Thepvongsa v. Regional Trustee Services Corp.
Thepvongsa v. Regional Trustee Services Corp.
Opinion of the Court
ORDER GRANTING DEFENDANTS OCWEN, MERS, AND DEUTSCHE BANK’S MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on “Oewen, [] MERS and DBNTC as Trustee’s Motion for Summary Judgment.” Dkt. # 88. Plaintiff asserts that defendants Mortgage Electronic Services, Inc. (“MERS”), Deutsche Bank National Trust Company (“Deutsche Bank”), and Oewen Loan Servicing, LLC (“Oewen”) violated various state and federal laws in connection with attempts to foreclose on plaintiffs property. Plaintiff seeks damages as well as declaratory and injunctive relief. Having reviewed the memoranda, declarations, and exhibits submitted by the parties
BACKGROUND
On January 19, 2007, plaintiff obtained two loans from defendant New Century Mortgage Corporation (“New Century”). Only the larger of the two loans is at issue in this litigation. Plaintiff executed a deed of trust
Although MERS remained the designated “beneficiary” of the debt instrument, defendant Deutsche Bank took actual, physical possession of the original promissory note on January 29, 2007. Plaintiff defaulted on the loan in mid-2008. On November 5, 2008, an “Assignment of Deed of Trust” was recorded, purporting to transfer whatever beneficial interest MERS had in the loan to Deutsche Bank National Trust Company “as Trustee for Morgan Stanley ABS Capital I Inc., MSAC 2007-NC4.” Plaintiff alleges that this assignment was invalid for a number of reasons, including MERS’ lack of any beneficial interest in the loan, the lack of authority on the part of the signer, and the impossibility that Deutsche Bank was acting as trustee for the identified fund.
RTS recorded a Notice of Trustee’s Sale on December 5, 2008, which identified Deutsche Bank as the beneficiary and asserted that the outstanding debt was $16,956.35, including $346.17 in “Beneficiary Advances.” Plaintiff alleges that this first Notice of Trustee’s Sale was invalid because Deutsche Bank was not properly assigned the beneficial interest in the loan, that RTS had not been properly appointed as successor trustee, that the “Beneficiary Advances” are unjustified fees, and that the pay-off amount was incorrect. The sale was discontinued and ultimately can-celled.
Effective November 16, 2009, the servicing of plaintiffs loan was transferred from Saxon Mortgage Services, Inc., to Ocwen. Ocwen notified plaintiff of the transfer within two days. At the time of the transfer, Saxon reported that it had accrued fees in the amount of $4,749.77 while servicing the loan.
A second Notice of Trustee’s Sale was recorded on December 31, 2009. RTS again identified Deutsche Bank as the beneficiary, but this time the outstanding amount had increased to $51,518.09 including $4, 749, 77 in “Beneficiary Advances.” Plaintiff contests RTS’ power to issue the Notice, the validity of the “Beneficiary Advances” charge, and the total amount due.
In March 2010, plaintiff served a combined Qualified Written Request, dispute of debt, and debt validation request on Ocwen, RTS, and New Century. Plaintiff also recorded the document in the King County property records. On April 20, 2010, Ocwen confirmed that it was the loan servicer, indicated that no payments had been made since November 2009 and that the loan was in foreclosure, and provided a copy of the note and loan application as well as a settlement statement. Ocwen declined to respond to any of the other
DISCUSSION
Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact that would preclude the entry of judgment as a matter of law. L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012). The party seeking summary dismissal of the case “bears the initial responsibility of informing the district court of the basis for its motion” (Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)) and identifying those portions of the materials in the record that show the absence of a genuine issue of material fact (Fed. R.Civ.P. 56(c)(1)). Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to identify specific factual disputes that must be resolved at trial. Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055, 1059 (9th Cir. 2012). The mere existence of a scintilla of evidence in support of the non-moving party’s position will not preclude summary judgment, however, unless a reasonable jury viewing the evidence in the light most favorable to the non-moving party could return a verdict in its favor. U.S. v. Arango, 670 F.3d 988, 992 (9th Cir. 2012).
