United States District Court, M.D. Alabama, Southern Division
RICHARD A. YEAGER AND DEANA J. YEAGER, Plaintiffs,
OCWEN LOAN SERVICING, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE
the court is Defendant Ocwen Loan Servicing, LLC's
(“Ocwen”) Motion to Dismiss (Doc. # 12), filed
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Plaintiffs Richard A. Yeager and Deana J. Yeager
(“the Yeagers”) filed a response in opposition to
the motion (Doc. # 16), and Ocwen filed a reply. (Doc. # 21.)
After careful consideration of the arguments of counsel, the
relevant law, and the pertinent facts as pleaded in the
complaint, the court finds that the Motion to Dismiss is due
to be granted in part and denied in part.
JURISDICTION AND VENUE
jurisdiction is exercised pursuant to 28 U.S.C. §§
1331 and 1367. The parties do not contest personal
jurisdiction or venue.
STANDARD OF REVIEW
motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the sufficiency of the
complaint against the legal standard articulated by Rule 8 of
the Federal Rules of Civil Procedure. Rule 8 provides that
the complaint must include “a short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). When evaluating a motion
to dismiss pursuant to Rule 12(b)(6), the court must take the
facts alleged in the complaint as true and construe them in
the light most favorable to the plaintiff. Resnick v.
AvMed, Inc., 693 F.3d 1317, 1321-22 (11th Cir. 2012).
However, the court need not accept mere legal conclusions as
true. Id. at 1325.
survive a 12(b)(6) motion, the complaint “must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Additionally,
notwithstanding the alleged facts, Rule 12(b)(6)
“[d]ismissal is . . . permitted ‘when on the
basis of a dispositive issue of law, no construction of the
factual allegations will support the cause of
action.'” Glover v. Liggett Grp., Inc.,
459 F.3d 1304, 1308 (11th Cir. 2006) (quoting Marshall
Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d
1171, 1174 (11th Cir. 1993)); see also Neitzke v.
Williams, 490 U.S. 319, 326-27 (1989) (explaining that
Rule 12(b)(6) allows a court “to dismiss a claim on the
basis of a dispositive issue of law”).
FACTS AND PROCEDURAL HISTORY
action has its roots in a 1998 home mortgage that the Yeagers
obtained to finance the purchase of their home. Ocwen argues
that preceding litigation bars the instant action.
The Yeagers' loan, bankruptcy, and dispute regarding
February 1998, the Yeagers obtained a mortgage to finance the
purchase of their home. Following financial difficulties, the
Yeagers filed for Chapter 13 bankruptcy in June 2003.
Following bankruptcy proceedings and making payments on their
debt, the Yeagers completed their Chapter 13 plan and
received a discharge in November 2007. Rather than marking
the conclusion of proceedings related to that loan, the
discharge only prompted the beginning of extended frustration
and litigation between the Yeagers and several debt servicing
2012, Ocwen acquired Homeward Residential Holdings, Inc., and
the acquisition included servicing rights to the Yeagers'
loan. The Yeagers' loan was transferred to Ocwen in March
2013, and shortly thereafter, Ocwen contacted the Yeagers for
the first time. Beginning in March 2013, Ocwen “treated
[the Yeagers' loan] as if it were in default.”
(Doc. # 1, at 4.) This treatment included a series of letters
and phone calls that the Yeagers allege violate various laws
and common law rights.
had done with previous loan servicing providers, the Yeagers
sent Ocwen a letter setting out the history of the loan and
asking Ocwen to correct their account balance. Ocwen
continued calling the Yeagers' landline and cellular
phones “hundreds” of times, (Doc. # 1, at 8), and
continued, at the time of the filing of the complaint, to
report negative information to credit reporting agencies.
(Doc. # 1, at 6.) Additionally, Ocwen failed to investigate
and correct the Yeagers' loan balance information,
despite the Yeagers requesting such an investigation-in
writing-at least five different times. (Doc. # 1, at 12.)
mention of the suit is curiously absent from the Yeagers'
complaint, the Yeagers previously sued Ocwen in 2014,
culminating in Yeager v. Ocwen Loan Servicing, LLC,
237 F.Supp.3d 1211 (M.D. Ala. 2017) [Yeager I].
There, the Yeagers sued Ocwen regarding the same loan and
about some of the same behavior-letters that Ocwen sent
regarding collections on an already-paid loan. Under the Fair
Debt Collection Practices Act (“FDCPA”), 15
U.S.C. §§ 1692 et seq, the Yeagers alleged
that Ocwen failed to provide appropriate notice of debt
validation by the deadline provided by the statute.
Specifically, the Yeagers claimed that Ocwen failed to
include various notices about disputing the validity of the
debt until 13 days after the statutory deadline. Yeager
I, 237 F.Supp.3d at 1215.
nearly three years of litigation-including three motions to
dismiss, three magistrate judge recommendations, and three
rulings on those recommendations-the court granted
Ocwen's renewed motion to dismiss on the ground that the
Yeagers lacked standing. Relying on the United States Supreme
Court's recent decision in Spokeo Inc. v.
Robins, 136 S.Ct. 1540 (2016), Judge Thompson found that
the Yeagers “allege[d] merely a procedural
violation” that lacked a “‘degree of risk
sufficient to meet the concreteness requirement.'”
Yeager I at 1217 (quoting Spokeo, 136 S.Ct.
at 1550). At oral argument, the court asked whether, if
allowed to amend their complaint, the Yeagers could identify
any harm or material risk of harm that accompanied the
procedural violation; they indicated that they could not.
Accordingly, the court found that the Yeagers lacked Article
III standing and granted Ocwen's motion for judgment on
the pleadings. Id. at 1218. The Yeagers later filed
an appeal, which they dismissed voluntarily on April 4, 2017.
See Yeager I (Doc. # 76).
the dismissal of Yeager I, the Yeagers filed their
complaint in the instant action on August 28, 2017, (Doc. #
1), again alleging claims under the FDCPA, but also including
claims under the Telephone Consumer Protection Act
(“TCPA”) and the Real Estate Settlement
Procedures Act (“RESPA”), as well as common law
claims for invasion of privacy and breach of contract. These
claims are related to Ocwen's servicing of the same loan
that was the subject of the dispute in Yeager I.
Ocwen filed a Motion to Dismiss on October 20, 2017, alleging
that all of the Yeagers' claims are due to be dismissed
as barred by res judicata and, ...