MEMORANDUM OPINION
Plaintiffs Velma and Landon Townsend (“Plaintiffs”) commenced this action by filing a complaint in the Fluvanna County Circuit Court against the Federal National Mortgage Association (“Fannie Mae”) and Samuel I. White, P.C. (“SIWPC”). Fannie Mae and SIWPC timely removed and filed a motion to dismiss. Plaintiffs then filed an Amended Complaint, in which they'added Wells Fargo Bank, N.A. (‘Wells Fargo”) as a defendant. Plaintiffs seek to bring claims for breach of contract, violation of the Fair Debt Collection Practices Act, and to quiet title after an allegedly unlawful foreclosure on their real property. Fannie Mae, SIWPC, and Wells Fargo (collectively, “Defendants”), have moved to dismiss the Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, I will grant Defendants’ motion in part and deny it in part.
I. Background
Plaintiffs allege that at all times relevant to this case they owned a home in Scottsville, VA. In 2007, Plaintiffs entered into a mortgage loan in which they were the borrowers and American Home Mortgage (“American Home”) was the lender. The loan was evidenced by a note (the “Note”) signed by Plaintiffs and secured by a deed of trust (the “Deed of Trust”) also signed by Plaintiffs and recorded in the clerk’s office of the Fluvanna County Circuit Court. American Home assigned the Note to Wells Fargo.
On July 17, 2011, Wells Fargo sent Plaintiffs an “acceleration notice,” a letter informing them that their loan was in default for failure to make payments due and stating that “[ujnless the payments on your loan can be brought current by August 16, 2011, it will become necessary to require immediate payment in full (also called acceleration) of your Mortgage note and pursue the remedies provided for in your Mortgage or Deed of Trust, which include foreclosure.” Wells Fargo sent another acceleration notice on August 22, 2011. According to the Amended Complaint, Wells Fargo also removed the original trustees on the Deed of Trust and appointed SIWPC as substitute trustee. On October 5, 2011, SIWPC sent Plaintiffs a letter informing them that SIWPC had been instructed to initiate foreclosure proceedings. The letter also provided information about the debt, including the identity of the creditor, the amount owed, and a procedure by which Plaintiffs could dispute the debt. SIWPC placed a foreclosure notice in a newspaper having a general circulation in Fluvanna County, and on November 10, 2011, SIWPC conducted a
II. Legal Standard
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint to determine whether the plaintiff has properly stated a claim; “it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin,
III. Discussion
A. Plaintiffs’ Alleged Failure to Provide Notice of Suit
Defendants first argue that Counts One and Two of the Amended Complaint, which allege breaches of the terms of the Note and the Deed of Trust, must be dismissed because Plaintiffs did not give Wells Fargo the notice required by the Deed of Trust before filing this action. Section 20 of the Deed of Trust provides that:
Neither Borrower nor Lender may commence ... any judicial action (as either an individual litigant or the member of a class) that arises from the other party’s actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in compliancewith the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action.
In support of their argument, Defendants cite two Eastern District of Virginia cases that were dismissed solely based on similar failures to provide notice under deeds of trust containing the same language. See Niyaz v. Bank of America, No. 1:10cv796,
Plaintiffs contend that Fannie Mae and SIWPC cannot raise § 20 as grounds for dismissal because they were not parties to the Deed of Trust. Furthermore, with respect to Wells Fargo, they argue that Johnson and Niyaz were wrongly decided and that this Court should instead follow Bennett v. Bank of America, N.A., No. 3:12cv34,
I find that in this case, as in Bennett, the Amended Complaint does not indicate whether Plaintiffs sent written notice before commencing this action, as required by the Deed of Trust. As the Bennett court noted, the argument presented by Defendants is an affirmative defense, the consideration of which is “more properly reserved for consideration on a motion for summary, judgment.” Id. (quoting Richmond, Fredericksburg & Potomac R.R. v. Forst,
B. Plaintiffs Claim for Breach of the Note and the Deed of Trust
Turning to the substance of the Amended Complaint, Plaintiffs allege in Count One that Defendants breached one provision of the Note and one provision of the Deed of Trust and that as a result, the foreclosure of Plaintiffs property was void or voidable. First, Plaintiffs allege that Defendants breached § 6(C) of the Note, which provides:
If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal which has not been paid and all the interest that I owe on that amount. That date must be at leást 30 days after the date on which the notice is mailed to me or delivered by other means.
Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument.... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale.
According to Plaintiff, the two acceleration notices sent by Wells Fargo did not comply with § 6(C) of the Note or § 22 of the Deed of Trust. Specifically, Plaintiffs allege that Wells Fargo violated the terms of the Note and the Deed of Trust by: (i) inflating the amount required to avoid acceleration of the note and foreclosure by requiring payment of an amount not yet overdue; and (ii) failing to state that Plaintiffs could file a court action to assert defenses against acceleration and foreclosure. I will discuss each of these alleged breaches in turn.
1. Inflation of Amount Due
The first acceleration notice, dated July 17, 2011, stated that the total delinquency as of that date was $8,168.67, and read: “To avoid the possibility of acceleration, you must pay this amount on or before August 16, 2011.” Plaintiffs do not dispute that this satisfied the 30-day notice period required by the terms of the Note and the Deed of Trust with respect to the amount due as of that date. But the notice also stated that “[f]or the loan to be current and not in default, any additional monthly payments, late charges, and other charges that may be due under the note, mortgage and applicable law after the date of this notice must also be paid.” (Emphasis added). In other words, to cure the default that existed as of July 17, Plaintiffs would also have to make their regularly scheduled monthly payment, which was due on August 1, before the end of the 30-day cure period. Under the terms of the acceleration notice, if Plaintiffs failed to pay by August 16 both the amount in default as of July 17 and the amount due August 1, Wells Fargo had the right to proceed with acceleration.
Plaintiffs claim that the acceleration notice violated the terms of the Note because it required payment of an amount that had not yet come due, let alone been defaulted on, to be paid in order to cure a preexisting default. Plaintiffs suggest that once they were in default and had received notice of such, a subsequent failure to make their regular monthly payment during the 30-day cure period would constitute a separate default, and the bank would have to provide them with a new notice and give them 30 more days from the date of that new notice to cure the new, separate default.
Other federal courts in Virginia have rejected the very argument made by Plaintiffs in this case. See Matanic v. Wells Fargo Bank, NA., No. 3:12cv472,
2. Adequacy of the Acceleration Notices
Plaintiffs also allege that the acceleration notices did not satisfy the terms of the Deed of Trust because they did not explicitly state that Plaintiffs could file a court action to assert defenses against acceleration and foreclosure. Section 22 of the Deed of Trust provides that an acceleration “notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale.” (Emphasis added).'- By contrast; the acceleration notices stated that “[i]f foreclosure is initiated, you have the right to argue that you did keep your promises- ánd agreements under the Mortgage Note and Mortgage, and to present any other defenses that you may have.” (Emphasis added). Plaintiffs argue that the difference in language matters because foreclosures in Virginia are almost always performed without the filing of a court action, so the “right to argue” mentioned in the acceleration notice effectively means the right to attempt to persuade the trustee or substitute trustee rather than the right to bring a lawsuit. According to Plaintiffs, by not tracking the language of the Deed of Trust exactly, Wells Fargo intended to steer challenges to foreclosure to a decision by a substitute trustee that Wells Fargo could select at its sole option, rather than a court, presumably because the substitute trustee selected by the, bank would provide a friendlier decision-maker.
Again, other federal courts in Virginia have rejected the same argument Plaintiffs make here. In Cole v. GMAC Mortgage, LLC, No. 1:10-ev-848,
The underlying rationale of these cases is that the specific language used to convey to borrowers what rights they have is not material to the essential purposes of a deed of trust. “The Supreme Court of Virginia has identified two essential purposes of a Deed of Trust: ‘to secure the lender-beneficiary’s interest in the parcel it conveys and to protect the borrower from acceleration of the debts and foreclosure on the securing property prior to the fulfillment of the conditions precedent it imposes.’ ” Matanic,
C. The Alleged FDCPA Violation
Plaintiffs’ claims in Counts Two and Three both arise out of an alleged violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p, by SIWPC. In Count Three, Plaintiffs claim that SIWPC violated the FDCPA by proceeding with foreclosure when the terms of the statute prohibited it from doing so. According to Plaintiffs, because Wells Fargo was aware of SIWPC’s actions that allegedly violated the FDCPA and Fannie Mae was in privity with Wells Fargo, the foreclosure was invalid and Plaintiffs are entitled to bring an action to quiet title.
