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James S. Hawkins-El, Iii, Pro Se v. First American Funding

September 19, 2012

JAMES S. HAWKINS-EL, III, PRO SE, PLAINTIFF,
v.
FIRST AMERICAN FUNDING, LLC, IRA BAILEY, MARIA GREEN, SONIA LARICCIA AND BRANDON BAILEY,
DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:

MEMORANDUM AND ORDER

Pro se plaintiff James S. Hawkins-El, III, brought this action against First American Funding, LLC ("FAF"), Ira Bailey, Maria Green, Sonia LaRiccia and Brandon Bailey (collectively, "Individual Defendants" and, collectively with FAF, "Defendants") asserting claims pursuant to the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605, the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., common law fraud and negligence. Defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which Plaintiff opposed. For the reasons set forth below, Defendants' motion is granted.

BACKGROUND

Plaintiff resides in Queens, New York. (Compl., Dkt. Entry 1, ¶ 1.)*fn1 FAF is a New Jersey limited liability company that purchases subordinate loans. (Decl. of Ira Bailey, Dkt. Entry 27-1 ("Bailey Decl."), ¶ 2.) The Individual Defendants are employees of FAF. (Id.)

On November 1, 2006, Plaintiff signed a loan agreement and obtained a $100,000 revolving home equity line of credit from Washington Mutual Bank ("Washington Mutual"). (See Compl. Ex. D.) The loan was secured by a mortgage co-signed by Plaintiff and another individual, Valerie Gaston, granting Washington Mutual a security interest in a property they co-owned in Queens, New York.*fn2 (See id. Ex. K.) The mortgage was recorded in the Office of the City Register of the City of New York on December 7, 2006. (See id.)

On September 25, 2008, JPMorgan Chase Bank ("JPMorgan") merged with Washington Mutual and acquired Plaintiff's loan. (Bailey Decl. ¶ 5.) On August 17, 2009, Plaintiff sent a letter to JPMorgan disputing that he owed JPMorgan $83,803.07, as JPMorgan claimed, and demanding that JPMorgan fix its error. (Id. Ex. F.) Plaintiff also filed a complaint with the United States Office of the Comptroller of the Currency ("OCC") on February 20, 2010, asserting that JPMorgan "did not have the lawful/legal authority or right to convert [his] accounts" and that JPMorgan violated the Loan Agreement. (See Compl. Ex. N.) On November 2, 2010, the OCC responded to Plaintiff, explaining that it had contacted JPMorgan and JPMorgan maintained that neither it nor Washington Mutual violated any covenants of the loan agreements when the loan was transferred to JPMorgan. (Id. Ex. C. at 1.) The OCC also stated, "[b]ased on the information provided, the bank has provided you with documentation and explained why it believes that additional information is unavailable. The adequacy of that information may be a factual dispute between you and the bank that we cannot address." (Id. at 2.)

On August 3, 2010, FAF purchased Plaintiff's loan and mortgage from JPMorgan. (Id. Ex. B.) In the following weeks, FAF sent two letters to Plaintiff and Gaston informing them that the loan and mortgage had been assigned to FAF from JPMorgan, describing some of their rights pursuant to RESPA and stating that their next payment of $226.39 was due on September 1, 2010. (Id. Exs. E, G.) Plaintiff responded with two letters he captioned as "legal notices" to FAF asserting that he is not "Mr. James S. Hawkins," does not have a home loan with JPMorgan and has not received a "good-bye" letter from JPMorgan. (Id. Exs. F, H.) Plaintiff also suggested that FAF had contacted him in error. (See id.)

On August 23, 2010, FAF responded to Plaintiff by letter, explaining that Washington Mutual had merged with JPMorgan, which had then transferred the loan to FAF, and invited Plaintiff to contact FAF to discuss his account. (Id. Ex. I.) FAF also enclosed copies of the note and mortgage, the agreement assigning the mortgage from JPMorgan to FAF and a "good-bye" letter to Plaintiff explaining that JPMorgan had assigned the debt to FAF. (Id.; see also id. Ex. W.) On August 26 and September 7, 2010, Plaintiff responded to FAF by letters, styled as "legal notices," asserting that: i) the assignment from JPMorgan was invalid; ii) he never received a "good-bye letter" from JPMorgan; and iii) he never borrowed $100,000 from Washington Mutual. (Id. Exs. J, L.)

