Thomas v. Lakeview Loancare, LLC

• Decision Date: 30 November 2021
• Docket Number: Civil Action 4:20-cv-4252-SAL-TER
• Court: U.S. District Court — District of South Carolina
• Parties: CHARLES RAY THOMAS, II, Plaintiff, v. LAKEVIEW LOANCARE, LLC; SANTANDER CONSUMER USA; and BBVA USA; Defendants.

CHARLES RAY THOMAS, II, Plaintiff,
v.
LAKEVIEW LOANCARE, LLC; SANTANDER CONSUMER USA; and BBVA USA; Defendants.

Civil Action No. 4:20-cv-4252-SAL-TER

United States District Court, D. South Carolina, Florence Division

November 30, 2021

REPORT AND RECOMMENDATION

Thomas E. Rogers, III United States Magistrate Judge.

I. INTRODUCTION

Plaintiff, who is proceeding pro se, brings this action pursuant to the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692a et seq. and the Consumer Credit Protection Act, 15 U.S.C. § 1681 as to Credit Reporting Agencies, also known as Fair Credit Reporting Act (FCRA). Plaintiff's claims pursuant to the FCRA have been dismissed and the only claims remaining in this action are those asserted pursuant to the FDCPA. Each Defendant has filed a Motion to Dismiss (ECF Nos. 30, 37, 49) and Plaintiff has filed a Motion for Summary Judgment (ECF No. 35). Because he is proceeding pro se, Plaintiff was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' Motions could result in dismissal of his Complaint. Plaintiff filed Responses (ECF Nos. 48, 53, 54) to Defendants' Motions, and Defendants filed Responses (ECF Nos. 45, 46, 47) to Plaintiff's Motion. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC.

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II. FACTUAL ALLEGATIONS

A. Defendant Lakeview Loancare LLC

On or about March 29, 2019, Plaintiff was loaned the sum of $79, 000.00 by Fairway Independent Mortgage Corporation, which was evidenced by a promissory note (Note). See Note (ECF No. 49-2).^[1] The Note was secured by a mortgage on the real property owned by Plaintiff commonly known as 1308 Harmony Street in Florence, South Carolina (Mortgage), signed by Plaintiff on March 29, 2019 (the Note and Mortgage shall hereinafter be referred to as collectively the “Loan”). See Mortgage (ECF No. 49-3). The Mortgage was recorded on April 3, 2019 in the Florence County, South Carolina county public records as Instrument No. 2019-00004153 in Book 790, Page 1111.

The first payment under the Loan was due on May 1, 2019. See Note at ¶ 3 (“I will make my monthly payments on the 1st day of each month beginning on May 1, 2019”). Additionally, under the terms of the Note, Plaintiff had a fifteen calendar day grace period from the date each payment was due in order to make his payment. See Note at ¶ 6(A) (“If the Note Holder has not received the full amount of any monthly payment by the end of 15 calendar days after the date it is due...”).

On April 18, 2019, before any payments were due on the Loan, Plaintiff was notified that the Loan had been transferred to Lakeview and that LoanCare^[2] was servicing the Loan on Lakeview's

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behalf. See Transfer Notice (ECF No. 49-4). The Loan was current when it transferred to Lakeview and LoanCare became loan servicer. See Transfer Notice.

On May 6, 2019, five days after his first payment was due on the Loan and before the grace period expired, Plaintiff allegedly sent a letter to “Lakeview/LoanCare” requesting they “send [Plaintiff] valid proof of claim that [he is] legally obligated to pay [them].” Compl. p. 12. On May 16, 2019, Plaintiff allegedly sent another letter to “Lakeview/LoanCare, ” titled “Notice of Fault and Opportunity to Cure and to Contest Acceptance.” The alleged correspondence purportedly stated Lakeview/LoanCare “failed to perform by providing the requested and necessary PROOFS OF CLAIM after receiving the said Debt Validation Letter from the undersigned.” Compl. p. 13. On April 14, 2020, Plaintiff allegedly sent subsequent correspondence which included an invoice claiming he was owed “$36, 000.00 plus additional amount in 12 U.S. 1692h.” Compl. pp...