Chirino v. Select Portfolio Servicing, INC.
1:19-cv-22204
S.D. Fla.Sep 26, 2019Background
- Plaintiff Lazaro Miguel Chirino sued Select Portfolio Servicing, Inc., alleging a violation of 12 C.F.R. § 1024.41(g) (a regulation implementing the Real Estate Settlement Procedures Act) for allegedly proceeding with foreclosure despite a completed loss mitigation application.
- The complaint did not allege that Select Portfolio filed a motion for foreclosure judgment, an order of sale, or conducted a foreclosure sale—the three acts § 1024.41(g) prohibits once a servicer receives a complete application.
- Chirino’s pleaded facts instead described the foreclosure plaintiff filing witness and exhibit lists and Select Portfolio sending mortgage statements and letters.
- Select Portfolio moved to dismiss under Fed. R. Civ. P. 12(b)(6) on the ground that the complaint failed to state a § 1024.41(g) claim; the motion was filed August 16, 2019.
- Chirino did not file any opposition to the motion; his response was due August 30, 2019. Local Rule 7.1(c) permits granting an unopposed motion by default.
- The court dismissed the case without prejudice both for failure to plead the elements of § 1024.41(g) and because Chirino failed to oppose the motion, directing the clerk to close the case.
Issues
| Issue | Chirino's Argument | Select Portfolio's Argument | Held |
|---|---|---|---|
| Whether the complaint sufficiently alleges a violation of 12 C.F.R. § 1024.41(g) | Chirino alleges Select Portfolio proceeded with foreclosure activity despite a complete loss mitigation application | Select Portfolio contends Chirino did not allege any motion for foreclosure judgment, order of sale, or foreclosure sale—required elements of § 1024.41(g) | Dismissed for failure to plead the required post-application foreclosure conduct under § 1024.41(g) |
| Whether failure to respond to the motion justifies granting the motion by default under Local Rule 7.1(c) | Chirino did not file a response (no opposing argument made) | Select Portfolio relied on Chirino’s failure to oppose as independent grounds to grant the motion | Court granted the motion also on this procedural ground (motion deemed unopposed) |
Key Cases Cited
- Pielage v. McConnell, 516 F.3d 1282 (11th Cir. 2008) (court must accept well-pleaded facts as true on a motion to dismiss)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleadings)
- Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283 (11th Cir. 2010) (describe the Twombly/Iqbal two-step for pleadings)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (well-pleaded factual allegations must plausibly give rise to relief)
- Landau v. RoundPoint Mortgage Servicing Corp., 925 F.3d 1365 (11th Cir. 2019) (§ 1024.41(g) prohibits motions for foreclosure judgment, motions for orders of sale, and foreclosure sales)