Joseph v. Nationstar Mortgage, LLC et al

RESPONSE in Opposition re MOTION to Dismiss

N.D. Ga.June 23, 2014

F I L E D IN C L E R K ' S OFFICE U.S.D.C. Atlanta IN THE UNITED STATES DISTRICT COURT sm 2 3 2011 FOR T H E NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION .VJAMES N . HATTEN. Clerk K E N JOSEPH Plamtiff, V . McCURDY & CANDLER, L L C ; And U.S. BANK NATIONAL ASSOCIATION, AS T R U S T E E Defendants, Case No.: 1:13-CV-04122-JEC-RGV PLAINTIFF'S RESPONSE AND B R I E F TO DEFENDANTS' MOTION TO DISMISS TO THE HONORABLE JUDGE OF THIS COURT: COME NOW the Plamtiff, KEN JOSEPH ("PLAINTIFF"), who hereby submits his Response to the Defendants' MCCURDY & CANDLER, LLC and US BANK NATIONAL ASSOCIATION AS TRUSTEE'S motion to dismiss and states as follows: 1. STATEMENT OF FACTS 1. Pending before the court is an action for damages brought against the Defendants MCCURDY & CANDLER, LLC ("MCCURDY & CANDLER") AND U.S. BANK NATIONAL ASSOCIATION ("US BANK") for damages Page 1 of 27 KEN V. MCCURDY & CANDLER, L L & US BANK_RESPONSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 1 of 32 for violations of the Truth ui Lendmg Act (TILA) 15 U.S.C. §1641 et seq. ; Damages for violations ofthe Fair Debt Collection Practices Act (FDCPA) 15 U.S.C. §1692 et seq.; and for declaratory and injimctive relief 2. On the December 13*, 2013, PLAINTIFF, proceedmgpro se, filed a civil action agamst Defendants Nationstar Mortgage, LLC, MCCURDY & CANDLER, and U.S. BANK NATION7\L ASSOCAIATION as Tmstee. Plaintiff was ordered to amend his complaint to address deficiencies noted in the Order. After Plaintiff filed his amended complaint, he was allowed to proceed with his TILA claun asserted agauist US BANK and his FDCPA claun asserted agamst MCCURDY & CANDLER. 3. PLAESnriFF contends that Defendants have conspired and committed fraud in order to wrongfully foreclose with total disregard for Federal and State laws. 4. PLAINTIFF contends that Defendants have created and caused fraudulent documents to be filed mto the public records of Gwinnett County and uito the State Court givuig the appearance that there is a legal foreclosure going on while some or all of the Defendants continue to break the law. 5. PLAINTIFF is a borrower who purportedly defauUed ui repayment of his mortgage loan, resulthig hi US BANK initiatmg foreclosure proceedings on the real property which served as a collateral for the loan and US BANK Page 2 of 27 ICEN V. MCCURDY & CANDLER, L L & US BANK_RESPONSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 2 of 32 purportedly derived its interest from an August 05, 2009 Security Deed executed in favor of by warranty deed. 6. The records show the assignor was MERS, as nominee for Bayrock Mortgage Corporation, who soon after become defunct on or about August, 2010. 7. Prior to the assignment ofthe Security Deed, Plahitiff fell behhid on his payment with Wilshhe Credit Corporation (whom is not a party to this lawsuit) and received a notice about past payment due of $1876.88 as of December 2010. 8. Shortly after PLAINTIFF lost his f i i l l time job and fell behmd on his payment. It is unclear of the exact date hi 2007 when Plahitiff actually defauhed on the loan. 9. On May 13, 2014, US BANK, through their Attomeys filed a MOTION TO DISMISS PLAINTIFF'S COMPLAINT AND FIRST AMENDED COMPLAINT. 10. On May 28, 2014, MCCURDY & CANDLER also filed a MOTION TO DISMISS PLAINTIFF'S COMPLAINT AND FIRST AMENDED COMPLAINT. II . STANDARD OF R E V I E W P a g e s of 27 KEN V. MCCURDY & CANDLER, L L & US BANK^RESPONSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 3 of 32 11. In determining whether a complamt states a clakn upon which relief can be granted, courts accept the factual allegations m the complaint as hue and construe them m the hght most favorable to the plamtiff. Hill v. White, 321 F.3d 1334, 1335 (if^ Cir. 2003). 12. Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the clahn showmg that the pleader is entitled to relief," m order to "give the defendant fah notice of what the ... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), quotmg Conley v. Gibson, 355 U.S. 41, 47 (1957). "[A] Complamt attacked by a Rule 12(b)(6) motion to dismiss does not need detailed fachial allegations." Id. At 555. "[W]e do not require heightened fact pleadmg of specifics, but only enough facts to state a clahn to relief that is plausible on hs face." Id. At 570. 