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Renee' L. Martin v. Litton Loan Servicing Lp

January 16, 2013

RENEE' L. MARTIN, PLAINTIFF,
v.
LITTON LOAN SERVICING LP, ET AL.,
DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Defendants Litton Loan Servicing LP ("Litton"), Ocwen Loan Servicing LLC ("Ocwen"), Deutsche Bank National Trust Company ("Deutsche Bank"), and Western Progressive LLC ("Western") move to dismiss plaintiff's first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Dckt. No. 32. Plaintiff opposes the motion. Dckt. No. 54.

A hearing was held on the motion on December 12, 2012. Dckt. No. 62. Attorney Douglas Stastny appeared on behalf of defendants; plaintiff appeared pro se. For the reasons stated herein, the undersigned recommends that defendants' motion to dismiss be granted in part and denied in part. The undersigned also orders that the November 15, 2012 findings and recommendations, Dckt. No. 47, are vacated and recommends that plaintiff's motion for a preliminary injunction, Dckt. No. 28, be granted.

I. BACKGROUND

On October 11, 2012, plaintiff, who is proceeding pro se, filed an amended complaint alleging various state and federal claims related to property located at 2428 Covered Wagon Circle, Elverta, California 95626 (the "subject property"). First Am. Compl. ("FAC"), Dckt. No. 26. Plaintiff's first amended complaint alleges thirteen claims for relief: (1) violation of the Real Estate Settlement and Procedures Act ("RESPA"), 12 U.S.C. § 2605; (2) wrongful foreclosure; (3) quasi contract; (4) no contract; (5) quiet title; (6) civil conspiracy; (7) fraudulent misrepresentation; (8) fraudulent concealment; (9) intentional infliction of emotional distress; (10) parole evidence rule; (11) unjust enrichment; (12) fair credit reporting/defamation; and (13) violation of California Business and Professions Code section 17200. Id.

The heart of plaintiff's allegations is that she has paid all of her mortgage payments and that the only basis for the alleged default is the fact that Litton paid her delinquent property taxes and then increased her payment (via an escrow account to recoup the property taxes) unnecessarily and without her permission. She contends that she continued to pay the amount of her agreed upon mortgage payment but defendants stopped accepting her payments because she did not include the property taxes in the total amount and was therefore deemed to be in default. Plaintiff also alleges that she did not sign many of her mortgage documents and therefore disputes their validity. She also contends that she was not properly notified of the transfer of her mortgage from Litton to Ocwen. She further contends that she has been harassed by both Litton and Ocwen, and she contends that they are both damaging her credit by reporting inaccurate delinquencies. She further contends that none of the defendants have any recorded interest in the property. She also challenges the amount listed in the Notice of Default -- $15,974.37.

The first amended complaint alleges:

* Even though the terms of her loan were predatory, plaintiff has made all of the loan payments as agreed and is not in default with the loan. First Am. Compl., ¶ 2.

* None of the named defendants are in the chain of title; none have the authority to foreclose; they have never been the lender and are not authorized as service providers; and cannot make any claims to the mortgage or to the property. Defendants have committed "civil conspiracy" to defraud the court. Id.

* Defendants have commenced an unlawful foreclosure on the subject property. All of plaintiff's mortgage payments have been made and are current. Id. ¶ 4.

* Each month, plaintiff makes a payment in the amount of $1143.00 to Ocwen; Ocwen holds it for 35 days and then rejects the payment. "Ocwen, working jointly with all other defendants rejects each month's payments to falsely establish that Plaintiff is in default, so that all named defendants can foreclose upon Plaintiff's realty and share in the profits." Id. ¶ 5.

* Plaintiff sues Litton, Ocwen, Deutsche, and Western, for commencing the wrongful foreclosure; all defendants have contributed in some way to the unlawful acts. Id. ¶ 16.

* Plaintiff is the owner of the subject property. Id. ¶ 17, Ex. 4.

* Plaintiff refinanced the property with Long Beach Mortgage ("Long Beach") on March 5, 2004. Id. ¶ 18.

* Plaintiff purportedly signed a fixed adjustable rate note, but the note that was provided to plaintiff was unsigned (Ex. 5), as was the deed of trust that was provided to plaintiff (Ex. 6). The only copy of the note that Long Beach provided was an unsigned copy of the "purported" note. Plaintiff disputes the validity of those documents that were not actually signed or initialed by plaintiff. She was not given the opportunity to review the documents other than to quickly initial and sign some pages. Plaintiff was told to leave blank other pages and documents where plaintiff's name appeared. Id. ¶ 19.

