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Motley et al. v. Homecomings Fin'l., LLC: US Distrct Court : FAIR DEBT COLLECTION PRACTICES | TRUTH IN LENDING | UNFAIR DECEPTIVE PRACTICES | CIVIL PROCEEDURE - mortgage servicing claims; some dismissed, others not

Louis Motley, Tiviea Moore, Greg Brooks,
Debra Lathan, and Gary Ritzenthaler,
individually, and on behalf of all others
similarly situated,
Civ. No. 08-339 (RHK/AJB)
Homecomings Financial, LLC f/k/a
Homecomings Financial Network, Inc.,
Craig L. Briskin, Steven A. Skalet, Mehri & Skalet, PLLC, Washington, DC, Susan M.
Coler, Sprenger & Lang, PLLC, Minneapolis, Minnesota, Steven M. Sprenger, Sprenger
& Lang, PLLC, Washington, DC, for Plaintiffs.
Jan T. Chilton, Mark J. Kenney, John B. Sullivan, Severson & Werson, PC, San
Francisco, California, Lawrence R. King, Michael J. Steinlage, Caryn A. Boisen, Larson
King, LLP, St. Paul, Minnesota, for Defendant.
The plaintiffs in this purported class action are mortgagors whose mortgages were
(or are) serviced by Defendant Homecomings Financial, LLC f/k/a Homecomings
Financial Network, Inc. (Homecomings). Plaintiffs allege that Homecomings has
imposed improper fees, costs, and charges on their mortgage accounts, and as a result has
violated the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq. (FDCPA), and
the Truth in Lending Act, 15 U.S.C. 1601 et seq. (TILA). Plaintiffs also allege
several claims arising under state law. Homecomings now moves to dismiss. For the
reasons set forth below, the Court will grant Homecomings Motion in part and deny it in
Plaintiffs are residents of Illinois, California, Kentucky, Florida, and Michigan.
(Compl. 17-21.) Each is a mortgagor under a variable-rate mortgage securing his or
her home that is serviced by Homecomings. (Id.) Homecomings is a Minneapolis-based
company that purports to service more than 800,000 mortgages nationwide. (Id. 22.)
According to Plaintiffs, Homecomings has engaged in a scheme to increase its
profits by charging and collecting fees not authorized by Plaintiffs loan documents or by
applicable law. (Id. 44.) The Complaint recites several examples of Homecomings
purportedly improper conduct. Plaintiff Louis Motley alleges that Homecomings forceplaced
insurance on his home and charged the premium to him even though he had
homeowners insurance already in place. (Id. 45.) He also alleges that Homecomings
charged him excessive late fees. (Id. 48.) Plaintiff Debra Lathan alleges that
Homecomings often loses payments and fails to process them in a timely manner,
requiring the payment of Speedpay fees of up to .50 for expedited processing, in
order to avoid late fees. (Id. 46.) Plaintiff Greg Brooks alleges that he was improperly
charged six property-inspection fees in a 10-day period in November 2006; such fees
purportedly were incurred in order for Homecomings to verify that someone was actually
living in his residence. (Id. 47.)
As a result of the foregoing, Plaintiffs allege that Homecomings has violated the
FDCPA (Count I), the TILA (Count II), and the unfair- and deceptive-practices statutes
(which Plaintiffs refer to as UDAP laws) of California, Florida, Illinois, Kentucky,
Michigan, and Minnesota (Count III). Plaintiffs also allege claims for breach of contract
(Count IV), unjust enrichment (Count V), declaratory relief (Count VI), and an
accounting (Count VII). Homecomings now moves to dismiss.