13. A claim is plausible where the plaintiff alleges factual content that "allows the court to draw the reasonable mference that the defendant is liable for the misconduct alleged." Id. The plausibility standard requhes that a plaintiff allege sufficient facts "to raise a reasonable expectation that discovery will reveal evidence" that supports the plamtiff s claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). Page 4 of 27 KEN V. MCCURDY & CANDLER, L L & US BANK_RESPONSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 4 of 32 14. The complahit must only hiclude "sufficient factual allegations to provide the grounds on which the claim rests". Friends of Lake View School District v. Beebe, 578 F.3d 753, 762 (8th Ch. 2009). While "mere labels and conclusions" wil l not satisfy a plaintiffs burden, there is no need for detailed factual allegation or specific facts that describe the evidence to be presented. Id. A plaintiff satisfies theh burden i f they allege facts sufficient to allow a court to hifer "more than the mere possibility of misconducf. Ashcroft v. Iqbql, 129 W.Ct. 1937, 1950 (2009). 15. Well-pleaded allegations of fact and every inference fahly deducible therefrom are accepted as true for purposes of a motion to dismiss. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). "[A] well-pleaded complamt may proceed even i f it strikes a savvy judge that actual proof of those facts is hnprobable, and "that recovery is very remote and unlikely." Twombly, 550 U.S. at 556. 16. "When considermg Defendant's motion, the court must construe the factual allegations m the complahit m the light most favorable to the plaintiff" In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Sh. 1996): Jones v. General Elec. Co., 87 F.3d 209, 211 (7th Ch. 1996). "Only i f no possible construction of the alleged facts wil l entitle plamtiff to relief should the court grant defendant's motion." Hishon v. Kmg & Spauldmg, 467 U.S. 69, 73, 104 S. Ct. Page 5 of 27 K E N V. MCCURDY & CANDLER, L L & US BANK_RESPONSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 5 of 32 2229, 2232 (1984). I f the factual allegations m plamtiff s complahit support any legal theory that entitles plahitiff to some relief, the court should overrule defendant's motion to dismiss. 17. Furthermore, providing too much in the complahit or amended complaint may also be fatal to a plahitiff Dismissal may not be appropriate when the plahitiff has included sufficient allegations disclosing some absolute defense or bar to recovery. See weisbuch v. County of L.A., 119 F.3d 778, n. l (9th Ch. 1997) (stating that " [ i ] f the pleadmgs establish facts compelling a decision one way, that is as good as i f deposition and other... .evidence on summary judgment establishes the identical facts.") 18. "A complahit must state a plausible clahn for relief, and 'a clahn has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable mference that the defendant is liable for the misconduct alleged.'" Smalh-anmal v. Coca-Cola Co., 578 F.3d 1252, 1261 (1 Ith Ch. 2009) (quotmg Ashcroft V . Iqbal, 556 U.S. 662,129 S.Ct. 1937, 1949 (2009)) (alteration omitted). We also review de novo matters of statutory mterpretation. Belanger, 556 F.3d at 1155. 19. A dismissal without leave to amend is improper unless it is beyond doubt that the complahit "could not be saved by any amendment." Harris v. Amgen, Inc., Page 6 of 27 K E N V. MCCURDY & CANDLER, L L & US BANK_RESPONSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 6 of 32 573 F.3d 728, 737 (9th Ch. 2009) (issued two months after Iqbal). The Nmth Chcuit has held that "hi dismissals for failure to state a claim, a district court should grant leave to amend even i f no request to amend the pleading was made, unless it determhies that the pleadmg could not possibly be cured by the allegation of other facts." Cook, Perkiss and Liehe, Inc. v. Northem Califomia Collection Serv., hic, 911 F.2d 242, 247 (9th Ch. 1990). The issue is not whether the plahitiff wil l prevail but whether he "is entitled to offer evidence to support the claims." Diaz v. IntT Longshore and Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Ch. 2008) (citations omitted). 20. The Defendant MCCURDY & CANDLER stated m his motion to dismiss that PLAINTIFF'S assertion that "MCCURDY & CANDLER is a debt collector is a bald statement." 