* Plaintiff has reviewed the deed of trust that is on file at the Sacramento County Recorder's Office. Id. Plaintiff did not sign or initial some of those documents in connection with the original loan. Plaintiff believes that Long Beach purposely had plaintiff leave some documents blank to add additional terms without plaintiff's consent, and have those documents initialed or signed by someone other than plaintiff. Although plaintiff was told by Long Beach that she would receive all signed documents relating to the loan, she did not receive any documents from Long Beach, including the signed note or deed of trust ("DOT"), that was purportedly signed by plaintiff but which she denies. Plaintiff did receive an unsigned copy of the Fixed Adjustable Rate Rider from Alliance Title Company. Id. ¶ 20.

* Plaintiff is listed as the borrower on the note and DOT and Long Beach is the listed lender and beneficiary. Id. ¶ 21.

* Between March 5 and June 5, 2004, Long Beach transferred the note to Washington Mutual Mortgage ("WaMu"), its parent company. The note was then sold to an investment trust. Thereafter, WaMu acted as a servicer of the loan, but was not the lender or beneficiary. Id. ¶ 22.

* After timely making a fixed payment of $1143.60 to WaMu each month for two years, plaintiff and WaMu modified the loan agreement on May 30, 2006. Id. ¶ 23, Ex. 8. The parties agreed that the interest rate would be fixed at 6.2%, with a monthly payment of $1,143.00. The loan modification agreement recognized plaintiff as the sole owner of the subject property, and indicated that no others had ownership, management, or control over it. Id. All loan payments of $1,143.00 were paid timely. Id. ¶ 23.

* In July 2006, plaintiff received correspondence from Litton, who identified itself as the new party to whom mortgage payments should be made. Id. ¶ 25.

* Plaintiff's mortgage payment became delinquent for one month because her tenant did not pay rent on time, but after one month, plaintiff sent the payments to Litton. Id. ¶ 25. During that time, when plaintiff spoke with a woman at Litton to inform her that plaintiff would shortly bring the account current, the Litton representative told plaintiff that she would never be able to bring her account current and that foreclosure was inevitable. Id. ¶ 27.

* Plaintiff knew that Litton intended to unlawfully foreclose and did not actually want plaintiff to become current. Id. ¶ 28.

* On June 20, 2010, plaintiff received a billing statement from Litton indicating that the amount due was $2284.98. Id. ¶ 29, Ex. 9. Plaintiff brought the mortgage current on July 9, 2010 by submitting two payments to Litton. Id., Exs. 10, 11.

* As of July 5, 2010, the account was current and no longer in default status. Plaintiff spoke to the Litton representative again, who informed plaintiff that the account was current. Id. ¶ 30. Litton then confirmed in a July 14, 2010 letter that all payments were received and applied, and that the loan was not in foreclosure status. Id. ¶ 32, Ex. 14.

* Shortly after plaintiff brought the account current in July 2010, Litton started harassing plaintiff, advising her that her taxes for 2009/2010 were delinquent, and suggested that she should contact the taxing authority if she had trouble paying her property taxes. Id. ¶ 34. Plaintiff did that, and was advised that California would not auction or foreclose a property until six years of delinquency had passed. Id.

* "Litton should not have paid those taxes without plaintiff's consent." Id. ¶ 35. Attached to Litton's letter about delinquent taxes was a form to create an escrow account, demonstrating that Litton knew it did not have the authority to pay plaintiff's taxes without her consent. Id.

* Plaintiff contacted Litton and advised them that the taxes posed no threat to the property at this time, but Litton responded that foreclosure was inevitable. Id. ¶ 36. Plaintiff never agreed to anyone other than plaintiff paying the property taxes and never agreed to establish an escrow account. Id.

* In a letter dated September 7, 2010, Litton informed plaintiff that an escrow account was created and that plaintiff's payments would be increased as a result. Id. ¶ 37, Ex. 17. Commencing on 10/1/10, the new payment would be $1228.06. "Plaintiff never consented at closing [and has] never consented. The payments of $1142.66 monthly were established as being a fixed amount for the duration of the loan." Id.

* On 8/31/10, plaintiff sent a letter to Litton, advising them that their actions were fraudulent and that plaintiff would continue to make the agreed payments of $1142.66 (plaintiff sends 1143.00). Id. ¶ 38, Ex. 18.

