# TUTTLE

> District Court, M.D. North Carolina · February 23, 2026

URL: https://www.frixlaw.com/law-library/cases/11266098

## Case

- **Full name:** Gregory Tuttle, on behalf of himself and all others similarly situated, and Sarah Tuttle v. Newrez, LLC d/b/a Shellpoint Mortgage Servicing, and Terwin Mortgage Trust 2005-3SL, by U.S. Bank National Association as Trustee
- **Court:** District Court, M.D. North Carolina
- **Decided:** February 23, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GREGORY TUTTLE, on behalf of )
himself and all others )
similarly situated, and SARAH )
TUTTLE, )
)
Plaintiffs, )
)
v. ) 1:25CV223
)
NEWREZ, LLC d/b/a SHELLPOINT )
MORTGAGE SERVICING, and )
TERWIN MORTGAGE TRUST )
2005-3SL, by U.S. Bank )
National Association as )
Trustee, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This is an action involving a second mortgage on a home.
Before the court is the motion (Doc. 17) by Defendants Newrez LLC1
d/b/a Shellpoint (“Shellpoint”) and Terwin Mortgage Trust 2005-
3SL, by U.S. Bank National Association as Trustee (the “Trust”),
to dismiss Plaintiffs Gregory and Sarah Tuttle’s amended complaint
(Doc. 14) (the “complaint”) pursuant to Federal Rule of Civil
Procedure 12(b)(6). The motion is fully briefed and ready for
decision. (Docs. 17-1, 19, 20.) For the reasons set forth below,
the motion will be granted and the complaint dismissed.

1 The amended complaint and case caption refer to “Newrez, LLC.”
I. BACKGROUND
The well-pleaded allegations in the complaint, viewed in the
light most favorable to the Tuttles as the non-moving parties,

show the following:
Plaintiffs Gregory and Sarah Tuttle built their home in
Yadkinville, North Carolina, in 1999. (Doc. 14 ¶ 45.) In 2005,
they refinanced it with an 80/20 mortgage structure, where a
primary mortgage covered approximately 80% of the home’s value and
a secondary mortgage covered the remaining 20%. (Id. ¶¶ 46-47.)
Mr. Tuttle was the sole signatory to the note for the second
mortgage. (Id. ¶ 49.)
The second mortgage was secured by a Deed of Trust dated
January 21, 2005 (Doc. 17-1 at 30), which both Tuttles signed as
borrowers. (Doc. 14 ¶50.) It was serviced by Specialized Loan
Servicing, LLC (“SLS”) from at least 2005 until July 2024, when

Shellpoint merged with SLS and assumed the servicing obligations.
(Id. ¶ 52.)
The Tuttles filed for Chapter 7 bankruptcy in September 2006.
(Id. ¶ 53.) Mr. Tuttle stopped receiving monthly statements for
the second mortgage that same month. (Id. ¶ 54.) In bankruptcy,
Mr. Tuttle filed a “Statement of Intention” that he would retain
his interest in his home and continue to pay the first and second
mortgages under agreed-upon terms. (Id. ¶ 55.)
Mr. Tuttle’s personal obligation under the second loan was
discharged in January 2007. (Id. ¶ 56.) Mr. Tuttle modified the
terms of both mortgages in December 2007, reaffirming the debt.
(Id. ¶ 57.) Mr. Tuttle subsequently defaulted on the second

mortgage, and SLS confirmed that it had charged off the second
mortgage in April 2009. (Id.)
In April 2018, the Consumer Financial Protection Board
updated the regulations for the Truth in Lending Act, 15 U.S.C.
1601 et seq. (“TILA”), by amending “Regulation Z” to require loan
servicers to provide post-bankruptcy consumers with monthly
statements absent a specified exemption. (Doc. 14 ¶ 36; see 12
C.F.R. § 1026.41(e)(5)(i).) That same month, SLS sent Mr. Tuttle
a letter informing him that he qualified under the new regulation
to “begin receiving a new monthly statement beginning in April
2018.” (Doc. 14 ¶¶ 59-61.) At some unspecified point thereafter,
Mr. Tuttle began receiving statements on the second mortgage.2

