United States District Court, S.D. West Virginia, Charleston
LA-VERNE HARVEY by her Daughter, and power of attorney, JEAN HARVEY, Plaintiff,
BAYVIEW LOAN SERVICING LLC, and THE BANK OF NEW YORK MELLON d/b/a CWALT Inc. Alternative Loan Trust 2004-18CB, through its trustee Defendants.
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. UNITED STATES DISTRICT JUDGE
is defendants' partial motion to dismiss Count I of the
amended complaint, filed on June 23, 2017.
April 24, 2017, La-Verne Harvey ("Ms. Harvey"), by
her daughter, and power of attorney, Jean Harvey, instituted
this action against Bayview Loan Servicing LLC
("Bayview") and The Bank of New York Mellon d/b/a
CWALT Inc. Alternative Loan Trust 2004-18CB
("CWALT") in the Circuit Court of Kanawha County,
West Virginia. Bayview and CWALT (together
"defendants") timely removed the action to this
court invoking federal question jurisdiction over several of
the claims asserted in the complaint pursuant to 28 U.S.C.
§ 1331. Notice of Removal ¶¶ 11-13.
Thereafter, defendants filed a partial motion to dismiss on
May 25, 2017. Ms. Harvey then filed her amended complaint, as
a matter of course under Fed.R.Civ.P. 15(a)(1)(B), prompting
defendants to file the partial motion to dismiss Count I of
the amended complaint now pending before the court.
amended complaint alleges nine causes of action against
defendants for violations of state and federal law in the
owning and servicing of Ms. Harvey's residential mortgage
loan. See Am. Compl. ¶¶ 58-89.
Harvey's mortgage loan was originated in West Virginia in
2004 by Countrywide Home Loan, Inc. ("Countrywide")
d/b/a America's Wholesale Lender ("AWL"),
neither of which is named as a party to this action.
Id. at ¶ 6. At the time of the loan, both
Countrywide and AWL were licensed to make residential
mortgage loans pursuant to the requirements of the West
Virginia Residential Mortgage Lender, Broker, and Servicer
Act ("RMLBSA" or "the Act"), W.Va. Code
§ 31-17. Id. at § 7. In connection with
the loan, Ms. Harvey granted AWL a deed of trust on her
personal residence. Id. at ¶ 15. In 2010,
ownership of Ms. Harvey's loan was transferred to CWALT,
which is not licensed by the state of West Virginia under
RMLBSA. Id. at ¶ 16. Though the loan was
serviced by Bank of America on behalf of CWALT for a number
of years, on September 16, 2015 the servicing of the loan was
transferred to Bayview. Id. at ¶¶ 4, 23,
early 2015, Jean Harvey negotiated an agreement with Bank of
America to make up payments that her mother had missed due to
her medical bills and disability. Id. at ¶ 19.
According to that agreement, Ms. Harvey would make an extra
payment and make increased payments for six months, after
which the account would be current. Id. at ¶
20. All of these payments were made until the final one,
which was due in September 2015. Id. at ¶ 21.
Ms. Harvey alleges that this final payment was tendered but
refused by Bank of America and Bayview, both of whom were
servicers of the loan for a portion of September 2015.
Id. at ¶¶ 21-29.
not accepted the payment for September, Bayview informed Ms.
Harvey that she had not completed the catch-up agreement, and
her mortgage was therefore several months in arrears.
Id. at ¶ 30. Bayview further informed Ms.
Harvey that hazard insurance had been force-placed on the
home because she had not proven maintenance of her own
coverage, despite the fact that she maintained proper
coverage for decades. Id. at ¶¶ 31-32.
Bayview agreed to cancel the force-placed insurance and
credit the mortgage for the cost only when her account was
made current. Id. at ¶ 33. Bayview Asset
Manager, Reggie Miller, began contacting Ms. Harvey and Jean
Harvey and informed them that Bayview would foreclose the
property unless an immediate payment was made in the full
outstanding amount. Id. at ¶¶ 37-39. In
early 2017, Ms. Harvey learned that Bayview had sent the
mortgage loan to a trustee for foreclosure sale. Id.
at ¶ 43. Bayview has failed to offer any loss mitigation
alternatives to Ms. Harvey in lieu of foreclosure.
Id. at ¶¶ 41, 57.
is the only count that defendants seek to dismiss. Plaintiff
asks in Count I that the court declare the mortgage loan and
deed of trust unenforceable pursuant to W.Va. Code §
31-17-17. Id. at ¶ 59. In support of this
request, plaintiff states: "West Virginia law prohibits
the ownership of a mortgage loan secured by residential real
estate located within West Virginia by any person other than
one licensed under [RMLBSA], and defendant CWALT is not so
licensed, " and "[t]he originator, its
successors-in-interest, and its servicing agents have and
continue willfully to impose fees and charges not expressly
permitted by, and/or in excess of those permitted by W.Va.
Code § 31-17-8(g) and W.Va. Code § 46A-3-109,
including illegal tax service fees, courier fees; and
processing fees." Id. In addition to the
declaratory relief, Ms. Harvey further requests that the
court "afford all other relief to which she may be
entitled in law or equity, including under W.Va. Code §
31-17-17(a) and (b)." Id. at ¶ 60.
to Fed.R.Civ.P. 12(b)(6), defendants move to dismiss Count I
of plaintiff s amended complaint because it fails to state a
claim against defendants upon which relief may be granted.
Defs.' Mot. Dismiss at 1.
Rule of Civil Procedure 8(a)(2) requires that a pleading
"contain ... a short and plain statement of the claim
showing that the pleader is entitled to relief."
Correspondingly, Rule 12(b)(6) provides that a pleading may
be dismissed for a "failure to state a claim upon which
relief can be granted."
survive a motion to dismiss, a pleading must recite
"enough facts to state a claim to relief that is
plausible on its face." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007); see also Monroe
v. City of Charlottesville, 579 F.3d 380, 386 (4th Cir.
2009) (quoting Giarratano v. Johnson, 521 F.3d 298,
302 (4th Cir. 2008)). In other words, the "[f]actual
allegations must be enough to raise a right to relief above
the speculative level." Twombly, 550 U.S. at
555 (citation omitted); see also Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) ("A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.");
Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009)
(quoting Twombly, 550 U.S. at 555).
district court's evaluation of a motion to dismiss is
underlain by two principles. First, when considering a motion
to dismiss, the court "must accept as true all of the
factual allegations contained in the [pleading]."
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation
omitted); see also Twombly, 550 U.S. at 555
("Factual 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 (even if
doubtful in fact).") (citations omitted). In doing so,
factual allegations should be distinguished from "mere
conclusory statements, " which are not to be regarded as
true. Iqbal, 556 U.S. at 678 ("[T]he tenet that
a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.").
Second, the court must "draw all reasonable factual
inferences ... in the [nonmovant's] favor."
Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th
Cir. 1999); see also Jenkins v. McKeithen, 395 U.S.
411, 421 (1969) ("[T]he complaint is to be liberally
construed in favor of plaintiff.").
of the amended complaint asks that the court declare the
mortgage loan and deed of trust unenforceable pursuant to
W.Va. Code § 31-17-17(a), which states "[i]f any
primary or subordinate mortgage loan is made in willful
violation of the provisions of this article, except as a
result of a bona fide error, such loan may be canceled by a
court of competent jurisdiction." See Am.
Compl. at ¶ 59. As noted, Ms. Harvey further requests in
Count I that the court "afford all other relief to ...