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Phillips v. Ocwen Loan Servicing, LLC

United States District Court, N.D. Georgia, Atlanta Division

September 12, 2014

JEFFREY PHILLIPS, On Behalf of Himself and All other Persons in the State of Georgia who are Similarly Situated, Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Magistrate Judge S. Justin Anand's Non-Final Report and Recommendation [113] ("R&R"), which recommends granting in part and denying in part Defendant Ocwen Loan Servicing, LLC's ("Defendant" or "OLS") Motion to Dismiss [78] Plaintiff Jeffrey Phillips's ("Plaintiff") Second Amended Complaint [69] ("SAC"). Also before the Court are Plaintiff's and Defendant's Objections [117, 118] to the R&R.

I. BACKGROUND

A. Facts[1]

On December 7, 1998, Plaintiff obtained a loan from HomeAmerican Credit, Inc., d/b/a/ Upland Mortgage ("Upland") and executed in favor of Upland a promissory note in the amount of $86, 400.00 (the "Note"). Repayment of Plaintiff's loan obligations was secured by a deed (the "Security Deed") to real property located at 728 Kennolia Drive, Atlanta, Georgia (the "Property"). The Security Deed was executed in favor of Upland. (SAC ¶¶ 16-19; Exs. A, B).

Plaintiff alleges that he experienced problems during Upland's servicing of his loan, including "a series of returned checks and the accrual of substantial insufficient funds fees, and harassment of Plaintiff when his installment was not paid on the fifteenth (15th) day of each month." (Id. ¶ 26).

On April 20, 2005, OLS became the servicer of Plaintiff's loan. (Id. ¶¶ 21-22). Plaintiff asserts that Upland's servicing errors continued after OLS began servicing his loan, and that "either Upland or Defendant OLS, " without Plaintiff's consent, converted his loan into a "Simple Interest Loan." (Id. ¶¶ 27-31). Plaintiff asserts that his account statements from OLS, including his May 6, 2005, statement, show: "inaccurate amortization;" "fictitious escrow advances;" "fictitious past due' amounts;" and "false expenses." (Id. ¶ 41; Ex. G). Plaintiff asserts that OLS "engaged in other wrongful actions" including: "duplicate insurance premiums, " "false late charges, " "duplicate payment of property taxes, " and "fictitious legal/collection expenses." (Id ¶ 42). Plaintiff claims that these alleged servicing errors caused OLS to incorrectly treat Plaintiff's account as being in default. (Id. ¶ 32).

On May 5, 2005, Upland executed a Limited Power of Attorney, authorizing OLS to, among others, "execute, acknowledge, seal and deliver deed of trust/mortgage note endorsements" and "assignments of deed of trust/mortgage and other recorded documents." (Id. ¶ 24; Ex. C).

On March 10, 2010, OLS, as attorney-in-fact for Upland, executed an assignment (the "Assignment") of Upland's rights under the Note and Security Deed to Bank of America, National Association, as Successor by Merger to LaSalle Bank National Association, as Trustee for the Registered Holders of Credit Suisse Seasoned Loan Trust 2006-1, Home Equity Pass-Through Certificates, Series 2006-1 (the "Trustee"). (Id. ¶ 25, Ex. D). The Assignment was recorded on March 19, 2010. (Id.).[2]

On March 1, 2010, Weissman Nowack Curry & Wilco, P.C. ("WNCW"), "under the direction of Defendant OLS, " Plaintiffs asserts, sent to Plaintiff a Notice of Foreclosure Sale, stating that the Trustee was the holder of the Note and Security Deed, that OLS was the entity with full authority to negotiate, amend, and modify the terms of Plaintiff's mortgage, that Plaintiff had defaulted on his loan obligations, and that, if Plaintiff did not pay the entire balance of his loan, the Trustee would conduct a foreclosure sale of the Property. (Id. ¶¶ 34-35; Ex. E).

On March 8, 15, 22, and 29, 2010, OLS published in the Fulton County Daily Report a Notice of Sale Under Power ("NSUP"), stating (i) that the Property was scheduled to be sold at foreclosure on the first Tuesday in April, 2010; (ii) that the foreclosure sale was being conducted by the Trustee; and (iii) that OLS was the entity with full authority to negotiate, amend, and modify the terms of Plaintiff's mortgage. (Id. ¶¶ 36, 38-40; Ex. D). A foreclose sale of the Property has not been conducted as of the date of this Order.

B. Procedural History

On November 16, 2010, Plaintiff, proceeding pro se, filed his original complaint [1.1 at 2-7] against OLS in the Superior Court of Fulton County, Georgia.[3] Plaintiff sought to remove the cloud on his title caused by his mortgage, to recover all loan payments he made after Upland filed for bankruptcy protection in 2005, and to recover damages for alleged fraud and misrepresentation.

On October 5, 2012, after retaining counsel, Plaintiff filed his First Amended Complaint ("FAC") [4], seeking to bring a putative class action and asserting additional claims, including for violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., wrongful attempted foreclosure, false light ...


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