The recent Supreme Court case of Bell Atlantic Co. v. Twombly, __ U.S. __, 127
S. Ct. 1955 (2007), sets forth the standard to be applied when evaluating a motion to
dismiss under Rule 12(b)(6). To avoid dismissal, a complaint must include enough facts
to state a claim to relief that is plausible on its face. Id. at 1974. Stated differently, a
plaintiff must plead sufficient facts to provide the grounds of his entitle[ment] to
relief, [which] requires more than labels and conclusions, and [for which] a formulaic
recitation of the elements of a cause of action will not do. Id. at 1964-65 (citation
omitted). Thus, a complaint cannot simply le[ave] open the possibility that a plaintiff
might later establish some set of undisclosed facts to support recovery. Id. at 1968
(citation omitted). Rather, the facts set forth in the complaint must be sufficient to
nudge the[] claims across the line from conceivable to plausible. Id. at 1974.
When reviewing a motion to dismiss, the complaint must be liberally construed,
assuming the facts alleged therein as true and drawing all reasonable inferences from
those facts in the plaintiffs favor. Id. at 1964-65. A complaint should not be dismissed
simply because a court is doubtful that the plaintiff will be able to prove all of the factual
allegations contained therein. Id. Accordingly, a well-pleaded complaint can survive a
motion to dismiss even if it appears that a recovery is very remote and unlikely. Id. at
1965 (citation omitted).1
I. Homecomings generic Twombly argument fails.
Homecomings first argues that Plaintiffs entire Complaint should be dismissed
under Twombly because it fails to allege sufficient facts to make any of its claims
plausible. (Def. Mem. at 8.) In particular, it argues that the Complaint fails to allege
sufficient facts to show why or how Homecomings breached any contractual obligation
or violated any law and leaves both the Court and Homecomings to guess as to the
factual basis for plaintiffs claims. (Id. at 8, 10.) The Court does not agree.
Without reciting all of the factual allegations contained in the Complaint, suffice it
to say that the nature of each of Plaintiffs claims has been sufficiently articulated such
that Homecomings (and the Court) need not guess exactly what it is Plaintiffs are
alleging. For example, the FDCPA claim makes clear that Homecomings purportedly
violated that statute by seeking to recover fees and other charges not permitted by law or
by Plaintiffs loan documents, such as Motley being charged four times the allowable
1 The Court rejects Plaintiffs argument that the Twombly standard is limited to claims alleging
antitrust conspiracies. (See Mem. in Oppn at 2-3.) The Eighth Circuit has cited Twombly when
reviewing motions to dismiss in, inter alia, a state-law securities-fraud case, Benton v. Merrill
Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008), an ERISA case, Eckert v. Titan Tire Corp., 514
F.3d 801, 806 (8th Cir. 2008), and a case arising under the Medicare Secondary Payer statute,
Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir. 2007). Clearly, Twomblys
reach is not as limited as Plaintiffs suggest. See also Phillips v. County of Allegheny, 515 F.3d
224, 234 (3rd Cir. 2008) (we decline . . . to read Twombly so narrowly as to limit its holding . . .
to the antitrust context).
late fee on one monthly statement. (Compl. 48, 55.) Similarly, the UDAP claim
alleges that charging and collecting these fees violated various state consumer-protection
statutes. (Id. 66(a).) Simply put, the Court does not believe that the Complaint is
defective in its entirety for failing to allege sufficient facts to support Plaintiffs claims
(although it does find that certain claims are insufficiently pleaded, as set forth below).
Generally speaking, the Complaint contains sufficient factual information to provide the
grounds on which the claim[s] rest. Schaaf v. Residential Funding Corp., 517 F.3d
544, 549 (8th Cir. 2008) (citation omitted). That is all that is required. Id.
II. The FDCPA claim will be dismissed.
The FDCPA was enacted to eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged, and to promote consistent State
action to protect consumers against debt collection abuses. 15 U.S.C. 1692(e). In
order to establish a violation of the FDCPA, Plaintiffs must, as a threshold matter,
demonstrate that Homecomings is a debt collector. See Chomilo v. Shapiro,
Nordmeyer & Zielke, LLP, Civ. No. 06-3103, 2007 WL 2695795, at *2 (D. Minn. Sept.
12, 2007) (Kyle, J.). The statute defines the term debt collector as any person who . . .
regularly collects or attempts to collect, directly or indirectly, debts owed or due or
asserted to be owed or due another. 15 U.S.C. 1692a(6). However, a debt collector
does not include the consumers creditors, a mortgage servicing company, or an assignee
of a debt, as long as the debt was not in default at the time it was assigned. Thulin v.