Plaintiffs claim SIWPC’s violation of the FDCPA arose from a letter SIWPC sent to Plaintiffs on October 5, 2011. The FDCPA requires a debt collector to send a debtor a written notice containing certain information about the debt it is attempting to collect. See 15 U.S.C. § 1692g(a). Section 1692g(b) provides that:
If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portionthereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) of this section unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.
The October 5 letter sent by SIWPC (attached to the Amended Complaint as Exhibit F) stated in all capital letters that it was a “NOTICE REQUIRED BY THE FAIR DEBT COLLECTION PRACTICES ACT” and informed Plaintiffs that SIWPC had been instructed to initiate foreclosure proceedings. In accordance with § 1692g(a), the notice required Plaintiffs to notify SIWPC in writing of any dispute within 30 days, and Plaintiffs allege that they sent such a written response within the 30-day period.
1. Is SIWPC Covered Under the FDCPA ?
As a threshold matter, I must consider whether the FDCPA’s definition of “debt collector” even covers SIWPC. Although the FDCPA includes in its definition of “debt collector” “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), the statute specifically excludes from coverage “any person collecting of attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... is incidental to a bona ■ fide fiduciary obligation or a bona fide escrow arrangement.” Id. § 1692a(6)(F)(i). Defendants argue that SIWPC, in serving in-its fiduciary capacity as trustee of the Deed of Trust, falls within this exemption.
This argument must fail in light of the Fourth Circuit’s decision in Wilson v. Draper & Goldberg, P.L.L.C.,
a trustee’s actions to foreclose on. a property pursuant to a deed of trust are not ‘incidental’ to its fiduciary obligation. Rather they are central to it. Thus, to the extent Defendants used the foreclosure process to collect [plaintiffs] alleged debt, they cannot benefit from the exemption contained in § 1692a(6)(F)(i).
Id. In Goodrow v. Friedman & MacFadyen, P.A.,
Since Wilson, however, some courts have found that trustees foreclosing on properties pursuant to deeds of trust did not act as “debt collectors” under the FDCPA, notwithstanding the Fourth Circuit’s holding. See, e.g., Blick v. Wells Fargo Bank, N.A., No. 3:11-cv-81,
Having considered the facts alleged by Plaintiffs and the language of the notice sent by SIWPC, I find that this case, like Goodrow, is on all fours with Wilson. The letter SIWPC sent to Plaintiffs identified itself as a notice required by the FDCPA, and it contained the following message:
THIS IS A COMMUNICATION FROM A DEBT COLLECTOR ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE
Like the notices in Wilson and Goodrow, and unlike the notices in Blagogee, Moore, and Blick, SIWPC’s letter further identified the amount of the debt, the creditor to whom it was owed, and provided the information required by 15 U.S.C. § 1692g(a) about the 30-day verification period during which the debtor could dispute the validity of the debt. The October 5 letter was not simply a notice that foreclosure would take place on a particular date. In fact, it contained no information about when the foreclosure would take place, and instead contained information almost entirely related to collection of the debt. For these reasons, I find that Plaintiffs have sufficiently alleged that SIWPC was acting as a debt collector attempting to collect a debt under the FDCPA.