(Id. ¶ 64.) The statements indicated that he owed retroactive
interest and fees on his mortgage, which added approximately
$20,000 to the $54,000 outstanding principal balance of the loan.
(Id. ¶¶ 48, 56, 64.) Mr. Tuttle alleges that retroactive fees and
interest were assessed “for periods in which he had not received
statements,” but does not specify whether the periods in question

2 Mr. Tuttle alleges that he “continued to receive no monthly statements
from SLS regarding his second mortgage, including after April 2018.”
(Id. ¶ 62.) However, he does not indicate how long this occurred.
were before or after the April 2018 regulation change. (Id. ¶ 65.)
In May 2023, SLS sent a notice of default addressed to Mr.
Tuttle (but not Ms. Tuttle) at their residence, threatening

foreclosure if he failed to pay the full statement balance,
including the retroactively assessed fees and interest. (Id.
¶¶ 66, 69.) In late 2023, the Trust, as owner of the mortgage
debt, commenced foreclosure proceedings and sent correspondence to
Mr. Tuttle informing him of the foreclosure. (Id. ¶ 70.) As a
result of the foregoing, Plaintiffs allege they have suffered
damages including “lost equity of approximately $20,000 [] which
Shellpoint retroactively assessed as interest, as well as the
significant emotional distress of facing the loss of their family
home if they do not pay[.]” (Id. ¶ 72.)
The Tuttles commenced the present action asserting claims
under the North Carolina Debt Collection Act, N.C. Gen. Stat. § 75-

50 et seq. (“NCDCA”) (Counts 1 through 4 and 7), a claim under the
North Carolina Unfair and Deceptive Trade Practices Act, N.C. Gen.
Stat. § 75-1.1 et seq. (“UDTPA”) (Count 8), a claim for a
declaratory judgment under 28 U.S.C. § 2201 (Count 5), and a state
law breach of contract claim (Count 6).
II. ANALYSIS
A. Legal Standard
Federal Rule of Civil Procedure 8(a)(2) provides that a
pleading must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” A Rule 12(b)(6)
motion to dismiss is meant to “test[] the sufficiency of a
complaint” and not to “resolve contests surrounding the facts, the

merits of a claim, or the applicability of defenses.” Republican
Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). To
survive such a motion, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
In considering a Rule 12(b)(6) motion, a court “must accept
as true all of the factual allegations contained in the
complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam), and all reasonable inferences must be drawn in the non-
moving party’s favor, Ibarra v. United States, 120 F.3d 472, 474

(4th Cir. 1997). However, the court “need not accept as true
unwarranted inferences, unreasonable conclusions, or
arguments.” E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P’ship, 213
F.3d 175, 180 (4th Cir. 2000). Rule 12(b)(6) protects against
meritless litigation by requiring sufficient factual allegations
“to raise a right to relief above the speculative level” so as to
“nudge[] the[] claims across the line from conceivable to
plausible.” Twombly, 550 U.S. at 555, 570; see also Iqbal, 556
U.S. at 678. Thus, mere legal conclusions should not be accepted
as true, and “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
B. NCDCA Claims (Counts 1 through 4 and 7)

Defendants argue that the NCDCA claims should be dismissed
because they are based solely on Defendants’ assessment of interest
on the second mortgage loan at times when no periodic statements
were being sent. (Doc. 17-1 at 15.) As Defendants note, the
obligation to issue periodic statements to consumers in bankruptcy
arises under the TILA and its enacting regulations. (Id.; see 15
U.S.C. § 1638(f); 12 C.F.R. § 1026.41(e)(5).) However, the TILA
extends liability only to “creditors” and explicitly exempts loan
servicers (like Shellpoint/SLS) and assignees of creditors (like
the Trust) from liability in most cases. See 15 U.S.C. § 1641(e)
(requiring the assignment to be voluntary and the violation to be

