The United States District Court for the District of Oregon recently denied a motion to dismiss claims under the Real Estate Settlement Procedures Act (“RESPA”) and the Fair Debt Collection Practices Act (“FDCPA”). See Gosha v. Bank of New York Mellon Corp. as Tr. (CWALT 2005-72), 2019 WL 5295466 (D. Or. 2019). Plaintiffs brought this action after they received a notice of sale of their home based on their default on a deed of trust. They alleged a number of state and federal law claims against their loan servicer and its agent arising out of the nonjudicial foreclosure process, including claims under RESPA and the FDCPA. Defendants then moved to dismiss the action in its entirety.
The Court denied the motion to dismiss the RESPA and FDCPA claims. First, the Court found that plaintiffs had plausibly alleged a violation of RESPA. Specifically, the Court found that plaintiffs had sent a qualified written request to the servicer seeking information on “additional charges” that appeared on their payoff statement, and that defendant’s failure to respond to this request and provide information about the charges may have constituted a RESPA violation. Second, the Court found that plaintiffs had plausibly alleged a FDCPA violation. Section 1692f(6) states that it is a violation to “tak[e] or threat[en] to take any nonjudicial action to effect disposition or disablement of property if there is no present right to possession of the property claimed as collateral through an enforceable security interest.” In this case, plaintiffs alleged that the defendant violated the deed of trust because it failed to provide proper notice before commencing the nonjudicial foreclosure and, because it failed to provide this notice, would not have been entitled to foreclose. Accordingly, the Court found that plaintiffs sufficiently alleged that defendant had taken a nonjudicial action when “there [was] no present right to possession of the property.”