United States District Court, D. Utah, Northern Division
TRINA M. TRUJILLO and DAVID TRUJILLO, Plaintiffs,
ANSON STREET, LLC, NEW PENN FINANCIAL, LLC d.b.a. SHELLPOINT MORTGAGE SERVICING, and DOES 1 THROUGH 100, Defendants.
ORDER AND MEMORANDUM DECISION
CAMPBELL U.S. District Court Judge.
Trina Trujillo and David Trujillo filed suit against
Defendants Anson Street, New Penn Financial, and Shellpoint
Mortgage Servicing (collectively, Defendants) for allegedly
violating two federal consumer protection laws-the Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. § 1692
et seq., and the Real Estate Settlement Procedures
Act (RESPA), 12 U.S.C. § 2601 et seq. The
Defendants have moved to dismiss the case with prejudice
under Federal Rule of Civil Procedure 12(b)(6). For the
reasons set forth below, the court grants the Defendants'
motion but will allow the Trujillos to move to amend their
case arises from a $35, 000 home equity loan that the
Trujillos executed on June 25, 1999, with AVS Financial
Corporation. The loan was later assigned to Anson Street
(which, as of January 26, 2019, no longer holds the note) and
serviced by Shellpoint Mortgage Servicing.
January of 2015, the balance of the loan was $28, 727.45. In
October of 2015, the Trujillos sent Shellpoint a
“qualified written request” (QWR) pursuant RESPA.
The Act defines a QWR as “a written
correspondence” that “(i) includes, or otherwise
enables the servicer to identify, the name and account of the
borrower; and (ii) includes a statement of the reasons for
the belief of the borrower, to the extent applicable, that
the account is in error or provides sufficient detail to the
servicer regarding other information sought by the
borrower.” 12 U.S.C. § 2605(e)(1)(B). A mortgage
servicer must confirm receipt of a QWR and, within thirty
days, investigate whether any errors exist and respond with
its findings. Id. § 2605(e)(2).
to the Trujillos, Shellpoint's response was deficient.
Shellpoint “provided an incomplete payment history,
” and “did not provide an outline of all payments
and fees, charges, [and] credits by all previous servicers
from June 25, 1999.” (Compl. ¶ 10, ECF No. 1.)
Additionally, Shellpoint “claim[ed] the principal
balance on the Mortgage was now roughly $49, 672.88, which
[was] an increase of over $20, 945.43” from the start
of 2015. (Id. ¶ 11.)
support of these allegations, the Trujillos attached to the
complaint a “Loan History Summary, ” which lists
transactions from 2007 to 2015. (Ex. 1 to Compl., ECF No.
1-1.) They also attached Shellpoint's three-page QWR
response letter. (Ex. 2 to Compl., ECF No. 1-2.) The response
Shellpoint's records indicate that the loan was
discharged through a Chapter 7 Bankruptcy. Shellpoint is not
attempting to collect the debt, as your client[s'] [the
Trujillos'] personal liability was discharged. However,
the mortgage lien survived the discharge and Shellpoint is
continuing to service the loan according to the original
agreement and protect the creditor's rights in the
associated property. Additionally, our records show that at
the time of the discharge, your clients intended to retain
the property and continued making payments through April
As of the date of this communication, the amount to release
the lien is $49, 672.88 which includes interest, and fees.
(Id. at 2 (emphases omitted).) The letter concludes
by stating that Shellpoint was “not able to determine
that any error has occurred.” (Id. at 3.)
Trujillos allege that they made several unsuccessful attempts
to obtain an accounting of the loan and verify the $49,
672.88 balance. They also claim that Shellpoint “made
multiple attempts to collect on the debt between 2015 and
2017, without validating the balance as stated within the
debt validation process under the FDCPA, 15 U.S. Code §
1692g.” (Compl. ¶ 13.)
Trujillos bring four claims for relief-two under the FDCPA
and two under RESPA. The Defendants have moved to dismiss the
Trujillos' complaint on two grounds: first, that the
Trujillos' FDCPA claims are barred by the Act's
one-year statute of limitations; and second, that the
complaint does not contain sufficient factual allegations to
state plausible FDCPA and RESPA claims.
Rule of Civil Procedure 8 requires that a complaint contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). When deciding a Rule 12(b)(6) motion testing the
adequacy of a plaintiff's factual allegations, the court
must determine whether the complaint contains
“sufficient factual matter, accepted as true, to
‘state a claim for 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 claim has facial ...