“apparent on the face of the disclosure statement”) and (f)
(exempting servicers unless they are also an owner of the
obligation).3 Thus, Defendants contend that the Tuttles’ NCDCA

3 Plaintiffs represent that “TILA requires mortgage lenders and servicers
to send consumers a statement once per billing cycle.” (Doc. 19 at 9.)
Plaintiffs cite 15 U.S.C. § 1637(b) and 12 C.F.R. § 1026.5(b)(2),
provisions that apply to open ended consumer credit plans, not home
mortgages. However, a different subsection of TILA and Regulation Z
both require servicers of home mortgages to provide a statement once per
billing cycle. 15 U.S.C. § 1638(f)(1) (“The creditor, assignee, or
servicer with respect to any residential mortgage loan shall transmit
to the obligor, for each billing cycle, a statement . . .”); 12 C.F.R.
§ 1026.41(a)(2) (“A servicer of a transaction subject to this section
shall provide the consumer, for each billing cycle, a periodic statement
claims are an indirect attempt to enforce a non-existent TILA
claim. (Doc. 17-1 at 16-17.)
The Tuttles, in apparent recognition of the servicer’s

exemption from liability here, contend that their NCDCA claims are
not predicated on Defendants’ failure to provide periodic
statements in violation of the TILA, but rather on their attempts
to collect interest and fees to which they were not entitled.
(Doc. 19 at 10-11.) The Tuttles cite cases for the proposition
that periodic billing statements can be actionable under the NCDCA
as an attempt to collect a debt. (Id. at 9-10 (citing Daniels v.
Select Portfolio Servicing, Inc., 34 F.4th 1260, 1271 (11th Cir.
2022); Lipford v. Specialized Loan Servicing, LLC, 2024 WL 3760752,
at *4 (E.D. Va. Aug. 12, 2024); and Lamirand v. Fay Servicing,
LLC, 38 F.4th 976, 980 (11th Cir. 2022).) Additionally, they argue
that Mr. Tuttle’s individual NCDCA claim (Count 7) relates to other

debt collection attempts, including the mailing of pre-foreclosure
notices. (Id. at 12.)
Defendants reply that the interest and fees that underly all
of the Tuttles’ NCDCA claims are only alleged to be unlawful under
the TILA. (Doc. 20 at 7-8.) Thus, they contend that the Tuttles’
NCDCA claims, including the individual claim in Count 7, are all

. . .”). So, while Section 1638 and Regulation Z impose this requirement
on servicers, the sections creating liability, 15 U.S.C. §§ 1640 and
1641, generally restrict it to creditors and explicitly exempt servicers
from liability unless they also own the loan as an assignee.
dependent on nonactionable TILA violations and therefore subject
to dismissal. (Id. at 10.) Further, they correctly note that all
of the Tuttles’ cases are inapposite, because the question of

whether periodic billing statements can be attempts to collect a
debt under the NCDCA is not at issue here. (Id. at 9.)
When construing a state statute, a federal court looks to the
decisions of the highest court of the state. See Twin City Fire
Ins. Co. v. Ben Arnold-Sunbelt Beverage Co. of S.C., 433 F.3d 365,
369 (4th Cir. 2005). If there are no governing opinions from the
Supreme Court of North Carolina, the court “must anticipate how it
would rule.” See Parkway 1046, LLC v. U.S. Home Corp., 961 F.3d
301, 306 (4th Cir. 2020) (internal quotation marks and citation
omitted). To that end, the federal court may consider the opinions
of the North Carolina Court of Appeals, treatises, and “the
practices of other states.” Twin City Fire Ins. Co., 433 F.3d at

