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Ayres v. Ocwen Loan Servicing, LLC

United States District Court, D. Maryland, Northern Division

September 8, 2015

ANGELA AYRES, et al., Plaintiffs,
OCWEN LOAN SERVICING, LLC, et al., Defendants

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          For Angela Ayres, Plaintiff: Phillip R Robinson, LEAD ATTORNEY, Consumer Law Center LLC, Silver Spring, MD; Jesse Lee Iliff, Silver Spring, MD.

         For Stephan Ayres, Plaintiff: Phillip R Robinson, LEAD ATTORNEY, Consumer Law Center LLC, Silver Spring, MD.

         For Ocwen Loan Servicing, LLC, Defendant: Christopher M Corchiarino, LEAD ATTORNEY, Goodell DeVries Leech and Dann LLP, Baltimore, MD; George S Mahaffey, Jr, Goodell DeVries Leech and Dann LLP, Baltimore, MD.

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         William D. Quarles, Jr., United States District Judge.

         Angela Ayres and Stephan Ayres sued Ocwen Loan Servicing, LLC (" Ocwen" ) and Salomon Brothers Mortgage Securities VII (" Salomon Brothers" ). Pending are Ocwen's motion to dismiss, Angela Ayres's motion for summary judgment,[1] and Salomon Brothers motion to quash service of process and to dismiss. No hearing is necessary. See Local Rule 105.6 (2014). For the following reasons, Salomon Brothers' motion will be granted, Ocwen's motion to dismiss will be granted in part and denied in part, Mrs. Ayres motion will be denied, and Ocwen's motion for limited discovery will be denied as moot.

         I. Background[2]

         On March 18, 1991, the Plaintiffs bought a property at 6600 Halleck Street, District Heights, Maryland (" the Property" ) with a loan of $72,660 from Market Street Mortgage secured by a Deed of Trust (" the Ayres Note" ). See ECF No. 61 (hereinafter, " Am. Compl." ) at ¶ 20. The Plaintiffs allege that " Mr. Ayres was and remains the only obligor/borrower on the Ayres Note [and] Mrs. Ayres has never agreed to assume any liability on the Ayres Note." Id. (emphasis in original). " The Ayres Note set the interest rate at 9.5% . . . and had a maturity date in April 2021. The fixed monthly principal and interest payment on the Ayres Note equaled $610.96 and payments were due on the first day of the month and would not be subject to a late fee if paid by a grace period of 15 days of each month." Id. at ¶ 21.

         On August 25, 1993, Mr. Ayres filed for bankruptcy under Chapter 13 of the Bankruptcy Code.[3] Am. Compl. at 5 22. Under his Chapter 13 reorganization plan, Mr. Ayres " made all required payments with his then mortgage servicer related to the Ayres Note--i.e. First Union Mortgage Corp. (" First Union" )--and the Chapter 13 Trustee also paid to First Union Mortgage Corp. the total of $4,731.91" Id. at ¶ 24. In June 1996, Stephan Ayres completed

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the bankruptcy plan, and the bankruptcy case was discharged. Id. ¶ 23, 26.

         " Despite the fact that Mr. Ayres was current on the Ayres Note following the successful completion of his Chapter 13 Bankruptcy and discharge, the mortgage servicer for the Ayres Note, First Union, demanded sums not contractually due and owing on the Ayres Note." Am. Compl. at ¶ 27. In May 1998, First Union returned a mortgage payment stating that the Plaintiffs owed $13,972. Id. " Mr. Ayres attempted to get First Union to accept his continued payments from May 1998 and thereafter but it refused to accept the payments and continued to demand sums that were not contractually due." Id. at ¶ 28.

         " [A] few months after failing to get First Union to correct its false records," Mr. Ayres requested that the U.S. Department of Housing and Urban Development (" HUD" ) " take over the Ayres Note and assign the Ayres Note to another servicer." Am. Compl. at ¶ 29. " [T]he Ayres Note was accepted into HUD's assignment program on November 9, 1998 and soon thereafter assigned to a new servicer Clayton National Inc. (" Clayton" ) who acted on behalf of HUD with respect to the loan." [4] Id.