2. Did SIWPC Violate the FDCPA?
Having decided that SIWPC does fall within the FDCPA’s definition of a “debt collector,” the question remains whether Plaintiffs have alleged facts sufficient to state a plausible claim that SIWPC actually violated that law. As discussed in more detail above, Plaintiffs allege that SIWPC violated 15 U.S.C. § 1692g(b) by proceeding with foreclosure after Plaintiffs disputed their debt in writing. Relying on a staff commentary issued by the Federal Trade Commission (“FTC”) and a Seventh Circuit decision, Bartlett v. Heibl,
An attorney debt collector may take legal action within- 30 days of sending the required validation notice, regardless of whether the consumer disputes the debt; if the consumer disputes the debt, the attorney may still take legal action but must cease other collection efforts (e.g., letters or calls to the consumer) until verification is obtained and mailed to the consumer.
53 Fed. Reg. 50097-50110 (Dec. 13, 1988). In Bartlett,
Plaintiffs essentially respond that “collection of the debt” must include a foreclosure sale because that is the mechanism by which the debt collector actually collects money owed to the creditor.. They contend that the very language in Bartlett cited by . Defendants in fact supports their argument. Moreover, they suggest that Defendants’ reliance on the FTC commentary quoted above is invalid in light of the Supreme Court’s decision in Heintz v. Jenkins,
Because district courts have frequently found that substitute trustees are not “debt collectors” under the FDCPA, they generally have not reached the question whether foreclosure after receipt of written notice disputing the debt violates the provisions of § 1692g(b). Even in other contexts, courts differ about what it means to “cease collection of a debt” and whether bringing legal action to enforce the debt violates § 1692g(b). In Dikun v. Streich,
Ultimately, the statutory language is clear: a creditor must “cease collection of a debt.” Like the courts in Dikun and Anderson, I find that the plain meaning of that phrase must mean that a creditor cannot take action, in this case foreclosure, that would result in the collection of the debt, until it has satisfied the prerequisites imposed by the statute. Therefore, Plaintiffs have alleged sufficient facts in the Amended Complaint to state a claim that when SIWPC foreclosed on Plaintiffs’ home, it violated 15 U.S.C. § 1692g(b).
3. Can an FDCPA Violation Breach the Terms of the Deed of Trust?
In Count Two of the Amended Complaint, Plaintiffs allege that because the Deed of Trust incorporates “Applicable Law,” a violation of the FDCPA constitutes a breach of the Deed of Trust. Although the Amended Complaint is unclear about which counts Plaintiffs assert against which defendants, it appears that Plaintiffs bring Count Two against Wells Fargo only, since Fannie Mae and SIWPC were not parties to the Deed of Trust. Plaintiffs concede they cannot bring a claim against Wells Fargo directly for violations of the FDCPA because Wells Fargo is a creditor and thus does not fall within the statutory definition of “debt collector.” See Blick,
Instead, Plaintiffs seek to hold Wells Fargo liable for SIWPC’s alleged FDCPA violation indirectly by means of the Deed of Trust. To do so, they claim that: (i) the Deed of Trust incorporated the FDCPA as “Applicable Law;” (ii) SIWPC acted as Wells Fargo’s agent and SIWPC’s alleged knowledge that Plaintiffs disputed the debt should be imputed to Wells Fargo; (iii) SIWPC’s alleged violation of the FDCPA breached the terms of the Deed of Trust requiring that all actions taken under it be conducted in accordance with “Applicable Law;” and (iv) as a result, the foreclosure was void or voidable. This logic of this argument is tenuous at best, and I find that it fails at its very first step: the Deed of Trust does not incorporate the FDCPA as “Applicable Law.”
The argument that the FDCPA is incorporated into the Deed of Trust depends on three instances where the Deed of Trust mentions “Applicable Law.” First, § 22 provides that, in case of a borrower’s failure to cure a default, “Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and any other remedies permitted by Applicable Law.” Second, when invoking the power of sale, the lender or trustee must give “notice of sale as required by Applicable Law.” Id. Third, § 16 provides that it “shall be governed by federal law and the law of the jurisdiction in which the Property is located. All rights and obligations contained in this Security Instrument are subject to any requirements and limitations of Applicable Law.” The Deed of Trust specifically defines “Applicable Law” to mean “all controlling applicable federal, state and local statutes, regulations, ordinances and administrative rules and orders (that have the effect of law) as well as applicable final, non-appealable judicial opinions.”
