NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0551n.06 No. 12-4071 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

IMAD A LSH AIBANI and T IF F ANY BAILEY, P laintif fs-App ellants,

v. LITT ON LOAN SERVICING, LP , Defendan t-Appellee. ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNITED STAT ES DIS TRICT C O U R T F O R T H E SOUTH ERN DISTRICT OF OHIO O P I N I O N

BEFORE: BOGG S and COLE, Circuit Jud ges; and QUIST , District Judge. * QUIST, Dis tric t Judge. Plaintiffs, I mad Alshaibani and Tiffa ny Ba iley , appea l the district court’s order dismiss ing their claims pursuant to Fe dera l Rule of Civil Procedur e 12(b)( 6) for failure to state a claim. For the following rea sons, we af

firm the district cour

t’s order

. B A C K G R O U N D Plaintiffs’ claims arise out of a mortg ag e loan they obtained in 2001. Acc ording to Plaintiffs’ amende d complaint, Plaintiffs obtained the loan from Magel l an M o rt g ag e Corp. on October 22, 2001. The mortg ag e has been assig ned sever al times, and Plaintiffs believe that Wells Fa rg o Ba nk, N.A., i s t h e cu rr en t owner . At an unknown point in time, L itton L oan S ervic ing became t he loan service r. Plaintiffs alleg e that they made timely pay ments to L itton and, on more than one occa sion,

The Honora

ble Gordon J

. Quist, United States Dist ri ct J udg e for the Western District of * Michig an, sitting by

desig nation.No. 12-4071

Alshaibani, et al. v. Lit ton Loan Servicing, LP paid L itton an amount in excess of thei r re gu lar monthly pay ment. Plaintiffs alleg e, upon information and belief, that L itton failed to apply their pay ment s i n t he manner require d by the mortg ag e. Pl aintiffs further alleg e that L itton improperly char g ed them various fee s, including “cor porate fee s,” “f

orbea ranc e suspense ” fe es, and la te fe es. Plaintiffs sued L itton in Ohio st at e court, alleg ing severa l g rounds for relief , including: (i) brea ch of contra ct; (ii) breach of the implied covena nt of g ood faith and fair dealing ; (iii) unjust enric hment; (iv) neg lige nt acc ounting; and (v) violation of the Ohio Consumer Sales Practice s Act (OCSPA), Ohio Rev. Code § 1345.01 et seq. Plaintiffs’ primary alleg ation was that L itton failed to ap ply their pay

ments in the m anner require d by the m ortg ag e. L itton remove d the case t o fe d er al court on the basis of diversity jurisdiction and moved to dismiss the complaint or, in the alternative, for a more definite statement. In re s p o n s e, P laintiffs filed an amende d complaint, in which they added alleg ations that L i t t o n i m p roper ly char g ed Plaintiffs cer tain fee s. L itton ag ain moved to dismiss for failure to sta te a claim or, in the alternative, for a more definite statement. The district court g rante d L it t o n ’s motion to dismiss , primarily on the basis that Plaintiffs failed to plead sufficie nt fac tual content to ade quately support their cla ims. This appeal followed. D I S C U S S I O N We reviewde novo a district court’s order gr anting a mot ion to dismiss for failure to state

a claim under Fe dera l Rule of Civil Procedur e 12(b)( 6). Casias v. W al-Mart Stores, Inc. , 695 F.3d 428, 435 (6th Cir. 2012). A complaint must p ro v i d e “a short and plain statement of the claim showing that the pleade r is entitled to relief.” Fe d. R. Civ. P. 8( a)( 2). Detailed fac tual alleg ations

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Alshaibani, et al. v. Lit ton Loan Servicing, LP

are not require d, but “a plaintiff’s obligation to provide the ‘g rounds’ of his ‘entitle[ment] to relief ’ require s more than labels and conclusions, and a formulaic rec itation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly , 550 U.S. 5 4 4 , 555 (2007) (quoting Papasan v. Allain , 478 U.S. 265, 286 (1986))

. We must acc ept all of Plaintiffs’ well-plea ded fac tual alleg ations

as true and construe them in a light most favor able to Plaintiffs to deter mine whether the complaint establishes a valid basis for relief

. See Bower v. Fed. Express Corp. , 96 F.3d 200, 20 3 (6 t h C i r. 1996). Howeve r, t his rule do es not apply to leg al conclusions or unwarra nted factual i nfer ence s. Seve re Rec ords, LLC v. Rich , 658 F. 3 d 5 7 1 , 5 7 8 (6th Cir. 2011). The complaint must contain “enoug h fac ts to state a claim to relief that is plausible on its fac e.” Twombly , 550 U.S. at 570. “A claim has fa cial plausibi lity when the plaintiff pl eads factua l content that allows the c ourt to draw the rea sonable infere nce that the defe ndant is liable for the misconduct alleg ed.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Althou gh t he plausibilit y standard is not equivalent to a “‘pr obability require ment,’ .