         In December 2000, the loan was assigned from HUD to Salomon Brothers Realty Corp. and transferred to Litton Loan Servicing for servicing. Am. Compl. at ¶ 34, 36. " Litton began shortly thereafter claiming that Mrs. Ayres was a borrower on the Ayres Note when at no time did she agree to be obligated on the Ayres Note." Id. at ¶ 39. " Mr. Ayres had given Litton . . . permission to discuss his mortgage account with Mrs. Ayres but that consent was never an agreement for her to have become obligated on the Ayres Note." Id. " On August 17, 2001, Lela Derouen, Assistant Vice President of Litton . . . affirmed before a Notary Public from the State of Texas named Elizabeth H. Willard in a 'Lost Note Affidavit' that 'STEPHAN AYRES' was the only borrower on the Ayres Note . . . . " Id. at ¶ 35.

         " As of September 13, 2002, Litton reported that Mr. & Mrs. Ayres owed no delinquent sums of money on the Ayres Note. Litton intended for Mr. & Mrs. Ayres to rely upon this statement." Am. Compl. at ¶ 40. On May 15, 2003, however, Litton claimed that the Plaintiffs owed " in addition to the regular mortgage payment the sum of $23,383.28 for 'OTHER FEES DUE.'" Id. at ¶ 41. " Mrs. Ayres proceeded, on her husband's behalf and with his authority, to communicate with Litton over and over for several years, in writing and orally, regarding the basis of Litton's claim in May 2003 . . . that $23,383.28 in additional 'OTHER FEES' was owed on the Ayres Note." Id. at ¶ 42.

         Litton did not provide documentation explaining the " other fees." Am. Compl. at ¶ 43. Instead, on November 26, 2001, Litton informed the Plaintiffs " an Arrearage Bond of $23,280.02 was added to the loan" because of the Plaintiff's previous participation in HUD's Fresh Start Program. Id. " Litton never provided Mr. & Mrs. Ayres with any audit or other information

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supporting its claim that an 'Arrearage Bond' was authorized, consented to, and added to the Ayres Note. Litton only provided an incomprehensible and false accounting of the Ayres Note from the time it commenced servicing the loan." Id. at ¶ 44. The Plaintiffs continued to request documentation. Id. at ¶ 45. On September 7, 2007, Litton " modified" its explanation of the Arrearage Bond, explaining that " the sums it claimed were due were made in consideration of Mr. & Mrs. Ayres for various loan modifications which simply worked to capitalize the disputed sums claimed due and extend the term of the Ayres Note beyond the initial 30 year period." Id. at ¶ 46. " In addition, Litton attempted to add Mrs. Ayres by these proposed offers as an additional obligor on the Ayres Note when it knew she was not a co-borrower." Id.

         In June 2009, the Plaintiffs defaulted on the loan. Am. Compl. at ¶ 47. " However, by approximately January 2010 the payments were caught up and were current again." Id. In April 2010 Litton reevaluated the Ayres Note; however, " it utilized the H false financial records . . . and as a result . . . the 'owner of the [Ayres Note] did not approve a modification.'" Id. at ¶ 48. Further, on June 23, 2011, Litton claimed that the Plaintiffs " had not timely returned certain financial information to it as part of its consideration of various loan modification applications." Id. at ¶ 49. The Plaintiffs allege that they " had timely returned all required documents and Litton kept asking for the same documents over and over but Litton would only claim it did not receive the requested documents." Id.

         In November 2011, Litton transferred the servicing of the loan to Ocwen. Am. Compl. ¶ 53. On December 6, 2011, Ocwen sent the Plaintiffs a letter stating that " mortgage payments are past due, which puts you in default on your loan agreement." Id. [5] On numerous dates from November 2011 to May 2012, " Ocwen sent statements to Mr. & Mrs. Ayres which it intended them to rely upon and[,] in which[,] [Ocwen] demanded false sums due on the Ayres Note . . . and also falsely claimed that Mrs. Ayres owed it certain sums . . . ." Id. at ¶ 55.