EMC Mortgage Corp., Civ. No. 06-3514, 2007 WL 3037353, at *5 (D. Minn. Oct. 16,
2007) (Kyle, J.) (emphasis added) (quoting Perry v. Stewart Title Co., 756 F.2d 1197,
1208 (5th Cir. 1985)); accord Conklin v. Purcell, Krug & Haller, No. 1:05-CV-1726,
2007 WL 404047, at *5 (M.D. Pa. Feb. 1, 2007) (collecting cases); Scott v. Wells Fargo
Home Mortgage, Inc., 326 F. Supp. 2d 709, 718 (E.D. Va. 2003).
Homecomings argues that the FDCPA claim here (Count I) must be dismissed
because it acted as a mortgage servicer at all times relevant to the claims in the Complaint
and, hence, it is not a debt collector under the statute. (Def. Mem. at 11-12.) The
Court agrees. Plaintiffs have specifically alleged that Homecomings was servicing their
mortgages when it attempted to collect (or did collect) the allegedly unauthorized and
unlawful fees and other charges it imposed on Plaintiffs mortgage accounts. (See
Compl. 17-21.) Accordingly, Homecomings is not a debt collector subject to the
FDCPA, and Count I fails as a matter of law.
Plaintiffs apparently recognize this fatal defect in their FDCPA claim, as they
concede in their Memorandum in Opposition that Homecomings argument might have
merit. (Mem. in Oppn at 2 n.1.) They argue, however, that Homecomings would be a
debt collector for [mortgages] transferred to it [for servicing] in a default status. Since
there has been no discovery to date on this issue, dismissal of Count I at this time would
be premature. (Id.) The Court rejects this argument. Under Twombly, Plaintiffs cannot
simply hope that discovery will uncover facts indicating some of their mortgages were
transferred to Homecomings in a default status. 127 S. Ct. at 1968 (complaint cannot
simply le[ave] open the possibility that a plaintiff might later establish some set of
undisclosed facts to support recovery). Rather, Plaintiffs are required to plead facts that
would, if proved, establish their entitlement to relief on their FDCPA claim; in other
words, they must plead facts establishing that Homecomings is a debt collector within
the meaning of the Act. Insofar as they have not done so, their FDCPA claim fails.2
III. The TILA claim survives.
In Count II, Plaintiffs allege that Homecomings violated 12 C.F.R. 226.20(c)(4),
which was promulgated by the Federal Reserve Board pursuant to the TILA as part of
Regulation Z. Section 226.20(c)(4) requires a lender to disclose, among other things,
the loan balance when the interest rate changes on a variable-rate loan. According to
Plaintiffs, Homecomings disclosures state loan balances that are higher than they would
have been but for Homecomings improper charges, and hence violate the regulation.
(Compl. 61.) Homecomings moves to dismiss this claim on two grounds, but neither is
First, Homecomings argues that Plaintiffs lack standing to assert this claim
because the [C]omplaint does not allege that any named [P]laintiff received one of the
2 That Plaintiffs have pleaded Homecomings . . . is a debt collector (Compl. 49) is of no
moment. Plaintiffs must do more than plead legal conclusions; they must plead facts sufficient
to establish that Homecomings is a debt collector. Twombly, 127 S. Ct. at 1964-65.
3 At the outset, Plaintiffs have nowhere explained how the addition of allegedly unauthorized
fees or charges to their mortgage balances resulted in interest-rate adjustments, which is what
triggers the disclosure requirements of 12 C.F.R. 226.20(c). Nevertheless, at least one court
has held that allegations similar to those made by Plaintiffs here are sufficient to state a TILA
claim. See Chatman v. Fairbanks Capital Corp., No. 02 C 665, 2002 WL 1338492, at *5 (N.D.
