United States District Court, D. Massachusetts
Palacios, Plaintiff, represented by Chaz Robert Fisher,
FISHER LEGAL, PA.
Financial LLC, Defendant, represented by Richard E. Briansky,
McCarter & English, LLP.
REPORT AND RECOMMENDATION REGARDING DEFENDANT DITECH
FINANCIAL LLC'S MOTION FOR JUDGMENT ON THE PLEADINGS
(Dkt. No. 13)
L. CABELL, Magistrate Judge.
plaintiff, Javier Palacios ("the plaintiff"), has
brought a five count complaint against the current servicer
of his residential mortgage, DiTech Financial, LLC ("the
defendant"). The defendant has in turn moved for
judgment on the pleadings. As discussed below, I recommend
that the motion be granted in part and denied in part.
facts alleged in the complaint are accepted as true for
purposes of the present motion. Ashcroft v. Iqbal,
556 U.S. 662, 667 (2009). In 2005 the plaintiff purchased a
condominium in Winthrop. He granted a mortgage to his lender,
Leader Bank, who in turn assigned the mortgage and note to
Bank of America, N.A. In December of 2011 Bank of America,
N.A. transferred and assigned the mortgage to the defendant,
then known as Green Tree Servicing, LLC.
complaint does not allege that the plaintiff missed any
mortgage payments, and the plaintiff did not concede at oral
argument that he had missed any mortgage payments. That is
presumably what happened, though, because the defendant
initiated foreclosure proceedings on the plaintiff's
residence in October 2012. (Dkt. No. 1-1 [Complaint] at Ex.
plaintiff requested a loan modification under the Home
Affordable Modification Program (HAMP), although it is not
clear whether he did so before or after the defendant began
the foreclosure process. Regardless, the defendant denied the
plaintiff's request for a loan modification.
April 4, 2014, and July 16, 2014, the plaintiff sent multiple
letters to the defendant demanding that the foreclosure
proceedings be put on hold to give the plaintiff time to
appeal the denial of his loan modification request. (
Id. at Exs. K-N). Notably, none of these letters
claimed that there were any errors with the plaintiff's
account balance, or with the processing of mortgage payments,
and none of the letters requested any information about these
items. ( Id. )
on April 15, 2015, the defendant reportedly approved the
plaintiff's request for a permanent loan modification. (
Id. at Â¶ 18). That did not resolve everything,
however; the plaintiff disputed the balance the defendant
claimed he owed. ( Id. ). On May 4, 2015, the
plaintiff sent the defendant a letter stating that he had
"requested additional information to support [the] loan
balance and all charges included into said balance." (
Id. at Ex. O). The letter did not specify when the
plaintiff had made this request, and did not provide any
details regarding the plaintiff's belief that the
mortgage balance was incorrect. (The complaint does not do so
either.) Rather, the May 4, 2015 letter attached a loan
modification agreement, apparently from the defendant. The
modification agreement had signature lines for both parties;
the plaintiff had signed but the defendant had not. (
plaintiff began to submit monthly mortgage payments as though
the modification agreement was in effect but the defendant
rejected them. In July 2015, and again in August 2015, the
defendant returned the payments to the plaintiff along with a
letter stating that the payment was insufficient to reinstate
the plaintiff's account. ( Id. at Exs. Q, S).
August 30, 2015, the plaintiff sent a letter to the defendant
threatening legal action. On page three of the letter, the
plaintiff requested five categories of documents, including
"all charges and credits to [the plaintiff's]
account" and an "itemization or copy of invoices
for services charged against [the plaintiff's]
account." ( Id. at Ex. R). The defendant
acknowledged receipt of the letter but never provided the
October 2015, the defendant reinstituted foreclosure
proceedings. ( Id. at Â¶ 32).
complaint advances five causes of action.
â¢ Count I is for the defendant's "failure to render
an accounting." It alleges that the defendant failed to
respond to the plaintiff's request for documentation
regarding his account. At oral argument, the plaintiff
described this claim as "derivative" of his claim
in Count III for violation of the Fair Debt Collection
â¢ Count II is for violation of the Real Estate Settlement
Procedures Act ("RESPA"), 12 U.S.C. Â§Â§ 2601-2617.
It alleges that the defendant failed to do several things it
was required to do. Specifically, the defendant allegedly
failed to provide the plaintiff with a proper foreclosure
notice, failed to properly identify the underlying debt owner
and servicer, refused to allow the plaintiff to reinstate his
account after default, unlawfully accelerated the mortgage,
and failed to respond to the plaintiff's "qualified
written requests" ("QWR's") for
information about his mortgage prior to initiating
â¢ Count III is for violation of the Fair Debt Collection
Practices Act ("FDCPA"), 15 U.S.C. Â§Â§ 1692-1692p.
It alleges that the defendant used deceptive practices to
collect the amounts due under the loan, including failing to
identify the holder of the note and failing to provide
â¢ Count IV is for violation of the Home Affordable
Modification Program ("HAMP"). It alleges that the
defendant engaged in unlawful "dual tracking, "
that is, it pursued foreclosure while it also considered the
plaintiff's loan ...