369 (internal quotation marks and citation omitted).
As Defendants note (Doc. 20 at 7), the Tuttles do not cite
any North Carolina statute or case that would establish independent
liability for fees and interest assessed on a mortgage during
periods where no statements were sent. Neither the Supreme Court
of North Carolina nor the North Carolina Court of Appeals has ever
considered whether a TILA violation of the type alleged here can
give rise to liability under the NCDCA or any other North Carolina
law. However, the North Carolina Court of Appeals has looked to
federal interpretations of the Fair Debt Collection Practices Act
(the “FDCPA”), which is the NCDCA’s federal counterpart,4 when
construing the NCDCA in other contexts. See, e.g., Reid v. Ayers,

531 S.E.2d 231, 233-34 (N.C. Ct. App. 2000). There is no reason
to conclude North Carolina courts would do otherwise here.
Courts have consistently rejected attempts to enforce the
TILA against non-creditors using the FDCPA. For example, in Neff
v. Cap. Acquisitions & Mgmt. Co., 238 F. Supp. 2d 986, 992-93 (N.D.
Ill. 2002), aff’d, 352 F.3d 1118 (7th Cir. 2003), the court
rejected the plaintiff’s claim that the non-creditor defendants
violated the FDCPA through efforts to collect interest when no
periodic statements had been furnished. The court held that “there
is no affirmative obligation under the FDCPA to send monthly
statements, and [plaintiff] does not allege deceptive or unfair
practices independent of defendants' alleged TILA obligations.”

Accord Lee v. Northland Grp., No. 02-c-6083, 2003 WL 25765398, at
*1 (N.D. Ill. 2003) (“[Plaintiff]'s FDCPA . . . claims are entirely
predicated on her nonexistent TILA violation, and thus those claims

4 Compare N.C. Gen Stat. § 75-54(2) (forbidding false representation of
“the character, extent, or amount of a debt against a consumer or of its
status in any legal proceeding”) with 15 U.S.C. § 1692e(2) (forbidding
false representation of “the character, amount, or legal status of any
debt”); compare also N.C. Gen. Stat. § 75-55(4) (forbidding collection
of “any interest or other charge, fee or expense . . . unless legally
entitled to such fee or charge”) with 15 U.S.C. § 1692f(1) (forbidding
collection of “any interest, fee, charge, or expense . . . unless such
amount is expressly authorized by the agreement creating the debt or
permitted by law”).
must also be dismissed.”). Indeed, multiple courts have reached
similar conclusions in parallel litigation involving repackaged
TILA claims against Shellpoint. See Linderman v. NewRez LLC, No.

25-cv-04271, 2025 WL 3037795 (N.D. Ill. Oct. 31, 2025); Cole v.
NewRez LLC, No. 25-cv-04265 (N.D. Ill. Dec. 17, 2025);5 Hodges v.
NewRez LLC, No. 25-cv-10147, 2026 WL 194652 (D. Mass. Jan. 6,
2026).
Here, the Tuttles concede that the NCDCA and FDCPA serve the
same purpose. (Doc. 19 at 9.) Nevertheless, the Tuttles argue
that their NCDCA claims are distinguishable from existing FDCPA
caselaw because the claims in the present case are not “entirely
predicated on a failure to send statements.” (Id. at 10-11.) But
the substance of their complaint belies this argument. The alleged
NCDCA violations in Counts 1 through 4 all arise from Defendant’s
representations of interest and fees, or efforts to collect the

same, for “months that [Plaintiffs] were not sent monthly
statements.” (Doc. 14 ¶¶ 80-81, 92-93, 104-105, 117-118.)
Similarly, Mr. Tuttle’s individual NCDCA claim in Count 7 rests on
an “inaccurate balance” and “inflated amount to cure the default”
that appeared on the notice of foreclosure he received from
Defendants. (Id. ¶¶ 145-48.) The alleged inaccuracy and inflation
are based exclusively on Defendants’ assessment of fees and

5 A copy of this unreported case was filed by Defendants. (Doc. 31-1.)
interest for months that the Tuttles were not sent monthly
statements — in other words, on a nonactionable TILA violation.
(See id. ¶¶ 65-66.)

