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Quicken Loans, Inc. v. United States

United States District Court, E.D. Michigan, Southern Division

December 31, 2015

QUICKEN LOANS INC., Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants

          For Quicken Loans Incorporated, Plaintiff: Thomas M. Hefferon, Goodwin Proctor LLP, Washington, DC; Jeffrey B. Morganroth, Morganroth & Morganroth, Birmingham, MI.

         For United States of America, United States Department of Housing and Urban Development, United States Department of Housing and Urban Development, Secretary of, United States Department of Housing and Urban Devlopment Office of Inspector General, United States Department of Housing and Urban Development, Inspector General of, United States Department of Justice, United States Department of Justice, Attorney General of, Defendants: Arjun Garg, U.S. Department of Justice, Washington, DC.

         OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (Dkt. 15)

         HON. MARK A. GOLDSMITH, United States District Judge.

         I. INTRODUCTION

         This matter is before the Court on Defendants' motion to dismiss or, in the alternative, to transfer this case to the U.S. District Court for the District of Columbia (Dkt. 15). For the reasons explained fully below, the Court grants Defendants' motion to dismiss, because Plaintiff Quicken Loans Inc. has failed to state a claim either under the Administrative Procedures Act or the Constitution. With no remaining independent basis to exercise jurisdiction, the Court, in its discretion, further declines to entertain Quicken's count for declaratory relief.[1]

         II. BACKGROUND

         The Federal Housing Administration (" FHA" ) is an entity within the United States Department of Housing and Urban Development (" HUD" ), which insures mortgages and administers several mortgage default insurance programs. Compl. ¶ ¶ 3, 30, 43 (Dkt. 1); W. & S. Life Ins. Co. v. Smith, 859 F.2d 407, 408 (6th Cir. 1988). As a mortgage insurer, the FHA agrees to protect mortgage lenders against the risk of loss caused by borrowers' non-payment, as authorized by the National Housing Act of 1934, 12 U.S.C. § 1701 et seq. See Compl. ¶ ¶ 43, 45.

         One of the programs through which FHA insures home mortgages is the Direct Endorsement Lender (" DEL" ) program. Through the DEL program, the FHA authorizes certain lenders to evaluate the credit risk of potential borrowers, underwrite mortgage loans, and certify those loans for FHA mortgage insurance without prior HUD review or approval. See 12 U.S.C. § 1715z-21; Compl. ¶ ¶ 44, 47. In underwriting the mortgage loan, the lender must determine whether both the borrower and the mortgage loan meet HUD's requirements for FHA insurance and whether " the proposed mortgage is eligible for insurance under the applicable program regulations." 24 C.F.R. § 203.5(a).

         To monitor a lender's compliance with program requirements, the Secretary of HUD " may review all documents" required for a mortgage's insurance endorsement under the DEL program. 24 C.F.R. § 203.255(e). Quicken refers to this review as the Post-Endorsement Technical Review (" PETR" ). Compl. ¶ 48. If this after-the-fact review reveals that the mortgage does not satisfy the requirements of the DEL program, " the Secretary may place the mortgagee on Direct Endorsement probation, or terminate the authority of the mortgagee to participate in the [DEL] program pursuant to § 203.3(d), or refer the matter to the Mortgagee Review Board for action pursuant to part 25 of this title." 24 C.F.R. § 203.255(e). In addition, by certifying the mortgage for FHA insurance, the mortgage lender agrees to indemnify HUD for claims paid out to the lender in certain circumstances. 24 C.F.R. § 203.255(g)(1).[2] A demand for indemnification may come from either the Secretary of HUD or the Mortgagee Review Board. Id. § 203.255(g)(5).

         In April 2012, the Department of Justice (" DOJ" ) and the HUD Office of Inspector General (" HUD-OIG" ) began investigating Quicken -- an FHA-approved lender for nearly 27 years -- under the False Claims Act (" FCA" ), 31 U.S.C. § 3729 et seq. See Compl. ¶ ¶ 8, 55. The scope of the investigation encompassed approximately 246,000 FHA loans that Quicken had originated from mid-2007 through December 31, 2011, which Quicken collectively refers to as the " Subject Loans." Id. ¶ ¶ 2, 14-15, 55-56.

