Tate v. Freedom Mortgage Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

JOSEPH A. TATE, on behalf of himself Civ. No. 6:22-cv-01922-AA

individually and on behalf of a Class of

similarly situated persons; OPINION AND ORDER

Plaintiffs,

v.

FREEDOM MORTGAGE

CORPORATION,

Defendant.

________________________________________

AIKEN, District Judge:

Plaintiff Joseph A. Tate brings this putative class action on behalf of himself

and others against defendant Freedom Mortgage Corporation for alleged violations

of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605, et seq.,

and the Oregon Unlawful Trade Practices Act, ORS 646.608. Before the Court is

defendant’s motion to dismiss plaintiff’s amended complaint, and in the alternative,

to strike plaintiff’s class allegations. ECF No. 25. The Court GRANTS in part and

DENIES in part defendant’s motion to dismiss; DENIES defendant’s motion to strike

class allegations, and DENIES defendant’s motion to strike pleadings.

STATUTORY FRAMEWORK

I. Real Estate Settlement Procedures Act

Enacted in 1974, RESPA regulates the market for real estate “settlement

services,” a term the statute defines to include “any service provided in connection

with a real estate settlement,” such as “title searches, . . . title insurance, services

rendered by an attorney, the preparation of documents, property surveys, [and] the

rendering of credit reports or appraisals[.]” 12 U.S.C. § 2602(3).

Subsection (e) of § 2605 imposes a duty on loan servicers to respond to borrower

inquiries regarding the loan's servicing. An inquiry must take the form of a “qualified

written request,” or “QWR.” A QWR is written correspondence identifying the

borrower’s account and including “a statement of the reasons” for borrower’s belief

that the account is in error or providing detail sufficient to alert the servicer to other

information sought by the borrower. Id. Once a servicer receives a QWR, it is

obligated to respond in writing within 30 days and make necessary corrections to the

account. § 2605(e)(1)-(2).

Also, for a 60-day period beginning on the date the servicer receives a QWR

relating to a dispute about the borrower's payments, a servicer may not provide

information about overdue payments disputed in the borrower’s QWR, to any

consumer reporting agency. § 2605(e)(3); see also 12 C.F.R. § 1024.35(i)(1)

(implementing regulation stating, “[a]fter receipt of a notice of error, a servicer may

not, for 60 days, furnish adverse information to any consumer reporting agency

regarding any payment that is the subject of the notice of error.”).

The substantive provisions of § 2605 are enforceable through actions for

damages brought by consumers against “[w]hoever fails to comply” with § 2605. See

§ 2605(f). An individual may recover an amount equal to the sum of “any actual

damages to the borrower as a result of the failure” and “any additional damages, as

the court may allow, in the case of a pattern or practice of noncompliance with the

requirements” of § 2605, not to exceed $2,000. Id.

II. Unlawful Trade Practices Act

Oregon’s statutory consumer protection scheme, as embodied in the UTPA,

specifically incorporates compliance with RESPA into Oregon law. The UTPA makes

violations of RESPA actionable as violations of the UTPA, as stated in the Attorney

General’s mortgage servicing rules that implement ORS 646.608(u), found at OAR

137-020-0805(6). A mortgage servicer engages in unfair or deceptive conduct under

the UTPA if it “. . . [f]ails to comply with . . . 12 USC 2605(e)[.]” OAR 137-020-0805(5).

The OARs also require loan servicers to deal with borrowers in good faith. See OAR

137-020-0800. “Good faith’ means honesty in fact and the observance of reasonable

standards of fair dealing[.]”

BACKGROUND

I. Factual Allegations

The Court accepts as true the following factual allegations in plaintiff’s

complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In March 2007, plaintiff

refinanced his home, borrowing $268,800 dollars (“the loan”) from Nationwide

Advantage Mortgage Company to do so. Am. Compl. ¶¶ 24-25. In April 2016,

Nationwide transferred the loan to defendant, which acts as a servicer for Fannie

Mae. Id. ¶ 25. Plaintiff made timely payments on the loan to defendant. Id. ¶ 26.

Plaintiff states that defendant “botched the servicing and collection” of the loan and

“demanded disputed sums” from plaintiff. Id. ¶ 27. In September 2019, defendant

reported to credit reporting agencies that plaintiff was late on the loan payments,

though plaintiff maintains that his payments were always on time and that

defendant erred in its escrow allocations. Id. ¶¶ 27-28.

