Beavers v. New Penn Fin. LLC
| Decision Date | 12 October 2017 |
| Docket Number | Case No.: 1:17-cv-00747 - JLT |
| Court | U.S. District Court — Eastern District of California |
| Parties | KENNETH G. BEAVERS, Plaintiff, v. NEW PENN FINANCIAL LLC, dba SHELLPOINT MORTAGE SERVICING; RESURGENT CAPITAL SERVICES LP; RESURGENT MORTGAGE SERVICING; FEDERAL HOME LOAN MORTGAGE CORPORATION; and DOES 1-50, Defendants. |
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
(Doc. 24)
Kenneth Beavers asserts the defendants are liable for wrongful actions related to his applications for loan modification the foreclosure of his home. Defendants seek dismissal of the First Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 24) Because the Court concludes Plaintiffs fail to provide sufficient factual allegations to support his claims, the motion to dismiss is GRANTED.
Plaintiff asserts he "executed and delivered" a promissory note in the amount of $408,000 to American Brokers Conduit, a lender, on a personal residence to on October 4, 2005. (Doc. 21 at 4, ¶ 15) He alleges the loan was secured by a Deed of Trust, which was delivered to Mortgage Electronic Registration Systems, Inc., a beneficiary for American Brokers Conduit. (Id. at ¶ 16) According to Plaintiff, before he made his first mortgage payment, he was notified that his loan servicer was American Home Mortgage Servicing, Inc. (Id. at 4-5, ¶ 17)
He asserts that on March 26, 2012, "Bank of America, an alleged valid successor loan servicer, notified the plaintiff his loan servicing was transferred" to Resurgent Mortgage, which is a division of Resurgent Capital. (Doc. 21 at 5, ¶ 19) Plaintiff reports a month later, Resurgent Mortgage notified Plaintiff his loan servicing was placed with the company by Freddie Mac, not Bank of America. (Id.)
According to Plaintiff, he sent "his first request for modification or short sale and submitted a hardship letter" to Resurgent Mortgage on January 15, 2013. (Doc. 21 at 5, ¶ 20) Plaintiff asserts this request was a Qualified Written Request under the Real Estate Settlement Procedures Ac, 12 U.S.C. §2605. (Id.) He alleges he did not receive a response from Resurgent Mortgage until he filed a complaint, at which time "Resurgent Mortgage then provided Plaintiff with a Uniform Borrowers Assistance Form (UBAF) and written instructions for completion of the application and a list of required documents for loan modification approval." (Id.) He reports the document and instructions were received on April 19, and he "completed and submitted [the] UBAF [on] April 24, 2013. (Id.)
(Id. at 9-10, ¶ 38) Plaintiff asserts that he then "sent an appeal letter/binder" to Resurgent, requesting proof of a valid present creditor, direct contact information for the valid creditor, and written proof of Resurgent Mortgage's "authorization to service the plaintiff's loan." (Id. at 10, ¶ 39) In addition, he "notified Resurgent Mortgage that all mortgage payments would be curtailed until Resurgent Mortgage provided valid documentation of the aforereferenced items." (Id., ¶ 40)
Plaintiff asserts he "wrote in excess of twenty Qualified Written Request[s]" beginning September 29, 2013, "requesting vital information in regard to his multiple requests for loan modification." (Doc. 21 at 6, ¶ 27) He reports he also submitted thirteen requests were for "proof of a valid documented owner and holder of the plaintiff's mortgage and defendants Resurgent Mortgage's and Shellpoint's evidence of proof of authorization to act as agent/loan servicer of the plaintiff's mortgage from said valid owner holder." (Id. at 7, ¶ 28) Plaintiff contends the companies "disclosed in excess of five different entities or companies that were allegedly the valid owner and holder of the plaintiff's loan, including defendant Freddie Mac." (Id., ¶ 29) However, Plaintiff contends the defendants "did not provide the plaintiff with any requested verifiable proof of a valid owner and holder of his loan or any evidence of verifiable authorization to service the plaintiff's loan from any of the disclosed alleged owners and holders of the plaintiffs loan over this period of time." (Id., ¶ 30)
According to Plaintiff, on December 4, 2013, Resurgent Mortgage responded to the letter "by serving the plaintiff by certified mail a Notice of Default and Intent to Accelerate." (Doc. 21 at 10, ¶41;see also Doc. 21 at 32-33) The Notice of Default informed Plaintiff that his mortgage loan was "in default for failure to pay amounts due." (Doc. 21 at 33) In addition, the document indicated that as of the date of mailing, "the total amount necessary to bring [the] loan current [was] $6,650.73." (Id.) Further, Plaintiff was informed:
If you have not cured the default within Thirty Days (30) days of this notice which is 113/2014, (or if said date falls on a Saturday, Sunday, or legal holiday, then on the first business day thereafter), Resurgent will accelerate the maturity date of the Note and declare all outstanding amounts under the Note immediately due. Your property that is collateral for the Note may then be scheduled for foreclosure in accordance with the terms of the Security Instrument and applicable state laws.