Because the Tuttles have failed to allege any conduct that
would violate the NCDCA independent of Defendant’s putative TILA
violations, Counts 1 through 4 and 7 of the complaint will be
dismissed.
C. UDTPA Claim (Count 8)
Defendants likewise argue that Count 8 fails to state a claim
under the UDTPA because it is based on the same nonactionable TILA
violation as the NCDCA claims. (Doc. 17-1 at 18-19 (citing
Register v. N. Sun Hous. & Dev., Inc., No. 7:04-cv-68-FL, 2005 WL
8159532, at *10 (E.D.N.C. 2005), aff’d sub nom. Reg. v. Flagstar
Bank, 205 F. App’x 154 (4th Cir. 2006).) The Tuttles respond that
the UDTPA claim is not based Defendants’ failure to send monthly

statements, but rather on their “unfair and deceptive foreclosure
attempts.” (Doc 19 at 12-13.) Defendants reply that this claim,
like the others, is based on Defendants’ alleged assessment of
fees and interest at times when monthly statements were not sent.
(Doc. 20 at 10-11.)
Once again, the face of the complaint belies the Tuttles’
argument. Count 8 alleges:
“[In] seeking payment of amounts exceeding $100,000 and
conducting a foreclosure sale of Plaintiff’s home without
having sent him monthly mortgage statements, [Defendants]
violated TILA6 . . . [which], in turn, “violated North
Carolina’s unfair and deceptive trade practices statute, N.C.
Gen. Stat. § 75-1.1 et seq.”
(Doc. 14 ¶¶ 155-56.) Because the UDTPA claim is based upon
nonactionable violations of the TILA, it fails as a matter of law.
See Register, 2005 WL 8159532, at *10. Therefore, Count 8 of the
complaint fails to state a claim and will be dismissed.
D. Breach of Contract (Count 6)
Defendants argue that the Trust’s alleged breach of the deed
of trust is predicated on the same nonactionable TILA violations
as the previous claims. (Doc. 17-1 at 19-20 (citing Penner v.
Chase Bank USA, N.A., 2006 WL 2192435, at *5 (W.D. Wash. 2006).)
They further argue that the Tuttles have failed to allege actual
damages, as there is no allegation that they have paid the “fees
and costs” they allegedly do not owe, no allegation that they could
have paid the lesser amount they claim to owe, and no allegation
of any transfer or sale to support their assertion of “lost

equity.” (Id. at 20-22.) Finally, they argue that the deed of
trust did not require a default notice to be sent to Ms. Tuttle,
because she did not sign the corresponding note and thus was not
personally liable as a borrower. (Id. at 22-23.) Alternatively,
they contend that Ms. Tuttle was properly notified by the default

6 Paragraph 155 of the complaint further alleges that the same conduct
violated an undefined “DCSA,” perhaps an errant reference to Indiana's
Deceptive Consumer Sales Act, Ind. Code § 24-5-0.5-1 et seq. (Doc. 14
¶ 155.)
notice sent to Mr. Tuttle. (Id. at 23 n.8.)
The Tuttles respond that the alleged breach is not predicated
on a TILA violation, but on a defective default notice that “vastly

overstated the amount of [the] debt and therefore did not comply
with [the] Deed of Trust.” (Doc. 19 at 14.) They contend that
the mere assessment of foreclosure fees constitutes lost equity,
because “if [Plaintiffs] were to try to refinance or payoff their
mortgage today, they would have to pay those fees.” (Id. at 15.)
They also note that a foreclosure proceeding is pending against
their home and cite cases where homeowners in similar circumstances
were allowed to seek prospective relief. (Id. (citing Mathews v.
PHH Mortg. Corp., 724 S.E.2d 196 (Va. 2012); Blick v. Shapiro &
Brown, LLP, No. 3:16-cv-00070, 2017 WL 8774286, at *2 (W.D. Va.
Jan. 25, 2017).) Finally, they argue that the language of the
deed of trust shows that Ms. Tuttle was a “borrower” entitled to

