Singleton v. Bank of Am., N.A.

• Decision Date: 25 November 2014
• Docket Number: CIVIL NO. 14-00447 DKW-BMK
• Parties: WILLIAM SINGLETON, a man. Plaintiff, v. BANK OF AMERICA, N.A., Defendant.
• Court: U.S. District Court — District of Hawaii

WILLIAM SINGLETON, a man. Plaintiff, v. BANK OF AMERICA, N.A., Defendant.

CIVIL NO. 14-00447 DKW-BMK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

November 25, 2014

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COMPLAINT FILED AUGUST 18, 2014

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COMPLAINT FILED AUGUST 18, 2014

INTRODUCTION

William Singleton brings federal and state claims against Bank of America, N.A. ("BANA"), based on BANA's "attempts to collect an alleged debt Defendant(s) claim is owed them. However, Plaintiff is without knowledge of the alleged debt Defendant(s) claim is owed." Complaint ¶ 5. The crux of Singleton's complaint is that BANA has no authority to collect payments on his mortgage where it was not the originating lender. Singleton's claims are unsupported by factual allegations sufficient to state plausible claims for relief. As a result, the CourtGRANTS BANA's motion to dismiss. Because Singleton is proceeding pro se, the Court also GRANTS leave to file an Amended Complaint by December 30, 2014.

BACKGROUND

Singleton executed a promissory note ("Note") for a $328,000 home loan, secured by a mortgage on real property located at 15-1548 9th Avenue, Keaau, Hawaii 96749 ("Mortgage"), on October 4, 2005. Complaint Ex. C (Note & Mortgage). The Mortgage identifies Singleton and Dawn Eshelman Singleton as the borrowers, Countrywide Home Loans, Inc. ("Countrywide") as the lender, and Mortgage Electronic Registration Systems, Inc. ("MERS") as "nominee for Lender and Lender's successors and assigns." Id. The Mortgage expressly states that "MERS is the mortgagee under this Security Instrument." Id.

According to Singleton, on April 16, 2014, he received "a dunning notice" from BANA, which "makes numerous claims by Defendant(s) regarding an alleged loan." Complaint ¶ 6. Attached as Exhibit A to the complaint is the "dunning notice," which shows that the loan has been in default since at least late 2013, and includes amounts past due. It also states that BANA has made the first notice of filing required by law for foreclosure. Complaint Ex. A.

Singleton responded by sending BANA a "Notice of Dispute, Demand for Verification/Validation of Alleged Debt" on June 6, 2014. Complaint Ex. B. Itstates that "you are not, [n]either have you been creditor of mine, or one that I have conducted any consumer transaction with. . . . Therefore I am respectfully demanding verification and or validation of any alleged debt pursuant to 15 U.S.C. § 1681." Id. BANA responded to Singleton's request after reviewing the loan file, in a July 2, 2014 letter, which provides in part:

To the extent the [June 6, 2014] Letter can be construed as a request for verification of the debt made under 12 U.S.C. § 1692g, please be advised that the Loan is evidenced by an Adjustable Rate Note dated October 4, 2005, in the principal amount of $328,000.00, executed by the Borrower, in favor of Countrywide Home Loans, Inc., a copy of which is enclosed. The Loan is secured by a Mortgage dated the same date, a copy of which is also enclosed. Please refer to the enclosed documents for additional information.

Enclosed is a Payment History that provides a detailed outline of transactions for the loan during Bank of America's servicing. Please note that this history provides pertinent information on payments received, tax and insurance payments disbursed, funds in the suspense/unapplied funds balance, and late charges assessed and paid. There are no codes or terms used in the Payment History that require specific definitions.

Pursuant to 15 U.S.C. § 1641(f)(2), the current owner of the note is the Federal National Mortgage Association. . . . The current servicer of the Loan is Bank of America[.]

Complaint Ex. C.

According to Singleton, BANA's July 2, 2014 response was insufficient because "nowhere is seen a document with the name of Bank of America HomeLoans, Inc., Bank of America, N.A., nor Bank of America. There is nothing in the documentation that Bank of America Home Loans is included in their alleged validation of debt that in fact validates any debt owed by the plaintiff to the Defendant(s)." Complaint ¶ 8. Singleton alleges that BANA "is not a creditor, lender, nor mortgagee, neither did the Defendant(s) provide any credit, or services to Plaintiff." Complaint ¶ 11.