In June 2020, plaintiff submitted a QWR to defendant at its official address to

dispute the amounts defendant claimed plaintiff owed. Id. ¶ 29. Specifically, plaintiff

alleges that he requested a complete payment history and a breakdown of escrow

sums; sought explanation for how owed sums were calculated and why those sums

had increased from prior months; and asked defendant to identify balances in

suspense accounts and reasons for those balances. Id. ¶¶ 29 (b)-(e). In July 2020,

defendant acknowledged it received plaintiff’s QWR. Id. ¶ 30. Responding to

plaintiff’s QWR, defendant identified Fannie Mae as the owner of the loan, but did

not provide any information answering plaintiff’s remaining inquires. Id. ¶ 31.

Plaintiff asserts that defendant failed to investigate his inquiries. Id.

Further, contravening the requirement in § 2605(e)(3) to suppress credit

reporting for 60 days after receiving plaintiff’s QWR, defendant furnished to

TransUnion, Equifax, and Experian the adverse information plaintiff had disputed.

Id. ¶¶ 32-35. Defendant reported the adverse information to the credit reporting

agencies on August 5 and September 5 of 2020. Id.

Two years later, plaintiff sent a second QWR to defendant in July 2022.

Plaintiff disputed the sums defendant claimed were past due; requested a breakdown

of escrow sums over a three-year period; and contested defendant’s “false credit

reporting” on the loan. Id. ¶¶ 37 (a)-(e).

Defendant acknowledged receiving plaintiff’s second QWR on August 2, 2022,

and responded to plaintiff, but allegedly provided “misleading and inconsistent

information which did not explain or account for the fact that [plaintiff] had never

missed a payment.” Id. ¶¶ 38-40. Plaintiff states that defendant did not reasonably

investigate, and that defendant again violated § 2605(e)(3) when it failed to suppress

credit reporting to Equifax and Experian. Id. ¶¶ 38-42.

Plaintiff alleges that he was “harmed as a result of [defendant’s] acts and

omissions,” and that the harm includes economic damages from the credit bureau’s

derogatory credit reporting to OnPoint Community Credit Union, containing

information plaintiff had disputed with defendant. Id. ¶¶ 43. Plaintiff claims that

as a result of defendant wrongfully reporting him delinquent when he was not, he

was denied access to credit; offered credit at high interest rates compared to market

rates; and did not pursue purchases that required use of credit. Id. ¶¶ 43 (a)-(d)

Plaintiff also claims non-economic damages for emotional distress caused by

the adverse credit reporting such as fear, anxiety and worry about defendant’s

continued reporting. Id. ¶ 43, 43 (e).

Plaintiff further alleges entitlement to statutory damages based on defendant’s

“pattern or practice” of violating § 2605. Id. ¶ 46. To allege entitlement to statutory

damages, the amended complaint incorporates complaints against defendant

published on the complaint database of the Consumer Financial Protection Bureau

(“CFPB”) in multiple jurisdictions for violating § 2605. Id. ¶ 65 (a)-(i). Plaintiff sets

forth the complaints of those borrowers as factual support that defendant engaged in

a pattern and practice.

II. Purported Class Action Allegations

Plaintiff also seeks to assert claims on behalf of a class, proposing the following

class definition:

All residential loan borrowers for whom [defendant] acknowledged in

writing having received a QWR/NOE correspondence at the specific

address it publishes for such correspondence since three years before the

commencement of this action pursuant to 12 U.S.C.A. § 2605 and 12

C.F.R. § 1024.35. Excluded from the class are any borrowers who

obtained a discharge under Chapter 7 of the Bankruptcy Code after the

date [defendant] received their QWR/NOE or any borrowers whose

inquiries to [freedom] were mailed to any other address other than the

one designated by it pursuant to 12 C.F.R. § 1024.35(c).

Id.¶ 47. Plaintiff also sets forth allegations describing (1) numerosity; (2)

commonality; (3) typicality; and (4) adequacy of representation. Id. ¶ 47-66.

LEGAL STANDARD

I. Motion to Dismiss Under Rule 12(b)(6)

Under FRCP 12(b)(6), a district court should grant a motion to dismiss when

the complaint fails to “state a claim upon which relief can be granted.” To survive a

motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual

matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when

“the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

678. Thus, a complaint must set forth facts supporting a plausible claim, not merely

a possible claim for relief. Elizabeth Retail Props. LLC v. KeyBank Nat. Ass’n, 83 F.

