The question is whether a complaint is sufficient to survive a Fed. R. Civ. P. 12(b)(6) Motion when it merely alleges that a mortgage holder violated the discharge injunction by sending routine notices concerning mortgage servicing and foreclosure to a debtor after a discharge in bankruptcy.
The Debtors filed a Chapter 7 petition and they misrepresented on their Schedule A that they did not own real property; they also failed to list Carrington Mortgage Services as a secured creditor on their Schedule D. On their Statement of Financial Affairs, they listed a foreclosure lawsuit, but erroneously indicated that it had been disposed by a judgment when in reality it was still pending in Florida. Finally, the Debtors did not list the home on their Statement of Intention.
About 45 days after the petition was filed, Carrington’s predecessor, BAC Home Loans, filed a Motion for Relief from Stay. The Motion was granted and a month or so later, the Court granted the Debtors a Discharge of their debts.
The day before the Court entered their Discharge, the Debtors filed a complaint alleging that Carrington violated the discharge injunction and the Fair Debt Collection Practices Act (“FDCPA”). Specifically, the Debtors stated that Carrington mailed them Mortgage Statements, Delinquency Notices, Notices of Lender Placed Hazard Coverage, and a Notice of Intent to Foreclose. The Detbors alleged that Carrington “has absolutely no legitimate reason to correspond with Plaintiffs regarding the Property.” The Debtors now seek damages for the alleged violations of the discharge injunction and the FDCPA.
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