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McWhorter v. Ocwen Loan Servicing, LLC

United States District Court, N.D. Alabama, Southern Division

October 8, 2017

HAROLD McWHORTER and ROBERT FIELDER, Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE

         In this 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.

         Ocwen 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.[1]

         I. RULE 12(b)(6) STANDARD

         Under 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 marks omitted).

         In its 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. 2015).

         II. BACKGROUND [2]

         GMAC 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).

         On 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 modification.
• 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 receive ...

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