United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
THOMSAN E. JOHNSTON, UNITED STATE DISTRICT JUDGE.
before the Court is Defendant Amerihome Mortgage Company,
LLC's (“Amerihome”), Motion to Dismiss, (ECF
No. 3). For the following reasons, Amerihome's motion is
GRANTED IN PART and DENIED IN
October 21, 2014, Plaintiffs, Amanda and Nicholas Hanson
(“the Hansons”), entered into a home mortgage
loan for $194, 200 with Victorian Finance, LLC to purchase a
home in Fayetteville, West Virginia. (ECF No. 1-1 at ¶
5.) The Deed of Trust incorporates the HUD regulations and
states that acceleration or foreclosure is not authorized
unless in accordance with the HUD regulations. (Id.
at ¶ 6.)
later, the servicing rights of the loan were transferred to
Amerihome. (Id. at ¶ 7(a).) Amerihome
designated LoanCare, LLC as its subservicer on the loan, but
subsequently replaced LoanCare with Cenlar FSB. (Id.
at ¶ 7(b)-(c).) On October 12, 2016, Amerihome once
again began servicing the Hansons' loan directly.
(Id. at ¶ 8.)
February 2016, Mr. Hanson was laid off from his job and the
Hansons began experiencing financial difficulties.
(Id. at ¶ 9.) They continued making payments on
the loan for several months until they could no longer afford
to pay. (Id.) To avoid the risk of foreclosure, the
Hansons contacted Amerihome's then subservicer, Cenlar,
and inquired about their loss mitigation options.
(Id. at ¶ 10.) Either Amerihome or Cenlar, the
parties are unclear which, informed the Hansons that they
could apply for loss mitigation and sent them an initial loss
mitigation packet. (Id. at ¶ 10(a)-(b).) The
Hansons completed this packet and sent it back to Amerihome.
(Id. at ¶ 10(b).)
Hanson returned to work in November 2016 at a significantly
decreased salary. (Id. at ¶ 11.) Because of the
significantly decreased income, the Hansons still pursued the
loss mitigation application. (Id. at ¶ 12(a).)
When the Hansons inquired about their application, Amerihome
informed them that their application contained missing
information and sent the Hansons letters requesting the
missing information. (Id.) The Hansons admit to
receiving these letters and state that they responded to all
of Amerihome's requests for the missing information.
(Id. at ¶ 12(b).)
February 15, 2017, Amerihome sent a final letter to the
Hansons “discontinuing, ” but not denying, the
loss mitigation process for lack of receiving timely
information. (Id. at ¶ 14.) A month later, on
March 4, 2017, the Hansons received a Notice of Trustee's
sale for the property, scheduled for March 24, 2017.
(Id. at ¶ 17.) However, the sale was cancelled
after the Hansons notified the trustee of their issues with
the loss mitigation process. (Id. at ¶ 15(b).)
5, 2017, the Hansons filed this action against Amerihome and
John Doe Holder in the Circuit Court of Fayette County, West
Virginia. (ECF No. 4 at 3.) In their Complaint, the Hansons
stated that they can now afford the regular monthly payments
on the loan but that they cannot afford the arrears they
allege accrued as a direct result of Amerihome's failure
to timely evaluate their application for loss mitigation.
(ECF No. 1-1 at ¶¶ 17-18.) The Hansons alleged
three counts: (1) misrepresentations and unconscionable
conduct in violation of the West Virginia Consumer Credit and
Protection Act (“WVCCPA”), (2) breach of
contract, and (3) tortious interference with a contract.
(See ECF No. 1-1.)
subsequently removed this action to this Court on July 24,
2017, (ECF No. 1), and filed this Motion to Dismiss all three
of the counts alleged in the Complaint on July 27, 2017.
(See ECF No. 3.) Specifically, Amerihome argued that
the Hansons failed to state a claim under the WCCPA, to state
a claim for breach of contract, and to state a claim for
tortious interference with a contract. The Hansons responded
to the motion on August 10, 2017, ECF No. 5), and Amerihome
filed its reply on August 17, 2017. (ECF No. 7.) The Motion
to Dismiss is fully briefed and ripe for adjudication.
Federal Rule of Civil Procedure 8(a)(2), a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Allegations “must be simple, concise, and direct”
and “[n]o technical form is required.”
Fed.R.Civ.P. 8(d)(1). A motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6) tests the legal sufficiency of a
civil complaint. See Edwards v. City of Goldsboro,
178 F.3d 231, 243 (4th Cir. 1999). “[I]t does not
resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992) (citing 5A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure
§ 1356 (3d ed. 1990)).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, ‘to state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A court decides whether this standard is met by
separating the legal conclusions from the factual
allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations
allow the court to reasonably infer that “the defendant
is liable for the misconduct alleged.” Id. A
motion to dismiss will be granted if, “after accepting
all well-pleaded allegations in the plaintiff's complaint
as true and drawing all reasonable factual inferences from
those facts in the plaintiff's favor, it appears certain
that the plaintiff cannot prove any set of facts in support
of his claim entitling him to relief.”
Edwards, 178 F.3d at 244.
Count I-Misrepresentation and Unconscionable Conduct
of the Hansons' complaint alleges that Amerihome violated
sections 46A-2-127 and -128 of the WVCCPA. (ECF No. 1-1 at
¶ 21.) Specifically, the Hansons allege that Amerihome
“made misrepresentations in connection with the
collection of a debt in violation of West Virginia Code
§ 46A-2-127” and “engaged in unconscionable
and unfair conduct in collection of the debt in violation of
West Virginia Code § 46A-2-128” by directing its
trustee to schedule a foreclosure sale despite representing
to the Hansons that their loss mitigation process was still
ongoing; misrepresenting the status ...