Ill. June 18, 2002) (imposition of unwarranted property preservation fees on plaintiffs
mortgage balances sufficient to state TILA claim); see also Vician v. Wells Fargo Home
Mortgage, No. 2:05-CV-144, 2006 WL 694740, at *5 (N.D. Ind. Mar. 16, 2006) (concluding that
plaintiffs had failed to state claim under 12 C.F.R. 226.20(c) due to mortgage servicer forceplacing
insurance and inflating plaintiffs loan balances to recoup costs thereof, but nevertheless
holding that plaintiffs had stated a viable claim under 12 C.F.R. 226.18); Travis v. Boulevard
Bank N.A., 880 F. Supp. 1226, 1229-30 (N.D. Ill. 1995) (same).
allegedly defective variable rate disclosures. (Def. Mem. at 13.) Homecomings is
correct that no Plaintiff has expressly alleged that he or she received a disclosure with an
inflated loan balance. Yet, when evaluating a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), a complaint must be liberally construed and all reasonable
inferences from its pleaded facts must be drawn in the plaintiffs favor. Twombly, 127 S.
Ct. at 1964-65. Here, the Court can reasonably infer from the facts pleaded that Plaintiffs
have, indeed, received such defective disclosures. (See Compl. 50 (Homecomings
fails to provide accurate variable rate disclosures because its imposition of improper fees
renders its disclosures inaccurate); id. 61 (Homecomings disclosures state loan
balances that are higher than they would have been but for Homecomings improper
Second, Homecomings argues that Plaintiffs have failed to allege any actual harm
flowing from its purported TILA violations. According to Homecomings, Plaintiffs must
plead that Homecomings proximately caused them damages in order for them to state a
TILA claim. (Def. Mem. at 14-15.) While the failure to plead causation might be
relevant if Plaintiffs were seeking only actual damages, such a failure is of little aid to
Homecomings because Plaintiffs also seek statutory damages. (See Mem. in Oppn at
10-11; Compl. at 18 (prayer for statutory damages and penalties).) Such damages are
available under the TILA even in the absence of actual damages. See 15 U.S.C.
1640(a)(2); Dryden v. Lou Budkes Arrow Fin. Co., 661 F.2d 1186, 1191 (8th Cir.
4 In any event, even if Plaintiffs had failed in this regard, such a defect could be (and perhaps
should be) easily rectified in an Amended Complaint.
1981) (TILA plaintiffs . . . need not show that they sustained actual damages stemming
from the TILA violations before they may recover the statutory damages provided.).
Homecomings argues in its Reply, however, that Plaintiffs cannot obtain statutory
damages in this case. In support, it cites a portion of Section 1640(a)(4), which states in
pertinent part: In connection with the disclosures referred to in section 1638 of this title,
a creditor shall [be subject to statutory damages] only for failing to comply with the
requirements of section 1635 of this title or of paragraph (2) (insofar as it requires a
disclosure of the amount financed), (3), (4), (5), (6), or (9) of section 1638(a) of this
title. Seizing on this language, Homecomings argues a court may award statutory
damages only when either Section 1635 or Section 1638(a)(2), (3), (4), (5), (6), or (9) has
been violated. (Reply at 9.) Because Plaintiffs here allege a violation of Regulation Z
and not 15 U.S.C. 1635 or 1638, Homecomings argues that Plaintiffs cannot obtain
statutory damages. (Id.) This argument turns the language of Section 1640 on its head.
Section 1640 states, in pertinent part, that [e]xcept as otherwise provided in this
section, any creditor who fails to comply with any requirement imposed under this part
is liable for, inter alia, statutory damages. 15 U.S.C. 1640(a). Section 1640(a) makes
clear, therefore, that statutory damages are available in all cases, subject to certain
limitations. Homecomings relies upon one such limitation, but that limitation
applies only in connection with the disclosures referred to in section 1638, id.
1640(a)(4), and Plaintiffs claim is not based on Homecomings failure to make such
disclosures (which must occur before a credit transaction is consummated, see 15 U.S.C.
