United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Mary Heuer filed this case against the company that services
her mortgage, alleging a litany of statutory violations. She
alleges that Nationstar Mortgage LLC failed to timely notify
her when it became her servicer, failed to credit payments to
her account, charged improper fees, and failed to respond to
a written request for information. Nationstar moves to
dismiss the complaint in its entirety, arguing that Ms.
Heuer's claims are procedurally and substantively
deficient. The Court disagrees and denies the motion.
Heuer took out a mortgage on her property in 2009. Her loan
was initially serviced by Bank of America. In June 2013,
servicing was transferred to defendant Nationstar Mortgage
LLC. Ms. Heuer alleges that Nationstar failed to notify her
of the transfer of servicing until three months later. She
also alleges that Nationstar charged her late fees within
sixty days of the transfer, even though she timely made
payments to the transferor. Ms. Heuer further alleges that
Nationstar took out force-placed insurance on her property in
August 2013, even though she maintained insurance throughout
the life of the mortgage and Nationstar was aware of her
insurance. Nationstar paid for that insurance out of her
escrow account, which increased her future payments. In
addition, Ms. Heuer alleges that Nationstar placed her
monthly payments into a suspense account instead of crediting
them against her account, even though her account was
current. She finally alleges that Nationstar imposed late
fees that exceeded the four percent fees allowed under the
Heuer retained counsel, who sent Nationstar a written request
for information about the loan. While Nationstar acknowledged
receipt of the letter and provided some preliminary
information in response, it never provided a complete
response to the inquiries in the letter. Ms. Heuer thus filed
this suit against Nationstar in November 2018. Nationstar
moved to dismiss under Rule 12(b)(6). Briefing on that motion
concluded when Nationstar filed a reply brief. Local Rule
7-1(d). Without seeking leave, Ms. Heuer then filed a
“Final Response” to the motion. Because Ms. Heuer
did not seek leave to file a sur-reply, and because the
filing contains no substantive argument anyway, the Court
strikes that filing.
STANDARD OF REVIEW
reviewing a motion to dismiss for failure to state a claim
upon which relief can be granted under Federal Rule of Civil
Procedure 12(b)(6), the Court construes the complaint in the
light most favorable to the plaintiff, accepts the factual
allegations as true, and draws all reasonable inferences in
the plaintiff's favor. Reynolds v. CB Sports Bar,
Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). A complaint
must contain only a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). That statement must contain 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), and raise a right to relief above
the speculative level. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). However, a plaintiff's claim
need only be plausible, not probable. Indep. Trust Corp.
v. Stewart Info. Servs. Corp., 665 F.3d 930,
935 (7th Cir. 2012). Evaluating whether a plaintiff's
claim is sufficiently plausible to survive a motion to
dismiss is “‘a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.'” McCauley v. City
of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (quoting
Iqbal, 556 U.S. at 678).
Heuer's complaint asserts six counts, alleging violations
of the Real Estate Settlement Procedures Act, the Truth in
Lending Act, and the Fair Debt Collection Practices Act.
Nationstar moves to dismiss the complaint in its entirety. It
first argues that several of the claims should be dismissed
on procedural grounds under the statute of limitations, but
its own motion is procedurally deficient in that respect.
Nationstar also argues that the claims fail on their merits,
but those arguments fail to respect the principle that
allegations must be accepted as true on a motion to dismiss,
as Nationstar's arguments rely largely on disputing the
allegations in Ms. Heuer's complaint. The Court therefore
denies the motion to dismiss.
Statute of Limitations
Nationstar first moves to dismiss several of the claims, in
whole or in part, as barred by the statute of limitations.
Nationstar's own motion is procedurally improper, though.
The statute of limitations is an affirmative defense.
Reiser v. Residential Funding Corp., 380 F.3d 1027,
1030 (7th Cir. 2004). That means, first, that a motion
invoking the statute of limitations at the pleading stage
should be brought under Rule 12(c), not Rule 12(b)(6).
Brownmark Films, LLC v. Comedy Partners, 682 F.3d
687, 690 n.1 (7th Cir. 2012) (“[W]e have repeatedly
cautioned that the proper heading for such motions is Rule
12(c), since an affirmative defense is external to the
complaint.”); see Brooks v. Ross, 578 F.3d
574, 579 (7th Cir. 2009). Nationstar filed its motion under
Rule 12(b)(6), and it has not filed an answer to the
complaint, which is a prerequisite to a motion under Rule
will often overlook that distinction when the difference is
only semantic. E.g., Brooks, 578 F.3d at
579. The Court declines to do so here, though, as Nationstar
fails to confront another effect of this procedural posture.
A complaint has no duty to “anticipate and attempt to
plead around affirmative defenses, ” and the
“mere presence of a potential affirmative defense does
not render the claim for relief invalid.” Hyson
USA, Inc. v. Hyson 2U, Ltd., 821 F.3d 935, 939 (7th Cir.
2016). Thus, a complaint need not show that its claims are
timely. Rather, “dismissal is appropriate only
when the factual allegations in the complaint unambiguously
establish all the elements of the defense.”
Id. “In other words, the plaintiff ‘must
affirmatively plead himself out of court'” for a
claim to be dismissed as untimely at the pleading stage.
Id.; see also Foss v. Bear, Stearns &
Co., 394 F.3d 540, 542 (7th Cir. 2005) (“Unless
the complaint alleges facts that create an ironclad defense,
a limitations argument must await factual
filings do not acknowledge or confront this standard.
Nationstar argues that one claim is barred by the statute of
limitations because the complaint is “vague” as
to “when exactly” the violation occurred. [DE
14]. That statement forecloses Nationstar's own argument,
though. Ms. Heuer has no obligation to plead that the claim
is not barred by an affirmative defense. And if the complaint
is vague as to when the violation occurred, then it has not
unambiguously established that the claim is untimely, so Ms.
Heuer has not pled herself out of court. Nationstar's
arguments as to the other claims are conclusory and fail to
engage with the applicable standard of review. Also, Ms.
Heuer argues in part that the statute of limitations should
be tolled, which could depend on facts that may be external
to the complaint. Reiser, 380 F.3d at 1030
(“[B]ecause the period of limitations is an affirmative
defense it is rarely a good reason to dismiss under Rule
12(b)(6).”). At later stages of the case, at which Ms.
Heuer will bear a burden of proof, the statute of limitations
may pose an impediment to Ms. Heuer's claims. But
Nationstar has failed to establish that dismissal is
warranted on the pleadings, so the Court will not grant the
motion to dismiss on that basis.