21. However, PLAINTIFF received a letter from MCCURDY & CANDLER statmg that "THIS LAW FIRM IS ACTING AS A DEBT COLLECTOR AND IS ATTEMPTfNG TO COLLECT DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE." 22. This letter, which dated November 20, 2013, further states that "Nationstar Mortgage, LLC acts as the mortgage loan servicer for the hivestor that owns Page 7 of 27 KEN V. MCCURDY & CANDLER, L L & US BANK_RESP0NSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 7 of 32 your loan. (That mvestor to date have not been identify) The hivestor has authorized Nationstar Mortgage, LLC to provide this information and to act on its behalf. 23. A demand for payoff was offered ofthe amount of $326,670 to MCCURDY & CANDLER, LLC to be sent to theh office. 24. Plamtiff demanded an explanation for the payoff amount, whom entitled to that payoff? How this the mvestors/ owner(s) arrived to that amount? Only a partial list of junk fees and misc postmg were sent to PLABSfTIFF, which did not explahi any of questions asked. 25. Clearly, i f MCCURDY & CANDLER was not a debt collector, they were acting as one. Furthermore, not identifymg who the hivestor(s) are for whom MCCURDY & CANDLER is demandmg payment for, is consider as tortuous interference. 26. PLAINTIFF further alleged that MCCURDY & CANDLER has misrepresent the amount and character of the debt. 27. Under the FDCPA, "[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt," 15 U.S.C. § I692e, which includes "[tjhe use of any false representation Page 8 of 27 K E N V. MCCURDY & CANDLER, L L & US BANK_RESPONSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 8 of 32 or deceptive means to collect or attempt to collect any debt or to obtain information conceming a consumer," id. § 1692e(10). 28. MCCURDY & CANDLER was not collecting his own debt when they clahn that they were acthig as a debt collector. Therefore, MCCURDY & CANDLER is not a credhor. The statute defines "creditor" as "any person who offers or extends credit creathig a debt or to whom a debt is owed, but such term does not hiclude any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitatmg collection of such debt for another." Id. § 1692a(4). And "[t]he FDCPA provides that 'any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person' for [actual and statutory] damages and costs." Bourff v. Lublm, F.3d , slip op. at 6, No. 10-14618 ( I l t h Ch. Mar. 15, 2012) (quotmg 15 U.S.C. § 1692k(a)). 29. Federal debt collection laws not only regulate the collection conduct of traditional collection agencies but attomeys and, m some chrcumstances, loan servicers. In the name of thin profit marghis, the current mortgage foreclosure crisis has pushed many loan servicers and bank attomeys to the limhs of these consumer protection laws. Those found to have violated debt collection laws Page 9 of 27 KEN V. MCCURDY & CANDLER, L L & US BANK_RESPONSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 9 of 32 may be liable to the borrower for $1,000.00 m statutory damages as well as actual damages includhig attomeys' fees and costs. 30. Loan servicers, theh customer service representatives, loan modification agents, foreclosure lawyers and their staff have all been accused of heavy handed abusive and misleading debt collection tactics. What recourse do victimized borrowers have under federal law? 31. The vast majority of consumers who obtam credh fully intend to repay their debts. When default occurs, it is nearly always due to an unforeseen event such as unemployment, overextension, serious illness, or marhal difficuhies or divorce." These findmg may be particularly tme when the debt sought to be collected is based on a residential home loan. The Act regulates the conduct of "debt collectors" in collectmg "debts" owed or allegedly owed by "consumers." It is designed to protect consumers from unscmpulous debt collectors, whether or not there is a valid debt. 32. The FDCPA broadly prohibhs unfah or unconscionable coUection methods; conduct the natural consequence of which is to harasses, oppresses or abuses any debtor; and any false, deceptive or misieadmg statements, m connection with the collection of a debt; h also requires debt collectors to give debtors certain mformation with regard to theh rights as a consumer. Page 10 of 27 K E N V. MCCURDY & CANDLER, L L & US BANK_RESPONSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 10 of 32 33. A single violation is sufficient to support judgment for the consumer. 