Debtor Stated Plausible Claims for Stay and Discharge Violations, Beating Servicers’ Motion to Dismiss, Where Servicers’ Notices Claimed “Action Required” and that “Delinquency” Existed

Debtor Stated Plausible Claims for Stay and Discharge Violations, Beating Servicers’ Motion to Dismiss, Where Servicers’ Notices Claimed “Action Required” and that “Delinquency” Existed

Plaintiff filed this lawsuit against Defendants Wells Fargo Home Mortgage d/b/a America’s Servicing Company (“ASC”) and the Bank of New York Mellon Trust Company, N.A., as successor-in-interest to JP Morgan Chase, N.A., for certificateholders of the Nomura Asset Acceptance Corporation Mortgage Pass-Through Certificates, Alternative Loan Trust Series 2005-AR2 (“Bank of New York”). She alleges that ASC, acting as Bank of New York’s agent, unlawfully communicated with her during the pendency of her five-year Chapter 13 bankruptcy proceeding, and again following her bankruptcy discharge, in violation of 11 U.S.C.A. §§ 362(a)(6) and 524(a)(2) (2017). Plaintiff sued under the  the federal Fair Debt Collection Practices Act, 15 U.S.C.A. §§ 1692, et seq. and two State Statutes.

The Defendants have moved to dismiss Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

In December 2004, Plaintiff and her then-husband executed a $325,000 promissory note secured by a mortgage on their home (the “Property”). She and her husband divorced in 2007, with Plaintiff receiving the sole ownership of the Property. She ceased making mortgage payments in October 2008.

In May 2009, Mortgage Electronic Registration Systems, Inc., as nominee of the original lender, assigned the mortgage and note to defendant Bank of New York. ASC was Bank of New York’s loan servicer at all relevant times. Bank of New York initiated foreclosure proceedings in the Maine District Court in June 2009 and received a Judgment of Foreclosure and Sale in August 2010.

Pursuant to State Statute, there was a 90-day redemption period following the foreclosure judgment. In October 2010, with 44 days remaining in the redemption period, Plaintiff filed a chapter 13 bankruptcy petition and physically vacated the Property, believing that this was a requirement of the Judgment of Foreclosure and Sale. Pursuant to 11 U.S.C.A. §108(b) (2017), the redemption period was automatically extended by 60 days after Plaintiff’s bankruptcy petition date, to December 11, 2010. The redemption period expired without the Property being redeemed.

Her Chapter 13 Plan (the “Plan”) was filed later in December and was confirmed by the Bankruptcy Court without objection in January 2011. Five years later, in June 2015, the Bankruptcy Court discharged the Plaintiff from bankruptcy.

Beginning as early as October 2010 and continuing until September 2016, ASC sent at least 28 letters and notices to Plaintff concerning the Property and the promissory note. These communications form the basis for her claims against the Defendants.

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