Real Property – Mortgages – Banks & Banking – Foreclosure – Note Holder – RESPA — Unfair Trade Practices Claim

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Crispin v. BAC Home Loans Servicing, LP (Lawyers Weekly No. 12-02-0028, 14 pp.) (Louise W. Flanagan, J.) 5:11-CV-375; E.D.N.C.

Holding: The complaint alleges that, in response to plaintiff’s qualified written request, defendant Bank of America (BofA) identified Natalie Mendez as someone who could help him, but Ms. Mendez told plaintiff she had neither the information nor the authority to help him. If plaintiff’s allegation is true and BofA responded to the qualified written request insufficiently, plaintiff has stated a claim under the Real Estate Settlement Procedures Act.

Defendants’ motion to dismiss is denied.

Even though BofA contends that the relationship between it and plaintiff is one of loan servicer and borrower, since the precise relationship between the parties is disputed, expansion of the factual record is necessary before the court can determine whether BofA’s alleged conduct was in or affecting commerce.

As to the other elements of plaintiff’s unfair trade practices claim, plaintiff alleges that defendants engaged in inequitable practices relating to plaintiff’s home loan and the foreclosure on plaintiff’s home, including but not limited to initiating a foreclosure action without being the holder of the loan or proper trustee and refusing to provide information regarding ownership of the loan when requested by plaintiff. Plaintiff claims he has suffered damages in the form of higher interest rates and fees, costs of making requests, attorney fees for non-existent hearings and foreclosure proceedings. Taking the plaintiff’s allegations as true, as is appropriate at this stage, the court finds the plaintiff has stated a claim for relief under the Unfair and Deceptive Trade Practices Act and denies defendants’ motions to dismiss.