34. "Debt" is defhied as "any obligation or alleged obligation of a consumer to pay money arising out of a transaction m which the money, property, hisurance or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obhgation has been reduced to judgment." Residential mortgage loans are, when in default, covered by this definition. 35. Liability under the FDCPA for mortgage servicers mitially tums on whether or not the entity attemptmg to collect the debt is a "debt collector" as defined by the Act. The answer to this inquiry depends on when the mortgage servicer acquhes the loan as the Act mcludes an exemption to the new servicer. 36. The FDCPA includes a rather lengthy list of all those who are not "debt collectors". The Act specifically states that the term does not mclude a "debt which was originated by such person; [or] concems a debt which was not m defauh at the time it was obtahied by such person". 37. Because the FDCPA does not apply to a credhor coUecthig its own debt, to understand the extent of this exclusion, the above language must be read together with the Act's defmition of "creditor" found m 15 U.S.C. §1692(a)(4). A "credhor" is "any person who offers or extends credit creatmg a debt or to Page 11 of 27 K E N V. MCCURDY & CANDLER, L L & US BANK__RESP0NSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 11 of 32 whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt hi default solely for the purpose of fachitathig collection of such debt for this paragraph, the term mcludes any creditor who, m the process of collecting his own debts, uses any name other than his own which would hidicate that a third person is coUecthig or attemptmg to coUect such debts.... The term does not hiclude- (A) any officer or employee of a credhor whUe, hi the name of the creditor, collecting debts for such creditor;. . . [and] (F) any person collecting or attempthig to collect any debt owed or due or asserted to be owed or due another to the extent such activity . . . (ii) concems a debt which was originated by such person; (iii) concems a debt which was not hi default at the thne it was obtahied by such person . . . . " Read together and as confhmed hi the Act's legislative history, Congress' intent is clear, the exemption is mtended to include "mortgage service companies and others who service outstanding debts for others, so long as the debts were not hi defauh when taken for servicmg." 38. This scenario is often the case when an assignment is made from one servicer to another. Thus, for FDCPA purposes, the distmction between a "loan servicer" and a "debt coUector" depends on whether the loan was m "defauh" at the thne it was obtained. Page 12 of 27 KEN V. MCCURDY & CANDLER, L L & US BANK_RESPONSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 12 of 32 39. Plaintiff became in default on or about December, 2007 and according to the records that was entered by MCCURDY & CANDLER, LLC as evidence. 40. The term "default" raises a number of issues. The Federal Trade Commission ("FTC") (which is charged under the Act with regulatory enforcement and oversight) made clear hi its often cited DeMayo ophiion that the word "default" was to be defined by examinhig first, the underlying contract; followed by the applicable state or federal law; and finally the creditor's reasonable written guidelhies. The standard residential loan note for Fannie Mae and Freddie Mac (who together hold or guarantee over $5.4 trillion of mortgages, about half of the nation's home loans) defines a loan as being m default i f not paid on the due date (i.e., fnst of the month). 41. Under this dynamic, when determinhig a borrower's rights under the FDCPA, it should first be determined when the loan came into to defauh and when the assignment to the loan servicer was made. 42. In the current envhonment of loan securitization, this is often a complicated task, sometimes without out any clear answer. However, a trip to the county clerk to examine the cham of title may help the PLAINTIFF clarify thhigs. Page 13 of 27 K E N V. MCCURDY & CANDLER, L L & US BANK_RESPONSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 13 of 32 43. I f the borrower is already in foreclosure in this case, this analysis is even more vital. It is often the case that assignments are made from one servicer to another weeks and even days before the foreclosure is fhed. 44. While the loan servicer may not be subject to FDCPA liability, theh attomeys are. Orighially excluded from the definition of "debt collector", in 1986, Congress removed the attomey exemption. The legislative history of the amendment concludes that attomeys were suffering from the same infirmities as theh collection agencies colleagues. Theh collection activities were not being effectively monitored and so the removal of the exemption was necessary to "put a stop to the abusive and harassing tactics of attomey debt collectors." 