A. Deed of Trust Act, RCW 61.24.005 et seq.
Plaintiff alleges that MERS and Deutsche Bank violated the DTA by causing RTS to issue faulty notices of default and trustee’s sale. Plaintiff also alleges that the deed of trust was an illegal and unenforceable contract because MERS was identified as the beneficiary. Each contention is considered below.
1. RTS’ Actions
Pursuant to the DTA, the written notice of default must be provided by the beneficiary or the trustee (RCW 61.24.030(8)), and only the beneficiary has the power to appoint a trustee or successor trustee (RCW 61.24.010(2)). Deutsche Bank obtained physical possession of the promissory note shortly after the closing date in January 2007
2. Validity of the Deed of Trust
Plaintiff argues that MERS’ identification as beneficiary in the deed of trust invalidates the deed. Bain v. Metropolitan Mortg. Group, Inc., 175 Wash.2d 83, 285 P.3d 34 (2012), the case on which plaintiff relies, made clear that MERS could not be the “beneficiary” as that term
B. Real Estate Settlement Procedures Act
1. Beneficiary Advances, 12 U.S.C. § 2607(b)
Plaintiff alleges that Deutsche Bank and Ocwen violated § 2607(b) of RESPA when they caused RTS to include a demand for “Beneficiary Advances” in the Notices of Trustee’s Sale. Section 2607(b) reads:
No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed.
RESPA was intended to reform the real estate settlement process (ie., the closing of loans) by, in relevant part, eliminating kickbacks and referral fees that unnecessarily increased the costs of services obtained to close the transaction. 12 U.S.C. § 2601. Plaintiff has not alleged that the “Beneficiary Advances” were charged in connection with the settlement of his loan or provided any evidence (such as a copy of his settlement statement) that would support such an inference. Nor has plaintiff alleged that Deutsche Bank or Ocwen provided any settlement services or had any role in the closing. Costs and expenses assessed after closing are not the type of “real estate settlement services” to which RESPA generally or § 2607(b) specifically apply. Bloom v. Martin, 77 F.3d 318, 320-21 (9th Cir. 1996) (failure to disclose and fee-splitting claims apply only to charges for services necessary for closing: claims related to charging of reconveyance fee when plaintiff repaid the loan were not cognizable under RESPA).
2. Qualified Written Request, 12 U.S.C. § 2605(e)
RESPA requires lenders and loan servicers to timely respond to Qualified Written Requests (“QWRs”) from borrowers. Within 60 days after receiving a QWR, the servicer must provide the borrower with a written response that includes the information requested by the borrower or an explanation of why the information is unavailable or cannot be obtained by the servicer. 12 U.S.C. § 2605(e)(2)(C).
On or about March 22, 2010, plaintiff sent a written request for information to Ocwen. Dkt. # 98-5. Plaintiff specifically identified the request as a “Qualified Written Request” under RESPA, indicated that he was attempting to ensure that he had not been or was not then the victim of a fraud, and demanded “absolute first-hand evidence from you and/or your legal department with regard to the original signed promissory note,” as well as a chain of custody for the note. Plaintiff requested that Ocwen conduct their own de novo investigation to assure themselves of the existence and accuracy of the claimed indebtedness. Plaintiff specifically request
On April 20, 2010, Ocwen responded to plaintiff’s letter, providing very little information other than that which was reflected in its computerized records and a copy of the promissory note and other loan documents. Ocwen apparently took the position that plaintiffs request was not a QWR. For purposes of RESPA, a QWR is “a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that—
(i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and
(ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.”
