McAndrew v. Deutsche Bank Nat'l Trust Co.

Decision Date08 October 2013
Docket NumberNo. 3:13cv1926.,3:13cv1926.
Citation977 F.Supp.2d 440
PartiesMary P. McANDREW, Plaintiff v. DEUTSCHE BANK NATIONAL TRUST COMPANY and American Home Mortgage Servicing, Inc., Defendants.
CourtU.S. District Court — Middle District of Pennsylvania


John J. Brazil, Jr., Scranton, PA, for Plaintiff.

Kevin C. Rakowski, Blank Rome LLP, Philadelphia, PA, for Defendants.


MUNLEY, District Judge.

Before the court is Defendants Deutsche Bank National Trust Company (hereinafter Deutsche Bank) and American Home Mortgage Servicing, Inc.'s 1 (hereinafter AHMSI) motion to dismiss Plaintiff Mary P. McAndrew's (hereinafter plaintiff) complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 4). The matter is fully briefed and ripe for disposition. For the following reasons, the court will grant defendants' motion to dismiss.


On September 30, 2005, in consideration of a loan in the principal amount of $93,500.00, plaintiff executed a mortgage with Ameriquest Mortgage Company (hereinafter “Ameriquest”) on property located at 28 Birch Street, Wilkes–Barre, Pennsylvania 18702 (hereinafter “the property”). (Doc. 1, Ex. 1, Compl. (hereinafter “Compl.”) ¶ 4). In February 2009, the mortgage was assigned to Deutsche Bank as trustee for Ameriquest. ( Id. ¶ 5). Deutsche Bank then employed AHMSI to service plaintiff's loan. ( Id. ¶ 7).

Subsequent to the assignment of plaintiff's mortgage, AHMSI attempted to collect escrow payments for taxes and insurance on the property from plaintiff. ( Id. ¶ 8). Once contacted, plaintiff advised AHMSI that she did not owe any back taxes or insurance. ( Id. ¶¶ 11, 32). Specifically, on five separate occasions, plaintiff mailed copies of her insurance coverage to notify AHMSI that they had improperly charged her escrow payments for insurance and taxes. ( Id. ¶¶ 11, 22). Plaintiff maintains that AHMSI received each of her notices but continued seeking escrow payments. ( Id. ¶¶ 22, 32). Additionally, plaintiff requested AHMSI provide her with proof of insurance and tax payments owed. ( Id. ¶ 23). AHMSI, however, failed to provide this documentary proof to plaintiff. ( Id.). Regardless of AHMSI's failure to substantiate their claims, plaintiff continued to make the requested escrow payments. ( Id. ¶ 12).

On October 18, 2011, AHMSI sent a certified pre-foreclosure notice to plaintiff informing her that her loan was in default for failing to make monthly mortgage payments for the months of July through October 2011. (Doc. 5–1, Ex. E, Def.'s Br. in Supp.).2 The letter stated the amount that plaintiff must pay to cure default was $3,187.45. (Compl. ¶ 26). In response, plaintiff requested information regarding the amount of money that would bring the mortgage current from AHMSI. ( Id. ¶ 13). AHMSI provided plaintiff written notice that a payment in the amount of $5,134.90 by December 1, 2011 would bring the mortgage current. ( Id.)

On November 26, 2011, plaintiff sent AHMSI a certified check in the amount of $5,134.90. ( Id. ¶ 14). In December 2011, the check was returned to plaintiff. ( Id. ¶ 15). When plaintiff contacted AHMSI to inquire as to why the check was returned, AHMSI confirmed that they had made a mistake regarding plaintiff's insurance coverage and returned the check accordingly. ( Id.)

In 2012, AHMSI again requested two additional checks from plaintiff to cover alleged escrow tax payments owed on the property and plaintiff sent the two checks as directed. ( Id. ¶¶ 16–17). Later in 2012, AHMSI again returned both checks to plaintiff. ( Id. ¶ 18). While this dispute was ongoing, defendants continued to report negatively to plaintiff's credit agencies claiming that plaintiff's loan was in default, which adversely impacted her credit rating and ability to borrow. ( Id. ¶ 19).