Supp. 3d 972, 983 (D. Or. 2015). In considering a FRCP 12(b)(6) motion to dismiss, a

court must accept the plaintiff’s material factual allegations as true and in the light

most favorable to the plaintiff. Id. Yet a court need not accept as true any legal

conclusions set forth in the complaint. Id

II. Motion to Strike under Rule 23(d)(1)(D)

Under FRCP 23(d)(1)(D), a trial court may order “that the pleadings be

amended to eliminate allegations about representation of absent persons.” See also

Bates v. Bankers Life & Cas. Co., 993 F. Supp. 2d 1318, 1328 (D. Or. 2014) (noting

that Rule 23(d) authorizes motion to strike class allegations). Although a plaintiff

typically bears the burden to prove that class certification is appropriate, “in the

context of a motion to strike class allegations, in particular where such a motion is

brought in advance of the close of class discovery, it is properly the defendant who

must bear the burden of proving that the class is not certifiable.” Id. at 1340–41. In

evaluating the sufficiency of class allegations, courts do not apply the FRCP 12(f)

standard for a motion to strike. See Speers v. Pre-Employ.com, Inc., 2014 WL

2611259, at *2 (D. Or. May 13, 2014). Instead, the question is whether “‘the complaint

demonstrates that a class action cannot be maintained.’” Ott v. Mortg. Inv'rs Corp. of

Ohio, Inc., 65 F. Supp. 3d 1046, 1062 (D. Or. 2014) (quoting Tietsworth v. Sears,

Roebuck & Co., 720 F. Supp. 2d 1123, 1146 (N.D. Cal. 2010)).

DISCUSSION

I. RESPA Claim – Recoverable Damages

Plaintiff’s amended complaint alleges that defendant violated RESPA when it

failed to suppress credit reporting after plaintiff submitted a written dispute about

his loan. See generally Am. Compl. ¶¶ 24-46. Plaintiff has alleged that: (1) he is a

borrower, id., ¶¶ 24-26, of a federally related mortgage, id., ¶ 25; (2) which defendant

services, id., ¶¶ 25-42; (3) plaintiff sent two QWRs to defendant, id., ¶¶ 29, 36-37; (4)

of which defendant acknowledged receipt, id., ¶¶ 30, 38; (5) but defendant failed to

perform a reasonable investigation and failed to stop its derogatory credit reporting

for a period of sixty days as required by RESPA and its regulations, id., ¶¶ 31-35, 39,

40-42; and (6) as a proximate result of defendant’s violation, plaintiff sustained

specific, actual damages, id., ¶¶ 43-46.

Defendant moves to dismiss the complaint under Rule 12(b)(6), contending

that plaintiff cannot show “actual damages.” Defendant challenges all three

categories of damages plaintiff asserts, stating that plaintiff’s claims for noneconomic

damages, economic damages, and statutory damages (based on a pattern or practice

of violation) fail to state a claim.

A. Noneconomic Damages

Plaintiff claims emotional distress damages. Am. Compl. ¶¶ 43, 43 (e).

Defendant argues that damages from emotional distress are not “pecuniary” in

nature, and thus insufficient to allege “actual damages”—an essential element of a

claim under § 2605. Mot. to Dismiss (“Mot.”) at 7-8.

The Ninth Circuit has not established whether noneconomic damages

constitute “any actual damages” under § 2605(f), nor has it stated whether damages

must be “pecuniary” in nature. District Courts in the Ninth Circuit are divided. See

Zeich v. Select Portfolio Servicing, Inc., 2015 WL 10353128, at *2 (D. Or. Oct. 30,

2015) (noneconomic damages fail to state a claim under RESPA); Subramaniam v.

Beal, 2013 WL 5462339, *7 (D.Or. Sept. 27, 2013) (same); but see Hackett v. Wells

Fargo Bank, N.A., 2018 WL 1224410, at *5 (C.D. Cal. March 5, 2018) (emotional harm

sufficient to recover actual damages under RESPA; collecting cases); Lucero v. Cenlar

FSB, 2016 WL 337221, at *4 (W.D. Wash. Jan. 28, 2016) (same).

The Court finds cases in its own District most instructive. Accordingly, to the

extent the amended complaint alleges emotional distress damages manifested by

frustration, fear, mental distress, anxiety, and worry, plaintiff fails to state a claim

under § 2605. Zeich, 2015 WL 10353128, at *2. Defendant’s motion is granted as to

this issue.