* Litton sent a follow up letter stating that they were obligated to protect their interest in the property by paying the property taxes. The letter also stated that Litton established the escrow account "pursuant to the loan documents." However, "there were no loan documents signed authorizing Litton to establish any such accounts that plaintiff consented to in writing." Id. ¶ 38.

* The taxes did not become an issue until plaintiff brought the one month delinquent mortgage current. At that point, Litton and all other defendants were anticipating a foreclosure and never intended for plaintiff to be able to bring the mortgage current. Id. ¶ 39.

* From July 5, 2010 until now, all payments were made on time. Id. ¶¶ 40-42, Ex. 19. * Litton will not apply the amounts paid to the mortgage, which establishes Litton's fraudulent grounds to foreclose upon the property. Id. ¶ 43.

* Litton sends repeated letters every other day to plaintiff's mailing address and the property address to harass the tenant. Plaintiff has received at least 45 letters. ¶ 44. The harassment has become so outrageous that it placed a strain on plaintiff's relationship with her tenants. ¶ 45.

* Litton sent another letter dated 12/21/10, advising plaintiff that the loan was past due for December, even though it was not. Id. ¶ 46.

* On 9/24/11, plaintiff sent Litton a letter advising Litton not to contact her at the property address since plaintiff does not live there. Id. ¶ 47. Litton responded on 10/3/11 that because the documents bear plaintiff's signature and validate the debt, Litton intends to continue collection activities on the account. Id. ¶ 48. Plaintiff denies that the signature is hers. Id.

* In Litton's 2006 welcome letter to her, Litton claimed to have been assigned the loan. Id. ¶ 49. However, that letter does not prove that the loan was ever assigned or transferred from WaMu.

* In a letter dated 10/18/11, Litton provided plaintiff a "Notice of Default and Intent to Accelerate," stating that plaintiff owed $1753.46. Id. ¶ 50, Ex. 28.

* On 10/27/11, plaintiff received a letter dated 10/4/11, entitled "Notice of Servicing Transfer and Welcome to Ocwen Loan Servicing." The letter was apparently backdated. Id. ¶ 51, Ex. 22. The letter instructed plaintiff to make her November payment to Ocwen. That violates RESPA's requirements that plaintiff be informed at least 15 days before such transfer, rather than within 72 hours, like Litton provided.

* The letter also changed the account number. Plaintiff believes the account number was changed to confuse the court and to cover up the wrongdoings. Id. ¶ 52.

* Neither Litton nor Ocwen has recorded their interest as either a trustee or service provider, or their assignment of the loan. There is no evidence that either of those defendants have any rights relating to the loan. Id. ¶ 53.

* Plaintiff believes that Litton and Ocwen have conspired to defraud plaintiff and have kept the money she has paid them (approximately $100,000), and that they have not paid it towards the balance of the loan. Id. ¶ 54, 55.

* On 12/15/11, Ocwen sent plaintiff a "Notice of Default," which stated that $2690.76 was due. Id. ¶ 56. The letter informed her she would have thirty days to dispute the debt, in which case Ocwen would send her a verification of the debt. Id. Plaintiff intimates that this letter was sent to the subject property, despite her previous requests that correspondence be sent to her home address, causing emotional distress to plaintiff and her tenants. Id. ¶ 56, 57.

* Also on 12/15/11, plaintiff sent Ocwen a letter stating that all mortgage payments were current and advising Ocwen to cease the harassment. Id. ¶ 58, Ex. 29. Plaintiff provided proof of all payments and instructed Ocwen not to send any further correspondence to the subject property. Id. ¶ 59.

* Because none of the defendants have any right to demand anything regarding the loan, plaintiff is not in default with any of the defendants. Id. ¶ 60.

* Ocwen has sent plaintiff numerous letters with erroneous amounts allegedly owed. Id. ¶ 60, 61. Plaintiff received a 1/17/12 letter alleging that she owed $4,378.06; a 1/18/12 letter alleging that she owed $3,112.72; and a 2/9/12 letter alleging that she owed $7,327.55.

* Ocwen sent plaintiff a letter dated 2/22/12 stating that plaintiff owes $4655.70. Id. ΒΆ 62, Ex. 32. Ocwen also stated that it did not receive the payment that was due on 1/5/12 and that another late fee was being assessed. Other fees were also assessed (such as a property evaluation, which plaintiff claims never occurred, and two certified letter fees, with one ...


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