Singleton alleges four causes of action against BANA: (1) violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 ("FCRA"); (2) invasion of privacy; (3) negligent, wanton and/or intentional hiring/supervision of incompetent employees or agents; and (4) violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("FDCPA"). He seeks declaratory relief and damages.

BANA contends that Singleton's claims must be dismissed because: (1) he cannot bring a private right of action under the FCRA, Section 1681s-2(a), and he alleges no facts demonstrating that BANA violated section 1681s-2(b); (2) there are no factual allegations that BANA publicly disclosed any private facts that would be highly offensive and objectionable to a reasonable person to maintain a claim for invasion of privacy; (3) Singleton's claim for negligent, wanton and/or intentional hiring and supervision of employees fails because he pleads no facts in support of this claim; and (4) the claim for violation of the FDCPA fails because BANA is not adebt collector. Attached to BANA's motion is an Assignment of Mortgage, recorded on January 16, 2013 ("Assignment"), assigning Countrywide's interest in the Mortgage to BANA, with MERS acting as nominee.¹ Decl. of Counsel, Ex. A. Singleton did not file an opposition to the motion to dismiss.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss for failure to state a claim upon which relief can be granted. Pursuant to Ashcroft v. Iqbal, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" 555 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. Accordingly, "[t]hreadbare recitals of the elements of a cause of action, supported by mereconclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Rather, "[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. (citing Twombly, 550 U.S. at 556). Factual allegations that only permit the court to infer "the mere possibility of misconduct" do not constitute a short and plain statement of the claim showing that the pleader is entitled to relief as required by Rule 8(a)(2). Id. at 679.

Under Rule 12(b)(6), review is generally limited to the contents of the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). Documents whose contents are alleged in a complaint and whose authenticity are not questioned by any party may also be considered on a Rule 12(b)(6) motion to dismiss. See Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).

Because he is proceeding pro se, the Court liberally construes Singleton's filings. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) ("The Supreme Court has instructed the federal courts to liberally construe the 'inartful pleading' of pro se litigants.") (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (percuriam)). "Pro se litigants must [nonetheless] follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

DISCUSSION

I. Validity of Assignment

To the extent Singleton's claims are grounded on BANA's standing to collect a debt or service his loan account, or which otherwise contest the validity of the debt or Assignment, he fails to state claims upon which relief can be granted. The documents attached to the complaint establish that BANA has been the servicer of the loan from the time of origination. Complaint Ex. C. When MERS assigned its interest to BANA on November 16, 2012, BANA also became the beneficiary of the loan. Decl. of Counsel, Ex. A (Assignment).

In light of the express disclosures in the Mortgage giving MERS the authority to act on behalf of Countrywide and the transfer of the Mortgage to BANA, Singleton has no basis to challenge the Assignment. See, e.g., Fed. Nat'l Mortg. Ass'n v. Kamakau, 2012 WL 622169, at *4 & *5 n.5 (D. Haw. Feb. 23, 2012) (explaining that a borrower cannot challenge an assignment to which he was not a party, and that plaintiff may not assert claims based on the argument that MERS lacked authority to assign its right to foreclose); Lindsey v.. Meridias Cap., Inc., 2012 WL 488282, at *3 n.6 (D. Haw. Feb. 14, 2012) ("'[A]ny argument that MERSlacked the authority to assign its right to foreclose and sell the property based on its status as 'nominee' cannot stand in light of [Cervantes v. Countrywide Home Loans, 656 F.3d 1034 (9th Cir. 2011).]" (quoting Velasco v. Sec. Nat'l Mortg. Co., 2011 WL 4899935, at *11 (D. Haw. Oct. 14, 2011)); Teaupa v. U.S. Nat'l Bank N.A., 836 F. Supp. 2d 1083, 2011 WL 6749813, at *16 (D. Haw. Dec. 22, 2011) (dismissing without leave to amend claim asserting that MERS lacks standing to foreclose).

Here, Singleton presents no plausible allegations that BANA did not have the authority to service the loan or collect a debt. See, e.g., White v. IndyMac Bank, FSB, 2012 WL 966638, at *8 (D. Haw. Mar. 20, 2012) (rejecting a "show me the note" argument for an unfair and deceptive acts or practices claim); Del Piano v. Mortg. Elec. Registration Sys, Inc., 2012 WL 621975, at *10 (D. Haw. Feb. 24, 2012) (rejecting a "show me...