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Allen v. Litton Loan Servicing

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

August 31, 2016

ROGER L. ALLEN, Plaintiff,

          Roger L. Allen, Plaintiff, Pro Se.

          Ocwen Loan Servicing, Defendant, represented by David M. Dell, Dykema Gossett PLLC.


          R. STEVEN WHALEN, Magistrate Judge.

         On September 15, 2015, Plaintiff, proceeding pro se, filed suit in Wayne County Circuit Court, alleging violations of the Fair Debt Collections Practices Act, 15 U.S.C. 1692 et seq. ("FDCPA"); the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA"), and MCL 600.3204(3) relating to his property located at 6118 Penrod in Detroit, Michigan. The case was removed to this Court on October 13, 2015. Currently before the Court is Defendant Ocwen Loan Servicing, LLC's ("Ocwen's") October 20, 2015 Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) [Dock. #3] which has been referred for Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, I recommend that the motion be GRANTED and that Defendant Ocwen be DISMISSED WITH PREJUDICE. I further recommend that the Court sua sponte DISMISS WITH PREJUDICE unserved Defendant Litton Loan Servicing ("Litton").[1]

         I. FACTS

         Plaintiff, proceeding pro se, makes the following allegations:

         He purchased the property in question in 2004, and in 2009, Defendant Litton began servicing his mortgage loan. Complaint, Docket #1, Exhibit A, ¶ 3. In November, 2010 or 2011, Plaintiff made written requests for validation of the loan after suspecting "fraud in the loan." Id. at ¶ 4. Defendant Litton ignored his attempts to validate the loan and instead, "quickly handed over the servicing of the loan" to Defendant Ocwen. Id. In response to Plaintiff's attempts to validate the loan, Defendant Ocwen "quickly stopped sending billing statements and [instead] listed the account as a collection." Id. at ¶. 5. Plaintiff alleges that although neither Defendant Litton nor Defendant Ocwen have a recorded interest in his property, they have "destroyed" his "credit worthiness by their derogatory reports" to the credit reporting agencies. Id. at ¶ 6. Plaintiff requests damages and the permanent removal of the derogatory reports to the credit reporting agencies.


         Fed.R.Civ.P. 12(b)(6) provides for dismissal of a complaint "for failure of the pleading to state a claim upon which relief can be granted." In assessing a Rule 12(b)(6) motion, the court accepts the plaintiff's factual allegations as true, and asks whether, as a matter of law, the plaintiff is entitled to legal relief. Rippy v. Hattaway, 270 F.3d 416, 419 (6th Cir. 2001).

         In Bell Atlantic Corp. v. Twombley, 550 U.S. 544 (2007), the Court, construing the requirements of Fed.R.Civ.P. 8(a)(2), held that although a complaint need not contain detailed factual allegations, its "[f]actual allegations must be enough to raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true." Id., at 555 (internal citations and quotation marks omitted). Further, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (Internal citations and quotation marks omitted). See also Association of Cleveland Fire Fighters v. City of Cleveland, Ohio 502 F.3d 545, 548 (6th Cir. 2007). Stated differently, a complaint must "state a claim to relief that is plausible on its face." Twombley, at 570.

         In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Court explained and expanded on what it termed the "two-pronged approach" of Twombley. First, it must be determined whether a complaint contains factual allegations, as opposed to legal conclusions. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id., at 678, citing Twombley, 550 U.S. at 555. Second, the facts that are pled must show a "plausible" claim for relief, which the Court described as follows:

"Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown[n]"-that the pleader is entitled to relief.'" 556 U.S. at 679 (internal citations omitted).


         A. Claims Under the FCRA ...

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