12 U.S.C. § 2605(e)(1)(B) (emphasis added). Although there is no indication that plaintiff was aware of a particular error in his account, he clearly identified documents and categories of documents (ie., “other information” in the parlance of § 2605(e)(1)(B)) that he sought from the servicer. Courts in this district disagree on whether a request for documents or information regarding the servicing of a loan constitutes a QWR in the absence of a claim of error. See Eifling v. Nat’l City Mortg., 2011 WL 893233, at *2-3 (W.D.Wash. Mar. 15, 2011) (a defaulted borrower’s written inquiry regarding late fees and charges coupled with a request for 22 categories of documents is not the type of request RESPA was designed to cover); Moon v. GMAC Mortg. Corp., 2009 WL 3185596 at *4 (W.D.Wash. Oct. 2, 2009) (a widow’s written request for copies of “all the loan documents” is a QWR).
The Eifling court was concerned that borrowers who had defaulted on their loans could “flood their lender with documentation requests, on the hope that a failure to timely comply will lead to an affirmative cause of action, or a defense to a collection or foreclosure action.” Eifling, 2011 WL 893233 at *3. RESPA has built-in procedures and requirements that will, for the most part, forestall the feared flood. A request for documents must be specific and it must relate to the servicing of the loan. Assuming a proper request is made, the lender’s failure to appropriately respond does not provide a defense against foreclosure, but merely gives rise to a claim for actual damages (unless the violations amount to a pattern and practice, in which case statutory damages may be available). The upside of filing unnecessary QWRs is therefore rather limited. RESPA was enacted in large part because lenders and servicers were not responding to legitimate inquiries from their borrowers. The legislature specifically determined what was and was not a “qualified written request” that would trigger the lender’s duty to respond. If the requirements established by Congress are met, the lender has a statutory duty to act: the Court will not second-guess the wisdom of the legislature’s policy choice.
In this case, plaintiffs requests were not made on a payment coupon or
Nevertheless, plaintiffs RE SPA claim fails as a matter of law. In a case brought by an individual, a failure to comply with the requirements of RESPA makes the servicer liable for “an amount equal to the sum of—
(A) any actual damages to the borrower as a result of the failure; and
(B) any additional damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not to exceed $1,000.”
12 U.S.C. § 2605(f)(1). Plaintiff has not identified actual damages suffered as a result of Ocwen’s failure to respond adequately to the QWR. The lack of information did not cause plaintiff to send his payments to the wrong entity, for example, or result in the accrual of late fees or penalties that could have been avoided had defendants timely responded: plaintiff was already in default when the QWR was sent. Nor has plaintiff shown a pattern or practice of violating § 2605(e)(3). The evidence reveals only a single wrong: the failure to treat plaintiffs letter as a QWR.
C. Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.
Ocwen began servicing plaintiffs loan after it was already in default and is a debt collector for purposes of § 1692f(6).
D. Fair Credit Reporting' Act, 15 U.S.C. § 1681S-2
Congress enacted the FCRA “to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007). Section 1681s-2 imposes two responsibilities on “furnishers” of credit information to credit reporting agencies (“CRAs”) such as Equifax, TransUnion, and Experian. A furnisher must not only provide accurate information to the CRA in the first instance (15 U.S.C. § 1681s-2(a)), it must also investigate and/or correct inaccurate information (15 U.S.C. § 1681s — 2(b)). The duty to investigate and correct arises only after the furnisher receives notice of a dispute from the CRA. A complaint received directly from the consumer does not trigger the duty to investigate. Nelson v. Chase Manhattan Mortgage Corp., 282 F.3d 1057, 1059-60 (9th Cir. 2002) (“A private litigant can bring a lawsuit to enforce § 1681s-2(b), but only after reporting the dispute to the CRA, which in turn reports it to the furnisher.”).
1. Furnishing Inaccurate Information, 15 U.S.C. § 1681s-2(a)
Plaintiff alleges that Ocwen provided inaccurate and incomplete information to the CRAs. Pursuant to 15 U.S.C. § 1681s-2(d), only federal and state agencies can enforce the duties imposed under § 1681s-2(a). To the extent plaintiff is asserting a claim under 15 U.S.C. § 1681s-2(a), the claim fails as a matter of law.
