United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge.
matter is before the Court for resolution of Defendants'
Joint Motion to Dismiss. See ECF No. 5. The Court
denies the motion for the reasons herein.
16, 2016, Plaintiff Wayne Ashley filed this action in this
Court against Rushmore Loan Management Services, LLC
(“Rushmore”) and U.S. Bank National Association
(“U.S. Bank”) (collectively,
“Defendants”) asserting various claims related to
his efforts at loan modification of his residential mortgage.
See ECF No. 1. The allegations in Plaintiff's
complaint indicate that U.S. Bank is the mortgage holder and
that Rushmore acts as the mortgage servicer as well as debt
collector. See Id. at ¶¶ 5-9, 11, 21. He
alleges Defendants intentionally delayed his requests for a
loan modification, never actually intended to provide him an
affordable loan modification, wrongfully applied funds from a
mortgage assistance program, and never notified him of a
pending foreclosure action. Id. at ¶¶
10-46. Plaintiff asserts two federal causes of action and
seven state causes of action, specifically: (1) violation of
the Real Estate Settlement Procedures Act, 12 U.S.C. §
2605 and 12 C.F.R. § 1024.41; (2) violation of the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692; (3)
violation of the South Carolina Unfair Trade Practices Act,
SC Code Ann. §§ 39-5-10 et seq.; (4)
fraud; (5) negligence; (6) negligent training and
supervision; (7) reckless and wanton training and
supervision; (8) breach of contract; and (9) intentional
infliction of emotional distress. Id. at ¶¶
47-104. Significantly, Plaintiff seeks monetary damages,
costs, and attorney's fees, but does
not seek declaratory, equitable, or
other discretionary relief. See Id. at pp. 22-23
(prayer for relief).
14, 2016, Defendants filed a joint motion to dismiss arguing
the Court should abstain from exercising jurisdiction over
this action pursuant to both Younger v. Harris, 401
U.S. 37 (1971), and Colorado River Water Conservation
District v. United States, 424 U.S. 800 (1976), because
there is an ongoing foreclosure proceeding in state court.
See ECF No. 5. Defendants have attached various
exhibits to their motion to dismiss, including copies of
court documents from the state foreclosure proceeding, which
was filed prior to the instant federal action. See
ECF Nos. 5-2 through 5-17. These documents indicate the
following chronology of events:
• December 13, 2013: U.S. Bank filed a foreclosure
action against Plaintiff in the Court of Common
Pleas for Florence County, South Carolina. See ECF
• July 10, 2014: After Plaintiff failed to respond, the
state court held a foreclosure hearing and entered a judgment
of foreclosure and sale. See ECF No. 5-8.
• July 25, 2014: Plaintiff appeared and filed a motion
to vacate the judgment of foreclosure and sale. See ECF
• January 12, 2015: The state court granted
Plaintiff's motion to vacate. See ECF No. 5-14.
• February 6, 2015: Plaintiff filed an answer to the
foreclosure complaint. See ECF Nos. 5-15 & 8-1.
reviewing these state court filings attached to
Defendants' motion to dismiss, the Court has also
reviewed the Florence County Public Index and takes judicial
notice that the foreclosure action is still
pending in state court.
if the Court declines to abstain from exercising
jurisdiction, Defendants seek dismissal of each of
Plaintiff's causes of action under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a plausible claim.
See ECF No. 5. Plaintiff filed a response in
opposition on August 1, 2016, and Defendants filed a reply on
August 11, 2016. See ECF Nos. 8 & 9.
contend the Court should dismiss this action on abstention
grounds under Younger and Colorado River
because there is an ongoing foreclosure ...