United States District Court, W.D. Virginia, Charlottesville Division.
March 8, 2013
MEMORANDUM OPINION
NORMAN K. MOON, District Judge.
The Plaintiff Sarah C. Yarney (“Plaintiff”), pursuant to Fed. R. Civ. P. 56, seeks summary judgment as to liability on all claims asserted in her complaint. Plaintiff alleges that Defendants Wells Fargo Bank N.A., as Trustee for SABR 2008-1 Trust (“Wells Fargo”), and its loan servicer, Ocwen Loan Servicing, LCC (“Ocwen”), attempted to collect on her home mortgage loan after she had settled the debt with Wells Fargo.
. . .
III. DISCUSSION
A. Plaintiff’s FDCPA Claims as a Matter of Law
In summary, mortgage servicers are considered debt collectors under the FDCPA if they became servicers after the debt they service fell into default. At the time Ocwen became the servicer on Plaintiff’s home loan, the loan was already in default. Therefore, Ocwen is a debt collector seeking to collect an alleged debt for the purposes of FDCPA liability in this case.[4]
1. Defendants’ Liability under 15 U.S.C. § 1692e(2)(A)
Given the contents of the monthly bills and notices sent to Plaintiff directly, along with the continued calls she received from collection agents, I find that the least sophisticated consumer in Plaintiff’s position could believe that she still owed a debt. Thus, Plaintiff is entitled to summary judgment on her count that Ocwen violated § 1692e(2)(A) of the FDCPA.
2. Defendants’ Liability under 15 U.S.C. § 1692c(a)(2)
Because Plaintiff continued to directly receive bills, statements and phone calls from Ocwen representatives seeking to collect on an alleged debt obligation, despite notice that she was represented by counsel, Plaintiff is entitled to summary judgment that Ocwen violated section 1692c(a)(2).
. . .
B. Plaintiff’s Breach of Contract Claim as a Matter of Law
Plaintiff contends that Wells Fargo breached its agreement with Plaintiff, through the action of its agent, Ocwen ….
. . .
Plaintiff contends, Wells Fargo failed to comply with its obligations, due to the actions of Ocwen, its servicer.
. . .
By attempting to collect payments from Plaintiff on behalf of Wells Fargo, Ocwen acted as Wells Fargo’s agent with respect to the original mortgage loan.[10] Further, the undisputed facts in this case demonstrate that Ocwen continued to behave in all respects towards Plaintiff as Wells Fargo’s agent after the March 18, 2011 settlement agreement.[11] While a party may delegate the performance of its duties under a contract, it retains the ultimate obligation to perform….
[11] While Defendants argued during the February 25, 2013 motion hearing that Wells Fargo shouldn’t be held liable for Ocwen’s conduct from now until eternity, Ocwen’s actions at the center of this case constituted collection efforts in connection with the same mortgage loan debt for which Ocwen had been assigned to service, and that Plaintiff and Wells Fargo had attempted to resolve under the March 18, 2011 settlement agreement. Thus, given the facts of this case, Ocwen continued to act as Wells Fargo’s agent with respect to Plaintiff following the settlement agreement.
. . .
Due to Ocwen’s subsequent attempts to collect mortgage loan payments from Plaintiff, Wells Fargo neither absolved Plaintiff of her possible deficiency nor properly accepted the deed in lieu of foreclosure.
. . .
“… and thus, due to the actions of its servicer, Plaintiff is entitled to summary judgment that Wells Fargo breached the March 18, 2011 contract agreement.
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for partial summary judgment is granted. This case is scheduled for a jury trial on April 9, 2013, at 9:30 a.m. in Charlottesville, VA, at which time Plaintiff will have the opportunity to testify in regards to any damages she may be entitled to in this matter.[12] An appropriate order accompanies this memorandum opinion.
2 Responses to “YARNEY v. OCWEN, LLC, Dist. Court, WD Virginia | FDCPA . . . DEFENDANT…”attempted to collect on her home mortgage loan after she had settled the debt with Wells Fargo.”
I thought that in this case original lender sold or transfered note and deed of trust to many services or lender already that why they used MERS as system to avoid recording fees and service used to use word on behalf of lender blah blah blah….According to law,note and deed of trust can not be separated so service cannot use word on behalf of lender. After original lender sold or transfered to several investors and using MERS it cannot go back and service cannot say service on behalf of original lender anymore. it is fraudulently and violate law.
WE NEED TO START GOING ALL “EGYPT” ON OUR GOVERNMENT. I AM SO FUCKING SICK AND TIRED OF READING ABOUT ALL THESE FUCKING CRIMES AND THESE FUCKING CRIMINALS CONTINUE TO FUCKING DO BUSINESS ALL WITH OUR FUCKING GOVERNMENT’S APPROVAL AND COLLUSION.
I thought that in this case original lender sold or transfered note and deed of trust to many services or lender already that why they used MERS as system to avoid recording fees and service used to use word on behalf of lender blah blah blah….According to law,note and deed of trust can not be separated so service cannot use word on behalf of lender. After original lender sold or transfered to several investors and using MERS it cannot go back and service cannot say service on behalf of original lender anymore. it is fraudulently and violate law.
WE NEED TO START GOING ALL “EGYPT” ON OUR GOVERNMENT. I AM SO FUCKING SICK AND TIRED OF READING ABOUT ALL THESE FUCKING CRIMES AND THESE FUCKING CRIMINALS CONTINUE TO FUCKING DO BUSINESS ALL WITH OUR FUCKING GOVERNMENT’S APPROVAL AND COLLUSION.