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Hanson v. Amerihome Mortgage Co. LLC

United States District Court, S.D. West Virginia, Charleston Division

December 28, 2017

AMANDA HANSON, et al., Plaintiffs,
v.
AMERIHOME MORTGAGE COMPANY, LLC, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          THOMSAN E. JOHNSTON, UNITED STATE DISTRICT JUDGE.

         Pending 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 PART.

         I. BACKGROUND

         On 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.)

         A month 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.)

         Around 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).)

         Mr. 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).)

         On 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).)

         On June 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.)

         Amerihome 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.

         II. LEGAL STANDARD

         Under 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)).

         “To 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.

         III. DISCUSSION

         A. Count I-Misrepresentation and Unconscionable Conduct

         Count I 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 ...


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