D'Alessandro v. Ocwen Loan Servicing, LLC

• Decision Date: 23 May 2018
• Docket Number: Civil Action No: 18-cv-01290 (PGS)(LHG)
• Parties: DENISE D'ALESSANDRO Plaintiff, v. OCWEN LOAN SERVICING, LLC, Defendant.
• Court: U.S. District Court — District of New Jersey

DENISE D'ALESSANDRO Plaintiff, v. OCWEN LOAN SERVICING, LLC, Defendant.

Civil Action No: 18-cv-01290 (PGS)(LHG)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

May 23, 2018

MEMORANDUM AND ORDER

This matter comes before the Court on Defendant's motion to dismiss Count VI of the Complaint, alleging Defendant's violation of the Consumer Fraud Act, N.J.S.A. 56:8-2, pursuant to Fed. R. Civ. P. 12(b)(6).

I.

Plaintiff Denise D'Alessandro obtained a mortgage loan evidenced by a note on March 11, 2015 (hereinafter collectively referred to as the "Loan"). (Compl. ¶8). She defaulted on the Loan on December 1, 2013. (Compl. ¶20). Defendant Ocwen Loan Servicing, LLC ("Ocwen") is the servicer of the Loan. (Compl. ¶3).

On November 5, 2014, Wells Fargo Bank, N.A., as Indenture Trustee under the Indenture relating to IMPAC CMB Trust Series 2005-6, initiated foreclosure proceedings against Plaintiff's home based upon a mortgage loan in the Superior Court of New Jersey, Monmouth County, Chancery Division, (Id. ¶21).

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• On August 2, 2017, Metrick sent correspondence to Ocwen captioned "Notice of Error under 12 CFR 1024.35(b)(11)" (NOE/RFI #1). Additionally he requested information related to the servicing of the Loan including a copy of any call notes from Ocwen's August 2, 2017 telephone call with Metrick and explanation as to why a paystub was requested for a future date. (Id. ¶30, Ex 5).

• On August 10, 2017 Ocwen sent written notice to Plaintiff thorugh Metrick stating that the Application was still incomplete ("Incomplete Notice #4). Ocwen requested: "Borrower's paystubs for the second job were not received. Please provide two consecutive paystubs dated in the last 90 days that reflect YTD income figures." (Id. ¶32, Ex. 7)

• On August 11, 2017, Plaintiff, through Metrick, sent the paystubs requested through Incomplete Notice 3 and 4 to Ocwen. Ocwen acknowledged receipt. (Id. ¶¶33-34, Ex. 8).

• On August 14, 2017, Ocwen sent written notice to Plaintiff stating that the Application was still incomplete ("Incomplete Notice #5). Ocwen requested "Borrower's paystubs for the second job." (Id. ¶35, Ex. 9)

• On August 15, 2017, Ocwen sent written notice to Plaintiff stating that the Application was still incomplete ("Incomplete Notice #6). Ocwen asked for additional information regarding Plaintiff's employment. (Id. ¶36, Ex. 10).

• On August 17, 2017 Metrick spoke with Ocwen's representative and was advised as to the specific information that was required to satisfy Incomplete Notice #6. (Id. 37).

• Accordingly, on August 22, 2017, Plaintiff, through Metrick, sent correspondence to Ocwen captioned "Request for Information Pursuant to Section 1024.36 pf Regulation X Notice of Error Pursuant to Section 1024.35(b)"(NOE/RFI #2) ( Id. 38 Ex 11). Metrick attached a letter of explanation providing all of the information requested by the representative. (Id. 39). In this letter, Plaintiff also requested information related to the servicing of the Loan, including a copy of any call notes from Ocwen's August 17, 2017 telephone call to Metrick and an updated payoff quote for the Loan. (Id. ¶40).

• On August 23, 2017, Plaintiff, through Metrick, sent correspondence to Ocwen captioned "Notice of Error under 12 CFR 1024.35(b)(11)" (NOE/RFI #3) stating that Ocwen committed an error related to the servicing of the Loan by requesting pay stubs through Incomplete Notice #4 that were confirmed with the representative on August 17, 2017 via telephone to have already been in Ocwen's possession prior to sending such letter and for then requesting the same paystubs yet against less that 48 hours later. (Id. 42, Ex. 13). Plaintiff also enclosed a copy of pay stubs with the NOE which had been previously submitted. (Id. ¶43).

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• On August 24, 2017, Ocwen sent correspondence in response of NOE/RFI #1 though which Ocwen allegedly refused to provide the requested call notes claiming that "we are unable to process your request to provide [Plaintiff] with the call transcripts, as these are for internal purposes only." (Id. ¶45).

• On August 24, 2017, Ocwen sent written notice to Plaintiff stating that the application was incomplete (Incomplete Notice #7). In this notice Ocwen requested the same information that were requested in Notices #3,4,5, which the representative confirmed Ocwen was in possession of in August 23, 2017. (Id. ¶46, Ex. 13).