         In January 2012, the Plaintiffs filed a complaint with the Maryland Division of Financial Regulations. Am. Compl. at ¶ 56. On March 15, 2012, the Plaintiffs sent Ocwen a Qualified Written Request (" QWR" ). Id. at ¶ 58. Other than sending a " basic acknowledgment of receipt" to the Plaintiffs, Ocwen provided " no substantive information" in response to the QWR. Id.

         On April 6, 2012, Ocwen informed the Maryland Commissioner of Financial Regulation that Mrs. Ayres was a borrower on the Ayres Note, " admitted that it and Litton had demanded false sums due related to the escrow for property taxes," " represented that the payments made by the Ayres were applied to the account in a sequence contrary to the Ayres Note and associated Deed of Trust," and " adopted the false accounting and prior false statements of its predecessors." Am. Compl. at ¶ 59. Despite these representations, on April 10, 2012, Ocwen sent the plaintiffs a statement asserting that the Plaintiffs " would need to pay a monthly escrow payment of $262.37 for their annual taxes . . . ."

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Id. at ¶ 60. The Plaintiffs' prior attorney sent several letters identifying misapplied payments and overcharges. ECF No. 1 ¶ ¶ 61, 65, 66, 68.[6] Ocwen did not correct the account or respond. Id.

         In July 2012, Ocwen provided the following facts to the Maryland Commissioner of Financial Regulation: Mrs. Ayres was a borrower on the Ayres Note, Mrs. Ayres had filed for Chapter 13 Bankuptcy along with Mr. Ayres, the loan " may have become current as of June 26, 1996," and " Ocwen had assessed an incorrect sum due for the escrow account related to the Ayres Note and demanded sums not validly due for property taxes." Am. Compl. at ¶ ¶ 62-63. On July 31, 2012, Ocwen sent the Plaintiffs a Notice of Default. Id. at ¶ 64. On September 28, 2012, " Ocwen attempted to induce Mr. & Mrs. Ayres to enter into a loan modification of the Ayres Note which would have obligated Mrs. Ayres on the Ayres Note and included the disputed sums it had previously admitted to Mr. & Mrs. Ayres that it could not directly prove were due." Id. at ¶ 67. On October 3, 2014, the Plaintiffs discovered that Ocwen " was falsely reporting a trade line to Equifax related to Mrs. Ayres[,] claiming that she was a borrower/debtor on the Ayres Note and that she was allegedly past due . . . ." [7] Id. at ¶ 72.

         On June 6, 2013, the Plaintiffs pro se [8] sued the Defendants for claims related to mortgage fraud. ECF No. 1. On August 27, 2014, the Court granted the Defendants' motion to dismiss. ECF Nos. 55-56. However, " [b]ecause the Plaintiffs are representing themselves, and they have apparently asserted their claims in good faith," the dismissal was without prejudice, and the Court granted the Plaintiffs " an opportunity to amend their complaint in accordance with this Memorandum Opinion." [9] ECF No. 55 at 24 (emphasis added). The Court warned the Plaintiffs " that if they do not clearly and adequately state their claims, they will be dismissed with prejudice." Id.

         On October 24, 2014, the Plaintiffs filed an amended complaint. ECF No. 61. In addition to providing additional facts as requested in the August 27, 2014 Opinion, the Amended Complaint included claims that were not present in the original complaint.[10] On December 19, 2014, Ocwen

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moved to dismiss the amended complaint. ECF No. 66.[11] On January 20, 2015, Mrs. Ayres moved for summary judgment on " whether [or] not Mrs. Ayres ever agreed to be legally obligated to a mortgage note executed by Plaintiff Stephan Ayres on or about January 17, 1991 . . . ." [12] ECF No. 70-1 at 1. On February 20, 2015, Salomon Brothers moved to quash service of process and to dismiss.[13] ECF No. 78. On March 26, 2015, Ocwen moved for limited discovery on whether Mrs. Ayres was obligated under the Note.[14] ECF No. 85.

         II. Analysis

         A. Salomon Brothers' Motion to Quash Service of Process and to Dismiss

         1. Legal Standard

         Under Fed.R.Civ.P. 12(b)(5), a defendant may move to dismiss for insufficient service of process. When service is contested, " the plaintiff bears the burden of establishing the validity of service" under Fed.R.Civ.P. 4. O'Meara v. Waters, 464 F.Supp.2d 474, 476 (D. Md. 2006). When service of process gives the defendant " actual notice" of the action, Rule 4 may be liberally construed. O'Meara, 464 F.Supp.2d at 476; see also Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963). But " the rules are there to be followed, and plain requirements for the means of effecting service of process may not be ignored." Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984).