1638(b)(1)). Rather, they assert that Homecomings has violated disclosure
requirements found in Regulation Z (see Compl. 60), which must be made after a loan
has occurred. See 12 C.F.R. 226.20. Accordingly, the limitation in Section 1640(a)(4)
relied upon by Homecomings does not preclude Plaintiffs from seeking an award of
statutory damages.5
For these reasons, the Court will not dismiss Count II.
IV. The UDAP claim is insufficiently pleaded.
Homecomings next argues that Plaintiffs have failed to sufficiently plead their
UDAP claim (Count III). The Court agrees.
Homecomings correctly notes that UDAP claims typically are subject to the
strictures of Federal Rule of Civil Procedure 9(b). See, e.g., Carlson v. A.L.S. Enters.,
Inc., Civ. No. 07-3970, 2008 WL 185710, at *2 n.4 (D. Minn. Jan. 18, 2008) (Kyle, J.)
(collecting cases). Rule 9(b) requires a plaintiff to plead with particularity the
circumstances constituting fraud, including such matters as the time, place, and contents
of false representations, as well as the identity of the person making the misrepresentation
and what was obtained or given up thereby. Id. at *2 (citing BJC Health Sys. v.
Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007)). In other words, a complaint must
5 While the Court rejects Homecomings argument concerning the limitation in Section
1640(a)(4), it pauses to note that it is not entirely clear that statutory damages are available for a
claim alleging a violation of Regulation Z. Section 1640(a) expressly states that statutory
damages are available when a creditor fails to comply with any requirement imposed under this
part. (emphasis added). This part refers to Part B of Chapter 41 of Title 15 of the United
States Code, i.e., 15 U.S.C. 1631-1649; no mention is made in those statutory sections of
Regulation Z. Because Homecomings has nowhere raised this argument, however, the Court
will not address it.
identify the who, what, where, when, and how of the alleged fraud. United States ex
rel. Costner v. URS Consultants, Inc., 317 F.3d 883, 888 (8th Cir. 2003).6
Here, while the Complaint contains some of the necessary information such as
the who it falls short of Rule 9(b)s heightened pleading requirement. For example,
the Complaint contains no allegations concerning when the allegedly unlawful fees or
charges were imposed by Homecomings. Such information is vital, insofar as certain of
Plaintiffs claims may be barred by statutes of limitations. Furthermore, the Complaint
lacks sufficient detail concerning the what and the how of Homecomings allegedly
improper conduct. It alleges, for instance, that Plaintiff Lathan has incurred Speedpay
fees for expedited processing of her payments, yet it nowhere specifies whether Lathans
payments were among those purportedly lost by Homecomings or processed in a
dilatory fashion. In the absence of such allegations, Homecomings (and the Court) are
left to speculate whether such fees truly were imposed improperly or, instead, were
incurred by Lathan because, through no fault of Homecomings, she was going to be late
with certain of her monthly payments. Nothing in the Complaint suggests that the
imposition of Speedpay fees under those circumstances would be improper.
Similarly, the Complaint alleges that Plaintiff Brooks was assessed six propertyinspection
fees in a ten-day span without notice that his property was being inspected or
6 Plaintiffs argue that Rule 9(b) should not apply because the gravamen of their UDAP claim is
not fraud, but misrepresentation or simply unfair practices. (Mem. in Oppn at 13.) The Court
disagrees. Plaintiffs UDAP claim sounds in fraud they allege that Homecomings charged
illegal and improper fees with the nefarious intent of artificially inflating its profits and putting
borrowers into default. (Compl. 4.) Moreover, several of the statutes they invoke are aimed at
deterring fraudulent conduct. (See Compl. 68 (alleging violations of the Illinois Consumer
Fraud and Deceptive Business Practices Act and the Minnesota Prevention of Consumer Fraud
an explanation from Homecomings as to why such inspections were necessary. Yet, in
the absence of facts pleaded in the Complaint indicating that Homecomings was
obligated by Brookss loan documents to provide notice or to explain the necessity for the
inspections, there is nothing per se fraudulent about this conduct.
