Block v. Seneca Mortg. Servicing, Civil Action No. 16-0449 (FLW)(LHG)
Decision Date | 31 October 2016 |
Docket Number | Civil Action No. 16-0449 (FLW)(LHG) |
Citation | 221 F.Supp.3d 559 |
Parties | Florence BLOCK, Plaintiff, v. SENECA MORTGAGE SERVICING; Ocwen Loan Servicing, LLC; Fay Servicing LLC; ARLP Securitization Trust, Series 2015-1. John Does I-X; Defendants. |
Court | U.S. District Court — District of New Jersey |
Adam Deutsch, Denbeaux & Denbeaux, Westwood, NJ, for Plaintiff.
David Carl Wohlstadter, Steven L. Penaro, Alston & Bird LLP, Joseph Nicholas Froehlich, Locke, Lord, LLP, New York, NY, Jason Harris Kislin, Greenberg Traurig, LLP, Florham Park, NJ, for Defendants.
Before the Court are the motions of Defendants Seneca Mortgage Servicing, Ocwen Loan Servicing, Fay Servicing, and ARLP Securitization Trust to dismiss the complaint of Plaintiff Florence Block, alleging breach of contract and violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601 –2617, and the New Jersey Consumer Fraud Act ("NJCFA") as the result of Defendants' handling of Plaintiff's mortgage modification. For the reasons set forth below, Defendants' motions are granted in part and denied in part as follows: All of Defendants' motions to dismiss Count I, Plaintiff's breach of contract claim, are denied; Defendant Ocwen's motion to dismiss Count II, Plaintiff's FDCPA claim, is granted in part and denied in part (granted as to Plaintiff's claim under 15 U.S.C. § 1692d, granted as to Plaintiff's claim under 15 U.S.C. § 1692e based upon the February 2013 telephone call with Ocwen's employee, granted on the basis of the statute of limitations for any conduct prior to January 26, 2015, and denied as to all other claims); Defendant Fay's motion to dismiss Count II, Plaintiff's FDCPA claim is granted (with prejudice as to Plaintiffs 15 U.S.C. § 1692c(a) claim, without prejudice with respect to all other claims); Plaintiff is given leave to amend the complaint to address the status of Plaintiff's default at the time servicing responsibilities for her mortgage were transferred from Ocwen to Fay; Defendant Fay's motion to dismiss Count III, Plaintiff's RESPA claim, is granted; Defendant Seneca's motion to dismiss Count IV, Plaintiff's NJCFA claim, is denied.
Unless otherwise identified as originating from another source, the facts alleged in the complaint are as follows. Plaintiff purchased the real property located at 40 Constitution Way, Bernards, New Jersey in 1997. Compl. ¶ 8. On or about May 22, 2007, Plaintiff entered into a refinance mortgage loan transaction. Id. at ¶ 10. As part of the refinance, Plaintiff executed a promissory note payable to the order of EquiFirst Corporation in the amount of $580,500.00 and a mortgage to secure the promissory note. Id. at ¶ 11. As has become de rigueur in the mortgage industry, since origination, Plaintiff's loan has been sold multiple times and the servicing rights of the loan have been transferred several times.1 Id. at ¶ 15. Plaintiff defaulted on her mortgage loan obligation in 2010. Id. at ¶ 16.
On January 4, 2013, the law firm of Pluese, Becker & Saltzman, LLC filed a debt collection foreclosure action in New Jersey Superior Court on behalf of The Bank of New York Mellon Trust Company seeking to enforce Plaintiff's promissory note.2 Id. at ¶ 18. After the foreclosure litigation had been filed, servicing of the mortgage loan transferred to Defendant Seneca.3 Id. at ¶ 19.
On or about May 12, 2014, Seneca provided Plaintiff a "Trial Modification Agreement" ("TMA").4 Id. at ¶ 20. The relevant provisions of the TMA are as follows:
Compl. Ex. A. The copy of the TMA was signed by Plaintiff on June 16, 2014. It is not signed by Defendant Seneca, although there is a signature line available, above which is printed "Seneca Mortgage Servicing, LLC, Asset Manager." Id.
Plaintiff alleges that at some point after she received the TMA, Seneca agreed to change the due dates under the TMA so that an initial deposit would be due in the middle of June 2014 and the six monthly payments would be due commencing on June 15, 2014. Compl. ¶ 24.
On or about June 15, 2014, Plaintiff made an initial deposit in the amount of $4,887.73 to Seneca. Id. at ¶...
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