receive a default notice. (Id. at 16-17.)
Defendants reply that the “vastly overstated” amount that
appears on the notice of default is yet another reiteration of the
same nonactionable TILA violation that underlies the Tuttles’
other claims. (Doc. 20 at 11-12.) Further, they argue that a
merely “pending” foreclosure is insufficient to show lost equity
or other damages. (Id. at 12 (citing Jaldin v. ReconTrust Co.,
N.A., 539 F. App’x 97, 101 (4th Cir. 2013).) Thus, they reason,
even if Ms. Tuttle was entitled to a default notice, she cannot
show that she suffered any damage in not receiving it. (Id. at
13.)
The deed of trust, by its own terms,7 is governed by North

Carolina law. (Doc 17-1 at 32, ¶ 13.) In North Carolina, a claim
for breach of contract requires only (1) the existence of a valid
contract and (2) a breach of the terms of that contract; proof of
damages is not required. See Poor v. Hill, 530 S.E.2d 838, 843
(N.C. Ct. App. 2000). A plaintiff who establishes both elements
is entitled “to nominal damages at least.” Bryan Builders Supply
v. Midyette, 162 S.E.2d 507, 511–12 (N.C. 1968). However, a breach
of contract is only actionable if it is material, “one that
substantially defeats the purpose of the agreement or goes to the
very heart of the agreement, or can be characterized as a
substantial failure to perform.” Crews v. Crews, 826 S.E.2d 194,
199 (N.C. Ct. App. 2019).

Here, no party disputes that the deed of trust is a valid
contract. Thus, the court must determine whether the Tuttles have
adequately alleged that Defendants breached its terms, either by

7 Under limited circumstances, a court may consider documents beyond the
complaint without converting a motion to dismiss into one for summary
judgment. Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508
(4th Cir. 2015); Fed. R. Civ. P. 12(d) (limiting consideration of matters
outside of the pleadings on 12(b)(6) motion). A court may properly
consider documents that are “explicitly incorporated into the complaint
by reference.” Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166
(4th Cir. 2016). Here, both the deed of trust (Doc. 17-1 at 30-35) and
the notice of default (id. at 37-39) are expressly incorporated into the
complaint by reference. (Doc. 14 ¶¶ 135-36.)
overstating the amount owed in the default notice that was mailed
to Mr. Tuttle, or by failing to send a default notice to Ms.
Tuttle.

With respect to the first alleged breach, the Tuttles have
not alleged sufficient facts to show that the default notice was
“defective because it listed an incorrect amount due on the loan.”
(Doc. 14 ¶ 136.) Their complaint indicates neither the amount
that appeared on the default notice nor the lesser amount that
they believe should have appeared. Plaintiffs rely entirely on
Defendants’ putative violations of the TILA to show that the amount
was excessive. (Id. (“Specifically, [the amount] included
interest and/or late fees that Plaintiff did not owe because he
was not being sent monthly statements.”).) The Trust is also
exempt from TILA liability as an assignee because the alleged
violation (failure to send statements) was not apparent on the

face of the disclosures the Trust received when it acquired the
loans from the originating lender. 15 U.S.C. § 1641(e)(1)(A).
Thus, the alleged breach simply repackages the same unactionable
conduct that serves as the basis of the Tuttles’ other claims.
As to the second alleged breach, the Trust’s alleged failure
to notify Ms. Tuttle as a condition precedent to foreclosure is an
issue that would seem to be more properly raised in the pending
foreclosure proceeding, rather than before this court.
Nevertheless, the claim appears to be meritless. Admittedly,
Defendants’ argument that Ms. Tuttle was not entitled to receive
a notice is unpersuasive. (Doc. 17-1 at 22-23.) The deed of trust
plainly defines “Borrower” as “Gregory Dwayne Tuttle and Sarah