         2. The Motion to Quash

         Salomon Brothers is a trust registered with the SEC.[15] See ECF No. 78-1 at 1. On November 6, 2014, counsel for the Trustee emailed the Plaintiffs explaining that the Plaintiffs had incorrectly sued the Trust rather than the Trustee. ECF

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          No. 78-2 at 1. Trustee's counsel offered to consent to an amended complaint if the Plaintiffs would sue the Trustee rather than the Trust, and agreed to accept service on the Trustee's behalf if an amended complaint was filed. Id. Instead of amending the complaint, the Plaintiffs attempted to serve the Trust through the Maryland State Department of Assessments and Taxations. ECF No. 75.

         Under Federal Rule of Civil Procedure 4(e)(1), an entity " within a judicial district of the United States" may be " served in a judicial district of the United States by following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made . . . ." Here, the Plaintiffs attempted to serve Salomon Brothers in accordance with Maryland Rule 2-124(o) which states:

Service may be made upon a corporation, limited partnership, limited liability partnership, limited liability company, or other entity required by statute of this State to have a resident agent by serving two copies of the summons, complaint, and all other papers filed with it, together with the requisite fee, upon the State Department of Assessments and Taxation if (i) the entity has no resident agent; (ii) the resident agent is dead or is no longer at the address for service of process maintained with the State Department of Assessments and Taxation; or (iii) two good faith attempts on separate days to serve the resident agent have failed.

(emphasis added).

         Salomon Brothers asserts that service was insufficient because it is not required to have a registered agent in Maryland. ECF No. 78-1 at 2-3. The Plaintiffs argue that Salomon Brothers " has put forward no evidence that it does not need to have a resident agent in Maryland." ECF No. 82 at 1. However, it is the Plaintiffs' burden to establish that service is proper, not Salomon Brothers. See O'Meara, 464 F.Supp.2d at 476.

         Although Maryland does not have a statute explaining when a trust must have a registered agent, it does have statutes which delineate when a corporation does business in Maryland, thereby requiring a registered agent. Under Maryland Code, Corporations and Associations, § 7-104, a corporation does not " do[] intrastate, interstate, or foreign business in [Maryland]" if it " foreclos[es] mortgages and deeds of trust on property in this State; as a result of default under a mortgage or deed of trust, acquir[es] title to property in this State by foreclosure, deed in lieu of foreclosure, or otherwise; hold[s], protect[s], rent[s], maintain[s], and operat[es] property in this State so acquired; and sell[s] or transfer[s] the title to property in this State so acquired to any person . . . .

         The only " action" taken by Salomon Brothers in Maryland according to the Amended Complaint was being the owner of the Ayres Note. See ECF No. 82 at 1 (service was proper because Salomon Brothers " is admittedly the owner of the loan at issue in this case." ). If such action was undertaken by a corporation, it would not constitute " doing business" in Maryland under § 7-104. The Plaintiffs have offered no argument or authority showing why a trust should be held to a different standard. Because the trust was not doing business in Maryland and was not required to have a registered agent under Maryland law, service under Maryland Rule 2-124(o) was improper.

         Moreover, although Salomon Brothers had actual notice, quashing service and allowing the Plaintiffs to re-serve the Trust would be inappropriate in this case because the Trust is not a valid party.

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Under Federal Rule of Civil Procedure 17(b) (3), " whether a trust has the capacity to be sued in this Court is determined by the law of the state of Maryland." Bowman v. Finance Am., LLC, No. AW-13-208, 2013 WL 4495824, at *3 (D. Md. Aug. 19 2013). Under Maryland law, " a trust as an entity does not have the capacity to be sued and that . . . capacity exists only in its trustees." White v. Lundeberg Md. Seamanship Sch., Inc., 57 F.R.D. 128, 130 (D. Md. 1972); see also Allegis Group, Inc. Contrs.Health Plan Trust v. Conn. Gen. Life Ins. Co., No. JFM-04-16, 2004 WL 1289862, at *2-4 (D. Md. June 10, 2004); Limouze v. M.M. & P. Mar. Advancement, Training, Educ. Program, 397 F.Supp. 784, 789 (D. Md.1975). The Court " discerns no reason to depart from the well-settled Maryland rule in the circumstances of this case." [16] Bowman, 2013 WL 4495824, at *3. Accordingly, Salomon Brothers' motion will be granted.