B. Economic Damages

1. Postage Costs

Defendant challenges plaintiff’s allegation that postage to mail his QWRs

constitutes actual damages. Defendant argues that, because postage costs cannot

have been proximately caused by defendant’s failure to suppress credit reporting, the

pleading falls short. Mot. at 9.

Courts have found that “[a]ctual damages may include, but are not limited to,

(1) out-of-pocket expenses incurred dealing with the RESPA violation.” Ponds v.

Nationstar Mortg., LLC, 2016 WL 3360675, at *6 (C.D. Cal. June 3, 2016). Persuasive

authority recognizes postage costs as actual damages when incurred as a result of the

RESPA violation. See Fowler v. Bank of Am., Corp., 747 F. App'x 666, 671 (10th Cir.

2018) (unpublished decision) (“[I]f Bank of America's nonresponse or inadequate

response prompted [the plaintiffs] to resend a QWR, then the costs of preparing the

subsequent QWR are indeed traceable to the violation.”); Baez v. Specialized Loan

Serv., LLC, 709 F. App'x 979, 983 (11th Cir. 2017) (unpublished decision) (“[T]he cost

of sending an initial request for information is not a cost to the borrower ‘as a result

of the failure' to comply with a RESPA obligation.”); Ponds, 2016 WL 3360675, at *6

(recognizing “postage fees” as actual damages).

Plaintiff responds that he “generally agrees” that postage related to QWRs is

not typically recoverable damages for the first inquiry to which a servicer responds.

Resp. at 30, ECF No.26. But he contends that he postage to send the second letter

“was caused because [p]laintiff had to send his second QWR to correct the errors

incurred when [defendant] did not correct errors raised in the first QWR.” Id.

The Court finds that plaintiff has plausibly alleged sufficient information for

the Court and defendant to infer that defendant’s violation caused plaintiff to incur

postage. That is, if defendant had not failed to correct the violation identified in

plaintiff’s first QWR, plaintiff would not have mailed the second QWR. Plaintiff’s

claim satisfactorily demonstrates that his postage costs are traceable to defendant’s

alleged violation. Defendant’s motion to dismiss is denied as to that issue.

2. Negative Credit Reporting

Next, defendant contends that plaintiff’s allegations of negative credit

reporting are insufficient as a matter of law to state a claim. Mot. at 10.

Courts in this circuit have determined that negative credit reports alone

generally do not constitute actual damages to state a RESPA claim. Agredano v. Cap.

One, Nat'l Ass’n, 2019 WL 3207765, at *1 (N.D. Cal. July 16, 2019). However,

allegations that a plaintiff “was denied specific refinancing opportunities as a result

of said credit reports suffices to show actual damages.” Id.; see also Anokhin v. BAC

Home Loan Servicing, LLP, 2010 WL 3294367, at *3 (E.D. Cal. Aug. 20, 2010) (“To

constitute actual damages, the negative credit rating must itself cause damage to the

plaintiff as evidenced by, for example, failing to qualify for a home mortgage.”). The

Court finds those determinations helpful.

Here, plaintiff alleges harm from defendant’s reporting to the credit agencies

of past due amounts plaintiff had disputed. Am. Compl. ¶ 43. Defendant’s negative

reporting to the credit agencies resulted in those agencies provided derogatory

information to OnPoint Community Credit Union, plaintiff’s bank. Id. Plaintiff

claims that as a result of defendant reporting him delinquent, plaintiff was denied

access to credit; offered credit at high interest rates compared to market rates; and

did not pursue purchases that required use of credit. Id. ¶¶ 43 (a)-(d). Accordingly,

the Court finds that, under liberal federal pleading standards, plaintiff has

adequately alleged actual damages based on negative credit reporting, and

defendant’s motion to dismiss is denied on that issue.

C. Statutory Damages

Defendant asserts that plaintiff fails as a matter of law to state any facts

plausibly supporting a right to statutory damages under RESPA. Mot. at 13

1. “Additional” Damages

Defendant contends that § 2605(f)(1)(B) permits “additional damages” “in the

case of a pattern or practice of noncompliance with the requirements of [§ 2605],” and,

because plaintiff has not pled “actual damages,” there can be no “additional

damages.” Plaintiff alleges a basis for additional damages in several respects. Am.

Compl. ¶¶ 31-42; Resp. at 20.

Because the Court determined plaintiff has sufficiently pled facts supporting

an inference that defendant is liable for “actual damages,” its argument that plaintiff

cannot seek “additional damages” fails and defendant’s motion to dismiss is denied

as to this issue.

