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Tharp v. CitiMortgage, Inc.

United States District Court, D. Minnesota

September 6, 2019

Kevin T. Tharp, Plaintiff,
v.
CitiMortgage, Inc. and Christopher Daniel Davies, Defendants.

          Kevin T. Tharp, plaintiff pro se.

          Cameron A. Lallier, Esq., Foley & Mansfield, PLLP, MN 55401, counsel for defendant CitiMortgage, Inc.

          ORDER

          David S. Doty, Judge.

         This 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.[1]

         BACKGROUND

         This 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.[2]

         Tharp 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.

         CitiMortgage now moves to dismiss for failure to state a claim or, in the alternative, for a more definite statement.

         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).

         Further, 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).

         II. Statute of Limitations

         Tharp's claims under the RESPA, FDCPA, Privacy Act, and Fair Housing Act, as well as his claims for breach of contract, IIED, fraud, and forgery ...


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