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Edwards v. Bayview Loan Servicing, LLC

United States District Court, D. Delaware

March 15, 2019


          Jacqueline Edwards, Wilmington, Delaware. Pro Se Plaintiff.

          Catherine M. Di Lorenzo, Esquire, Alba Law Group, P.A., Newport, Delaware. Counsel for Defendant.



         Plaintiff Jacqueline Edwards, who appears pro se and has paid the filing fee, filed this action on June 8, 2016, alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692, et seq. (D.I. 2). The Amended Complaint is the operative pleading. (D.I. 23). The parties have filed cross-motions for summary judgment and briefing is complete. (D.I. 32, 34).

         I. BACKGROUND

         The verified Complaint alleged that Defendant is a debt collector, Plaintiff is a consumer, and Defendant illegally communicated with Plaintiff by failing to comply with 15 U.S.C. § 1692c(a). (D.I. 2). The original complaint was dismissed upon Defendant's motion and Plaintiff's motion for leave to amend.[1] The Amended Complaint raises two claims: Count 1, pursuant to 15 U.S.C. § 1692g (validation of debts);[2] and Count 2, pursuant to 15 U.S.C. § 1692e (false or misleading representations. (D.I. 23). Plaintiff seeks statutory and actual damages.

         The Amended Complaint contains numerous exhibits, as follows: (1) Exhibit 1, a March 14, 2016 letter to Plaintiff from Defendant introducing her "dedicated point of contact"; (2) Exhibit 2, a March 18, 2016, "transfer of service notice"; (3) Exhibit 3, an April 11, 2016 letter to Plaintiff from Defendant advising Plaintiff that its records show expiration of hazard insurance; (4) Exhibit 4, Plaintiff's May 3, 2016 notice of dispute to Defendant; (5) Exhibit 5, Defendant's May 12, 2016 response to Plaintiff's dispute of the validity of the debt, which includes copies of Defendant's account activity statements, March 18, 2016 transfer of service notice, March 7, 2006 mortgage, undated Allonge to Note payable to CitiFinancial Service LLC; August 12, 2015 assignment of mortgage, March 7, 2006 note, March 7, 2006 HUD-1 form, good faith estimate, September 11, 2014 notice of default, and July 18, 2010 notice of intent to accelerate; (6) Exhibit 6, a May 20, 2016 letter from Defendant to Plaintiff regarding an adjustment affecting the interest due and advising Plaintiff that if she received a debt validation letter when her loan originally transferred to Defendant, an updated copy would be mailed to her;[3] (7) Exhibit 7, the updated May 23, 2016 debt validation letter advising Plaintiff that it seeks to bring Plaintiff's mortgage account current, that it is attempting to collect a debt on behalf of U.S. Bank, the current owner of Plaintiffs loan, and advising Plaintiff of the loan number, the property address, the loan amount, how to dispute the validity of the debt, and providing contact information; and (8) Exhibit 8, the August 14, 2016 mortgage statement. (See D.I. 23).

         Plaintiff executed a note and mortgage on March 7, 2006 with CitiFinancial, Inc. (D.I. 23 at 53-58). Plaintiff defaulted on the loan in 2014. See Bayview Loan Servicing LLC v. Edwards, C.A. No. N16L-01-070 ALR, Amended Complaint (Del. Super. June 21, 2016).

         On August 12, 2015, CFNA Receivables, Inc. F/K/A CitiFinancial, Inc. assigned its interest to CitiFinancial Servicing, LLC. (Id. at 59). On March 4, 2016 Defendant became the new loan servicer for Plaintiff's loan.[4] (Id. at 26). An allonge to the note was executed on March 22, 2016 wherein CitiFinancial Servicing, LLC endorsed the instrument in blank. (D.I. 36 at Ex. D). On March 31, 2016 CitiFinancial Servicing, LLC assigned its interest to Defendant. (Id. at Ex. C).

         Defendant is the servicer for U.S. Bank with authority to administer the loan and collect payments as creditor. (D.I. 42 at Ex. E, Admission Nos. 1, 2, 3). The original note was transferred to Defendant, and its custodian has possession of the original promissory note. (Id. at Admission Nos. 7, 8). Defendant sent Plaintiff two letters on March 14, 2016, a debt validation letter indicating that it was attempting to collect a debt on behalf of U.S. Bank and a letter designating a point of contact. (D.I. 36 at Exs. E, F). On May 9, 2016, Plaintiff disputed the debt by a letter dated May 3, 2016. (D.I. 23 at 39-42). On May 12, 2016, Defendant acknowledged receipt of the dispute letter, advising that it had acquired servicing of the loan on March 4, 2016, and that it was given the servicing rights. (Id. at 44). With the May 12, 2016 letter Defendant provided Plaintiff a copy of an account activity statement that provided a detailed accounting of all transactions, a notice of the transfer, mortgage, assignment of mortgage, note, HUD1, good faith estimate, notice of default, and notice of intent to accelerate. (Id. at 44-72).

         On May 20, 2016, Defendant sent Plaintiff a letter advising that it had reviewed her loan. The review resulted in an adjustment affecting the interest due and noted that the new interest balance was as of the date Defendant received Plaintiff's last payment or the date the loan was transferred to Defendant, "whichever is greater." (Id. at 74). The letter further advised that if Plaintiff had received a debt validation letter when her loan originally transferred to Defendant, an updated copy would be mailed to her. (Id.). On May 23, 2016, Defendant sent Plaintiff another debt validation letter, and she responded with a second notice of dispute on June 7, 2016. (Id. at 76; D.I. 33 at 52 (Ex. C, answer to interrogatory No. 6)). In August 2016, Defendant sent Plaintiff an August 14, 2016 mortgage statement. (Id. at 80-81).

         Foreclosure proceedings were initiated against Plaintiff in the Superior Court of the State of Delaware in and for New Castle County on January 18, 2016 by CitiFinancial Servicing LLC. (D.I. 33 at 72 (Ex. D, ¶)). With leave of Court, Defendant, through its foreclosure counsel, amended the complaint to substitute the parties on June 21, 2016 (Id.). After Plaintiff failed to participate in the mortgage mediation process, she was ordered to answer. (Id. at 73). Defendant filed a motion for summary judgment in the foreclosure proceeding, which was granted, and an order entered against Plaintiff on March 13, 2017 for the principal balance of $104, 315.52; interest from March 3, 2016 to September 23, 2016 at $26.20 per diem in the sum of $21, 956.20, as well as other costs, plus interest from September 23, 2016 at $26.20 per diem for a total debt due of $127, 175.09. (Id. at 70). The Court takes judicial notice that Plaintiff did not appeal the Delaware Superior Court order awarding judgment and that the property was sold at an October 9, 2018 Sheriff's Sale. Plaintiff commenced this action on June 8, 2016 prior to the sale of the property. (D.I. 1).


         Both parties move for summary judgment. Under Rule 56(a) of the Federal Rules of Civil Procedure, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,475 U.S. 574, 585-86 (1986). An assertion that a fact cannot be -or, alternatively, is - genuinely disputed must be supported either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials," or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B). If the moving party has carried its burden, the nonmovant must then "come forward with specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 587 (internal quotation marks omitted). The Court will "draw all reasonable inferences in favor of the ...

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