In February of 2012, plaintiff requested a payoff amount from Deutsche Bank as of February 29, 2012. ( Id. ¶ 20). Plaintiff asserts that Deutsche Bank never provided her with a payoff amount. ( Id. ¶ 21). Plaintiff spoke with an employee of AHMSI regarding her requested payoff and the improper charges that plaintiff paid as a result of AHMSI's alleged mistake. ( Id. ¶ 25). The employee of AHMSI indicated to plaintiff that she would get a payoff and that the amount would exclude charges that plaintiff paid as a result of AHMSI's error. ( Id.) Deutsche Bank or AHMSI, however, failed to provide a payoff amount to plaintiff. ( Id.) Plaintiff contends that both Deutsche Bank and AHMSI (collectively defendants) failed to correct the ongoing problems which included failing to properly respond to her information related inquiries, failing to provide accurate written responses to her requests in a timely manner, and improper collection of escrow payments. ( Id. ¶¶ 28, 29, 33).

Based upon these facts, plaintiff filed a three-count complaint in the Luzerne County Court of Common Pleas. (Doc. 1, Notice of Removal ¶ 1). The complaint asserts the following causes of action: Count One, violations of 12 U.S.C. § 2605(e) (hereinafter section 2605(e)) and 12 U.S.C. § 2609 (hereinafter section 2609) of the Real Estate Settlement Procedures Act (hereinafter “RESPA”), 12 U.S.C. §§ 2601–2617, against Deutsche Bank; Count Two, violation of section 2609 against AHMSI; Count Three, violations of the Fair Debt Collection Practices Act (hereinafter “FDCPA”), 15 U.S.C. § 1692 et seq., and the Pennsylvania Fair Debt Collection Practices Act, 73 Pa. Stat. § 2270.1 et seq., against AHMSI. Plaintiff seeks various types of damages including, inter alia, compensatory damages, statutory penalties and attorney's fees.

The defendants filed a notice of removal, bringing the case to this court on July 17, 2013. (Doc. 1, Notice of Removal). Defendants then filed a motion to dismiss plaintiff's complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Doc. 4). The parties have briefed their respective positions, bringing the case to its present posture.


Plaintiff asserts claims under the RESPA and the FDCPA. ( Id. ¶¶ 28, 29, 33, 45). The court has federal question jurisdiction pursuant to 28 U.S.C. § 1331, which provides that [t]he district court shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” The court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over the plaintiff's state law claim under the Pennsylvania Fair Debt Collection Practices Act, 73 PA. STAT. § 2270.1 et seq., because it is so closely related to plaintiff's federal FDCPA and RESPA claims that it forms part of the same case or controversy under Article III of the United States Constitution.

Standard of Review

Defendants bring this motion pursuant to Federal Rules of Civil Procedure 12(b)(6). When a 12(b)(6) motion is filed, the sufficiency of the allegations in the complaint are tested. All well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the nonmovant to determine whether, ‘under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.’ Colburn v. Upper Darby Twp., 838 F.2d 663, 665–66 (3d Cir.1988) (quoting Estate of Bailey by Oare v. Cnty. of York, 768 F.2d 503, 506 (3d Cir.1985)). The plaintiff must describe ‘enough facts to raise a reasonable expectation that discovery will reveal evidence of’ [each] necessary element” of the claims alleged in the complaint. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Moreover, the plaintiff must allege facts that “justify moving the case beyond the pleadings to the next stage of litigation.” Id. at 234–35. In evaluating the sufficiency of a complaint the court may also consider “matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir.1994) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay–Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir.2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997)).

The federal rules require only that plaintiff provide “a short and plain statement of the claim showing that the pleader is entitled to relief”, a standard which “does not require ‘detailed factual allegations,’ but a plaintiff must make ‘a showing, rather than a blanket assertion, of entitlement to relief’ that rises ‘above the speculative level.’ McTernan v. City of York, 564 F.3d 636, 646 (3d Cir.2009) (quoting Twombly, 550 U.S. at 555–56, 127 S.Ct. 1955). 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). Such “facial plausibility” exists “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. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). [T]he factual detail in a complaint [cannot be] so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8.” Phillips, 515 F.3d at 232 (citation omitted).

The Supreme Court has counseled that a court examining a motion to dismiss should, “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. Next, the court should make a context-specific inquiry into the “factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.” Id. at 681, 129 S.Ct. 1937.


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