United States District Court, W.D. Oklahoma
ERIN HURT, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DAVID L. HURT, Plaintiff,
VANDERBILT MORTGAGE AND FINANCE, INC., TOTAL HOUSING, L.L.C., FORD MOTOR CREDIT, ASSOCIATES 1996-2 and JOHN DOES 1-1000, Defendants.
L. PALK, UNITED STATES DISTRICT JUDGE.
the Court is the Motion to Dismiss of Defendant Vanderbilt
Mortgage and Finance, Inc. (Vanderbilt) [Doc. No. 7].
Plaintiff has responded [Doc. No. 8] and Vanderbilt has
replied [Doc. No. 9]. The matter is fully briefed and ready
initiated this action in the District Court of Cleveland
County, State of Oklahoma and Vanderbilt removed the action
to this Court. See Notice of Removal [Doc. No. 1].
The only issued summons reflected in the record is to
Vanderbilt. After removal, Plaintiff voluntarily dismissed
Defendant Ford Motor Credit. See Dismissal Without
Prejudice of Ford Motor Credit [Doc. No. 6]. The other
Defendants have not been served.
seeks a declaratory judgment against Vanderbilt and
additionally brings claims for conversion, violations of the
Oklahoma Consumer Protection Act, violations of the Oklahoma
Consumer Credit Code (supervised lender provisions), unjust
enrichment and unconscionability. Vanderbilt seeks dismissal
of all claims brought against it.
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) (internal quotation marks omitted). Federal Rule of
Civil Procedure 8(a)(2) requires a “short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). “[T]he pleading
standard Rule 8 announces does not require detailed factual
allegations, but it demands more than an unadorned,
Ashcroft, 556 U.S. at 678. Dismissal is proper
“if, viewing the well-pleaded factual allegations in
the complaint as true and in the light most favorable to the
non-moving party, the complaint does not contain
‘enough facts to state a claim to relief that is
plausible on its face.'” MacArthur v. San Juan
County, 497 F.3d 1057, 1064 (10th Cir. 2007) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544,
550 (2009)); see Iqbal, 556 U.S. at 676-80. The
plaintiff cannot merely give “labels and conclusions,
and a formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555. Conclusory
allegations are not entitled to the court's presumption;
rather the plaintiff must plead facts that at least make the
claims plausible and raise the “right of relief above
the speculative level.” Id. at 555.
Factual Allegations of the Petition
following factual allegations are taken from the Petition and
the Court accepts the allegations as true for purposes of
ruling on Vanderbilt's Rule 12(b)(6) motion. See
Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009).
1996, David L. Hurt entered into a Manufactured Home Retail
Installment Contract/Security Agreement (Contract) with Total
Housing for the purchase of a manufactured home. The Contract
is attached to the Petition. See Pet., Ex. A. The
amount financed under the Contract was $69, 485.50 with an
annual percentage rate of interest of 11.030%. The Contract
was assigned to Ford Motor Credit. Vanderbilt began servicing
the loan in December 2006.
Hurt died in April 2017 and Erin Hurt was appointed as the
personal representative of his estate in May 2017. To date,
Mr. Hurt has paid $174, 403.19 to Defendants. Vanderbilt
continues to send monthly statements to Plaintiff for payment
but did not file any claim in the probate of the estate.
September 28, 2018, the purported principal amount due under
the Contract was $69, 283.27. Plaintiff has requested a
complete accounting of payments made pursuant to the
Contract, from its origination, but Vanderbilt has informed
Plaintiff that it has no payment records prior to obtaining
the servicing rights. Plaintiff further alleges that
“had the loan been amortized in accordance with a
regular amortization schedule, that loan would have been paid
off in 2008.” Pet., ¶ 68. And, Plaintiff alleges
that on June 19, 2017, Vanderbilt “sent a new
amortization schedule showing that the loan would not be paid
in fully until December 2046 after an additional 355 payments
were made on a loan which originally contemplated 360
payments.” Id., ¶ 69.
Declaratory Relief and Violation of the Oklahoma Consumer
seeks a declaratory judgment against Vanderbilt that: (1) the
Contract is void and that the Estate of David L. Hurt is not
obligated to pay the principal, the loan finance charge or
any other charges added to the account; and (2) the Estate of
David L. Hurt is entitled to recover each and every payment,
with interest, tendered to Vanderbilt and its predecessors.
Plaintiff bases her right to this relief on allegations that
Total Housing was not a supervised lender at the time the
loan originated and, therefore, the requirements of Oklahoma
law that “only a supervised lender may make or take the
assignment of a supervised loan” have been violated.
Pet., ¶ 21.
claim arises under Oklahoma's Uniform Consumer Credit
Code, Okla. Stat. tit. 14A, §1-101 et seq. (U3C). In
addition to her request for declaratory relief, Plaintiff
brings a separate claim for relief alleging a violation of
the U3C. See Pet., ¶¶ 58-65.
applies only to “consumer loans” and provides
that “[u]nless a person is a supervised financial
organization or has first obtained a license . . .
authorizing him to make supervised loans, he shall not engage
in the business of (1) making supervised loans; or (2) taking
assignments and undertaking direct collection of payment from
or enforcement of rights against debtors arising from
supervised loans.” Okla. Stat. tit. 14A, § 3-502
(1996).A violation of § 3-502 deems the loan
void. Id., § 5-202(2).
Vanderbilt correctly asserts, under the U3C a
“supervised loan” is a type of “consumer
loan” and loans that exceed $45, 000.00 in principal
amount are excluded from the definition of a consumer loan.
Id., §§ 3-104 and 3-501(1) (1996). Here,
the loan at issue as alleged in the Petition exceeds $45, 000
in principal amount and, therefore, Plaintiff fails to state
a claim under the U3C.
wholly fails to address this issue in her response and thus
has confessed the issue. Instead, Plaintiff now argues that
her request for declaratory relief remains sufficient
independent of the U3C. See Pl.'s Resp. at 3
(“[Vanderbilt] mischaracterizes Plaintiff's claims
as solely stemming from violations of the [U3C].”).
Plaintiff contends Vanderbilt has no contractual rights to
the loan. See id. (“Plaintiff has alleged
facts to show the contract is void not only under the U3C but
also as a result of not actually receiving the contractual
rights to the loan, not having records for the loan prior to
the years Vanderbilt began demanding payment on ...