United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
putative nationwide class action, plaintiffs Harold McWhorter
and Robert Fielder allege that defendant Ocwen Loan
Servicing, LLC violated the Fair Debt Collection Practices
Act (FDCPA), 15 U.S.C. § 1692f(1), by charging customers
a convenience fee to make loan payments online and over the
telephone. (Doc. 2, ¶¶ 1-2, 9, 11-12). Pursuant to
Federal Rule of Civil Procedure 12(b)(6), Ocwen asks the
Court to dismiss the plaintiffs' amended complaint. (Doc.
9). The Court previously denied Ocwen's motion to dismiss
with respect to Mr. Fielder but deferred ruling on the motion
with respect to Mr. McWhorter, pending a period of limited
discovery. (Doc. 31). Mr. McWhorter subsequently filed
evidentiary material including the Trial Period Plan
Agreement that Mr. McWhorter and GMAC Mortgage executed
before Ocwen acquired Mr. McWhorter's loan. (Doc. 33).
The Court has reviewed this material and now denies
Ocwen's motion to dismiss with respect to Mr.
McWhorter's claim against Ocwen because these materials
indicate that Mr. McWhorter's loan was in a state of
default when Ocwen acquired it.
asks the Court for the opportunity to respond to Mr.
McWhorter's evidentiary material. (Doc. 35).
Specifically, Ocwen wishes to demonstrate that it was bound
by and complied with federal regulations “by promptly
completing the implementation of the permanent loan
modification (which had already been preliminarily approved
by the prior servicer) effective as of the very first monthly
payment due date following service transfer.” The Court
denies Ocwen's motion to file such a response because a
showing that Ocwen implemented a permanent loan modification
after it acquired Mr. McWhorter's loan is not relevant to
whether that loan was in a state of default when Ocwen
acquired the loan.
RULE 12(b)(6) STANDARD
Rule 12(b)(6), a defendant may move to dismiss a complaint
for “failure to state a claim upon which relief can be
granted.” See Fed. R. Civ. P. 12(b)(6). To
survive a Rule 12(b)(6) motion to dismiss, a complaint-or in
this case, an amended complaint-must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). In
considering a defendant's motion to dismiss a complaint,
a district court generally accepts the plaintiff's
allegations as true and asks whether the plaintiff alleges
facts that allow the district court to “draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Aschcroft v. Iqbal, 556
U.S. 662, 678 (2009); see Maledy v. City of Enter.,
2012 WL 1028176, at *1 (M.D. Ala. Mar. 26, 2012). A district
court is “not bound to accept as true a legal
conclusion couched as a factual allegation.”
Iqbal, 556 U.S. at 678; Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotation
motion to dismiss, Ocwen challenges the merits of some of the
factual allegations in the plaintiffs' amended complaint.
In their arguments, the parties rely on documents that are
central to the plaintiffs' claims. In resolving the
motions to dismiss, the Court may consider these documents
without converting Ocwen's motion to dismiss into a
motion for summary judgment because the documents are central
to the plaintiffs' claims, and no party challenges the
authenticity of the documents. See Urquilla-Diaz v.
Kaplan Univ., 780 F.3d 1039, 1053 n. 12 (11th Cir.
Mortgage, LLC was Mr. McWhorter's loan servicer before
Ocwen acquired the loan. On November 9, 2012, Mr. McWhorter
entered into a Trial Period Plan Agreement with GMAC. (Doc.
33-1, p. 1). According to the letter GMAC sent Mr. McWhorter
regarding this agreement:
This Trial Period plan period will allow you to make a
reduced payment for a specified amount of time. Once all
scheduled payments have been received, you [sic] situation
will be reviewed to determine the best option for resolving
the remaining delinquency.
(Doc. 33-1, p. 1). Pursuant to the trial agreement, Mr.
McWhorter had to make three payments of $401.05 on December
1, 2012, January 1, 2013, and February 1, 2013. (Doc. 33-1,
p. 2). The trial agreement states that “[i]t is
expressly understood and agreed that the default is not cured
or waived by acceptance of any monies paid hereunder.”
(Doc. 33-1, p. 3).
February 7, 2013, GMAC notified Mr. McWhorter by letter that
GMAC had received all required payments from Mr. McWhorter
and that Mr. McWhorter had “successfully completed the
trial period of [his] loan modification program.” (Doc.
33-1, p. 10). This letter states:
• No action on your part is required at this time. We
will review your account to confirm you meet all of the
requirements to move ahead with a permanent loan
• If you qualify, we will send you the details of your
loan modification within 30 days. This includes your new
interest rate and mortgage payment amount. You will also