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Hart v. FCI Lender Services, Inc.

United States District Court, Second Circuit

January 15, 2014

MATTHEW J. HART, on behalf of plaintiff and the class defined herein, Plaintiff,
v.
FCI LENDER SERVICES, INC., Defendant.

Mark F. Viencek, Esq., Rochester, New York.

Tiffany N. Hardy, Esq., Edelman Combs Latturner & Goodwin, LLC, Chicago, Illinois, for Plaintiff.

Andrew J. Wells, Esq., Phillips Lytle LLP, New York, New York,

Preston Lee Zarlock, Esq., William D. Christ, Esq., Phillips Lytle LLP, Buffalo, New York, for Defendant.

DECISION AND ORDER

CHARLES J. SIRAGUSA, District Judge.

INTRODUCTION

This is an action alleging a violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Now before the Court is Defendant's motion (Docket No. [#46]) to dismiss the Amended Complaint [#47] for failure to state a claim. The application is granted and this action is dismissed.

BACKGROUND

Unless otherwise noted, the following facts are taken from the Amended Complaint [#47], including attached exhibits. At all relevant times Plaintiff was the borrower in connection with a mortgage loan. Prior to June 27, 2012, Plaintiff's mortgage loan was serviced by GMAC Mortgage, LLC ("GMAC"). Effective June 28, 2012, the owner of the debt, whose identity is not set forth in the record, retained Defendant FCI Lender Services, Inc. ("FCI"), to service the mortgage loan. FCI regularly services mortgage loans, and is involved in the restructuring of loans and foreclosures. At the time FCI took over the servicing of the loan from GMAC, Plaintiff was behind in his payments.[1]

Pursuant to the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605(c), as the new servicer of Plaintiff's loan, FCI was required to send Plaintiff a notice, informing him that it was assuming responsibility for servicing the loan.[2] RESPA requires that such notices contain the following information:

(A) The effective date of transfer of the servicing described in such paragraph.
(B) The name, address, and toll-free or collect call telephone number of the transferee servicer.
(C) A toll-free or collect call telephone number for (i) an individual employed by the transferor servicer, or (ii) the department of the transferor servicer, that can be contacted by the borrower to answer inquiries relating to the transfer of servicing.
(D) The name and toll-free or collect call telephone number for (i) an individual employed by the transferee servicer, or (ii) the department of the transferee servicer, that can be contacted by the borrower to answer inquiries relating to the transfer of servicing.
(E) The date on which the transferor servicer who is servicing the mortgage loan before the assignment, sale, or transfer will cease to accept payments relating to the loan and the date on which the transferee servicer will begin to accept such payments.
(F) Any information concerning the effect the transfer may have, if any, on the terms of or the continued availability of mortgage life or disability insurance or any other type of optional insurance and what action, if any, the borrower must take to maintain coverage.
(G) A statement that the assignment, sale, or transfer of the servicing of the mortgage loan does not affect any term or condition of the security instruments other than terms directly related to the servicing of such loan.

12 U.S.C. § § 2605(b)(3) & (c)(3). On or about July 17, 2012, FCI sent Plaintiff a notice that contained all of the information referenced above in subsections (A), (B), (C), (D), (E) and (G).[3] See, Amended Complaint [#47], Ex. A.

More specifically, FCI sent Plaintiff a form letter, [4] entitled "Transfer of Servicing Letter" ("the notice" or "the RESPA letter"). Amended Complaint [#47], Ex. A. The notice begins, "Please be advised that effective June 28, 2012 the servicing of your mortgage loan with GMAC Mortgage, LLC, secured by a Deed of Trust/Mortgage on real property, has been assigned to FCI Lender Services, Inc." Id. The notice then indicates that such transfer of servicing does not "affect any term or condition of the mortgage instruments." Id. The notice also indicates where Plaintiff should send payments, and states, in pertinent part:

Beginning June 28, 2012[5] you should mail your payments, including all past due payments, to FCI Loan Services, Inc. at ...

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