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Selena Jones v. Us Bank National Association

February 10, 2011

SELENA JONES, PLAINTIFF,
v.
US BANK NATIONAL ASSOCIATION, AS ) TRUSTEE FOR CREDIT SUISSE FIRST BOSTON 2004-AA1; ) AHL ACQUISITION, LLC, AS SUCCESSOR IN ) INTEREST BY WAY OF MERGER TO AAMES FUNDING ) CORPORATION D/B/A AAMES HOME LOAN; WELLS ) FARGO HOME MORTGAGE, INC., D/B/A ) AMERICA'S SERVICING COMPANY; REAL TIME ) RESOLUTIONS, INC.; WILLIAM J. PARKER; ) CODILIS & ASSOCIATES, P.C.; UNKNOWN ) SHELL COMPANY; UNKNOWN TRUSTEE ) FOR UNKNOWN TRUST; UNKNOWN ) BENEFICIARY OF UNKNOWN TRUST; ) UNKNOWN HOLDER OF THE NOTE; DEFENDANTS.



The opinion of the court was delivered by: James F. Holderman, Chief Judge:

MEMORANDUM OPINION AND ORDER

For the reasons set forth below, defendant Real Time Resolution, Inc.'s "Motion to Dismiss" (Dkt. No. 59) is granted in part and denied in part. Jones's RESPA claim (Third Cause of Action) and FCRA claim (Ninth Cause of Action) are dismissed against RTR, and Jones's FDCPA Claim (Eighth Cause of Action) remains pending against RTR.

BACKGROUND

In this lawsuit, pro se plaintiff Selena Jones ("Jones") alleges that defendant Real Time Resolution, Inc. ("RTR") is liable to Jones for violations of the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601, et seq. ("RESPA") ("Third Cause of Action"), the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. ("FDCPA") ("Eighth Cause of Action"), and the Fair Credit Reporting Act, 15 U.S.C. §§ 1681, et seq. ("FCRA") ("Ninth Cause of Action"), based on RTR's servicing of a consumer mortgage refinance transaction, Loan No. 0001686708, in the amount of $38,800.00 ("Second Loan"). (Dkt. No. 73 ("2d Am. Compl"). ¶¶ 12, 33, 119-125; 161-174.)

On July 2, 2010, RTR filed a "Motion to Dismiss" (Dkt. No. 59), arguing that Jones "fail[ed] to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6)." (Id.) The court separately addresses each of Jones's claims against RTR in the analysis that follows.

LEGAL STANDARD

Under the Federal Rules of Civil Procedure, a complaint generally must include only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual material, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1940 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

If the allegations of a complaint "fail[ ] to state a claim upon which relief can be granted," the complaint will be dismissed. Fed. R. Civ. P. 12(b)(6). In making its determination in this case, the court construes Jones's Second Amended Complaint in the light most favorable to Jones, accepts as true all well-pleaded factual allegations set forth therein, and draws all reasonable inferences in Jones's favor. Fednav Int'l Ltd. v. Continental Ins. Co., 624 F.3d 834, 837 (7th Cir. 2010).

ANALYSIS

1. RESPA Claim (Third Cause of Action) "RESPA is a consumer protection statute that regulates the real estate settlement process, including servicing of loans and assignment of those loans." Catalan v. GMAC Mortg. Corp., ___ F.3d ___, No. 09-2182, 2011 WL 61627, at *1 (7th Cir. Jan. 10, 2011). In Jones's Third Cause of Action, Jones alleges that RTR is liable under RESPA, because RTR "failed to give Plaintiff credit for some of the periodic payments which were made, incorrectly calculated interest on the accounts, and failed to accurately debit fees." (2d Am. Compl. ¶ 123.) Jones further alleges that RTR "accepted charges for the rendering of real estate services which were in fact charges for other than services actually performed." (Id. ¶ 124.)

RTR argues that Jones has failed to state a claim under RESPA, because (1) "RESPA does not regulate matters of accounting" and (2) Jones has not alleged that RTR failed to timely respond to a qualified written request ("QWR") made to RTR in relation to the Second Loan. (Dkt. No. 61 ("RTR's Mem.") at 2.) Jones has not responded to either of these arguments. As a matter of procedure, once a motion to dismiss has been filed pursuant to Federal Rule of Civil Procedure 12(b)(6), it becomes the plaintiff's obligation to present legal argument and citations to relevant authority for purposes of substantiating the plaintiff's claims. Lekas v. Briley, 405 F.3d 602, 614 (7th Cir. 2005). If the plaintiff fails to respond to legitimate arguments raised by the defendant, the plaintiff's claims may be dismissed. Id. at 614-15. This court finds RTR's arguments on this point to be legitimate and supported by the cited authority. Accordingly, Jones's Third Cause of Action is dismissed against RTR.

2. FDCPA Claim (Eighth Cause of Action)

In her Eighth Cause of Action, Jones alleges that RTR violated § 1692g(b) of the FDCPA

"by failing to obtain verification and validation of the alleged debt and mail copies thereof to the Defendant [sic] after it was timely disputed and demanded that verification and validation be sent to them." (2d Am. Compl. ΒΆ 169.) RTR argues that Jones's FDCPA claim must be dismissed, because it is barred by the FDCPA's one-year statute of limitations. 15 ...


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