. . it asks for more than a sheer possibili ty that a defenda nt has acted unl awf

ully .” Id. (quoting Twombly , 550 U.S. at 556). “[W ]here the well-plea ded fac ts do not permit the court to i n fe r more than the mere possibili ty of misconduct, the complaint has alleg ed—but it h as n o t ‘s h o w[ n ] ’—‘that the pleade r is entitled to relief .’” Id. at 679 (quoting Fe d. R. Civ. P. 8(a) (2 )) (sec ond alteration in original). 1. Breac h of

Contrac t To preva il on a brea ch-of -contra ct claim under Oh i o law, a plaintiff must alleg e “the exis tence of a contra ct, performanc e by the pl aintiff, breac h by the defendant, and damag e or loss

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to the plaintiff.” Doner v. Snapp , 649 N.E.2d 42, 44 (Ohi o C t

. Ap p . 1994) (citing 2 Ohio J ury I nstructions (1993))

. The district court held that Plaintiffs’ brea ch-of -contra ct claim fails to state a claim beca

use Plaintiffs’ alleg ations fail to establish that they had a contra ct with L itton and beca use the alleg ations reg arding L itton’s brea ch are mere ly vag ue leg al conclusions that fa ll short of Twombly ’s plausibility

standard. As an initial matter, the district c ourt err ed in concluding that Plaintiffs failed to alleg e the exis tence of a c ontrac t. Parag raph 20 of the mortg ag e provide s, in releva nt part :

1 I f the Note is sold and there afte r the L oan is se rvice d by a L oan Service r other than the purcha ser of the Note, the mortg ag e loan servicing obligations to Bor rowe r will rema in with the L oan Service r or be transfe rre d to a succe ssor L oan Service r and are not assumed by the Note purcha ser unless otherwise provided by the Note purcha ser. The district court held nothing in this provision rende rs the loan service r a party to the note. Rather, the court conclude d, this provision mere ly acknow ledg es the pay ee’ s rig ht to sell the servicing rig hts separ ate from the owner ship of the note. Howeve r, this analy sis ignor es the plain lang uag e stating that the loan service r assumes the loan-ser vicing obliga

tions if the loan is subsequently service d by

a party other than the purcha ser of the note. Under these circ umstances, L itton, as t h e as s uming party , would be bound by the note and mortg ag e. See Premier Capital , L.L.C

. v. Bake r , 972 N.E.2d

The district court proper ly considere d the mortg ag e provision in deciding the motion to 1 dismiss beca

use the mortg age i s central to Plaintiffs’ claims and Plaintiffs attache d a copy of the mortg ag e to their amende d com p l ai n t. See Bassett v. NCAA , 528 F.3d 426, 430 (6th Cir. 2008) (“When a court is prese nted with a Rule 12(b)( 6) motion, it may consider the Compla i n t an d any exhibi ts att ac hed there to, public rec ords, items appea ring in the rec ord of the case and exhibi ts attache d to defe ndant’s mot ion to dismiss so long as they are ref erred to in the C omplaint and are centr al to the claims conta ined there in.” (c itation omit ted)). 4No. 12-4071

Alshaibani, et al. v. Lit ton Loan Servicing, LP 1125, 1136 (Ohio Ct. App. 2012) (“I t is well settled that an assig nment does not cast any aff irmative liability upon the assig nee of the contra ct unless the assig nee assumes those obliga tions.”) (citations omitted); see also 6 Am. J ur. 2d Assignme nts § 12 8 (2 0 1 3 ) (“A n assig nee is subject to the obligations imposed by

the contra ct when he or she a ssumes those obligations, either ex pressly or impliedly .” (f

ootnotes omitt ed))

