlement to relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A[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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a complaint need not contain Adetailed factual allegations, " but instead the complaint must contain Aonly enough facts to state a claim to relief that is plausible on its face." Id. at 570. The factual allegations Amust be enough to raise a right to relief above the speculative level." Id. at 555.
The allegations of the Plaintiff's Complaint are as follows:
The Plaintiff, Patrick, began service in the U.S. military in 1976. He received an honorable discharge from the U.S. Army and retired with a 50% disability rating. He alleges that he suffers from physical and mental disabilities which cause his brother, Guy Patrick, to serve as his legal guardian.
In March of 2008, Patrick obtained a loan from CitiFinancial for the purchase of property in Tuskegee, Alabama. The loan was secured by a promissory note and mortgage. Patrick set up his loan payments through an automatic bill payment service through his personal bank. In June of 2012, CitiFinancial foreclosed on the Mortgage and sold the property at auction. Patrick alleges that he did not receive notice of the foreclosure and he was not aware that the loan was in default.
In June of 2013, Patrick submitted a Qualified Written Request ("QWR") to CitiFinancial for the purpose of clarifying the disputed acceleration, default, and foreclosure.
On May 4, 2015, Patrick filed his Complaint ...