United States District Court, E.D. Michigan, Southern Division
ROGER L. ALLEN, Plaintiff,
LITTON LOAN SERVICING and OCWEN LOAN SERVICING, Defendants.
L. Allen, Plaintiff, Pro Se.
Loan Servicing, Defendant, represented by David M. Dell,
Dykema Gossett PLLC.
REPORT AND RECOMMENDATION
STEVEN WHALEN, Magistrate Judge.
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. Â§ 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.
Â§ 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").
proceeding pro se, makes the following allegations:
purchased the property in question in 2004, and in 2009,
Defendant Litton began servicing his mortgage loan.
Complaint, Docket #1, Exhibit A, Â¶ 3. In November,
2010 or 2011, Plaintiff made written requests for validation
of the loan after suspecting "fraud in the loan."
Id. at Â¶ 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 Â¶. 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 Â¶ 6. Plaintiff requests damages and the
permanent removal of the derogatory reports to the credit
STANDARD OF REVIEW
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).
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.
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
Claims Under the FCRA ...