45. In its seminal case of Hehitz v. Jenkins, the United States Supreme Court held that litigation conduct of attomeys m coUecthig consumer debts is not exempt from the FDCPA. Foreclosure attorneys are generally subject to the FDCPA to the extent they attempt to collect money or enforce personal liability. 46. However, in non-judicial jurisdictions where foreclosures are performed out of court by tmstees for the bank, FDCPA liability has been elusive. The non- judicial jurisdiction circuits are split on this issue, some holdmg that the tmstees are debt collectors and others holding that they are not. Distinctions Page 14 of 27 KEN v. MCCURDY & CANDLER, L L & US BANK_RESPONSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 14 of 32 are often made based upon the activhies of the trustee. Is the trustee simply enforchig a security hiterest or coUecthig a debt? III . The FDCPA does encompass an attorney performing a foreclosure. 47. The Fourth Cncuh m Whson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373 (4thCirc. 2006) clarified that a foreclosure firm is attempthig to collect a debt, even though the foreclosure file was hi rem and they were attempting to foreclose on a deed of tmst.The debtor filed suh agamst the law firm that had filed the foreclosure action alleging several violations of the FDCPA. Specifically the debtor aUeged that the law fmn faUed to verify the debt, even though she had requested verification in writing; the law firm conthiued its coUection efforts even though the debt had been contested and that the firm communicated with the debtor even though she was represented by counsel. Id. at 375. 48. The law firm filed a motion to dismiss arguing that it was not acthig m connection with a "debf' and that it was not a "debt collector" with hi the definition of the statute. Id. Specifically, the law firm argued that it was a substitute trustee for a deed of trust and that it was acting at the trustee, therefore, it was not a "debt collector". However, the Fourth Chcuit ruled that the law fmn was attempthig to collect a debt and that h did fall under the Page 15 of 27 K E N V. MCCURDY & CANDLER, L L & US BANK_RESPONSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 15 of 32 definition of a debt collector. Specifically, the Court stated that "[sjince a foreclosure is a method of coUecthig a debt by acquking and selling secured property to satisfy a debt, those who engage m such foreclosures are hicluded within the definition of debt collectors i f they otherwise fit the statutory defmition." Id. at 379, citing Shapko & Meinhold v. Zartman, 823 P.2d 120 (Colo. 1992). Further, the Court stated that while not every law firm filing foreclosure actions may fall under the FDCPA, it is well-established that the Act applies to Lawyers "who 'regularly' engage in consumer-debt-collection activity, even when that activity consists of Htigation." Id. at 379, c/??>7g Heintz v. Jenkms, 514 U.S. 291, 115 S.Ct. 1489 (1995). 49. While this decision shnply clarifies a split within the Fourth Cncuit, it is the overwhehningly majority view throughout the Chcuits and it is the most recent decision to discuss how a law firm performing foreclosures should consider itself to be a debt coUector. IV. COMMUNICATION WITH T H E DEBTOR 50. The hiitial communication with the debtor must hiclude a notice that it is from a debt collector attempthig to collect a debt. Generally, this wamhig, or "mini- Mhanda" is listed at the beghmmg of any letter demandhig the debt, any pleadmg that is sent, and any other document that is maUed to the debtor. It Page 16 of 27 KEN V. MCCURDY & CANDLER, L L & US BANK_RESP0NSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 16 of 32 must be placed conspicuously on the document and be written m such a way so as the "least sophisticated consumer" would understand it. It also must state that they are entitled to dispute the debt and that they must do so in writing withhi thirty (30) days of receipt of the document. Normally, the mmi-Mhanda will state the foUowhig: THIS COMMUNICATION IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. UNLESS YOU, WITHIN 30 DAYS AFTER RECEIPT OF THIS DOCUMENT, DISPUTE THE VALIDITY OF THE DEBT, OR ANY PORTION THEREOF, THIS FIRM W I L L ASSUME THAT THE DEBT IS VALID. I F YOU NOTIFY ME IN WRITING WITHIN THE ABOVE 30 DAY PERIOD, THAT THE DEBT, OR ANY PORTION THEREOF, IS DISPUTED, I WILL OBTAIN VERIFICATION OF THE DEBT AND A COPY OF SUCH VERIFICATION W I L L BE MAILED TO YOU BY THIS FIRM. IF YOU SO REQUEST WITHIN THE ABOVE 30 DAY PERIOD, THIS FIRM W I L L INFORM YOU OF THE IDENTITY OF THE ORIGINAL CREDITOR, I F DIFFERENT FROM THE CURRENT CREDITOR. 