2. Investigation and/or Correction, 15 U.S.C. § 1681s-2(b)
After receiving notice of a dispute from a CRA, the furnisher of credit information must conduct an investigation and correct any deficiencies or errors in the prior reports. 15 U.S.C. § 1681s — 2(b)(1). Plaintiff has failed to allege or provide evidence that he lodged a dispute related to Ocwen with the CRAs, that the CRAs notified Ocwen of the dispute, or that any of the obligations set forth in 15 U.S.C. § 1681s-2(b)(l) were triggered as to Ocwen. In his Second Amended Complaint, plaintiff alleges only that “Plaintiff notified Defendant Saxon and Defendant Ocwen of the inaccurate or incomplete information .... ” Dkt. # 57 at ¶ 3.7. There is no allegation that plaintiff provided notice to the CRAs, plaintiff has not provided a copy of any such notice, and there is no evidence that the CRAs notified Ocwen of plaintiffs dispute. While there is evidence that plaintiff disputed something to Tran
E.Washington Consumer Protection Act, RCW 19.86 et seq.
The CPA prohibits “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” RCW 19.86.020. A private cause of action exists under the CPA if (1) the conduct is unfair or deceptive, (2) occurs in trade or commerce, (8) affects the public interest, and (4) causes injury (5) to plaintiffs business or property. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 780, 719 P.2d 531 (1986). Plaintiff has not identified an “unfair or deceptive” act in which defendants Deutsche Bank or Ocwen participated. Deutsche Bank had actual physical possession of the promissory note during the relevant time frame and was statutorily authorized to initiate nonjudicial foreclosure proceedings under the DTA. Plaintiff has not identified any misrepresentation of fact or other wrongful act that could satisfy the first element of a CPA claim as to these defendants.
With regards to MERS, the Washington Supreme Court has found that characterizing a non-holder (in this case, MERS) as the beneficiary in the deed of trust when it did not have actual possession of the note has the capacity to deceive for purposes of a CPA claim. Bain, 175 Wash.2d at 117, 285 P.3d 34. The Supreme Court also found that the third element, public interest, was presumptively met because MERS “is involved with an enormous number of mortgages in the country (and our state), perhaps as many as half nationwide.” Bain, 175 Wash.2d at 118, 285 P.3d 34. Both the first and third elements of plaintiffs CPA claim against MERS are, therefore, satisfied.
The issue, then, is whether plaintiff can show injury caused by MERS’ misrepresentation. Plaintiff makes no attempt to show that MERS’ appearance on his deed of trust has caused injury to his business or property. Instead, plaintiff cites to his opposition. to Saxon’s motion for summary judgment, in which he argues that the filing of various documents in the property records has clouded his title, interfered with his attempts to sell the property, and caused him to lose market value. MERS had nothing to do with the identified recordings, however. In the absence of injury causally related to the misrepresentation of MERS status as beneficiary, plaintiffs CPA claim against MERS fails.
F. Declaratory Relief
Plaintiff seeks a declaration that all of defendants’ actions taken thus far in furtherance of nonjudicial foreclosure are void and of no legal effect. The requested relief is moot. Defendants have abandoned all efforts to enforce or otherwise act upon the Notices of Default and Notices of Trustee’s Sale issued in 2008 and 2009. These documents cannot be resurrected and have no legal effect. A declaration of this Court to that effect is unnecessary.
G. Injunctive Relief
There does not appear to be any bar to defendants conducting a nonjudicial
Defendants are entitled to summary judgment to the extent plaintiff seeks a permanent injunction against all future foreclosure actions.
CONCLUSION
For all of the foregoing reasons, the claims asserted against defendants Ocwen, MERS, and Deutsche Bank are DISMISSED. Defendants’ motion for summary judgment (Dkt. # 88) is GRANTED.
. Plaintiff's request for judicial notice (Dkt. #97 at 2 n. 2) is GRANTED in part. The Court has considered only the highlighted portions of the Deposition Transcript of Ronaldo Reyes provided by plaintiff. Dkt. # 98-1. In the absence of pinpoint citations to the relevant testimony, the Court will not scour the record to find evidence that supports the parties' arguments.