Plaintiffs rely on Carlson in support of their contention that the UDAP claim has
been properly pleaded, but Carlson is distinguishable. Although this Court recognized in
Carlson that a complaint need not be suffused with every minute detail . . . in order for
Rule 9(b) to be satisfied, 2008 WL 185710, at *3, the Complaint there contained
significantly more detail than Plaintiffs Complaint here, including some indication of the
timing of the defendants alleged misrepresentations and sixteen specific examples of
allegedly fraudulent statements the defendants had made. Id. at *3-4. Although Plaintiffs
have not, as Homecomings argues, completely failed to plead[] any specific fact in the
Complaint (Reply at 13 (emphasis added)), the Court determines that Plaintiffs have
failed to plead the UDAP claim with sufficient particularity, and it will be dismissed.7
V. The breach-of-contract claim must be dismissed.
In Count IV, Plaintiffs allege that Homecomings has imposed and collected fees
and charges not authorized by Plaintiffs mortgage-loan documents and, as a result, has
7 Homecomings also argues that Plaintiffs UDAP claim must be dismissed to the extent it is
predicated on a violation of the California Legal Remedies Act, Cal. Civ. Code 1750-84 (the
CLRA). According to Homecomings, California state courts have held that the CLRA does
not apply to home-mortgage loans. (Def. Mem. at 16 (citing cases).) Yet, several decisions
emanating from federal courts in California have reached the opposite conclusion. See, e.g.,
Hernandez v. Hilltop Fin. Mortgage, Inc., No. C06-7401, 2007 WL 3101250, at *6 (N.D. Cal.
Oct. 22, 2007); Jefferson v. Chase Home Fin. LLC, No. C06-6510, 2007 WL 1302984, at *2-3
(N.D. Cal. May 3, 2007). Because the Court concludes that the UDAP claim must be dismissed
as insufficiently pleaded under Rule 9(b), it need not resolve this issue at this juncture.
breached its contracts with the Plaintiffs. (Compl. 73-75.) A plaintiff alleging a
claim for breach of contract must plead, among other things, (1) the existence of a
contract between the plaintiff and the defendant and (2) the defendants breach of one of
the contracts terms. E.g., Mandel v. Americana Cmty. Bank, No. A03-500, 2004 WL
117563, at *1 (Minn. Ct. App. Jan. 27, 2004).8 Plaintiffs have not attached the allegedly
violated contracts to the Complaint, nor have they pleaded the terms of those contracts,
rendering it impossible to discern precisely how Homecomings allegedly has breached
By way of example, as discussed above, Plaintiff Brooks alleges that he was
assessed six property-inspection fees in a 10-day period in November 2006. (Compl.
47.) There are no facts pleaded in the Complaint, however, indicating that the
imposition of such fees somehow violated Brookss mortgage-loan documents. He
simply asserts that such fees were unnecessary and were imposed without notice or
explanation, but he fails to cite any contract term that Homecomings purportedly
breached when such fees were charged. The same is true with the purportedly
unwarranted Speedpay fees charged to Plaintiff Lathan (id. 46) and the alleged forceplacing
of insurance on Plaintiff Motleys home (id. 45); the Complaint is devoid of the
factual detail necessary to establish that these actions constituted breaches. In the
absence of such factual allegations, Count IV is defective.
8 No party has addressed whether Minnesota law or the law(s) of some other state(s) governs the
breach-of-contract claim. Accordingly, the Court assumes that Minnesota law applies. See
BBSerCo, Inc. v. Metrix Co., 324 F.3d 955, 960 n.3 (8th Cir. 2003) (law of forum state applies
by default where parties do not raise choice-of-law issue).
The flaw in Plaintiffs breach-of-contract claim was perhaps best laid bare at oral
argument. There, Plaintiffs asserted for the first time that Homecomings actions were
sufficient to breach the implied covenant of good faith and fair dealing in their mortgage
contracts, even though the Complaint makes no mention of the implied covenant. The
Court will not allow the Complaint to be a moving target; Homecomings is entitled to
know the precise nature of Plaintiffs breach-of-contract claim (and other claims).
