United States District Court, D. Minnesota
Kevin T. Tharp, Plaintiff,
CitiMortgage, Inc. and Christopher Daniel Davies, Defendants.
T. Tharp, plaintiff pro se.
Cameron A. Lallier, Esq., Foley & Mansfield, PLLP, MN
55401, counsel for defendant CitiMortgage, Inc.
S. Doty, Judge.
matter is before the court upon the motion to dismiss or, in
the alternative, for a more definite statement, by defendant
CitiMortgage, Inc. Based on a review of the file, record, and
proceedings herein, and for the following reasons, the motion
to dismiss is granted.
dispute arises out of a mortgage relationship between
defendant CitiMortgage and plaintiff Kevin T. Tharp and
CitiMortgage's subsequent foreclosure of that mortgage.
Tharp took out a mortgage with CitiMortgage in January 2008
on a property in Lakeland, Minnesota. CitiMortgage foreclosed
on the mortgage in 2012 and the foreclosure sale occurred on
February 8, 2013. Under Minnesota law, Tharp had a statutory
right to redemption that expired on August 8, 2013. Minn.
Stat. § 580.23. Although Tharp's complaint lacks
specific dates in many instances, it does not appear that
Tharp has had any interaction with CitiMortgage since shortly
after the foreclosure sale. Compl. ¶¶ 26-27, 31;
id. Ex. 10.
filed suit on May 16, 2019, alleging numerous violations on
CitiMortgage's part, including violations of the Real
Estate Settlement Procedures Act (RESPA), the Fair Debt
Collection Practices Act (FDCPA), the Privacy Act, and the
Fair Housing Act. See generally Compl. These claims
arise from CitiMortgage's alleged failure to provide a
loan servicer when requested by Tharp, its alleged unlawful
reporting of adverse credit information, and its alleged
failure to adhere to required statutory servicing and notice
procedures. Id. ¶¶ 2-5, 8-20, 22-27, 29,
32. Tharp also includes claims for breach of contract, fraud,
forgery, and intentional infliction of emotional distress
(IIED). Id. ¶¶ 1, 6, 7, 21. Finally, Tharp
asserts that CitiMortgage interfered with his statutory right
to redemption under Minnesota law. Id. ¶ 30.
now moves to dismiss for failure to state a claim or, in the
alternative, for a more definite statement.
Standard of Review
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).
a defendant may raise a statute-of-limitations defense on a
motion to dismiss and, where it "appears from the face
of the complaint itself that the limitation period has
run," such motion may be granted. Varner v. Peterson
Farms, 371 F.3d 1011, 1016 (8th Cir. 2004).
Statute of Limitations
claims under the RESPA, FDCPA, Privacy Act, and Fair Housing
Act, as well as his claims for breach of contract, IIED,
fraud, and forgery ...