2. Pattern or Practice

Next, defendant makes two arguments why plaintiff fails to allege facts

showing a “pattern or practice” of RESPA violations. Mot. at 14. First, defendant

contends that plaintiff’s two assertions of RESPA violations cannot count as a

“pattern or practice,” because, well, two is too little. Then defendant argues that

plaintiff’s allegations of additional RESPA violations—obtained from the CFPB

database—“may contain factually incorrect information,” and “cannot be properly

relied on” to plausibly show that defendant “actually committed” the RESPA

violations alleged in those complaints. Id. at 15.1

Defendant’s arguments would be well-taken at a later stage of litigation.

However, we are at the motion-to-dismiss stage, and Federal Courts “do not require

heightened fact pleading of specifics, but only enough facts to state a claim to relief

that is plausible on its face.” Twombly, 550 U.S. at 570.

Discovering whether defendant “actually committed” the violations stated by

borrowers in the CFPB database is not a prerequisite to pleading statutory damages

for which the Court can find support. Plaintiff’s assertions that defendant violated

RESPA as to him, combined with other borrower complaints that defendant violated

RESPA as to them, is enough to plausibly allege “a pattern or practice of

noncompliance with the requirements of [RESPA].” § 2605(f)(1)(B); see also Renfroe

v. Nationstar Mortg., LLC, 822 F.3d 1241, 1247–48 (11th Cir. 2016) (stating the

same). Accordingly, defendant’s motion to dismiss is denied as to this issue.

II. UTPA Claim

Defendant asserts that plaintiff’s claim under the UTPA fails as a matter of

law because it does not allege any recoverable ascertainable loss. Mot at 18.

The UTPA states that

person that suffers an ascertainable loss of money or property, real or

personal, as a result of another person’s willful use or employment of a

method, act or practice declared unlawful by ORS 646.608, may bring

1 Plaintiff’s Amended Complaint ¶ 65 contains more than a half-dozen accounts from borrowers

claiming defendant violated § 2605.

an individual action in an appropriate court to recover actual damages

or statutory damages of $200, whichever is greater.

ORS 646.638(1). Thus, to “bring an individual action” under ORS 646.638(1), a

person must have suffered an “ascertainable loss of money or property.” Id. The

Oregon Supreme Court applies this language literally, holding that “the loss required

for a UTPA claim must be specifically of ‘money or property, real or personal.’”

Pearson v. Phillip Morris, Inc., 358 Or. 88, 117 (2015). When a complaint fails to

allege such a loss, it fails to state a claim and must be dismissed. See Paul v.

Providence Health Sys. Or., 351 Or. 587, 603 (2012) (affirming trial court’s dismissal

of UTPA claims in which the plaintiffs failed to allege damages “compensable under

the UTPA.”); Creditors Protective Ass’n, Inc. v. Britt, 58 Or. App. 230, 233 (1982)

(explaining that, under the UTPA, “a plaintiff must plead and prove an ascertainable

loss of money or property”).

Specific to his UTPA claim,2 plaintiff alleges two items he asserts constitute

an “ascertainable loss.” First, he incurred postage costs when he mailed the second

QWR letter to defendant to dispute amounts owed and request correction of its

servicing errors. Am. Compl. ¶ 31. Second, plaintiff alleges the right to recover “fees

imposed and collected [by defendant] after [defendant] failed to comply with its legal

duties after receipt of each QWR Letter…” Id., Prayer for Relief, § 2. Plaintiff asserts

that defendant “breached its contractual and legal promises” to “comply with RESPA”

by “churning sums for its own profits.” Am. Compl. ¶ 44. Plaintiff asserts that fees

2 Plaintiff’s UTPA claim does not include a claim for emotional distress damages or for damage

to credit, thus defendant’s arguments as to those claims will not be considered.

defendant collected, which “should have been deleted” from plaintiff’s account are

“causally linked to the violation of the UTPA.” Resp. at 24.

The Court has already determined that the postage cost for the second QWR

constitutes actual damages proximately caused by defendant’s violation of RESPA,

and thus an ascertainable loss under the UTPA. Defendant’s motion to dismiss on

that issue is denied.

As to plaintiff’s claims for fees defendant charged, those allegations do not set

forth facts sufficient for the Court or defendant to draw a reasonable inference that

such fees were charged in violation of RESPA, and consequently, a violation for

purposes of a claim under ORS 646.638(1). Accordingly, defendant’s motion to

dismiss is granted as to this issue.