         As part of the FCA investigation, the DOJ and HUD-OIG assessed a sampling of 116 loans and determined that 55 of those loans did not comply with FHA lending guidelines and were improperly underwritten. Id. ¶ ¶ 6, 15, 18, 73, 77. To determine the magnitude of FHA violations, the DOJ and HUD-OIG extrapolated those " supposed defects on the same percentage basis across the entire loan population" -- a methodology that Quicken calls " Conjectural Extrapolation Sampling." Id. ¶ ¶ 15, 73.

         Quicken states that the DOJ and HUD-OIG's use of a sampling and extrapolation methodology constituted a " retroactive change of process for evaluating loans," as " HUD's practice for evaluating loan quality ha[d] long been to assess on an individual basis whether a loan was properly underwritten or in compliance with program rules." Id. ¶ 13; see also id. ¶ 20 (stating that HUD has a " long-standing approach of evaluating loan compliance on an individualized basis" ). Quicken refers to this alleged prior practice as the " Loan-Level Mandate." Id. ¶ ¶ 59, 61. According to Quicken, under the Loan-Level Mandate regime, HUD would review loans on an individualized basis and, if HUD determined that a loan was improperly originated, it would notify the lender of its finding and allow the lender to file a response. If the parties were unable to resolve the problem, HUD would then seek indemnification for its actual losses. Id. ¶ ¶ 13, 20, 49. In a letter dated June 24, 2013, HUD informed Quicken that, because of the DOJ and HUD-OIG's investigation, HUD " would no longer evaluate individual loan liability" under the PETR process for loans Quicken originated between 2007 and 2011. Id. ¶ ¶ 14, 71.

         In an effort to resolve the alleged FCA violations, the DOJ and HUD-OIG's settlement demands sought both a financial penalty and a public statement of wrongdoing from Quicken. Id. ¶ 19. At the same time, Quicken was aware that the filing of an FCA enforcement action was likely if the parties were unable to reach a resolution. See id. ¶ ¶ 6, 23, 75.

         Because the parties failed to reach a settlement, and " in the face of the DOJ and HUD-OIG's repeated threats" of an FCA action, Quicken claims that it " had no other option than to file this lawsuit" challenging " HUD's abandonment of its normal and well-established processes." Id. ¶ ¶ 12, 23. In its complaint, Quicken asserts claims under the Administrative Procedures Act (" APA" ), 5 U.S.C. § 551 et seq., and the Due Process Clause of the Fifth Amendment; it also seeks declaratory and injunctive relief regarding its contention that it has not breached its contracts with HUD.[3] Summarizing its claims, Quicken says it seeks two basic rulings from the Court:

(a) that Defendants cannot determine the quality and compliance of loans through their newly fabricated Conjectural Extrapolation Sampling rather than through the loan-by-loan approach that was applicable at the time the loans were originated and upon which Quicken Loans relied; and (b) that the loans Quicken Loans made between 2007-2011 in fact were originated properly by Quicken Loans in accordance with the applicable FHA guidelines and program requirements, and pose no undue risk to the FHA insurance fund.

Compl. ¶ 25.

         Less than one week after Quicken filed this action, the United States filed an FCA enforcement action in the U.S. District Court for the District of Columbia, alleging that certain " loans underwritten and approved by Quicken and endorsed for [FHA] insurance between September 1, 2007 and December 31, 2011 . . . violated FHA rules," and that Quicken " falsely certif[ied] compliance with those rules," in violation of the FCA. United States v. Quicken Loans Inc., No. 15-613, Compl. ¶ ¶ 1-2 (Dkt. 1) (D.D.C.). Quicken filed a motion to transfer that case to this Court. The District of Columbia district court has not ruled on that motion; instead, it stayed further proceedings in the FCA case, pending a decision of the current motion in the instant case.

