The Court denied a Motion to Dismiss
September 19, 2017: The Court denied a motion to dismiss filed by Ditech Financial (formerly known as Greentree Servicing) and Fannie Mae against a borrower who alleged Ditech, acting on behalf of Fannie Mae, attempted to collect fees and costs from him he did not owe and recoup escrow advances that should have been capitalized into a 2013 loan modification he received. The Plaintiff alleged common law and statutory violations for Ditech's "repeated coercive and harassing attempts to collect on monies not owed by [him]." He brought claims for fraud Fraud and Fraudulent Misrepresentation; violations of the Maine Unfair Trade Practices Act (MUTPA), 5 M.R.S. 205-A et seq.; violations of the Maine Fair Debt Collection Practices Act (MFDCPA), 32 M.R.S. 11001 et seq.; violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692 et seq.; violations of the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. 2601 et seq.; and Breach of Fiduciary Duty. The Court found that the Plaintiff had alleged sufficient facts about Ditech's attempts to collect on, and misrepresentations of, money he did not actually owe due to a previous loan modification and settlement agreement to support the claims alleged. The MFDCPA and FDCPA claims were allowed against Ditech only.
The Court granted the Plaintiff summary judgment
On September 20, 2017, the Court granted the Plaintiff summary judgment on his claims for MUTPA, FDCPA & MFDCPA (Ditech only), part of RESPA, and Breach of Fiduciary Duty. The Court found that Ditech engaged in such violations when it first attempted and actually collected fees that had been waived as part of a previous settlement agreement.Then, Ditech attempted to collect, and collected, monthly payments on an alleged escrow advance that they should have capitalized to the loan during a modification and then when the Plaintiff reinstated the loan after settlement. As a result of the increased payment demands, the Plaintiff fell behind on his loan and received past due notices and foreclosure prevention notices. This was the second time the Plaintiff faced a wrongful foreclosure as he had brought claims against Ditech in 2014 which settled. The Plaintiff did pay the increased amounts to avoid foreclosure all the while trying to get Ditech to correct the account.The Court found that Ditech's conduct, which occurred after the effective date of the settlement agreement, was not barred by the agreement and that such conduct was abusive, misleading, and unfair.
Misconduct and Failure to Notify
"In failing to notify Mr. Bowen about the escrow deficiency and shortage at reinstatement but then attempting to collect higher monthly payments almost a year later and sending Mr. Bowen letters explaining that his account was in default because his mortgage payment was past due, Ditech engaged in conduct, the natural consequence of which is to abuse Mr. Bowen."
Attorneys Andrea Bopp Stark and Chris Keach, along with Gary Goldberg of Terry Garmey & Assoc., represent the Plaintiff. The case is set for trial December 4, 2017. The Court decisions can be found at: Bowen v. Ditech et al. 2:16-cv-00195-JAW; 2017 WL 4183081 (summary judgment).