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Rideaux v. Travelers Ins., Co.

United States District Court, Seventh Circuit

July 1, 2013



ROBERT W. GETTLEMAN, District Judge.

Plaintiff Desiree Rideaux filed a seven-count third amended complaint against defendants Travelers Insurance Company ("Travelers"), Homeward Residential, Inc. (F/K/A American Home Mortgage Servicing, Inc.) ("Homeward"), Citi Residential Lending, Inc. ("Citi"), and Real Time Resolutions, Inc. ("Real Time"). Counts IV through VII are asserted collectively against Homeward and Real Time ("defendant servicers").[1] Count IV alleges negligence; Count VI alleges violations of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et. seq. (RESPA); Count V alleges breach of contract; and Count VII alleges conversion. Defendants Homeward and Real Time have each filed motions to dismiss the four counts against them for failure to state a claim pursuant to Rule 12(b)(6). Defendant Travelers has filed a motion to strike various paragraphs of the third amended complaint.

In response to these motions, without seeking leave, plaintiff proposed a fourth amended complaint that she asserts cures the deficiencies cited by all defendants. Plaintiff neglects to respond to any of the arguments raised in the briefs submitted by Homeward and Real Time. Instead, plaintiff has abandoned her claims for breach of contract and conversion against Homeward and Real Time, and maintained the counts for violations of RESPA and negligence. Plaintiff has also added new claims alleging violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. 1681s-2(a)(1)(A). Travelers does not object to the amendment of the complaint, which contains none of the paragraphs Travelers sought to strike.

This is not the first time plaintiff has amended her complaint. Plaintiff's initial complaint was removed to federal court in April 2012. In response to the complaint, all defendants filed separate motions to dismiss. The court granted defendants' motions to dismiss (Docs. 12, 19, 23, and 28) on July 26, 2012, but gave plaintiff leave to file an amended complaint. Plaintiff filed her second amended complaint on October 31, 2012.[2] On November 6, 2012, plaintiff sought leave to file a third amended complaint because she inadvertently included a count of consumer fraud against Travelers in the second amended complaint. The court granted plaintiff's motion, and Homeward and Real Time promptly filed the pending motions to dismiss this third amended complaint.

Federal Rule of Civil Procedure 15(a) states that, except when leave is granted as a matter of course, "a party may amend its pleading only with the opposing party's written consent or the court's leave." The Rule further states that the court should grant the party leave "when justice so requires." The court is not required to grant leave to amend a pleading when there is "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment or futility of amendment." Liu v. T & H Machine , 191 F.3d 790, 794 (7th Cir. 1999) (quoting Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Both Homeward and Real Time object to plaintiff's proposed fourth amended complaint (PFAC), arguing that the proposed amendments would be futile. An amendment would be futile if the proposed amended complaint would not survive a motion to dismiss. Brunt v. Service Employees Intern. Union , 284 F.3d 715, 721 (7th Cir. 2002)

Because plaintiff did not properly petition the court for leave to amend her complaint and failed to reply to any of the arguments in Homeward or Real Time's motions to dismiss, the court is left to determine whether the PFAC states a claim without the benefit of a brief from plaintiff.

Plaintiff failed to respond to defendants' arguments regarding the conversion and breach of contract counts and failed to assert those claims in her PFAC. As a result, the court finds that plaintiff has waived those claims, Bonte v. U.S. Bank, N.A. , 624 F.3d 461, 466 (7th Cir. 2010), and dismisses them.

The remaining counts against Homeward and Real Time are the RESPA claim and negligence claims detailed in the third amended complaint, as well as alleged violations of the FCRA. The court will discuss each count to determine whether plaintiff's PFAC is futile.


I. Legal Standard

A Rule 12(b)(6) motion tests the sufficiency of the complaint, not the merits of the case. Gibson v. City of Chicago , 910 F.2d 1510, 1520 (7th Cir. 1990). In evaluating a motion to dismiss, the court thus accepts the complaint's well-pleaded factual allegations as true and draws all reasonable inferences in the plaintiff's favor. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555-56 (2007). To provide the defendant with "fair notice of what the claim is and the grounds upon which it rests, " id. at 555, the complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2). In addition, its allegations must plausibly suggest that the plaintiff has a right to relief and raise that possibility above the "speculative level." Twombly , 550 U.S. at 555, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004); see Ashcroft v. Iqbal , 556 U.S. 662 (2009) (explaining that Twombly's pleading principles apply in all civil actions).

II. RESPA Violation

In Count II of the PFAC, plaintiff alleges that defendants Homeward and Real Time violated RESPA by failing to respond to her inquiries regarding her mortgage. She alleges that she sent a qualified written request to Real Time in late September 2010 or early October 2010 asking what was done with the check sent by Travelers to the mortgage servicer in the amount of $89, 235.39. Plaintiff also alleges that Real Time acknowledged her inquiry in a letter in December 2010 which referenced her loan number and explained that Real Time needed 60 days to respond. Plaintiff alleges that she has received no reply regarding her inquiry from defendant servicers.

"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. , 629 F.3d 675, 680 (7th Cir. 2011). Section 2605(e) of RESPA states that "[i]f any servicer of a federally related mortgage loan receives a qualified written request from the borrower (or an agent of the borrower) for information relating to the servicing of such loan, the servicer shall provide a written response acknowledging receipt of the correspondence within 5 days (excluding legal public holidays, Saturdays, and Sundays) unless the action requested is taken within such period." In response to the inquiry, the servicer is required either to make appropriate corrections to the borrower's account, or provide a written explanation to the borrower of why the servicer either does not believe an error was made or why the information requested cannot be provided. 12 U.S.C. 2605(e)(2). In the alternative, the servicer is required to provide contact information for an individual employed by the servicer who can assist the borrower. A qualified written request is defined as "a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that- (i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and (ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other ...

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