         B. Ocwen's Motions to Dismiss

         1. Legal Standard

         Under Fed.R.Civ.P. 12(b)(6), an action may be dismissed for failure to state a claim upon which relief can be granted. Rule 12(b)(6) tests the legal sufficiency of a complaint, but does not " resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

         The Court bears in mind that Rule 8(a)(2) requires only a " short and plain statement of the claim showing that the pleader is entitled to relief." Migdal v. Rowe Price-Fleming Int'l Inc., 248 F.3d 321, 325-26 (4th Cir. 2001). Although Rule 8's notice-pleading requirements are " not onerous," the plaintiff must allege facts that support each element of the claim advanced. Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir. 2003). These facts must be sufficient to " state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

         This requires that the plaintiff do more than " plead[] facts that are 'merely consistent with a defendant's liability'" ; the facts pled must " allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ( quoting Twombly, 550 U.S. at 557). The complaint must not only allege but also " show" that the plaintiff is entitled to relief. Id. at 679 (internal quotation marks omitted). " Whe[n] the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not shown--that the pleader is entitled to relief." Id. (internal quotation marks and alteration omitted).

         If a plaintiff alleges a claim sounding in fraud, Rule 9(b) requires that " the circumstances constituting fraud be stated with particularity." The rule " does not require the elucidation of every detail of the alleged fraud, but does require more than a bare assertion that such a cause of action exists." Kerby v. Mortg. Funding Corp., 992 F.Supp. 787, 799 (D. Md. 1998). To satisfy the rule, a plaintiff must " identify with some precision the date, place, and time of active misrepresentations or the

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circumstances of active concealments, specifying which Defendant . . . is supposedly responsible for those statements or omissions." Johnson v. Wheeler, 492 F.Supp.2d 492, 509 (D. Md. 2007). The Court " should hesitate to dismiss a complaint under Rule 9(b) if [it] is satisfied (1) that the defendant has been made aware of the particular circumstances for which [it] will have to prepare a defense at trial, and (2) that [the] plaintiff has substantial prediscovery evidence of those facts." Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999).

         2. Judicial Estoppel

         Ocwen assert that the Plaintiffs should be judicially estopped from arguing that Mrs. Ayres was not obligated under the Ayres Note because of the Plaintiffs' representations in the original complaint. See ECF No. 77 at 7. The Plaintiffs assert that when they were pro se, they assumed that Ocwen's alleged representations that Mrs. Ayres was obligated under the Note were true; after obtaining counsel, this belief changed. See ECF No. 69 at 13.

         " Judicial estoppel is a principle developed to prevent a party from taking a position in a judicial proceeding that is inconsistent with a stance previously taken in court." Zinkand v. Brown, 478 F.3d 634, 639 (4th Cir. 2000). Judicial estoppel has three elements. " First, the party sought to be estopped must be seeking to adopt a position that is inconsistent with a stance taken in prior litigation." [17] Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir. 1996). " Second, the prior inconsistent position must have been accepted by the court." Id. Finally, the party must have acted in bad faith, " intentionally misled[ing] the court to gain unfair advantage." Tenneco Chems., Inc. v. William T. Burnett & Co., 691 F.2d 658, 665 (4th Cir. 1982). " Without bad faith, there can be no judicial estoppel." Zinkand, 478 F.3d at 639. Judicial estoppel is an equitable doctrine within the Court's discretion.

