Marek v. Navient Corp.

ROBERT MAREK, Plaintiff, v. NAVIENT CORPORATION, Defendant.

CASE NO. 1:16-cv-02031

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

December 6, 2016

JUDGE CHRISTOPHER A. BOYKO

MAGISTRATE JUDGE DAVID A. RUIZ

REPORT AND RECOMMENDATION

On August 26, 2016, this matter was referred to Magistrate Judge Kenneth S. McHargh for pretrial supervision, as well as for recommendations regarding case-dispositive motions (R. 6), and was subsequently referred to the undersigned Magistrate Judge upon the former's retirement. On September 29, 2016, Defendant Navient Corporation¹ (hereinafter "Defendant" or "Navient") filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(b)(6).² (R. 11). On October 11, 2016, Plaintiff Robert Marek (hereinafter "Plaintiff" or Marek"), pro se, filed a brief in opposition. (R. 14). Thereafter, Defendant filed a reply in support of its motion. (R. 15). This matter is now ripe.

I. Factual Allegations of the Complaint

Plaintiff's Complaint begins by acknowledging that he borrowed over $130,000 between 1995 and 2000 in student loans under the federal Parent Loan for Undergraduate Students ("PLUS") program for his three children. (R. 1, PageID# 2). Plaintiff alleges the loans were owned and/or guaranteed by the U.S. Department of Education and that Sallie Mae was the loan servicer. (Id.)

Plaintiff contends that Defendant Navient was a subsidiary of Sallie Mae until October 13, 2014, when the two companies separated.³ (R. 1, PageID# 3). Thereafter, Navient became the servicer of the subject loans. (Id.)

Plaintiff alleges that all the aforementioned loans were consolidated on or about November 23, 2001, in the amount of $148,736.23 with a 6.75% interest rate. (R. 1, PageID# 3). Plaintiff maintains that between 2001 and 2014, he made payments totaling $27,934.00 on the loans and has never been in default. (Id.) Plaintiff claims that the online payoff amount of the loans on August 10, 2016 was $334,325.20. (Id.) The account was in forbearance until August 22, 2016. (Id.)

Plaintiff states that on July 11, 2016, he applied for an Income-Sensitive Repayment ("ISR") plan and included supporting documentation of his gross monthly income. (R. 1, PageID# 4). Plaintiff received a letter on July 21, 2016, indicating that his application could not be approved because the supporting documentation was not dated within ninety days. (Id.)

Plaintiff asserts he submitted a renewed application on August 1, 2016, with updateddocumentation. (R. 1, PageID# 4). Plaintiff received two letters in response, both dated August 4, 2016. (Id.) One letter stated that the application could not be processed "because the monthly income you listed on Item 1 on the application is less than the income on the documentation you provided." (R. 1-1, PageID# 7, Exh. A). The other letter stated that Plaintiff's application for an ISR plan had been approved and that his new monthly payment would be $1,863.07 for the next twelve months and that he would have to reapply annually for an ISR plan. (R. 1-2, PageID# 8, Exh. B). The August 4, 2016 letter noted that the original loan amount was $148,736.23 with an outstanding principal balance of $331,507.13. (Id.) According to Plaintiff's calculations, he will be required to pay $753,776.68 over the life of the loan and will be 100 years old in 2045 when the final payment is due.⁴ (R. 1, PageID# 4-5).

Plaintiff states that he submitted a third ISR application on August 6, 2016, indicating that he received a monthly retirement income of $2,590.11 and requesting that his loan payment be $518.02—twenty percent of his gross monthly income. (R. 1, PageID# 5; R. 1-3, PageID# 9-11, Exh. C).

Plaintiff generally states that Defendant has "wrongfully disallowed or refused" his request to pay only $518.02 per month. (R. 1, PageID# 5-6). Plaintiff avers that he will suffer substantial financial and credit injury if he is required to pay upwards of $1,863.07 per month, an amount he states is not proportioned to his monthly income. (Id.)

