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Lamprey v. Wells Fargo Home Mortgage

United States District Court, D. Maine

August 11, 2017

DIANE LAMPREY, Plaintiff,
v.
WELLS FARGO HOME MORTGAGE d/b/a AMERICA'S SERVICING COMPANY, Defendants.

          ORDER ON THE DEFENDANTS' MOTION TO DISMISS

          JON D. LEVY, U.S. DISTRICT JUDGE

         Plaintiff Diane Lamprey filed this lawsuit against Defendants Wells Fargo Home Mortgage d/b/a America's Servicing Company (“ASC”) and the Bank of New York Mellon Trust Company, N.A., as successor-in-interest to JP Morgan Chase, N.A., for certificateholders of the Nomura Asset Acceptance Corporation Mortgage Pass-Through Certificates, Alternative Loan Trust Series 2005-AR2 (“Bank of New York”). She alleges that ASC, acting as Bank of New York's agent, unlawfully communicated with her during the pendency of her five-year Chapter 13 bankruptcy proceeding, and again following her bankruptcy discharge, in violation of 11 U.S.C.A. §§ 362(a)(6) and 524(a)(2) (2017). Lamprey also alleges that ASC, acting as Bank of New York's agent, violated the Maine Consumer Credit Code, 9-A M.R.S.A. § 9-403 (2017) (Count Three); the federal Fair Debt Collection Practices Act, 15 U.S.C.A. §§ 1692, et seq. (Count Four); and the Maine Fair Debt Collection Practices Act, 32 M.R.S.A. §§ 11001, et seq. (Count Five).

         The Defendants have moved to dismiss Lamprey's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons explained below, I deny the motion.

         I. FACTUAL BACKGROUND

         In December 2004, Lamprey and her then-husband executed a $325, 000 promissory note secured by a mortgage on their home in Eliot, Maine (the “Property”). Lamprey and her husband divorced in 2007, with Lamprey receiving the sole ownership of the Property. She ceased making mortgage payments in October 2008.

         In May 2009, Mortgage Electronic Registration Systems, Inc., as nominee of the original lender, assigned the mortgage and note to defendant Bank of New York.[1]ASC was Bank of New York's loan servicer at all relevant times. Bank of New York initiated foreclosure proceedings in the Maine District Court in June 2009 and received a Judgment of Foreclosure and Sale in August 2010.

         Pursuant to 14 M.R.S.A. § 6322 (2017), there was a 90-day redemption period following the foreclosure judgment. In October 2010, with 44 days remaining in the redemption period, Lamprey filed a chapter 13 bankruptcy petition and physically vacated the Property, believing that this was a requirement of the Judgment of Foreclosure and Sale. See In re Lamprey, No. 10-21713 (Bankr. D. Me. October 12, 2010). Pursuant to 11 U.S.C.A. § 108(b) (2017), the redemption period was automatically extended by 60 days after Lamprey's bankruptcy petition date, to December 11, 2010. The redemption period expired without the Property being redeemed.

         In her Bankruptcy Schedules, Lamprey listed the Property as an asset and identified ASC as a secured creditor. ECF No. 1-5 at 3, 8 (Schedule “A” and Schedule “D”). Her Chapter 13 Plan (the “Plan”) was filed later in December and was confirmed by the Bankruptcy Court without objection in January 2011. Five years later, in June 2015, the Bankruptcy Court discharged Lamprey from bankruptcy.

         Beginning as early as October 2010 and continuing until September 2016, ASC sent at least 28 letters and notices to Lamprey concerning the Property and the promissory note. These communications form the basis for her claims against the Defendants.

         II. LEGAL STANDARD

         For Lamprey to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), her complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation and quotation marks omitted), and must present facts that plausibly suggest Lamprey's right to the relief requested, see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The burden of demonstrating that the complaint does not state a claim for which relief can be granted is on the Defendants. See 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2017 Update).

         III. LEGAL ANALYSIS

         A. The Bankruptcy Claims (Counts One and Two)

         Lamprey alleges that the Defendants violated the automatic stay, 11 U.S.C.A. § 362(a)(6), and the discharge injunction, 11 U.S.C.A. § 524(a)(2), by communicating with her during the ...


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