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Fleming v. U.S. Bank National Association

United States District Court, D. Minnesota

February 6, 2015

Stacy A. Fleming and Brian J. Fleming, Plaintiffs,
v.
U.S. Bank National Association, as Trustee for CitiGroup Mortgage Loan Trust Inc., Mortgage Pass-Through Certificates Series 2006-AR3, Wells Fargo Bank, N.A. and John Does 1-10, Defendants.

Stacy A. Fleming, Rosemount, MN, pro se.

Jessica Z. Savran, Esq. and Faegre, Baker, Daniels, LLP, Minneapolis, MN, counsel for defendants.

ORDER

DAVID S. DOTY, District Judge.

This matter is before the court upon the motion to dismiss by defendants U.S. Bank National Association, as Trustee for Citigroup Mortgage Loan Trust Inc., Mortgage Pass-Through Certificates, Series 2006-AR3 (US Bank), and Wells Fargo Bank, N.A. (Wells Fargo). Based on a review of the file, record, and proceedings herein, and for the following reasons, the court grants the motion.

BACKGROUND

This mortgage dispute arises out of the proposed foreclosure on property owned by plaintiffs Stacy and Brian Fleming. On February 23, 2006, the Flemings executed a $390, 000 promissory note with Gopher State Management Corporation (Gopher State) for the purpose of buying real property located at 3975 Cardinal Court, Rosemount, Minnesota 55068 (the Property). Am. Compl. at 2; ECF No. 19-1, at 1-5. The Flemings also executed a mortgage in favor of Gopher State, which Gopher State assigned to Wells Fargo on the same day. ECF No. 19-1, at 6-21. The mortgage agreement included a power of sale. Id. at 18. The mortgage and assignment were recorded in the Dakota County Recorder's Office on March 20, 2006. Am. Compl. at 2; ECF No. 19-1, at 6, 21. On February 26, 2014, Wells Fargo assigned the mortgage to U.S. Bank, and the assignment was recorded the next day. ECF No. 19-1, at 22.

On July 18, 2014, the Flemings sent U.S. Bank a document entitled "Qualified Written Request" (QWR). Id. at 31-35. The QWR requested thirty-five different categories of information related to the "use and proper application of payments on the account" and other aspects of the note and mortgage. Id . U.S. Bank forwarded the QWR to Wells Fargo, the loan servicer, on August 5, 2014. Id. at 78. Wells Fargo sent the Flemings a letter the next day acknowledging receipt of the QWR. Id. at 36. On September 2, 2014, Wells Fargo sent a response. Id. at 38-91. The response included information and documentation regarding loan status, payment history, loan validation, insurance, assessment of fees, estimated payoff date, and other aspects of the note and mortgage. Id . The response also stated that Wells Fargo could not provide additional information because it could not reasonably determine what the Flemings were requesting. Id. at 40.

The Flemings eventually defaulted on the note. Id. at 43. On August 14, 2014, U.S. Bank published and served the Flemings with a Notice of Foreclosure Sale. Id. at 23-24. The foreclosure sale was scheduled for October 2, 2014, but the Flemings filed a petition for bankruptcy before the sale occurred. Id. at 23, 25-30. The Flemings filed an amended pro se complaint on November 24, 2014, alleging violations of the Fair Debt Collection Practices Act (FDCPA) and the Real Estate Settlement Procedures Act (RESPA).[1] The amended complaint also asserts state law claims to vacate or set aside the foreclosure sale and for replevin. Defendants move to dismiss.[2]

DISCUSSION

I. Standard of Review

To survive a motion to dismiss for failure to state a claim, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "A claim has facial plausibility when the plaintiff [has pleaded] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Although a complaint need not contain detailed factual allegations, it must raise a right to relief above the speculative level. Twombly, 550 U.S. at 555. "[L]abels and conclusions or a formulaic recitation of the elements of a cause of action" are not sufficient to state a claim. Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted).

The court does not consider matters outside of the pleadings under Rule 12(b)(6). Fed.R.Civ.P. 12(d). The court, however, may consider matters of public record and materials that do not contradict the complaint, as well as materials that are "necessarily embraced by the pleadings." Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (citation and internal quotation marks omitted). Here, the court relies on documents pertaining to the promissory note and mortgage, the foreclosure process, and the QWR. All materials are either of public record or are necessarily embraced by the pleadings.

II. FDCPA Claim

Congress enacted the FDCPA to protect consumers "in response to abusive, deceptive, and unfair debt collection practices." Schmitt v. FMA Alliance, Ltd., 398 F.3d 995, 997 (8th Cir. 2005). The Flemings first argue that defendants violated the FDCPA by attempting to foreclose on the Property and by engaging in other alleged conduct in pursuit of the foreclosure. Defendants argue that they are exempt from the FDCPA because ...


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