. Nonethele ss, w e conclude that the district c ourt corr ectly deter mined that Plaintiffs’ naked alleg ation that L itton “brea ched the terms of the Mor tga g e by , including but not limited to, failing to apply Plaintiff’s [p] ay

ments i n ac co rd an ce with the terms of the [m ]ortgag e,” is simply a leg al conclusion couche d as a fac tual allegat i o n . As a prac tical matter, Plaintiffs’ fac tually unadorne d alleg ation that L itton misapplied their pay ments does no more to re nder the ir claim plausible than would a simple leg al conc lusion that L itton breac hed the mortg ag e. See I qbal , 556 U.S. at 679. 2. Breac h of

the Im plied Covenan t of Good F aith and F air Dealing The district court proper ly dismiss ed Plaintiffs’ claim for brea ch of the implied covena nt of g ood faith and fair dealing beca use, under Ohio law, a brea ch-of -contra ct claim subsumes any claim for brea ch of the duty of g ood faith and fair dealing

. Lakota Local Sch. Dis t

. B d

. o f Educ. v. Brickne r , 671 N.E.2d 578, 583–84 (Ohio Ct. App. 1996). Be cause Plaintiffs’ brea ch-o f- co n t rac t claim fails to state a claim, their claim for b re ac h of the implied covena nt of g ood faith and fair dealing likewise fails. Moreove r, Plaintiffs’ fac tual alleg ations un d er t his claim are no less leg al conclusions than their fac tual alleg ations for their brea ch-of -contra ct claim and, thus, provide no fac tual support for their

defic ient brea ch-of

-contra ct claim.

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3. Unjust Enrichme nt A claim for unjust e nrichment arises when a party reta ins mone y or benef its that, in justice and equity , belong s to another. Liberty Mut. Ins. Co. v. Indus. Comm’n of Ohio , 532 N.E.2d 124, 125 (Ohio 1988). I n their unjust-enrichme nt claim, Pl a in ti f f s alleg e that they confe rre d benef its upon L itton by making cer

tain pay ments in addition to the regular pay ments they o we d u n der the mortg ag e, and that L itton reta ined the ben ef i t o f t h ese pay

ments by failing to apply them in

acc ordanc e with the loan docume nts. This claim i s simply a repac kag ing of Plaintiff’s brea ch-of

contra ct claim and fails under Twombly and Iqbal for the same rea sons. There fore , the district court proper ly dismiss ed Plaintiff’s unjust-enr ichment claim. 4. Negligent Ac counting Plaintiff’s neg lige nt acc ounting claim is the quintessential “the- defe n dant-unlaw fully

harme d-me accusation” mentioned i n Iqbal

. 556 U.S. at 678. Plaintiffs alleg e the mere elements of a neg lige nce claim—L itton owed Plaintiffs a duty to proper ly acc ount for and apply t h eir pay ments and L itton brea ched this duty , there by causing Plaintiffs damag e. Acc ording ly , the district court did not err

in dismi ssing the ne g lige nce c laim. 5. OCSPAClaim The district court dismiss ed Plaintiffs’ OCSP A claim on alternate g rounds. First, the court conclude d that the transac tion betwee n Plaintiffs and L itton is excluded from the cover ag e under the OCSP A beca

use the “consume r transac tion” at issue is a mortg ag e contra ct with a bank. As such, the court rea soned, the transac tion is excluded under Ohi o Revised Code § 1345.01(A) as a

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transac tion b et ween a financial i nstitut ion and it s customers. The dist rict court further conclude d that even if the OCSP A applies, Plaintiffs ha ve failed to a lleg e fac ts to establish a plausible claim that L itton viol ated the O CSP A. The Ohio Supr eme Court’s rec ent decision in Anderson v. Barclay’ s Capital Real Estate, Inc. , __ N.E.2d __, 2013 WL 2097556 (Ohio May 14, 2013), is dispositi ve of Plaint i ffs’ OCSP A claim. The Ohio Supreme Court held in Anderson that service rs of residential mortg ag e loans are not cover ed by the OCSP A beca use loan servicing is not a “consume r tr an s ac t ion” under Ohio Revised C ode § 1345.01(A), see id. at *3–4, and such entities are not “eng ag ed in t he busi ness of eff ecting or soliciting consumer transac tions” for purposes of Ohio Revised Code § 1345.01(C), see id. at *5–6. Ther efor e, Plaintiffs’ cla im fails as a matter of law. C O N C L U S I O N For the fore g oing r easons, we AF F IRM the district court’s or der g ranting L itton’s moti on to dismi ss.

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