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Garfield v. Ocwen Loan Servicing, LLC

United States District Court, W.D. New York

January 23, 2015

DONNA GARFIELD, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, Defendant

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[Copyrighted Material Omitted]

Page 473

For Donna Garfield, Plaintiff: Kenneth R. Hiller, LEAD ATTORNEY, Law Offices of Kenneth Hiller, Amherst, NY; Seth Andrews, Law Offices of Kenneth Hiller, PPLC, Amherst, NY.

For Ocwen Loan Servicing, LLC, Defendant: Gary Neal Smith, LEAD ATTORNEY, Houser & Allison, APC, Newark, NJ.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge.

INTRODUCTION

Plaintiff Donna Garfield (" Plaintiff') brings this action against defendant Ocwen Loan Servicing, LLC (" Defendant" ) alleging violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (" FDCPA" ). (Dkt. 1). Presently before the Court is Defendant's motion to dismiss the complaint. (Dkt. 6). For the foregoing reasons, Defendant's motion is granted, and Plaintiff's complaint is dismissed in its entirety.

BACKGROUND

The following facts are based on the allegations contained in Plaintiff's complaint. (Dkt. 1).

Plaintiff incurred a mortgage loan debt with Litton Loan Servicing, L.P. ( Id. at ¶ 9). Plaintiff defaulted on the debt. ( Id. at ¶ 11).

In or about 2009, Plaintiff filed for Chapter 13 bankruptcy in the United States Bankruptcy Court for the Western District of New York. ( Id. at ¶ 13). The mortgage debt was listed as one of Plaintiff's debts in the bankruptcy proceeding. ( Id.). Defendant acquired the debt after Plaintiff's default and during the pendency of the bankruptcy proceeding. ( Id. at ¶ ¶ 12, 13). Plaintiff alleges that she paid the arrears for the subject debt bye monthly payments through her bankruptcy plan. ( Id. at ¶ 13).

In or about August 2013, Plaintiff's bankruptcy was discharged. ( Id. at ¶ 14). After the discharge, Plaintiff was to make payments in the amount of $938.00 a month towards her mortgage. ( Id. at ¶ 15).

Plaintiff alleges that Defendant never sent her any statement for her mortgage payments from July 2013 through February 2014. ( Id. at ¶ 16). Plaintiff made a payment to Defendant in the amount of $938.00 in November 2013.[1] ( Id. at ¶ 17).

Plaintiff alleges that in or about February 2014, Defendant demanded that Plaintiff pay $21,825.15 for the alleged debt, or it would begin foreclosure proceedings. ( Id. at ¶ 18). Plaintiff further alleges that in or about February 2014, she obtained a copy of her Equifax credit report, and discovered that Defendant reported the debt in the amount of $18,000, which had been included in her Chapter 13 bankruptcy. ( Id. at ¶ 19). Plaintiff disputed Defendant's reporting of the debt to Equifax in or about March 2014. ( Id. at ¶ 20). Equifax also investigated the tradeline for the debt with Defendant; after the investigation, Defendant reported the debt for the amount of $23,532. ( Id.).

On or about March 17, 2014, Plaintiff received a bill from Defendant for her monthly payment of $938.18, plus a current arrears payment of $6,672.34. ( Id. at ¶ 21). On or about April 26, 2014, Plaintiff received a delinquency notice from Defendant stating that she owed $22,684.36. ( Id. at ¶ 22). Plaintiff alleges that as a result of Defendant's actions, she " became nervous, upset, anxious, and suffered from emotional distress." ( Id. at ¶ 23).

PROCEDURAL HISTORY

Plaintiff filed her complaint on July 31, 2014, alleging that Defendant violated the FDCPA when it attempted to collect a

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debt relating to Plaintiff's mortgage, when said debt was previously discharged in a bankruptcy proceeding. (Dkt. 1 at ¶ ¶ 13-26). Specifically, Plaintiff alleges that Defendant violated the FDCPA by stating on various occasions that Plaintiff owed $21,825.15, $18,000, and $22,684.36, which were inaccurate amounts for the subject debt; by communicating on Plaintiff's credit report that she owed $23,532 on the debt; by stating in February 2014, that Plaintiff was in danger of losing her home; by failing to communicate the mini-Miranda warning[2] during conversations with Plaintiff; ...


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