(Id.) The Notice of Default indicated it was to "remain[] in effect until the default [was] cured." (Id.) Plaintiff contends he "was not 120 days late on his mortgage payment" when the Notice was issued, and it was a violation of federal law. (Id. at 10, ¶ 41)
Plaintiff reports that in March 2014, he was notified that "Shellpoint was the plaintiff's new loan servicer effective March 1, 2014." (Doc. 21 at 11, ¶ 47) He alleges he responded to the notice by sending a Qualified Written Request "dated March 14, 2014 to defendant Shellpoint demanding documented proof of original and successor creditors and written proof of authorization for Shellpoint to service the plaintiff's loan." (Id., ¶ 49) The same month, Plaintiff asserts he attempted to access his Mortgage Electronic Registration Systems account online and discovered the status was marked "inactive," and he was denied "access to the history of recorded transfers of the plaintiff's mortgage loan owners and authorized servicers as well as any future transfers for his mortgage." (Id., ¶ 51)
Plaintiff reports he submitted his sixth request for a loan modification on May 22, 2015. (Doc. 21 at 7, ¶ 32) He asserts that in response, Shellpoint "creat[ed] unreasonable, illogical and illegal conditions for loan modification approval." (Id.) Plaintiff alleges Shellpoint informed Plaintiff he needed to submit additional documents, including: (1) a "Profit and Loss Statement for his sole proprietor business showing his owner draws as an expense," (2) "[c]opies of his business trust account bank statements," and (3) "federal tax return information." (Id. at 7-8, ¶ 32) Plaintiff reports he sent a Qualified Written Request on July 17, 2015, "challenging these consumer traps conditions for loan modification approval." (Id. at 8, ¶ 33) He asserts that Shellpoint and its representative "refused to answer" and instead "issued a denial" on September 10, 2015. (Id.)
Plaintiff alleges he sent a Qualified Written Request to Shellpoint on October 13, 2015, asking "for a personal meeting to resolve the raging unfair dispute between the plaintiff and Shellpoint's Houston, Texas escalations office led by Hayes, Jr." (Doc. 21 at 8, ¶ 34) According to Plaintiff, the refusal of Resurgent Mortgage and Shellpoint "to answer these and other vital QWRs questions under RESPA in a timely manner and format required by RESPA led to the unjust, unwarranted, and illegal denial of the plaintiffs six complete UBAFs and was a major factor in the resultant foreclosure of his home often years on April 25, 2016." (Id. at 8-9, ¶ 35)
A trustee's deed upon sale was recorded May 4, 2016, conveying title to Shellpoint Mortgage. (Doc. 2-9 at 50-51) Shellpoint transferred title to Freddie Mac following the foreclosure. (Doc. 21 at 15, ¶ 65)
Based upon these facts, and additional allegations addressed below, Plaintiff identifies the following causes of action his First...
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