United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on Defendant Ocwen Loan
Servicing, LLC's motion to dismiss Plaintiff Anna
Mannarino's Complaint (ECF 6). For the reasons discussed
herein, Defendant's motion is denied.
action, Plaintiff alleges that Ocwen failed to exercise
reasonable diligence in reviewing her loss mitigation
application regarding Plaintiffs home mortgage loan, and
failed to timely respond to Plaintiffs three Notice of Errors
in violation of the Real Estate Settlement Procedures Act
(RESPA), and Regulation X. See 12 C.F.R. §
1024, et seq.
Anna Mannarino owns the property located at 131 Crawfords
Corner Road, Holmdel, New Jersey 07773 (hereinafter, the
"Property"). (Compl. at ¶ 1; see ECF
1). Plaintiff defaulted under the loan and mortgagee and
Deutsche Bank National Trust Company ("Deutsche")
commenced a Foreclosure Action in the Superior Court of New
Jersey on August 13, 2012. (ECF No. 1-1 Ex. A, Foreclosure
Docket) (referred to as "Lawsuit 1").
October 16, 2014, Plaintiff filed a separate suit against
Deutsche in the Superior Court of New Jersey, alleging the
same defenses and claims asserted in the Foreclosure Action.
(ECF 6- 5). Thereafter, Deutsche removed the case to this
Court (referred to as "Lawsuit 2"). See
Mannarino v. Deutsche Bank National Trust Company, et
al, 3:14-cv-07771 (MAS-TJB)
Lawsuit 1, the Final Judgment of Foreclosure was entered
against Plaintiff on December 12, 2014. (Id. at
September 14, 2015, in Lawsuit 2, the Court granted
Deutsche's motion to dismiss pursuant to Fed.R.Civ.P.
Rule 12(b)(6) with prejudice; and without a right to amend
the Complaint. (ECF 6-6).
Lawsuit 1, Deutsche proceeded to execute on the property and
scheduled a sheriffs sale for December 5, 2016 on the
Property. (Compl. at ¶ 24; ECF 6-4). Plaintiff stayed
the sheriffs sale until January 9, 2017. (Compl. at ¶
25, ECF 1-3.)
Lawsuit 1, Ocwen serviced Plaintiffs mortgage loan and was
responsible for assessing Mannarino's loss mitigation
applications, and other mortgage relief options that were
undertaken to avoid a judicial sale of the property. (Compl.
at ¶ 3-4).
April 14, 2017 Plaintiff instituted this suit against Ocwen
(referred to as "Lawsuit 3"). Plaintiff alleges
that Ocwen is a "debt collector" under the Fair
Debt Collection Practices Act ("FDCPA"), 15 U.S.C.
§1692a(6). (Compl. at ¶¶ 3-4, 13). Moreover,
Plaintiff alleges her note and mortgage is a "federally
related mortgage loan" as that term is defined by 12
C.F.R. § 1024.2(b). (Compl. at ¶ 17). This means
that Ocwen must comply with Regulation X and other RESPA
provisions. As such, Ocwen did not fall within an exception
for "small servicers" (12 C.F.R.
§1026.41(e)(4)) or the exemption for a "qualified
lender" (12 C.F.R. §617.700). (Compl. at ¶18).
Complaint alleges that the last date to apply for the Home
Affordable Modification Program ("HAMP") was
December 31, 2016. (Compl. at ¶ 29; ECF 1-4); and a
borrower was required to submit an "Initial
Package" on or before December 30, 2016. See, Making
Home Affordable Supplemental Directive 16-02. (Compl. at
¶ 30; ECF 1-4). Plaintiff alleges she submitted the
documents required of an Initial Package (Loss Mitigation
Application), including some additional forms (RMA Form, Form
4506-T or 4506 T-EZ) as evidence of income, and Dodd-Frank
certification. (Compl. at ¶ 31; ECF 1-5). Within the
Loss Mitigation Application, Plaintiff included a profit and
loss statement for her business from the period of January 1,
2016, to October 31, 2016. (Compl. at ¶ 27). On November
28, 2016, Plaintiff submitted a Loss Mitigation Application
to Ocwen via email and facsimile. (Compl. at ¶ 26; ECF
November 29, 2016, Defendant sent Plaintiff correspondence
informing Plaintiff that Ocwen was "unable to offer a
Home Affordable Modification because ... the confirmed
foreclosure sale date was within seven business days, "
which is an exception to the HAMP program. Despite same,
Defendant continued to review the Loss Mitigation Application
because it realized that the Loss Mitigation Application was
submitted more than seven business days before the
foreclosure sale. (Compl. at ¶ 34).
on December 9, 2016, Defendant confirmed receipt of the Loss
Mitigation Application and requested that Plaintiff submit a
profit and loss statement. (Compl. at ¶ 35; ECF 1 -7).
Despite the fact that Plaintiff had already submitted a
profit and loss statement with her initial Application, on
December 21, 2016, Plaintiff re-submitted the profit and loss
statement to Ocwen via mail. (Compl. at ¶ 36).
Evidently, Defendant received this mailing on December 27,
2016 (Id.), and Plaintiff again submitted the Profit
and Loss statement to Defendant via facsimile the next day.
(Compl. ¶ 36; ECF Nos. 1-8, 1-9).
January 4, 2017, Plaintiffs attorney spoke with a
representative (Niral) of Ocwen. Niral advised Plaintiffs
attorney that Ocwen had not received the profit and loss
statement; and Defendant would not review Plaintiffs Loss
Mitigation Application because a complete package was not
received by December 30, 2016. (Compl. at ¶ 37; ECF Nos.
1-8, 1-9). On the same date, Plaintiff submitted the profit
and loss statement to Niral via email. (Compl. at ¶ 38;
January 5, 2017, Plaintiffs counsel filed a First Notice of
Error to Defendant via mail, which Defendant received on
January 9, 2017. (Compl. ¶ 39-40; ECF Nos. 1-11, 1-12).
This Notice informed Defendant that the profit and loss
statement was previously submitted to Defendant via facsimile
and email and that Defendant had committed a servicing
violation by providing false information to Plaintiff
regarding the actual date on which the profit and loss
statement was received. 12 C.F.R. § 1024.35. (Compl. at
¶ 41; ECF Nos. 1-8, 1-9, 1-11).
January 24, 2017, Ocwen, confirmed receipt of the First
Notice of Error, and informed Plaintiff: "We have
determined additional time is required to review the details
pertaining to your specific request... [if] we are unable to
respond within the 30-day anticipated timeline. Under
[RESPA], we are afforded an additional 15 days to complete
our research and provide a response." (Compl. at
¶42; ECF 1-13).
February 1, 2017, Plaintiffs attorney spoke with a
representative (Sabarish) of Ocwen. Sabarish informed
Plaintiffs attorney that Defendant had not received the
profit and loss statement. (Compl. at ¶ 43; ECF Nos.
1-8, 1-9, 1-10). Plaintiffs attorney refuted Sabarish's
representation by advising that the profit and loss statement
had been submitted three times through facsimile, email, and
mail. Id. Later, Sabarish confirmed ...