United States District Court, D. Massachusetts
Paul J. McMann and Eileen R. McMann, Plaintiffs,
Selene Finance LP, as servicer for Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust, as trustee for Premium Mortgage Acquisition Trust, and Korde & Associates, PC, Defendants.
Nathaniel M. Gorton, United States District Judge.
and Eileen R. McMann (“plaintiffs”) seek to
enjoin the foreclosure sale of their property located on
Crescent Street in Weston, Massachusetts (“the
property”). They allege that Selene Finance LP
(“Selene”), the loan servicer of the property,
and Korde & Associates, PC (“Korde”), counsel
of record for Selene and a debt collector pursuant to the
Fair Debt Collection Practices Act, violated federal and
state statutes in the servicing of the loan and the attempted
collection of plaintiffs' debt. Plaintiffs seek both
injunctive and monetary relief.
filed an emergency motion to postpone foreclosure sale late
Friday afternoon, December 8, 2017, and a hearing on that
motion was held on Monday, December 11, 2017, at 10:30 A.M.
The foreclosure sale was scheduled to occur later that same
March, 2002, plaintiffs executed a mortgage with a
predecessor mortgagee to secure a $578, 000 loan. In January,
2008, plaintiffs defaulted on the mortgage and continue to be
in default. When asked at the hearing whether he had made any
payments on the mortgage since 2008, Mr. McMann, representing
himself pro se, answered that he does not recall.
around May 11, 2017, plaintiffs sent Korde a Qualified
Written Request (“QFR”) pursuant to the Real
Estate Settlement Procedures Act, 12 U.S.C. § 2605. That
QFR requested written responses and production of documents
with respect to a myriad of questions relating to the
mortgage. Selene purportedly responded to that QFR by letter
dated July 31, 2017, although plaintiff denies that he ever
received the letter. Plaintiffs also contend that Korde sent
correspondence to Eileen McMann's sister in an effort to
collect the alleged debt.
Court will treat plaintiffs' emergency motion as a motion
for a preliminary injunction. To obtain injunctive relief,
the plaintiff must demonstrate: 1) a substantial likelihood
of success on the merits, 2) a significant risk of
irreparable harm if the injunction is withheld, 3) a
favorable balance of hardships and 4) a fit (or lack of
friction) between the injunction and the public interest.
Nieves-Márquez v. Puerto Rico, 353 F.3d 108,
120 (1st Cir. 2003) (citation omitted).
rely on two statutory violations, allegedly committed by
defendants, to justify the issuance of an injunction. First,
plaintiffs claim that Selene's failure to respond to the
QFR violated RESPA. Pursuant to 12 U.S.C. § 2605, a
borrower may send a loan servicer a Qualified Written Request
“for information relating to the servicing of such
loan” or for assurance that the account is not in
error. 12 U.S.C. § 2605(e)(1). A loan servicer has 30
days to respond to the QFR with a written explanation or
clarification to provide the requested information, explain
why such information is unavailable and either make
appropriate corrections in the account or provide a statement
of reasons confirming its accuracy. See 12 U.S.C. §
hearing held on plaintiffs' emergency motion, Korde
provided plaintiff with a copy of defendant's response to
the QWR, although it did not include the original attachments
to the letter to which plaintiffs will be entitled during
state a claim under the QWR provision of RESPA, a plaintiff
(1) that the servicer failed to comply with the statute's
[qualified written request] rules; and (2) that the plaintiff
incurred actual damages as a consequence of the
Foregger v. Residential Credit Sols., Inc., 2013 WL
6388665, at *4 (D. Mass. Dec. 5, 2013) (citing Okoye v.
Bank of New York Mellon, 2011 WL 3269686, at *17 (D.
Mass. July 28, 2011)).
complaint does not allege, nor did plaintiff argue at the
hearing, that defendants' QFR deficiencies caused any
actual damages. Nor do plaintiffs contend that Korde has
demonstrated a pattern or practice of non-compliance, such
that plaintiffs would be entitled to statutory damages. 12
U.S.C. § 2605(f)(1)(B). Notably, the subject statute
does not provide for injunctive relief as a form of remedy.
the Court concludes that it is unlikely that plaintiffs'
claim will succeed on the merits.
also allege that Korde contacted Ms. McMann's sister in
an attempt to collect the alleged debt. The FDCPA ...