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D'Alessandro v. Ocwen Loan Servicing, LLC

United States District Court, D. New Jersey

May 23, 2018

DENISE D'ALESSANDRO Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         This matter comes before the Court on Defendant's motion to dismiss Count VI of the Complaint, alleging Defendant's violation of the Consumer Fraud Act, N.J.S.A. 56:8-2, pursuant to Fed.R.Civ.P. 12(b)(6).

         I.

         Plaintiff Denise D'Alessandro obtained a mortgage loan evidenced by a note on March 11, 2015 (hereinafter collectively referred to as the "Loan"). (Compl. ¶8). She defaulted on the Loan on December 1, 2013. (Compl. ¶20). Defendant Ocwen Loan Servicing, LLC ("Ocwen") is the servicer of the Loan. (Compl. ¶3).

         On November 5, 2014, Wells Fargo Bank, N.A., as Indenture Trustee under the Indenture relating to IMPAC CMB Trust Series 2005-6, initiated foreclosure proceedings against Plaintiffs home based upon a mortgage loan in the Superior Court of New Jersey, Monmouth County, Chancery Division, (Id. ¶21).

• On August 2, 2017, Metrick sent correspondence to Ocwen captioned "Notice of Error under 12 CFR 1024.35(b)(11)" (NOE/RFI #1). Additionally he requested information related to the servicing of the Loan including a copy of any call notes from Ocwen's August 2, 2017 telephone call with Metrick and explanation as to why a paystub was requested for a future date. (Id. ¶30, Ex 5).
• On August 10, 2017 Ocwen sent written notice to Plaintiff thorugh Metrick stating that the Application was still incomplete ("Incomplete Notice #4). Ocwen requested: "Borrower's paystubs for the second job were not received. Please provide two consecutive paystubs dated in the last 90 days that reflect YTD income figures." (Id. ¶32, Ex. 7)
• On August 11, 2017, Plaintiff, through Metrick, sent the paystubs requested through Incomplete Notice 3 and 4 to Ocwen. Ocwen acknowledged receipt. (Id. ¶¶33-34, Ex.8).
• On August 14, 2017, Ocwen sent written notice to Plaintiff stating that the Application was still incomplete ("Incomplete Notice #5). Ocwen requested "Borrower's paystubs for the second job." (Id. ¶35, Ex. 9)
• On August 15, 2017, Ocwen sent written notice to Plaintiff stating that the Application was still incomplete ("Incomplete Notice #6). Ocwen asked for additional information regarding Plaintiffs employment. (Id. ¶36, Ex. 10).
• On August 17, 2017 Metrick spoke with Ocwen's representative and was advised as to the specific information that was required to satisfy Incomplete Notice #6. (Id. 37).
• Accordingly, on August 22, 2017, Plaintiff, through Metrick, sent correspondence to Ocwen captioned "Request for Information Pursuant to Section 1024.36 pf Regulation X Notice of Error Pursuant to Section 1024.35(b)"(NOE/RFI #2) (Id. 38 Ex 11). Metrick attached a letter of explanation providing all of the information requested by the representative. (Id. 39). In this letter, Plaintiff also requested information related to the servicing of the Loan, including a copy of any call notes from Ocwen's August 17, 2017 telephone call to Metrick and an updated payoff quote for the Loan. (Id. ¶40).
• On August 23, 2017, Plaintiff, through Metrick, sent correspondence to Ocwen captioned "Notice of Error under 12 CFR 1024.35(b)(ll)" (NOE/RFI #3) stating that Ocwen committed an error related to the servicing of the Loan by requesting pay stubs through Incomplete Notice #4 that were confirmed with the representative on August 17, 2017 via telephone to have already been in Ocwen's possession prior to sending such letter and for then requesting the same paystubs yet against less that 48 hours later. (Id. 42, Ex. 13). Plaintiff also enclosed a copy of pay stubs with the NOE which had been previously submitted. (Id. ¶43).
• On August 24, 2017, Ocwen sent correspondence in response of NOE/RFI #1 though which Ocwen allegedly refused to provide the requested call notes claiming that "we are unable to process your request to provide [Plaintiff] with the call transcripts, as these are for internal purposes only." (Id. ¶45).
• On August 24, 2017, Ocwen sent written notice to Plaintiff stating that the application was incomplete (Incomplete Notice #7). In this notice Ocwen requested the same information that were requested in Notices #3, 4, 5, which the representative confirmed Ocwen ...

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