51. Any subsequent communication with the debtor should also hiclude a statement to the effect that "This Communication is from a Debt CoUector" or "This Communication is from a Debt Collector and any hiformation you provide can be used for the purpose of coUecthig that debt." This is provided mamly because the debt coUector does not know when and i f the consumer has received the prior communication. So it is always better to play it safe. Page 17 of 27 KEN V. MCCURDY & CANDLER, L L & US BANK_RESP0NSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 17 of 32 V. THE FDCPA IMPOSES A STRICT L I A B I L I T Y STANDARD 52. The FDCPA, 15 U.S.C. § 1692, et seq., is a sfict liability stahite, Taylor v. Perrm, Landry deLaunay & Durand, 103 F.3d 1232 (5th Ch. 1997): see also Irwm V . Mascott, 112 F. Supp. 2d 937 (N.D. Cal. 2000): Pittman v. J.J. Mac hityre Co. of Nevada, hic, 969 F. Supp. 609 (D. Nev. 1997). "Because the Act hnposes strict hability, a consumer need not show intentional conduct by the debt collector to be entitled to damages." Russell v. Equifax A.R.S., 74 F. 3d 30, 33-34 (2nd Ch. 1996). 53. The FDCPA is a remedial statute. Hamilton v. United Healthcare of Louisiana, hic, 310 F. 3d 385, 392 (5th Ch. 2002). The remedial nahire ofthe FDCPA requkes that courts mterpret it liberaUy. Clark v. Caphal Credh & Collection Services, Inc, 460 F. 3d 1162, 1176 (9th Ch. 2006). "Because the FDCPA, like the Truth m Lendmg Act (TILA) 15 U.S.C. § I60I et seq., is a remedial statute, it should be construed liberally hi favor of the consumer." Johnson v. Riddle, 305 F. 3d 1107, 1117 (20th Ck. 2002). VI. DEENDANTS F A L S E L Y IDENTIFIED U.S. BANK AS THE CREDITOR/ OWNER 54. On or about November 15, 2013, Plamtiff receive a letter Titled "NOTICE PURSUANT TO FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. Page 18 of 27 K E N V. MCCURDY & CANDLER, L L & US BANK_RESP0NSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 18 of 32 1692 INITIAL COMMUNICATION LETTER" in the mail address from Defendant McCurdy & Candler, LLC. 55. The notice was dated November 12, 2013 stated that "This law fhm represents U.S. Bank, National Association, as Trustee for The Holders of The Specialty Underwriting and Residential Finance Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-ABl." The letter was not signed by anyone. 56. This letter falsely identified "U.S. Bank, National Association, as Trustee for The Holders of The Specialty Underwriting and Residential Fmance Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-ABI." As the Creditor. 57. Plahitiff was mislead thinkhig he can negotiate a prhicipal reduction with the secure creditor whom he believe to be US BANK. 58. US BANK is not a credhor under the FDCPA. 59. MCCURDY & CANDLER, LLC violated the FDCPA's "prohibhion on false, deceptive or misleadhig representations by falsely statmg in its coUection notice that US BANK was the 'creditor' ofthe PLAINTIFF'S loan. 60. Defendant U.S. BANK, whom McCURDY & CANDLER is clahnmg to be the Secure Credhor/ Owner of the note, has said m a letter dated October 7*, 2013 respondmg to the Plamtiff request to settle any and aU debt owe (see attached exhibit "A" ) and said: Page 19 of 27 K E N V. MCCURDY & CANDLER, L L & US BANK_RESPONSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 19 of 32 a. U.S. BANK is merely the trustee for the Trust that owns your mortgage and note. b. Tlie Trust is the owner of the mortgage and note. c. Please note that the Trust is the owner of your mortgage and note, not the trustee. d. It is the servicer who has taken all action regarding your property. 