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Lewis v. McCabe, Weisberg & Conway, LLC

United States District Court, D. Maryland

April 1, 2015

BERNARD LEWIS,
v.
McCABE, WEISBERG & CONWAY, LLC et al.

MEMORANDUM OPINION

DeBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this consumer lending action is a motion for reconsideration filed by Plaintiff Bernard Lewis. (ECF No. 26). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion will be denied.

I. Background

The facts and procedural history have been explained in a prior memorandum opinion and need not be repeated. (ECF No. 24). On August 4, 2014, the court issued a memorandum opinion and order granting two motions to dismiss filed by Defendants McCabe, Weisberg & Conway, LLC ("McCabe"), Ocwen Loan Servicing, LLC. ("Ocwen"), Deutsche Bank National Trust Company ("Deutsche Bank"), and Homeward Residential, Inc. ("Homeward"). (ECF Nos. 24 & 25). On September 2, 2014, Plaintiff filed a motion for reconsideration. (ECF Nos. 26) McCabe, Deutsche Bank, Homeward, and Ocwen opposed the motion. (ECF Nos. 27 & 28).

II. Standard of Review

Because Plaintiff's motion was filed within 28 days of the court entering judgment it is governed by Fed.R.Civ.P. 59(e) rather than Rule 60(b), which governs motions for reconsideration filed more than 28 days after judgment. See MLC Auto, LLC v. Town of S. Pines, 532 F.3d 269, 280 (4thCir. 2008); Classen Immunotherapies, Inc. v. King Pharmaceuticals, Inc., 981 F.Supp.2d 415, 419 (D.Md. Oct. 31, 2013). Under Rule 59(e), a motion to alter or amend may be granted only: "(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice." Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998). Motions for reconsideration are "an extraordinary remedy which should be used sparingly." Pacific Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).

III. Analysis

Plaintiff asserts that the court clearly erred in its dismissal of his claims asserting violations of the Real Estate Settlement Procedures Act ("RESPA") and the Maryland Consumer Debt Collection Act ("MCDCA"), Md. Code Ann., Com. Law, § 14-201 et seq., as well as his breach of contract and declaratory judgment claims.

A. RESPA

Plaintiff contends that the court erred in finding that his January 19, 2013 and March 26, 2013 letters to Homeward and Ocwen, respectively, were not valid qualified written requests ("QWRs") under RESPA because they did not relate to servicing. (ECF No. 26, at 2-6). Section 2605(e) of RESPA requires a loan servicer to provide a written response acknowledging receipt within five days if the servicer receives a QWR from the borrower "for information relating to the servicing " of a loan. 12 U.S.C. § 2605(e)(1)(A) (emphasis added). Under RESPA, "servicing" is defined as "receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts... and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan." 12 U.S.C. § 2605(i)(3).

Plaintiff makes several arguments in his motion for reconsideration as to the RESPA claim. First, he asserts that "the letter(s) related to events occurring after Defendants' role as servicers. For example, [] Plaintiff was not requesting the copy of the Note as it existed at settlement. Instead, [] Plaintiff was specifically requesting a copy of the Note as it presently existed in an effort to ascertain who presently held the Note. As [] Plaintiff stated in his letter, his purpose was to determine the Defendant(s) could collect payment." (ECF No. 26, at 3) (emphasis added). As explained in the August 4, 2014 memorandum opinion, however, inquiries regarding a servicer's authority to enforce the Note or collect payments do not qualify as QWRs:

Although Plaintiff likely intended that [the letters] serve as QWRs, in substance, he sought the original loan documents, "verification of the identity of the holder in due course of the loan, and proof of the servicer's authority to service the loan[.]" Bravo v. MERSCORP, Inc., No. 12-CV-884 (ENVV) (LB), 2013 WL 1652325, at *3 (E.D.N.Y. Apr. 16, 2013) (finding a "correspondence falls short of the statutory definition of a QWR" where it merely seeks documents to verify the loan). The two letters do not relate to "servicing, " as that term is defined under RESPA, because they "say[] nothing about defendant['s] receipt of scheduled periodic payments or the amounts of such payments." Id. at *3; see also Dides v. Ocwen Loan Servicing, LLC, Civ. No. WMN-12-2989, 2013 WL 2285371, at *2 (D.Md. May 21, 2013) ("the permissible scope of Qualified Written Requests under RESPA is limited to information related to the servicing of loans, specifically the receipt of payments from a borrower and the making of payments of principal and interest"). The January 19, 2013 and March 26, 2013 letters reflect Plaintiff's belief that Homeward and Ocwen did not possess the original Note and did not have authority to collect loan payments. Indeed, Plaintiff explicitly indicated in his March 2013 correspondence to Ocwen that the purpose of the letter was to establish that Ocwen "was legally entitled to enforce the Note and collect payment, " which does not relate to servicing. (ECF No. 10 ¶ 23).

(ECF No. 24, at 14-15) (emphasis added). The analysis in Best v. Samuel I. White, P.C., Civ. No. WDQ-13-2348, 2014 WL 2575771, at *3 (D.Md. June 6, 2014), applies here:

Best argues that his letters were QWRs because Capital One's possession of the Note relates to its entitlement to service the Note, as only a holder or owner can enforce the Note. [] However, communications that seek to obtain proof of the servicer's authority to service the loan are not QWR's under RESPA. ... Accordingly, ...

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