         In the original complaint, the Plaintiffs' alleged that Mrs. Ayres was a borrower under the Ayres Note with her husband. See, e.g., ECF No. 1 at ¶ 18. In contrast, the amended complaint alleges that Mrs. Ayres was never a borrower under the Note; in fact, this new fact is the basis for the Plaintiffs' defamation claim. See, e.g., Am. Compl. at ¶ ¶ 132-34. Further, the Court accepted the allegations in the original complaint as true and relied on the Plaintiffs' assertions in ruling on the previous motion to dismiss. See ECF No. 55 at 3-4. Therefore, the first two elements of judicial estoppel have been established.

         Bad faith would exist in this case, if the Plaintiffs knew or believed that Mrs. Ayres was not obligated under the Note at the time they filed the original complaint, and changed their position in filing the amended complaint in order to state claims that the Court had previously dismissed or establish new claims.[18] Based solely on the facts alleged in the amended complaint, the Court cannot determine when the Plaintiffs came to believe that Mrs. Ayres was not obligated under the note. Therefore, the Court cannot now conclude that the Plaintiffs acted in bad faith. Accordingly, the Court will not judicially estop

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the Plaintiffs from asserting that Mrs. Ayres was not bound under the Ayres Note.

         3. New Claims in the Amended Complaint

         In dismissing the original complaint, the Court granted leave to amend " in accordance with [the] Memorandum Opinion." ECF No. 55 at 24. The Court also gave the Plaintiffs permission to add a claim for injunctive relief.[19] When the Plaintiffs amended their complaint, however, they added three additional claims--defamation, tortious interference with economic relationship, and violation of RESPA- -without seeking leave of the Court or the Defendants' consent.[20] Ocwen asserts that these claims should be dismissed because they " violate[] the Court's Order." ECF No. 66 at 9.

         Although the Court intended to grant only limited leave to amend, the language in the Memorandum Opinion was somewhat unclear. See ECF No. 55 at 25 (" As the claims in the complaint will be dismissed without prejudice, the Plaintiffs may amend their complaint to include a claim for injunctive relief." ). Further the Court's Order merely stated that the claims in the original complaint were dismissed without prejudice and did not address the leave to amend. See ECF No. 56. Leave to amend should be freely given when justice requires. Fed.R.Civ.P. 15(a)(2). Accordingly, the Court will grant the Plaintiffs leave to amend nunc pro tunc as long as the three new claims do not " unduly prejudice the opposing party, amount to futility, or reward the movant's bad faith," Steinburg v. Chesterfield Cnty. Planning Comm'n, 527 F.3d 377, 390 (4th Cir. 2008); Equal Rights Ctr. v. Niles Bolton Associates, 602 F.3d 597, 603 (4th Cir. 2010).

         a. Violation of the Real Estate Settlement Procedures Act

         The Plaintiffs allege that Ocwen violated the Real Estate Settlement Procedures Act (" RESPA" )[21] by failing to respond to the Qualified Written Requests (" QWRs" ) that the Plaintiffs sent to Ocwen identifying errors on their account. Am. Compl. at 35-36. Ocwen argues that the RESPA claim is futile because the Plaintiffs did not send correspondence that qualified as QWRs under the statute, and, thus, Ocwen had no obligation to respond. ECF No. 66 at 14-15.

         RESPA was enacted " to insure that consumers . . . are provided with greater and more timely information on the nature and costs of the settlement process and are protected from unnecessarily high settlement charges caused by certain abusive practices " 12 U.S.C. § 2601. Therefore, RESPA requires a mortgage servicer to acknowledge receipt of a borrower's QWR within 5 days and respond within 30 days. See 12 U.S.C. § 2605(e)(1)-(2) (2011). Specifically, within 30 days after receipt of a QWR, a servicer must conduct an investigation and " provide the borrower with a written explanation or clarification" that includes either: (1) " a statement of the reasons for which the servicer believes the account of the borrower is correct as determined by the servicer[,] and the name and telephone number of an individual employed by, or the office or department of, the servicer who can provide assistance to the borrower; " or (2) " information requested by the borrower or an

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explanation of why the information requested is unavailable or cannot be obtained by the servicer[,] and the name and telephone number of an individual employed by, or the office or department of, the servicer who can provide assistance to the borrower." Id. ยง 2605(e)(2). If a servicer fails to comply, the borrower is entitled to recover actual damages, as well as statutory ...

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