Leandra A. Tuttle, Husband and Wife” and requires notices to be
sent “by certified mail addressed to Borrower” prior to
acceleration. (Id. at 30, 32 (emphasis added).) Thus, Ms. Tuttle
was entitled to notice before the Trust commenced foreclosure
proceedings. However, the Trust’s failure does not appear to rise
to the level of a material breach. The notice of default was
delivered to Mr. Tuttle, Ms. Tuttle’s husband and co-borrower, at
the same property address. (Doc. 14 ¶ 66; see Doc. 17-1 at 37.)
Plaintiffs do not allege that Ms. Tuttle was unaware of the
impending foreclosure, or that she would have acted differently
had her name been included on address line. In short, the Trust’s
failure to properly address the notice of default appears to be a

non-material breach, one that neither “substantially defeats the
purpose of the agreement [nor] goes to the very heart of the
agreement, [or] can be characterized as a substantial failure to
perform.” Crews, 826 S.E.2d at 199.
Because Plaintiffs have failed to allege any facts that, if
proven, would constitute a material breach of the deed of trust,
Count 6 of the complaint will be dismissed.
E. Declaratory Judgment (Count 5)
Defendants argue that because the Tuttles’ substantive claims
have been dismissed, their claim for declaratory relief under 28
U.S.C. §2201 lacks a viable underlying cause of action and thus

fails as a matter of law. (Doc. 17-1 at 23-24. (citing Laws v.
Priority Tr. Servs. of N.C., 610 F. Supp. 2d 528, 532 (W.D.N.C.
Mar. 16, 2009)).) The Tuttles respond that they have alleged a
real and immediate controversy, namely, whether Defendants have
waived the right to collect fees and interest assessed during
periods when statements were not sent to borrowers. (Doc. 19 at
18-19.)
The Declaratory Judgment Act provides that the court
“may declare the rights and other legal relations of any interested
party seeking such declaration.” 28 U.S.C. §2201(a). However,

“a request for declaratory relief is barred to the same extent
that the claim for substantive relief on which it is based would
be barred.” CGM, LLC v. BellSouth Telecomm., Inc., 664 F.3d 46,
55-56 (4th Cir. 2011). Because the Tuttles have no surviving
substantive claims, Count 5 of the complaint fails as well, and it
will be dismissed.
F. Class Allegations
The Tuttles argue finally that no basis exists to strike Mr.
Tuttle’s class claims and that, in any event, doing so now, before
discovery, would be premature. (Doc. 19 at 19.) However, as
Defendants correctly argue (Doc. 20 at 15), where the underlying
substantive claims are dismissed, the class claims lack any
predicate and should also be dismissed. Sullivan v. Lab Corp. of
Am. Holdings, No. 1:17cv193, 2018 WL 1586471, at * 12 (M.D.N.C.
2018); Stewart v. Legal Helpers Debt Resolution, PLLC, No.

2:11CV26, 2014 WL 31797, at *1 (W.D.N.C. Jan. 6, 2014) (“As a
general rule, when the named plaintiff in a class action settles
his or her individual claims or they become moot prior to the
district court certifying a class, the district court should
dismiss the class claims as moot because there is no case or
controversy under Article III of the United States
Constitution.”). Therefore, the dismissal of Mr. Tuttle’s
individual claims, for which he was the only proposed class
representative, dooms his putative class claims, and they fail to
prevent dismissal of the complaint.
III. CONCLUSION
For the reasons stated,

IT IS THEREFORE ORDERED that Defendants’ motion to dismiss
(Doc. 17) is GRANTED and the amended complaint (Doc. 14) is
DISMISSED.

/s/ Thomas D. Schroeder
United States District Judge
February 23, 2026

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11266098. Public record. Not legal advice.