. A deed of trust is, in essence, a three-party mortgage through which the borrower gives a third party a lien on the real property to hold in trust as security until the obligation to the lender is discharged. H.R. Rep., 2008 Reg. Sess. S.B. 5378 (Wash. March 6, 2008). The third party is called the trustee, and the lender is generally identified as the beneficiary of the trust. Through this arrangement, title to the real property passes to the borrower, but the lender is protected under the trust agreement. If the borrower defaults on his loan, the beneficiary need not file a civil suit to foreclose on the mortgage. Pursuant to the DTA, the beneficiary may direct the trustee to initiate nonjudicial foreclosure proceedings. The beneficiary may also replace the trustee with a successor trustee to handle the foreclosure. RCW 61.24.010(2). As long as the trustee complies with the DTA’s requirements, the lender can foreclose on the property inexpensively and efficiently. If the borrower ob
. As a preliminary matter, the Court finds that matters related to the Morgan Stanley investment do not affect the outcome of this motion. Deutsche Bank’s authority to act under the DTA will be determined based on whether Deutsche Bank, in whatever capacity, had actual physical possession of the note during the relevant time period and properly acted as the beneficiary. Whether Deutsche Bank possessed the note as a trustee for a third-party does not alter the analysis.
. Although plaintiff argues that Deutsche Bank may not have taken possession of the note on January 29, 2007, and suggests that Deutsche Bank was holding the note as the agent of another entity, he presents no evidence in support of these contentions.
. The Dodd Frank Act, Pub.L. 111-203, Title XIV, § 1400(c) and § 1463(b) (July 21, 2010), shortened the time periods in which the lender had to respond from 60 days to 30 days.
. ‘'Servicing” is defined in the statute as "receiving any scheduled periodic payment from a borrower pursuant to the terms of any loan ... 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 has abandoned his claim that Ocwen violated § 2605(b) of RESPA “when it failed to provide Plaintiff with notice that it had acquired servicing of Plaintiff's....” Dkt. # 57 at ¶ 3.4.5.
. The current trend among district courts in the Ninth Circuit is to find that, at least insofar as defendant confines itself to actions necessary to effectuate a nonjudicial foreclosure, only § 1692f(6) of the FDCPA applies. See, e.g., McDonald v. OneWest Bank, FSB, 929 F.Supp.2d 1079, 1096-97 (W.D.Wash. 2013); Jara v. Aurora Loan Servs., LLC, 2011 WL 6217308, at *5 (N.D.Cal. Dec. 14, 2011); Fizan v. HSBC Bank USA, N.A., 2011 WL 2531104, at *3 (W.D.Wash. June 23, 2011); Lettenmaier v. Fed. Home Loan Mortg. Corp., 2011 WL 1938166, at *11-12 (D.Or. May 20, 2011); Armacost v. HSBC Bank USA, 2011 WL 825151, at *5-6 (D.Idaho Feb. 9, 2011); Long v. Nat’l Default Servicing Corp., 2010 WL 3199933 at *4 (D.Nev. Aug. 11, 2010). See also Statements of General Policy or Interpretation Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed.Reg. 50097, 50108 (Dec. 13, 1988) (relying on the two-part definition of "debt collector” to find that, if a party falls only within the security interest provisions of the definition, then they "are subject only to this provision [§ 1692f(6)] and not the rest of the FDCPA.’ ”). While this analysis has not been universally accepted (see, e.g., Gillespie v. Countrywide Bank FSB, 2011 WL 3652603, at *2 (D.Nev. Aug. 19, 2011) (stating without analysis that "activities undertaken in connection with a nonjudicial foreclosure do not constitute debt collection under the FDCPA”) and Wilson v. Draper & Goldberg, P.L.L.C.,
Reference
- Full Case Name
- Phimpha THEPVONGSA v. REGIONAL TRUSTEE SERVICES CORPORATION
- Cited By
- 4 cases
- Status
- Published