McDermott v. Nationstar Mortgage, LLC

143 F. Supp. 3d 290, 2015 U.S. Dist. LEXIS 154310, 2015 WL 7074692
CourtDistrict Court, E.D. Pennsylvania
DecidedNovember 13, 2015
DocketCIVIL ACTION NO. 13-6980
StatusPublished

This text of 143 F. Supp. 3d 290 (McDermott v. Nationstar Mortgage, LLC) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McDermott v. Nationstar Mortgage, LLC, 143 F. Supp. 3d 290, 2015 U.S. Dist. LEXIS 154310, 2015 WL 7074692 (E.D. Pa. 2015).

Opinion

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

Plaintiff Martin McDermott brings this action individually and on behalf of a putative class1 under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692d-1692g, against Defendant Na-tionstar Mortgage, LLC (“Nationstar”), a Delaware limited liability company engaged in the business of mortgage lending. Before the Court is Nationstar’s Motion for Summary Judgment. For the reasons that follow, the Court will deny the motion.

[293]*2931. BACKGROUND

A. Factual Background2

In November 2009, McDermott financed the purchase of a home in part through a mortgage from Harleysville National Bank and Trust Company in the amount of $191,468.00. Mem. Law Support Defi’s Mot. Summ. J. 4, ECF No. 43-1 [hereinafter “Def.’s Mem.”]. Shortly thereafter, McDermott’s loan was transferred to Bank of America (“BOA”), and BOA began servicing the loan. Id.

In mid-2011, Defendant experienced difficulty making his monthly payments and entered into a forbearance agreement with BOA. Id. at 4. In December 2012, BOA advised McDermott that he was eligible for a loan modification program administered by the Federal Housing Authority (“FHA”). Id. at 4-5. In January 2013, McDermott and BOA entered into an FHA Trial Period Plan Agreement (“TPPA”) to begin the loan modification process. Id. at 4.

Under the TPPA, McDermott agreed to pay $1,339.77 per month to BOA between February 2013 and April 2013. Id. If McDermott successfully complied with the new payment schedule, BOA agreed to consider McDermott’s loan “current under the terms of [ ] the Mortgage on the Property and [ ] the Note secured by the Mortgage.” Id. at 5.

On May 9, 2013, after successfully completing the TTPA’s obligations, BOA informed McDermott by letter that he was approved for loan modification. Id. at 5. The letter instructed McDermott as follows:

You need to carefully review the enclosed Federal Housing Administration (FHA) Loan Modification Agreement and summary of your modified mortgage, sign where indicated and return to us by June 8, 2013 before we can modify your loan. The Loan Modification Agreement must be signed by all borrowers and any other owner(s) of the property in front of a notary and- returned.

Def.’s Mem. Ex. E, at 1, ECF No. 43-6.

On May 13, 2013, before McDermott had signed or returned the Loan Modification Agreement, BOA informed McDermott by letter that it would transfer the servicing of his mortgage loan to Defendant Na-tionstar, effective June 4, 2013. Def.’s Mem. 6. In the letter, BOA stated that the transfer would not affect any terms or conditions of the mortgage loan, and that “[i]f [McDermott is] being considered for a loan modification or other foreclosure avoidance program, [the] new servicer Na-tionstar Mortgage LLC is aware of your current account status and will have all of your documents.” Id. Ex. H, at 1.

Then, on May 30, 2013,3 Nationstar wrote McDermott to confirm that Nations-tar would begin servicing his loan effective June 4, 2013. Pl.’s Resp. 19; Def.’s Mem. 6. The letter stated that its purpose was “to inform [McDermott] of certain information relating to the pending transfer of [McDermott’s] loan.” See Def.’s Mem. Ex. I. The letter made no reference to the terms of the loan, the debt’s amount, or the original creditor.

[294]*294On the same day that Nationstar officially acquired servicing rights to McDer-mott’s loan — June 4, 2013 — McDermott signed the Loan Modification Agreement (“the Agreement”), and forwarded the document to BOA. Def.’s Mem. 5. BOA signed the Agreement on June 6, 2013, and sent a fully executed copy of the document to McDermott on June 7, 2013. Id. Ex. G.

The Agreement:

(1) modified the principal amount of the mortgage from $180,748.59 to $192,318.65;
(2) lowered Plaintiffs monthly mortgage payment to $1335.73;
(3) lowered the interest rate from 4.875% to a fixed rate of 3.875% for the life of the loan; and
(4) extended the maturity date of the loan to 2043.

Def.’s Mem. 6. According to the Agreement, interest would begin to accrue at 3.875% on the modified principal balance as of June 1, 2013, and the new monthly payment was due the same day. Id. at 6.

On June 18, 2013, Nationstar notified McDermott by letter that BOA had transferred the servicing of the loan on June 4, 2013, and that “[njothing else about your mortgage loan will change.” Id. at 6 n.4; id. Ex. J, at 1. The letter additionally stated in a disclaimer that “[t]his is an attempt to collect a debt, and any information obtained will be used for that purpose.” Id. Ex. J, at 1.

Also on June 18, 2013, Nationstar sent McDermott a notice, described as part of a “welcome packet,” which listed the unpaid principal balance of McDermott’s loan as $180,748.59 and the total amount due as $15,993.12. Id. at 7; id. Ex. K, at 1. These numbers reflected the original loan’s terms, not the terms of the Loan Modification Agreement. The notice further informed McDermott that “[i]f you are in the process of applying for or providing information related to a workout (including modification) with BANK OF AMERICA, N.A., we anticipate that your information will soon be transferred to Na-tionstar Mortgage.” Def.’s Mem. Ex. K, at 2.

On June 20, 2013, Nationstar sent McDermott a pre-foreclosure “Act 91 Notice,” which stated “[t]his is an official notice that the mortgage on your home is in default and the lender intends to foreclose.” Def.’s Mem. 7; id. Ex. L, at 1. The notice asserted that if McDermott did not cure the default, Nationstar would accelerate the mortgage debt and foreclose upon the property. Def.’s Mem., Ex. L, at 6. It also stated in all capital letters that Nationstar “IS A DEBT COLLECTOR AND THAT THIS IS AN ATTEMPT TO COLLECT A DEBT.” Id. at 8.

Nationstar received a copy of the Agreement between McDermott and BOA on approximately June 21, 2013. Def.’s Mem. 9; PL’s Resp. Statement Facts 5, ECF No. 46-2. Also on June 21, 2013, Nationstar sent McDermott a mortgage loan statement that again failed to reflect the Loan Modification Agreement’s terms. Def.’s Mem. 12. Instead, the statement reflected the original mortgage’s terms, listing the principal balance as $180,748.59, the interest rate at 4.875%, the monthly amount owed as $1431.58, and a past due payment of $15,791.34. Id.; see also id. Ex. M.

On July 11, 2013, Nationstar sent another letter to McDermott, stating that his payment was past due and that the property could be referred to foreclosure on July 25, 2013. Def.’s Mem. 8; id. Ex. N. Nationstar asserted that “[wje have been unable to contact you or we have not yet received a complete initial package / borrower response package from you to consider you for a loan modification.” Def.’s Mem. Ex. N, at 4. The letter also contained the same pre-Agreement information regarding McDermott’s loan and once [295]*295more stated that the letter was a communication from a debt collector.

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143 F. Supp. 3d 290, 2015 U.S. Dist. LEXIS 154310, 2015 WL 7074692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdermott-v-nationstar-mortgage-llc-paed-2015.