United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE.
matter is before the Court on Defendant's Motion for
Judgment on the Pleadings [DE 13, Plaintiff's Response at
¶ 19; Defendant's Reply at ¶ 22] as well as
Plaintiff's Motion to Amend Complaint [DE 23;
Defendant's Response at ¶ 24]. The Court has
considered these motions alongside one another, for they ask
the Court to consider whether the averments made or proposed
are legally sufficient to proceed toward trial at this point
in the case.
court should freely give leave [to amend] when justice so
requires.” Fed.R.Civ.P. 15(a)(2). “[T]he thrust
of Rule 15 is to reinforce the principle that cases
‘should be tried on their merits rather than the
technicalities of pleadings.'“ Moore v. City of
Paducah, 790 F.2d 557, 559 (6th Cir. 1986) (quoting
Tefft v. Seward, 689 F.2d 637, 639 (6th Cir. 1982)).
In exercising its broad discretion with respect to requests
for leave to amend, the trial court may consider such factors
as “undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [and]
futility of amendment.” Foman v. Davis, 371 U.S.
178, 182 (1962); General Elec. Co. v. Sargent &
Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990).
proposed amendment is futile if the amendment could not
withstand a Rule 12(b)(6) motion to dismiss.” Rose
v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420
(6th Cir. 2000) (citing Thiokol Corp. v. Dep't of
Treasury, Revenue Div., 987 F.2d 376, 382-83 (6th Cir.
1993)). In determining whether dismissal on the basis of the
legal sufficiency of the complaint is appropriate, a
complaint must be construed in the light most favorable to
the plaintiff, and all well-pleaded facts must be accepted as
true. See Bower v. Fed. Express Corp., 96 F.3d 200,
203 (6th Cir. 1996). The United States Supreme Court has
explained that “once a claim has been stated
adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546
(2007). This “requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555.
“Factual allegations must be enough to raise a right to
relief above the speculative level....” Id.
Accordingly, a complaint must be dismissed-and amending a
complaint is futile-if the complaint does not plead
“enough facts to state a claim to relief that is
plausible on its face.” Id. at 570.
respect to Defendant's motion,
“For purposes of a motion for judgment on the
pleadings, all well-pleaded material allegations of the
pleadings of the opposing party must be taken as true, and
the motion may be granted only if the moving party is
nevertheless clearly entitled to judgment.”
Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 479 F.2d 478, 480 (6th Cir.1973). But we
“need not accept as true legal conclusions or
unwarranted factual inferences.” Mixon v.
Ohio, 193 F.3d 389, 400 (6th Cir. 1999). A Rule 12(c)
motion “is granted when no material issue of fact
exists and the party making the motion is entitled to
judgment as a matter of law.” Paskvan v. City of
Cleveland Civil Serv. Comm'n, 946 F.2d 1233, 1235
(6th Cir. 1991).
JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 566,
581-82 (6th Cir. 2007).
2012, Riley obtained a mortgage loan from Primelending in the
amount of $168, 550.00 with interest at 4.250% [DE 1, Compl.
at ¶ 10, 11; DE 23-2, Tendered Amended Complaint
(hereinafter, “Amend. Compl.”) at ¶¶
11, 12], executing a promissory note in favor of
Primelending. Repayment of the loan was secured by a
Mortgage, dated February 8, 2012, encumbering the real
property in Richmond, Kentucky. Shortly after origination,
the loan was transferred to Wells Fargo [Compl. at ¶ 12;
Answer at ¶ 12; Amend. Compl. at ¶ 12.] About a
year later, Plaintiff fell behind on her mortgage payments
and entered into a Loan Modification Agreement with Wells
Fargo in June 2013, curing her default, bringing the loan
current, and reducing the interest rate to 3.750% and the
monthly payment to $812.36. [Compl. at ¶ 13-14; Amend.
Compl. At ¶¶ 13-14.]
relevant part, the mortgage provides in paragraph 9,
If (a) Borrower fails to perform the covenants and agreements
contained in this Security Agreement . . . or (c) Borrower
has abandoned the Property, then Lender may do and pay for
whatever is reasonable or appropriate to protect Lender's
interest in the Property and rights . . . including
protecting and/or assessing the value of the Property, and
securing and/or repairing the Property. . . . Securing the
Property includes, but is not limited to, entering the
Property to make repairs, change locks, replace or board up
doors and windows, drain water from pipes, eliminate building
or other code violations or danger conditions, and have
utilities turned on or off.
is a Master Sergeant in the United States Army Reserves and
was called to active duty and deployed to Fort Bliss, Texas,
on March 18, 2015, where she served as the non-commissioned
officer in charge of Operations for Civilians. [Id. at
¶¶ 16-17; Amend. Compl. at¶¶2, 16-17.]