Simply put, Plaintiffs were required to plead sufficient facts to demonstrate why
and how Homecomings allegedly breached its contracts with Plaintiffs; it is not enough
for them to simply recite the magic word breach in order to avoid dismissal. Twombly,
127 S. Ct. at 1974. Because Plaintiffs have not done so, the breach-of-contract claim will
be dismissed.9
VI. The unjust-enrichment claim may stand.
In Count V, Plaintiffs allege that Homecomings has been unjustly enriched by
collecting fees and charges not authorized by law or by Plaintiffs mortgage documents.
Homecomings argues that this claim must be dismissed because express contracts
Plaintiffs mortgage-loan contracts govern the relationship between Plaintiffs and
Homecomings. (Def. Mem. at 17-19.) However, as noted above (see note 9, supra), it
9 Furthermore, the Complaint leaves it uncertain whether Homecomings is even a party to the
mortgage contracts signed by Plaintiffs. Plaintiffs have alleged that Homecomings serviced
their mortgages (Compl. 17-21), but the import of that allegation is unclear it appears that
the mortgages were originated by other companies and then farmed out to Homecomings (id.
22, 40). Certainly, Plaintiffs can maintain a breach of contract claim against Homecomings if
the originating lenders assigned their rights and obligations under the mortgage contracts to
Homecomings. Yet, if Homecomings is merely servicing contracts on behalf of the original
lenders that is, collecting payments, issuing statements, etc. without actually being a party to
the contracts themselves, it is unclear whether it could be held liable for breach.
cannot be readily discerned from the Complaint whether Homecomings is a party to
Plaintiffs mortgage contracts. Moreover, Plaintiffs may plead their unjust-enrichment
claim in the alternative to their breach-of-contract claim without fear of dismissal. See
Fed. R. Civ. P. 8(d)(2); Masterson Pers., Inc. v. McClatchy Co., Civ. No. 05-1274, 2005
WL 3132349, at *7 (D. Minn. Nov. 22, 2005) (Kyle, J.). Dismissal of the alternatively
pleaded unjust-enrichment claim, therefore, would be inappropriate.
VII. The claims for declaratory judgment and accounting will be dismissed.
Finally, Homecomings argues that Count VI (seeking (1) a declaratory judgment
that Homecomings conduct is unlawful and (2) an injunction enjoining such conduct)
and Count VII (seeking an accounting) should be dismissed because these are merely
remedies, not separate causes of action. (Def. Mem. at 19.) Plaintiffs concede the point
in their Memorandum in Opposition. (Mem. in Oppn at 22.) Accordingly, the Court
will dismiss Counts VI and VII as separate claims, although it will continue to permit
Plaintiffs to seek such equitable remedies in connection with the other claims in the
Complaint. (See Compl. at 18 (prayer for relief seeking, inter alia, accounting,
declaratory judgment, and injunctive relief).)
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Defendants Motion to Dismiss (Doc. No. 13) is GRANTED IN PART
and DENIED IN PART. Counts I, III, and IV of Plaintiffs Complaint are DISMISSED
PREJUDICE. Plaintiffs may file an Amended Complaint in an attempt to correct the
deficiencies outlined above in Counts I, III, and IV within 30 days of the date of this
Date: May 30, 2008
s/Richard H. Kyle
United States District Judge
10 Any claims asserted in an Amended Complaint must be warranted by existing law and any
factual contentions therein must either have evidentiary support or be likely to have such support
after discovery. Fed. R. Civ. P. 11(b)(2), (4). Furthermore, the Court assumes counsel
recognizes that although certain of the claims in the Amended Complaint must be pleaded with
particularity, that does not grant Plaintiffs license to make such a pleading prolix or
unnecessarily lengthy. See Fed. R. Civ. P. 8(a)(2) (complaint should include a short and plain
statement of the claim showing that the pleader is entitled to relief); Abels v. Farmers
Commodities Corp., 259 F.3d 910, 920 (8th Cir. 2001) (Rule 9(b)s requirements must be read
in harmony with the principles of notice pleading under Rule 8).


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