         III. STANDARD OF DECISION

         In evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), " [c]ourts must construe the complaint in the light most favorable to plaintiff, accept all well-pled factual allegations as true, and determine whether the complaint states a plausible claim for relief." Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010). To survive a motion to dismiss, a complaint must plead specific factual allegations, and not just legal conclusions, in support of each claim. Ashcroft v. Iqbal, 556 U.S. 662, 678-679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A complaint will be dismissed unless it states a " plausible claim for relief." Id. at 679.

         IV. ANALYSIS

         A. Administrative Procedures Act

         In its complaint, Quicken alleges that Defendants violated the APA in several ways. Counts I, II, and III assert that Defendants acted arbitrarily and not in accordance with the law by: (i) retroactively abandoning the Loan-Level Mandate; (ii) using statistical sampling; and (iii) concluding that a substantial fraction of the Subject Loans were " defective." Compl. ¶ ¶ 89, 97, 103, 105; Pl. Resp. at 27-28 (Dkt. 22).

         Review of federal administrative agencies' conduct is governed by the APA. See Am. Civil Liberties Union v. Nat'l Sec. Agency, 493 F.3d 644, 677 (6th Cir. 2007). The APA provides that " [a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." Stew Farm, Ltd. v. Natural Res. Conservation Serv., 767 F.3d 554, 559 (6th Cir. 2014) (quoting 5 U.S.C. § 702).

         However, the right to judicial review is limited in significant ways. The agency activity for which review is sought must fit within the statutory definition of " agency action." 5 U.S.C. § 551(13). Unless a statute expressly provides for judicial review of a particular agency action, the subject action must also be " final," and one for which there is no adequate remedy in court. Id. § 704; see also Bennett v. Spear, 520 U.S. 154, 175, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Further, final agency action may be shielded from judicial review if it is one committed to " agency discretion." 5 U.S.C. § 701(a)(2). These limitations serve " to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve." Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 66, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). As discussed below, Quicken's APA claims run afoul of one or more of these limitations.

         The Court must first identify the specific " agency action" Quicken now challenges. Quicken's complaint is replete with broad and conclusory characterizations of agency activities, but short on specificity. For example, the complaint challenges Defendants' " conduct" in abandoning the Loan-Level Mandate, Compl. ¶ 92, their " conclusion" that a significant number of loans were non-compliant, id. ¶ 94, their " adoption" of the sampling technique, id. ¶ 98, and their " application" of the technique to a set of loans, id. ¶ 105. But these opaque terms do not meet the statutory definition of " agency action."

         The APA defines " agency action" as " the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13). The statute further defines these specific categories of agency action in a way that denotes " circumscribed, discrete agency actions." Norton, 542 U.S. at 62. The categories and their definitions are as follows:

o Rule -- " an agency statement of general or particular applicability and future effect deigned to implement, interpret, or prescribe law or policy"
o Order -- " a final disposition . . . in a matter other than rule making"
o License -- " an agency permit . . . or other form of permission"
o Sanction -- " a prohibition . . . or taking of other compulsory or restrictive action"
o Relief -- " a grant of money, assistance, license, authority, . . . [or] recognition of a claim, right, immunity, . . . or taking of other action on the application or petition of, and beneficial to, a person"

5 U.S.C. § § 551(4), (6), (8), (10), (11). Further, the phrase " the equivalent or denial thereof" must also be a discrete action or " denial of a discrete listed action." Norton, 542 U.S. at 62.

         Dismissal under Rule 12(b)(6) is " appropriate where the plaintiff's pleadings fail to identify a discrete, circumscribed agency action subject to review under the APA." Banner Health v. Sebelius, 797 F.Supp.2d 97, 113 n.17 (D.D.C. 2011). In Banner, the court dismissed " vague and non-specific" allegations attacking how the Secretary of Health and Human Services (" HHS" ) had implemented various aspects of the Medicare program; but the court refused to dismiss allegations challenging the Secretary's promulgation of specific regulations and specific ...


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