Finally, defendant argues that because plaintiff has failed to allege an

“ascertainable loss,” he cannot state a claim for statutory damages under the UTPA.

Mot at 20.

ORS 646.638(1) provides that a person who has suffered an ascertainable loss

of money or property as a result of an unlawful act may seek “to recover actual

damages or statutory damages of $200, whichever is greater.”

Because the Court determined that plaintiff’s postage costs incurred for

sending his second QWR constitute an ascertainable loss, plaintiff has properly stated

a claim for statutory damages under the UTPA and defendant’s motion to dismiss is

denied as to this issue.

III. Motion to Strike Class Allegations under Rule 23

Defendant moves, in the alternative, to strike plaintiff’s class allegations

because establishing liability would require individualized and fact-specific inquiries

for each proposed class member under the governing law. Mot. at 22. Defendant also

contends that plaintiff’s proposed class definition is overly broad—the class would

contain many individuals whose rights were not violated, and the definition

contemplates a nationwide class even though the facts alleged all occurred in Oregon

and the claims arise in part under Oregon law. Defendant also asserts that, on the

facts alleged, a class action is not a superior method for fairly and efficiently

adjudicating the controversy.

Noted above, class actions are governed by Rule 23. Under Rule 23(a), a district

court may certify a case as a class action only if four requirements are met: (1)

numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. See

Wang v. Chinese Daily News Inc., 737 F.3d 538, 542–43 (9th Cir. 2013). As noted

above, a motion to strike class allegations is appropriate where the pleading shows

that the plaintiff will be unable to satisfy the requirements of Rule 23. Although class

certification issues are generally dealt with by motion for certification, courts in the

Ninth Circuit have struck class allegations where it is apparent that the class cannot

be properly certified. See Stearns v. Select Comfort Retail Corp., 763 F. Supp. 2d 1128,

1152–53 (N.D. Cal. 2010).

That said, courts in this circuit have denied motions to strike class allegations

before discovery as premature. See Mattson v. New Penn Fin., LLC, No. 2018 WL

6735088, at *2 (D. Or. Nov. 6, 2018), F&R adopted, 2019 WL 123870 (D. Or. Jan. 4,

2019). Further, courts in this District have instructively determined that a motion

to strike is not the appropriate vehicle for arguments about class treatment, which

should be addressed at the class certification stage. Ott v. Mortg. Invs. Corp. of Ohio,

65 F. Supp. 3d 1046, 1066–67 (D. Or. 2014)

Accordingly, the Court finds that defendant’s motions to dismiss or strike the

class allegations are premature and are denied, but without prejudice as to

defendant’s ability to move to strike or dismiss the class allegations if class

certification is sought.

IV. Motion to Strike Pleadings Under Rule 12(f)

Under Rule 12(f), defendant moves to strike plaintiff’s factual allegations in ¶¶

1 (a), 1 (b), 1 (c), 73 (a), 73 (b), and 73 (c) referring to other lawsuits or complaints

against it arguing that there are immaterial and impertinent. Mot. at 32.

Courts have discretion to “strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter.” A Rule 12(f) motion to

strike “is disfavored and should only be granted if the asserted defense is clearly

insufficient as a matter of law under any set of facts the defendant might allege.” Est.

of Osborn-Vincent v. Ameriprise Fin., Inc., 2019 WL 764029, at *5 (D. Or. Jan. 3,

2019), F&R adopted, 2019 WL 943379 (D. Or. Feb. 25, 2019). The Court declines to

exercise its discretion to apply such a drastic remedy and defendant’s motion to strike

is denied as to this issue.

CONCLUSION

In sum, plaintiff cannot state a claim for emotional distress damages under

RESPA, and cannot state a claim for damages for fees for loan servicing under the

UTPA. In line with this Order, defendant’s motion to dismiss, ECF No. 25, is

GRANTED in part and DENIED in part. Defendant’s motions to strike, class

allegations, made together with its motion to dismiss, is DENIED without prejudice.

Defendant’s motion to strike pleadings, made together with its motion to dismiss, is

DENIED. The parties are directed to contact the Court to schedule a status

conference to propose next steps in this case.

IT IS SO ORDERED.

Dated this 17th day of November 2023.

_______s_/_ A__n_n_ _A_i_k_e_n________

Ann Aiken

United States District Judge