United States District Court, E.D. Louisiana
ZAINEY UNITED STATES DISTRICT JUDGE.
the Court is a Motion for Judgment on the Pleadings (Rec.
Doc. 9) filed by Defendant Select Portfolio Servicing, Inc.
(“SPS”). Plaintiff has not filed an opposition to
the Motion. The Motion, set for submission on January 11,
2017 is before the court on the briefs without oral
October 29, 2004, Plaintiff executed a promissory note in
favor of Olympus Mortgage Company or “anyone who takes
this Note by transfer” in the principal amount of $61,
000.00 (the “Note”). The Note is secured by a
mortgage that was signed by Plaintiff on October 29, 2004,
and is recorded in the Parish of Jefferson, State of
Louisiana as Instrument Number 10466394, Book 4211, Page 910
(the “Mortgage”). The Mortgage encumbers the
immovable property located at 457 Sala Avenue, Westwego,
Louisiana 70094 (the “Property”).
Note was endorsed by Olympus Mortgage Company and made
payable to Ameriquest Mortgage Company, which endorsed the
Note in blank, rendering the note bearer paper. (Rec. Doc.
9-2). U.S. Bank, N.A. is the current holder and possessor of
the Note. Defendant SPS has been the loan servicer since July
1, 2012. Plaintiff allegedly defaulted the Note and Mortgage
by failing to remit the November 1, 2015 monthly installment,
and all subsequent installments. As a result of
Plaintiff's default and his failure to cure the default,
the loan was accelerated and the entire unpaid principal
balance, together with interest, and allowable fees, are now
allegedly due, owing, and unpaid. (Rec. Doc. 9).
about August 9, 2016, U.S. Bank filed the lawsuit against
Plaintiff in the Twenty-Fourth Judicial District Court for
the Parish of Jefferson to enforce its rights in the Note and
Mortgage against Plaintiff. Although it remains unclear, this
action appears to have resulted in the Sheriff Sale of the
mortgaged property on October 19, 2016. (Rec. Doc. 1-4). In
response to the lawsuit, Plaintiff filed a civil action on
October 11, 2016 against Defendant in the Second Justice
Court for the Parish of Jefferson. (Rec. Doc. 1-4). Defendant
timely removed the state court action to this Court. (Rec.
seeks a $1, 000 penalty under the Federal Debt Collection
Practices Act (“FDCPA”), a letter from SPS to
“all 3 credit reporting agencies” requesting that
negative reporting in connection with the Note be removed
under the Fair Credit Reporting Act (“FCRA”), and
that the sale ordered in the Foreclosure Action be enjoined
pending resolution of this lawsuit. (Rec. Doc. 1-4).
Defendant SPS claims that it is entitled to judgment on the
pleadings because 1) Plaintiff waived presentment by the
clear and unambiguous terms set out in the note, 2) SPS is
not a debt collector under the FDCPA, 3) Plaintiff has no
right of action, and failed to comply with the statutory
requirements for asserting a FCRA claim, and 4)
Plaintiff's request for injunctive relief does not fall
within one of the statutory exceptions in the Anti-Injunction
motion for judgment on the pleadings is subject to the same
standard as a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Doe v. MySpace,
Inc., 528 F.3d 413, 418 (5th Cir. 2008). When
considering a motion to dismiss under Rule 12(b)(6), a court
must accept as true all well-pleaded facts and must draw all
reasonable inferences from those allegations in the
plaintiff's favor. Baker v. Putnal, 75 F.3d 190,
196 (5th Cir. 1996). To survive a Rule 12(b)(6) motion to
dismiss, the plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546
(2007). “Factual allegations must be enough to raise a
right to relief above the speculative level on the assumption
that all allegations in the complaint are true (even if
doubtful in fact).” Id. at 555 (parenthetical
in original) (quotations, citations, and footnote omitted).
Failure of Presentment
claims that Defendant's failure to present the note upon
demand means that the note is dishonored and that his debts
are no longer owed. Defendant asserts that Plaintiff waived
his right to presentment, and that failure to present the
note does not absolve Plaintiff of his debts.
Court finds that Defendant was not required to present the
note at Plaintiff's request because Plaintiff waived both
his right of presentment and right to notice of his dishonor.
(Rec. Doc. 1-1). The Note that Plaintiff signed included the
Waivers: I and any other person who has obligations under
this Note waive the rights of presentment and notice of
dishonor. “Presentment” means the right to
require the Note Holder to demand payment of amounts due.
“Notice of Dishonor” means the right to require
the Note ...