“A deed of trust is construed as a contract under Virginia law,” see, e.g., Mathews,
Plaintiffs argue that this Court should find the FDCPA incorporated into the Deed of Trust’s terms under Mathews. See
D. Plaintiffs’ Quiet Title Claim
In each of the Amended Complaint’s three counts, Plaintiffs state that they are bringing an action to quiet title. In Virginia, “an action to quiet title is based on the premise that a person with good title to certain real or personal property should not be subjected to various future claims against that title.” Maine v. Adams,
Plaintiffs protest that “Tapia conflicts with longstanding Virginia case law governing actions to rescind foreclosures,” and cite a Fairfax County Circuit Court decision finding “admission that the property remains encumbered by the Deed of Trust does not preclude [a] quiet title claim.” Salazar v. U.S. Bank N.A.,
IV. Conclusion
For the foregoing reasons, I will grant Defendants’ motion to dismiss Counts One and Two in their entirety. As for Count Three, Defendants’ motion is granted with respect to Fannie Mae and Wells Fargo, and denied with respect to SIWPC. To the extent that Plaintiffs seek to bring a quiet title claim, such claim is also dismissed. In sum, the only claim remaining is Plaintiffs’ claim against SIWPC for breach of the FDCPÁ; all other claims aré dismissed. An appropriate order accompanies this memorandum opinion.
The Clerk of the Court is hereby directed to send a certified copy of this memorandum opinion and the accompanying order to all counsel of record.
ORDER
This matter is before the Court upon Defendants’ motion to dismiss Plaintiffs’ Amended Complaint. For the reasons set forth in the accompanying memorandum opinion, Defendants’ motion (docket no. 17) is hereby GRANTED IN PART and DENIED IN PART. Specifically, Defendants’ motion to dismiss Counts One and Two of the Amended Complaint is GRANTED with respect to all Defendants. Count Three is also dismissed with respect to Defendants Federal National Mortgage Association and Wells Fargo Bank, N.A. However, Defendants’ motion to dismiss Count Three is DENIED with respect to Defendant Samuel I. White, P.C.
The Clerk of the Court is hereby directed to send a certified copy of this order and the accompanying memorandum opinion to all counsel of record.'
It is so ORDERED.
Notes
. Federal Rule of Civil Procedure 10(c) provides that a copy of a written instrument that is an exhibit to a pleading is deemed a part of the complaint. Thompson v. Greene,
. The second acceleration notice, dated August 22, 2011, contains the same language and required an analogous procedure.
. Had Plaintiffs been able to cure the amount in default as of July 17, 2011, before their next payment came due, they almost certainly would have been entitled to- a new notice and a fresh 30-day cure period if they subsequently failed to make the August 1 payment on time. Similarly, if they missed the August 1 payment, but were able to cure the amount in default as it existed on July 17 prior to the end of the cure period, they might have a more persuasive argument.
. In tHeir response brief, Plaintiffs add that the acceleration notice inadequately conveyed the information required by the Deed of Trust in two other respects as well: (i) by implying that a borrower must wait until foreclosure is initiated to exercise the right to reinstate after acceleration; and (ii) weakening the language in the Deed of Trust describing the right “to assert the non-existence of a default or any other defense.” These allegations do not appear in the Amended Complaint itself, so I do not address them.
. The question whether Plaintiffs can bring an action to quiet title at all appears to be distinct from the question of whether they have a viable claim that Defendants violated the FDCPA. I will discuss the law regarding quiet title actions separately below.
. Plaintiffs did not attach any such response to the Amended Complaint, but given that this is a motion to dismiss, I must accept as true the factual allegation that they sent a timely written response disputing the debt. Furthermore, although the Amended Complaint alleges that SIWPC received the written response by November 10, 2012, which is 400 days after it sent the collection letter, Plaintiffs state that the date was a typo and that in fact, the response was received by November 10, 2011, the date of the foreclosure sale.
. Indeed, the Fourth Circuit said in Wilson that its decision was “not intended to bring every law firm engaging in foreclosure proceedings under the ambit of the Act.”