61. What PLAINTIFF found as the basis of the foreclosure are loan documents that were paid in full. In cash and none ofthe parties on the hiitial origmals retamed any beneficial ownership hiterest at all. 62. Such deceptive processes violate state and Attomey Generals have requested suspension of questionable foreclosures and hivestigation into the underlyhig cases hi which judges and courts throughout the country have not yet confirmed: a. That all foreclosure-related documents were lawfully signed, b. That the chahi of ownership is clear and has been revealed m full c. That state consumer protection requhements have been followed and have been processed accordhig to state law. 63. Georgia state Attomey General (AG) Sam Olens joined a $25 billion Federal-Atate Settlement with Nation's Five Largest, Mortgage Servicers.^ ^ http://(aw.ga.gov/press-releases/2012-02-09/attorney-generai-sam-olens-joins-25-billiori-federal-state- settlement Page 20 of 27 KEN V. MCCURDY & CANDLER, L L & US BANK_RESPONSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 20 of 32 64. First ever nationwide reforms to servicing standards. These servicmg standards requhe a single point of contact for borrowers' ease in communicating with servicers, adequate staffing levels and training, better communication with borrowers, appropriate standards for executing documents in foreclosure cases, and endhig hnproper fees. Specifically: a. Borrowers must be thoroughly evaluated for all available loss mitigation options before foreclosure referral, and banks must act on loss mitigation applications before referring loans to foreclosure; i.e. "dual tracking" wil l be restricted. b. Borrowers must be sent a pre-foreclosure notice that wil l hiclude a summary of loss mitigation options offered, an account summary, description of facts supportmg lender's right to foreclose, and a notice that the borrower may request a copy of the loan note and the identity of the hivestor holding the loan. c. Information in foreclosure affidavits must be personally reviewed and based on competent evidence. d. Holders of loans and theh legal standhig to foreclose must be documented and disclosed to borrowers. Page 21 of 27 K E N V. MCCURDY & CANDLER, L L & US BANK_RESP0NSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 21 of 32 e. Servicers are required to expedite and facilitate short sales of distressed properties. 65. One ofthe mortgage servicers which have jomed the settlement is Bank of America Home Loan (a none party to this lawsuit) who has admitted to have sent mcorrect account hiformation and claimed to have corrected it on a letter sent on January 17, 2011. 66. On February 22, 2008 Wilshire Credh Corporation claimed to have corrected Erroneous mformation which was bemg reported to PLAINTIFF'S consumer credh report. However, there are no evidence before the court to prove that these corrections were made and that MCCURDY & CANDLER is not misrepresentmg the amount and the character of the debt. 67. PLAINTIFF is unsure what role MCCURDY & CANDLER played m the attempt to foreclose. 68. PLAINTIFF is unsure who MCCURDY represent at this thne. 69. PLAINTIFF'S research and hiformation also indicated that his loan did not make it in the trust by the closhig date and also report to the SEC ended m January, 2008. v n . US BANK MOTION TO DISMISS- T I L A C L A I M is time barred Page 22 of 27 KEN V. MCCURDY & CANDLER, L L & US BANK_RESP0NSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 22 of 32 70. US BANK has moved the court to dismiss PLAINTIFF'S TILA claim and assert that PLAINTIFF did not alleged the date of fransfer ofthe mortgage loan at issue to US BANK. 71. US BANK states that "Public records show, however, that the mortgage loan at issue was ttansferred to US BANK on August 5, 2009. 72. PLAINTIFF filed a notary complamt on July 19, 2012 after he inspects the public record and realizes the assignment to US BANK was fraudulently recorded. US BANK was copied on this communication See exhibif'B" 73. The assignment which is recorded on August 5* 2009 at the Clerk Superior Court Gwhmett County, GA with a loan #4535088 (Differs from Note and Security Deed) read record and reftim; MCCURDY & CANDLER, LLC, atta: GA Foreclosure Department, 250 E Ponce De Leon Avenue Suite 600, Decahir, GA 30030. 74. The PLAINTIFF requested that the Secretary of State ofthe State of Oregon and the Attomey General of the State of Oregon hivestigate the possible notary violation and possible criminal actions of Oregon Notary Public Shelby Tisdale, Commission No. 409809. Page 23 of 27 KEN V. MCCURDY & CANDLER, L L & US BANK_RESPONSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 23 of 32 75. Plamtiff asserts that the document was false and/or forged and has been unlawfully filed into a public office in the State of Georgia, Gwhmett County hi violation of Georgia and Oregon Codes. 