On September 13, 2010, FAF sent a letter to Plaintiff notifying him that he was in default of the loan and mortgage, and, if he did not pay FAF the amount due, $4,211.88, within 30 days, the entire amount of the loan would become due immediately. (Id. Ex. M.) On September 18, 2010, Plaintiff responded to FAF by letter, asking FAF to stop referring to Plaintiff as "Mr. Hawkins" and asserting that the assignment of Plaintiff's debt from JPMorgan was invalid because the debt was in dispute when it was sold to FAF. (Id. Ex. O.)

In November 2010, FAF sent Plaintiff a warning that he had been in default for over 180 days and that he must pay $5,561.38 by February 22, 2011 to cure the default. (Id. Ex. P.) On February 18, 2011, Plaintiff paid FAF $5,564.38. (Id. Ex. Z.) On February 27, 2011, Plaintiff informed FAF by letter that the payment was made under duress and solely to halt the "illegal" foreclosure process. (Pl.'s Aff. in Opp'n to Def.'s Mot. for Summ. J., Dkt. Entry 41 ("Pl.'s Aff."), Ex. H.) Plaintiff also asked that FAF refund the money immediately. (Id.)

FAF sent Plaintiff another notice on April 2, 2011, informing Plaintiff that he was in default and owed $467.78. (Compl. Ex. T.) In a separate letter dated April 2, 2011, FAF informed Plaintiff that his loan had been in default for over 30 days and that Plaintiff must cure the default by paying FAF $1,191.95 by July 2, 2011. (Id. Ex. U.) Plaintiff responded to FAF with a letter, dated April 8, 2011, again asserting that he disputed owing FAF any money. (Id. Ex. V.)

On May 19, 2011, Plaintiff filed the instant action, seeking damages pursuant to RESPA, FDCPA, common law fraud and negligence. (See generally Compl.) Plaintiff alleges that: i) FAF*fn3 violated RESPA by failing to respond to his letters, which he claims were "qualified written requests," as is required pursuant to the statute (id. ¶¶ 56-64); ii) FAF violated the FDCPA because: a) it did not send Plaintiff verification of the debt when he disputed it; b) attempted to collect the debt while it was disputed; c) made false statements when trying to collect the debt; and d) harassed Plaintiff (id. ¶¶ 65-71); iii) FAF was negligent by breaching its legal duties pursuant to the FDCPA and RESPA (id. ¶ 72); and iv) Defendants fraudulently misrepresented that they were complying with the law, had a right to collect on the debt and that a paralegal was FAF's attorney. (Id. ¶¶ 73-82.)

Defendants moved for summary judgment, asserting that: i) FAF did not violate RESPA because Plaintiff's letters were not "qualified written requests" under the statute and subordinated loans, such as Plaintiff's, are not covered by RESPA (Defs.' Mem. of Law in Supp. of Mot. Pursuant to F.R.C.P. 56, Dkt. Entry 30 ("Defs.' Mem."), at 3-6); ii) Plaintiff's negligence claim is insufficient because Defendants do not owe any non-contractual duties to Plaintiff (id. at 7); iii) Plaintiff has not shown specifically how each defendant has defrauded Plaintiff or reasonable reliance (id. at 8-9); iv) the FDCPA does not apply to FAF because: a) it is not a debt collector; b) the statute does not apply to mortgages; and c) Plaintiff has not shown any violations of the statute (id. at 9-12); and v) there is no evidence that Plaintiff sustained damages. (Id. at 7-8.) Plaintiff opposed Defendants' motion, essentially restating many of the same allegations he made in the Complaint, i.e., that the debt is invalid and Defendants acted in bad faith and in violation of RESPA and the FDCPA. (See generally Pl.'s Aff. 1-19.)

LEGAL STANDARD

Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The court must view all facts in the light most favorable to the nonmoving party, but "only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Id. A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmoving party, however, may not rely on "[c]onclusory allegations, conjecture, and speculation," Kerzer v. Kingly Mfg., 156 F. 3d 396, 400 (2d Cir. 1998). "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship,22 F. 3d 1219, 1224 (2d Cir. 1994) (citing Dister v. Cont'l Grp., Inc.,859 F. 2d 1108, 1114 (2d Cir. 1988)).

The court holds pro se pleadings to "to less stringent standards than formal pleadings drafted by lawyers." Hughes v. Rowe, 449 U.S. 5, 9 (1980). The court construes them "to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau ...


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