Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shelley v. New Penn Financial, LLC

United States District Court, E.D. Louisiana

February 27, 2018

MICHAEL GEORGE SHELLEY
v.
NEW PENN FINANCIAL, LLC d/b/a SHELLPOINT MORTGAGE SERVICING and DITECH FINANCIAL LLC

         SECTION: A (4)

          ORDER AND REASONS

          JAY C. ZAINEY UNITED STATES DISTRICT JUDGE.

         Before the Court is a Motion for Judgment on the Pleadings (Rec. Doc. 20) filed by Defendant Ditech Financial LLC (“Ditech”). Also before the Court is a Motion for Judgment on the Pleadings (Rec. Doc. 21) filed by Defendant New Penn Financial LLC d/b/a Shellpoint Mortgage Servicing (“Shellpoint”). Plaintiff Michael Shelley has not filed an opposition to either of the the motions. The motions, set for submission on February 7, 2018, are before the Court on the briefs without oral argument. Having considered the motions and memoranda of counsel, the record, and the applicable law, the Court finds that the Defendants' motions should be GRANTED for the reasons set forth below.

         I. Background

         On March 18, 1999, Plaintiff executed a promissory note in favor of Standard Federal Bank, a Federal Savings Bank, in the principal amount of $30, 400.00 (the “Note”). The Note is paraphed for identification with and secured by a mortgage that was signed by Plaintiff on the same date, and is recorded in the Parish of Jefferson, State of Louisiana as Instrument Number 9917840 (the “Mortgage”). The Mortgage encumbers the immovable property located at 2808 Rose Drive, Gretna, Louisiana (the “Property”).

         ABN AMRO Mortgage Group, Inc. (“ABN AMRO”), as successor to Standard Federal Bank, endorsed the Note in blank, rendering the Note bearer paper. (Rec. Doc. 21-2). ABN AMRO assigned the Mortgage to Green Tea Servicing, LLC, which merged with Ditech Financial LLC (“Ditech”) on August 31, 2015. Ditech then assigned the Mortgage to Shellpoint on June 17, 2017. (Rec. Doc. 21-5). Shellpoint currently services the loan.

         Plaintiff allegedly defaulted on the Note and Mortgage by failing to remit the November 1, 2015 monthly installment, and all subsequent installments. As a result of Plaintiff's default and his failure to cure the default, the loan was accelerated and the entire unpaid principal balance, together with interest, and allowable fees, are now allegedly due, owing, and unpaid. (Rec. Doc. 1, p. 2). Prior to acceleration, on or about December 16, 2015, Ditech, then the servicer, allegedly caused a notice of default to be sent to Plaintiff, stating the specific amounts in default. The notice advised Plaintiff that if the default was not timely cured, the entire indebtedness would be declared immediately due and payable without further demand or notice. Id.

         On or about June 14, 2016, Ditech filed a lawsuit against Plaintiff in the Twenty-Fourth Judicial District Court for the Parish of Jefferson to enforce its rights in the Note and Mortgage against Plaintiff. Although it remains unclear, this action appears to have resulted in the Sheriff Sale of the Property on October 25, 2017. (Rec. Doc. 1-4, p. 4). In response to the lawsuit, Plaintiff filed a civil action on October 5, 2017 against Defendants Ditech and Shellpoint in the Second Justice Court for the Parish of Jefferson. (Rec. Doc. 1-4). Defendant Ditech filed a written notice of its consent to and joinder in the Notice of Removal to this Court by Shellpoint. (Rec. Doc. 11).

         II. Legal Standard

         A motion for judgment on the pleadings is subject to the same standard as a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). When considering a motion to dismiss under Rule 12(b)(6), a court must accept as true all well-pleaded facts and must draw all reasonable inferences from those allegations in the plaintiff's favor. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (parenthetical in original) (quotations, citations, and footnote omitted).

         III. Law and Analysis

         Plaintiff seeks $2, 000 in penalties under the Federal Debt Collection Practices Act (“FDCPA”), a letter from Defendants to “all 3 credit reporting agencies” requesting that negative reporting in connection with the Note be removed under the Fair Credit Reporting Act (“FCRA”), and that the sale ordered in the Foreclosure Action be enjoined pending resolution of this lawsuit. (Rec. Doc. 1-3).

         Defendants contend their respective motions should be granted for similar reasons. Therefore, to an extent, the Court's analysis will apply to both Defendants. Defendant Ditech claims that it is entitled to judgment on the pleadings because (1) Plaintiff waived the right of presentment; (2) Ditech is not a debt collector under the Fair Debt Collection Practices Act (“FDCPA”); (3) there is no private right of action provided by the FCRA, and Plaintiff failed to satisfy conditions precedent to such a claim; and (4) Plaintiff's request for injunctive relief is barred by the Anti-Injunction Act. (Rec. Doc. 20). Defendant Shellpoint claims that it is entitled to judgment on the pleadings because (1) Plaintiff misconstrues the meaning of presentment and dishonor; (2) Plaintiff waived presentment; (3) Plaintiff's FDCPA claim is based on his wrongful presentment claim; (4) Plaintiff has no right of action under the FCRA and Plaintiff failed to comply with the statutory requirements for asserting such a claim; and (5) Plaintiff's injunctive relief request does not fall within the Anti-Injunction Act's exceptions. (Rec. Doc. 21-1).

         a. Failure ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.