Plaintiff's requests a declaratory judgment stating that he should be allowed to pay no more than twenty percent of his gross monthly income towards his loan, that he be declared to not be indefault, and seeks the costs of this action. (R. 1, PageID# 6).

II. Law and Analysis

A. Fed. R. Civ P. 12(b)(6) Standard

When ruling upon a motion to dismiss filed under Fed. R. Civ. P. 12(b)(6), a court must accept as true all the factual allegations contained in the complaint. See Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007); accord Streater v. Cox, 336 Fed. App'x 470, 474 (6^th Cir. 2009). Nonetheless, a court need not accept conclusions of law as true:

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Court held in [Bell Atlantic Corp. v.] Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929, the pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id., at 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (citingPapasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986)). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." 550 U.S., at 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id., at 557, 127 S. Ct. 1955, 167 L. Ed. 2d 929.

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id., at 570, 127 S.Ct. 1955. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.' " Id., at 557, 127 S.Ct. 1955 (brackets omitted).

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

B. Analysis

First, it bears noting that Marek is proceeding pro se. The Sixth Circuit has held that "pro se pleadings are to be liberally construed and that in some cases active interpretation is required to construe a pro se petition to encompass any allegation stating federal relief." Johnson v. United States, 457 Fed. App'x 462, 467 (6^th Cir. 2012) (internal quotation marks omitted) (citing Franklin v. Rose, 765 F.2d 82, 85 (6^th Cir. 1985); White v. Wyrick, 530 F.2d 818, 819 (8^th Cir. 1976)). Nevertheless, it is generally accepted that generous construction of pro se filings is not limitless. Liberal construction "does not require those courts to conjure up questions never squarely presented to them," "to construct full blown claims from sentence fragments," "to anticipate all arguments that clever counsel may present in some appellate future," or "to transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4^th Cir. 1985); accord Crawford v. Crestar Foods, 210 F.3d 371 (6^th Cir. 2000); Spencer-Dey v. G.C. Servs., 2016 U.S. Dist. LEXIS 72587 at *2 (N.D. Ohio June 3, 2016) (Polster, J); Fayne v. Clipper, 2013 WL 459895 at *3 (N.D. Ohio Feb. 6, 2013) (Boyko, J.) Marek, however, is also a licensed attorney serving as his own counsel. (R. 1, PageID# 6). Nevertheless, even if Marek receives the full benefit of liberal construction, the Complaint, as explained below, fails to state a claim upon which relief can be granted.

Plaintiff seeks declaratory judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. (R. 1, PageID# 2). The text of the statute, entitled "Creation of a remedy," states that:

In a case of actual controversy within its jurisdiction, ..., any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or notfurther relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

28 U.S.C. § 2201(a) (emphasis added).⁵ Defendant has filed a motion to dismiss asserting that Plaintiff's Complaint "fails as a matter of law because no justiciable issue or actual controversy exists between the parties." (R. 11-2, PageID# 48).

"It is clear that the declaratory judgment procedure is available in the federal courts only in cases involving actual controversies and may not be used to obtain an advisory opinion in a controversy not yet arisen." United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 116, 67 S. Ct. 556, 577, 91 L. Ed. 754 (1947) (citing Coffman v. Breeze Corporations, 323 U.S. 316, 324, 325, 65 S.Ct. 298, 302, 303, 89 L.Ed. 264 (1945)); accord Quicken Loans Inc. v. United States, 152 F. Supp. 3d 938, 953 (E.D. Mich. 2015); Bowers v. Wacker Silicone Corp., 601 F. Supp. 2d 964, 971 (N.D. Ohio 2008) ("That the relief sought by this action is declaratory in nature does not permit the Court to render an opinion on the parties' rights under the Noncompetition Agreement based upon a set of facts that does not exist in reality.") (Lioi, J.)

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