United States District Court, S.D. West Virginia
JESSICA A. STOLER, Plaintiff,
PENNYMAC LOAN SERVICES, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR SENIOR UNITED STATES DISTRICT JUDGE.
is the defendant PennyMac Loan Services, LLC's
(“PennyMac”) motion to dismiss, filed June 15,
2018. The plaintiff, Jessica A. Stoler, filed a response on
July 13, 2018. Briefing on the motion was thereafter stayed
until the court's denial of the plaintiff's motion to
remand on December 6, 2018; the defendant's reply was
subsequently filed on December 20, 2018.
case involves the plaintiff's April 2014 $109, 693.00
Single Family Housing Guaranteed Loan Program mortgage loan,
serviced by defendant PennyMac. Compl. at ¶ 4. In
February 2017, plaintiff began having difficulty affording
her monthly loan payments; she requested but was denied
assistance from PennyMac. Id. at ¶¶ 7-8.
In May 2017, plaintiff's situation worsened when she lost
her job; she again requested assistance from PennyMac.
Id. at ¶ 9. PennyMac then provided plaintiff
with a forbearance plan, allegedly with the assurance that,
at the end of it, her loan would be permanently modified.
Id. at ¶ 10.
November 2017, plaintiff became unable to make her
forbearance payments because her unemployment income expired.
Id. at ¶ 11. She then contacted PennyMac
several times over a six-week period to inquire about
permanent modification of her loan. Id. at
¶¶ 12-13. PennyMac allegedly did not respond to
these inquiries until January, after it had already scheduled
a foreclosure sale for January 30, 2018. Id. at
¶¶ 13, 15, 16. PennyMac denied the plaintiff's
request because, according to the language found in the
complaint, it was “made within 37 days of a scheduled
foreclosure[, ]” although the plaintiff claims that the
request was made far earlier than PennyMac represented.
Id. at ¶ 16. By early January 2018, plaintiff
regained employment and was able to make her monthly mortgage
payments but could not afford the arrearage that had
accumulated during the prior months. Id. at ¶
January 25, 2018, plaintiff contacted PennyMac, notifying it
of alleged servicing violations and requesting that future
communications be directed to plaintiff's counsel.
Id. at ¶ 17. Plaintiff accuses PennyMac of
nonetheless continuing to contact her directly to collect
payment. Id. at ¶ 18. Plaintiff further accuses
PennyMac of failing to put forth a good faith effort to
achieve a sustainable payment plan and refusing to properly
process her requests for loss mitigation. Id. at
¶ 19. Plaintiff asserts that she remains able to pay her
regular monthly payments but cannot afford the “accrued
arrears.” Id. at ¶ 21.
filed this action in the Circuit Court of Kanawha County on
May 2, 2018, asserting four counts: Count I alleges
violations of the West Virginia Consumer Credit Protection
Act (“WVCCPA”), W.Va. Code §§ 46A-2-127
and -128; Count II alleges negligence; Count III alleges
tortious interference with contract; and Count IV alleges
removed the action to this court on June 1, 2018, pursuant to
the court's diversity jurisdiction. The plaintiff's
motion to remand was denied.
Rule of Civil Procedure 8(a)(2) requires that a pleader
provide “a short and plain statement of the claim
showing ... entitle[ment] to relief.” Fed.R.Civ.P.
8(a)(2); Erickson v. Pardus, 551 U.S. 89, 93 (2007).
Rule 12(b)(6) correspondingly permits a defendant to
challenge a complaint when it “fail[s] to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). The required “short and plain
statement” must provide “‘fair notice of
what the ... claim is and the grounds upon which it
rests.'” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 545 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957), overruled on other grounds,
Twombly, 550 U.S. at 563). In order 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
Twombly, 550 U.S. at 570); see also Monroe
v. City of Charlottesville, 579 F.3d 380, 386
(4th Cir. 2009). The court must also “draw[ ] all
reasonable ... inferences from th[e] facts in the
plaintiff's favor.” Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
Count I: Violations of the WVCCPA
Count I of the complaint, the plaintiff alleges that the
defendant used “fraudulent, deceptive, or misleading
representations or means to collect or attempt to collect [a
claim] or to obtain information concerning Plaintiff, in
violation of section 46A-2-127 of the West Virginia
Code.” Compl. ¶ 24. The complaint further alleges
that the defendant used “unfair or unconscionable means
in efforts to collect a debt, in violation of section
46A-2-128 of the West Virginia code.” Id. at
Code § 46A-2-127 states pertinently that “[n]o
debt collector shall use any fraudulent, deceptive or
misleading representation or means to collect or attempt to
collect claims or to obtain information concerning
defendant contends that Fed.R.Civ.P. 9(b)'s heightened
pleading standard, which requires that “[i]n alleging
fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake[, ]” is
applicable to this claim because it sounds in fraud.
“[T]he determination of whether [Rule 9(b)'s]
heightened standards apply depends on the complaint's
factual allegations.” Wamsley v. LifeNet Transplant
Servs. Inc., No. 2:10-CV-00990, 2011 WL 5520245, at *4
(S.D. W.Va. Nov. 10, 2011) (citing Borsellino v. Goldman
Sachs Grp., Inc., 477 F.3d 502, 507 (7th Cir.2007)). In
making this ...