During this time, in mid-2015, she struggled to make her
monthly mortgage payments as she maintained her residence in
Richmond, Kentucky, and her residence in Ft. Bliss [Compl.
¶¶17-19, 21, 60; Amend. Compl. at ¶¶
18-19]. In late spring 2015, Riley fell victim to identity
theft, becoming aware of it in August 2015, when her
automated ACH withdrawals arranged for her payments for her
bi-monthly mortgage payments could not be processed from her
USAA account and were returned “NSF.” [Compl. at
¶¶ 21-22; Amend. Compl. at ¶¶21-22.] As
soon as she realized that her withdrawals were not being
processed, she contacted Defendant and made a full month
(i.e., two bi-monthly) payments on September 17, 2016 [Compl.
at ¶ 23; Amend. Compl. at ¶ 23 .]. She intended to
make another such payment prior within a few weeks, but was
advised by Defendant's agent when she called that
Defendant was accelerating her loan and would not accept
anything but full payment of all arrearages. [Compl. at
¶¶ 24, 28; Amend. Compl. at ¶¶ 24, 28.]
Riley was unable to make a large lump-sum payment to catch up
her loan for the month that she had missed and, instead,
applied for another loan modification or forbearance
agreement, which was provided by Defendant in December 2015:
a three-month forbearance agreement under which she would pay
$300/month until the end of her deployment in March 2016.
[Compl. at ¶ 31; Amend. Compl. at ¶ 30.] Plaintiff
made these payments in February, March, and April, renewing
her application for permanent modification upon her return
from active duty. [Compl. at ¶ 49; Amend. Compl. at
¶ 30, 58.]
avers that Wells Fargo, through its agent or an independent
contractor engaged for such purposes, entered her home around
December 21, 2015, then again on January 10, 2016, and a
third time in the spring of 2016. [Compl.. at ¶
31, 41, 50; Amend. Compl. at ¶ 42, 43, 50.] In doing so,
she avers that Defendant caused property damage to the doors,
plumbing, and appliances when they forced entry by prying
open the doors, changed the locks, and shut off utilities.
[Compl. at ¶ 36; Amend. Compl. at ¶¶ 43, 45,
50, 63-66.] Wells Fargo's agent or the independent
contractor also rifled through the personal property in every
single room in her home and posted conspicuous vacancy
notices on the front door, effectively giving notice that she
was away to anyone who happened by the home.
[Compl.. at ¶¶ 36-37; Amend. Compl. at
¶¶ 45-46, 62] Defendant's agent or the
independent contractor also left the back door open and
unsecured. [Compl. at ¶ 36; Amend. Compl. at ¶45.]
Riley's family noticed that outside patio items,
including a gas grill and law furniture, began disappearing
from her home after the notices were placed on the doors.
[Compl. at ¶ 47; Amend. Compl. at ¶¶ 4, 53]
She later discovered that tools and ammunition were missing
from the home. [Id. at ¶ 58, 68-69.]
avers that she spent many hours on the phone with
Defendant's agents, explaining that she was on active
duty and that her family and friends were monitoring her
home. [Id. at ¶ 39.] She forbade further entry
to Defendant after the first entry into the home, and her
family changed the locks and resecured the home and removed
the notices [Compl. at 39-40; Amend. Compl. at ¶ 49.]
Defendant's agents or the indepdent contractor entered
the home at least twice more after the initial intrusion,
again breaking into a secured door and changing the locks.
She returned home at the end of her active duty service, on
March 17, 2016. She avers that during Wells Fargo's agent
or its independent contractor's third entry into her home
in the spring of 2016, it turned the utilities back on, and
“un-winteriz[ed]” her home. [Compl. at ¶ 51;
Amend. Compl. at ¶ 59.] She does not aver that she was
prevented from or had issues with accessing the Property when
she returned to Kentucky in March 2016. [Compl. at
¶¶52-58; Amend. Compl. at ¶ 61] She complains
that she experienced “severe stress and overwhelming
anxiety about what was happening at [her] home . . . while .
. . completing her mission unable to do anything to stop
it” and avers in her tendered Amended Complaint that
she would try to hide her tears as she sat in her car on the
phone trying to prevent Defendant from physically interfering
with her home, trying to avoid the appearance that she was
distracted from her mission at Ft. Bliss by the events
unfolding in Richmond, Kentucky. [Compl. at ¶ 45; Amend.
Compl. at ¶¶ 54, 57.]
Servicemembers Civil Relief Act, 50 ...