• On August 25, 2017, Ocwen sent written notice to Plaintiff stating that the application was still incomplete (Incomplete Notice # 8). In this notice Ocwen requested the same information they had requested in notices # 3, 4, 5, 7. (Id. ¶47 Ex. 13)

• On August 30, 2017 Ocwen sent written notice to Plaintiff stating that the Application was still incomplete (Incomplete Notice #9) Ocwen requested the same information requested in notices #3, 4, 5, 7 and 8. (Id. ¶50 Ex. 19)

• On September 8, 2017, Ocwen sent written notice to Plaintiff stating that the Application was still incomplete (Incomplete Notice #10) requesting additional information regarding "the Profit and Loss statement provided." (Id. ¶51, Ex. 20). Plaintiff supports that the documents requested were received on June 23, 2017. (Id. ¶52).

• On September 15, 2017, Ocwen sent correspondence in response to NOE/RFI #2 and #3 thought which Ocwen again refused to provide the call notes requested. (Id. 53, Ex. 21). Ocwen also stated that they received financials on August 23, 2017, August 24 and August 29, "[h]owever the borrower's paystubs were still missing." (Id. ¶54, Ex. 20). Plaintiff supports that the financials consisted of paystubs. (Id.)

• On September 20, 2017, Ocwen sent a copy of the payoff quote of the Loan that Plaintiff requested on August 22, 2017 via NOE #2. (Id. ¶55, Ex. 22)

• On September 22, 2017, Ocwen sent written notice to Plaintiff stating that the Application was still incomplete ("Incomplete Notice #11") requesting the same information as Notice #10. (Id. ¶56, Ex. 23).

• On September 25, 2017, Plaintiff, through Metrick, submitted a letter of explanation providing the requested clarification for the profit and loss statement. (Id. ¶57, Ex. 24).

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• On September 26, 2017, Ocwen sent another notice that the Application was incomplete. ("Incomplete Notice #12) requesting the same information that were requested in notice #10 and 11. (Id. ¶59, Ex. 25).

• On October 3, 2017, Plaintiff, through Metrick, sent correspondence to Ocwen captioned "Notice of Error under 12 CFR §1024.35(b)(11)—DUAL TRACKING" ("NOE/RFI #4"), stating that Ocwen committed an error related to the servicing of the Loan by failing "to exercise reasonable diligence in obtaining the documents and information necessary to complete the review of the [Plaintiff's Application] in violation of 12 C.F.R. §1024.41(b)" and demanding that Ocwen immediately perform a review of the Application. (Id. ¶60, Ex. 26).

• On October 17, 2017, Ocwen sent written notice to Plaintiff stating that the Application was still incomplete ("Incomplete Notice #13") and requesting the same information as Incomplete Notice #10, 11, and 12: (Id. ¶62, Ex 28).

• On or about October 19, 2017, Plaintiff, through Metrick, sent correspondence to Ocwen captioned "Request for Information Pursuant to 12 CFR § 1024.36 and Notice of Error under C.F.R. § 1024.35" (NOE/RFI #5) stating that Ocwen committed an error related to the servicing of the Loan by being "in possession of a completed application for more than 30 days" and having failed to review the same. (Id. 63, Ex. 29). Plaintiff, through Metrick, again advised Ocwen that on October 12, 2017 and October 19, 2017, the representative stated that Ocwen had been in possession of any and all requested information to complete the Application since prior to September 8, 2017 (Id. ¶64).

• On October 25, 2017, Ocwen sent correspondence in response to NOE/RFI #4 and directly contradicting the previous statements by the representative (Id. ¶66, Ex. 31).

• On November 8, 2017 Ocwen sent correspondence stating that the Application was still incomplete ("Incomplete Notice #14"). Ocwen, through Incomplete Notice #14, requested the same information as Notice #10, 11, and #12:"Please send a copy of your most recent signed and dated quarterly profit and loss statement documenting your self-employment income.(Additional information is needed regarding the Profit and Loss statement provided. (Id. ¶67, Ex. 32).

• Plaintiff alleges that to the time the Complaint was filed, Ocwen still refused to review Plaintiff's application for loan modification. (Id. ¶68).

On January 30, 2018, Plaintiff filed a Complaint against Ocwen alleging the following counts: (1) Violations of 12 C.F.R. §1024.41(b); (2) violation of 12 C.F.R. 1024. 24(c); (3)

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Violations of 12 C.F.R. §1024.36; (4) Violation of 12 C.F.R. §1024.35(e); (5) 15 U.S.C. 1692; and (6) Violation of the NJCFA, N.J.S.A. §56:8-2.

Defendant now moves for the dismissal of the New Jersey Consumer Fraud Act (NJCFA) claim (Count VI), pursuant to Fed. R. Civ. P. 12(b)(6).

II.

"Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.' Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)).

Rule 9(b) provides that "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." The requirements of Rule 8 apply even where the Rules command particularity, as in the pleading of fraud under Rule 9(b). In re Westinghouse Sec. Litig., 90 F.3d at 702. Therefore, where alleging fraud, Plaintiffs must state the circumstances constituting fraud with particularity, but must still endeavor to make their allegation clear and concise. "Pleadings containing collectivized allegations against 'd...