76. MeUssa Tomlin, Assistant signed as assistant secretary. Lori Umberger, signed as the first witness. Justin Bums signed as the second witness. 77. A search for Melisa Tomlin tums up a number of recorded documents of title where Ms. Tomlin appears m altemate employment position, further addmg to my conclusion that this assignment is mvalid and cannot be submitted as evidence in the court. 78. On July 9* 2012, less than a month after the notary complaint was filed, a corrective assignment of security deed was filed. It states that the reason for the corrective of assignment was to correct the name of the Assignee. The words "for the holder o f were added. However, the robo-signer's names were removed and also a fake address of US BANK was added which was the address of PLAINTIFF'S previous servicer's address. 79. The correction assignment stated that "U.S. Bank, National Association, as Trustee for The Specialty Underwriting and Residential Finance Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-ABl (hereinafter Page 24 of 27 KEN V. MCCURDY & CANDLER, L L & US BANK_RESPONSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 24 of 32 referred to as "Assignee") whose address is 7105 Corporate Drive Piano, TX 75024. 80. A short Google of this address revealed that this address belong to BANK OF AMERICA, a previous servicer ofthe PLAINTIFF. 81. PLAINTIFF'S research and hiformation has indicated that the swom SEC filmgs for SURF 2007-ABl tmst clearly delineate where the current most recent properly endorsed and assigned Note and Deed of Tmst originals are attested to be held. Yet no mention of this fact is found on this record. 82. It appears that the previous loan servicer BAC Home Loans Servicing ("BAC") wholly owned subsidiary of Bank of America has created a delivery receipt mechanism whereby correspondence by an for SURF 2007-ABl was bemg sent ^ d respondent to by BAC and theh representative; not those of SURF 2007-ABl. 83. These assigimients are false and PLAINTIFF will have to depose the parties hivolved hi order to factually state the correct date hi which the proper assignment was properly filed, i f any proper assignment was filed at all. 84. PLAINTIFF aheged that the DEFENDANT'S have filed false and fraudulent information m the court hi attempt to foreclose on PLAINTIFF'S property. Page 25 of 27 K E N V. MCCURDY & CANDLER, L L & US BANK_RESP0NSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 25 of 32 W H E R E F O R E , Plaintiff respectfully requests that this Court enter an order denying Defendants' Motion to Dismiss for lack of proof of transfer of ownership and for the reasons stated above. In the altemative, i f the Court determines Plaintiff has failed to state a claim, Plaintiff asks the Court to grant leave to amend his Complaint. Dated: June 20th, 2014 Ken Joseph/ / 596 Middleton Place, Grayson, GA 30017 443-831-8884 Sem252525@aol.com Page 26 of 27 K E N V. MCCURDY & CANDLER, L L & US BANK_RESPONSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 26 of 32 C E R T I F I C A T E QF S E R V I C E This is to certify that a trae and correct copy of the document above wil l be sent by first class mail USPS to counsel of record listed below for Defendants. McCurdy & Candler, LLC Six Piedmont Center, Suite 700 3525 Piedmont Road, NE Atlanta, GA 30305 U.S. BANK NATIONAL ASSOCIATION c/o BATCH & BINGHAM, LLP 30 Ivan Allen Jr. Blvd. N.W., Suite 700 Atlanta, GA 30308 Telephone: (404) 261-6020 Dated: June 20,2014 Ken Joseph ^ 596 Middleton Place Grayson, GA 30017 Phone: 443-831-8884 Email: sem252525@aol.com Page 27 of 27 K E N V. MCCURDY & CANDLER, L L & US BANK_RESP0NSE TO MTD Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 27 of 32 Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 28 of 32 b a n k . 60 Uvifigston Avenue St. Paul, MN 55107 October 7,2013 Mr. Ken & Ms. Glenda Joseph Grayson, GA 30017 Dear Mr. & Ms. Joseph: I am writing in response to your tetter dated September 27,2013 that was sent to U.S. Bank. On behalf of researched your mortgage and have determined that U.S. Bank is merely the tru^ee for the Trust that owns your mortgage and note. Please note th© Trust fe the owner of your mortgage and note, mt the trustee. The servter is the party to the Tmst that has the authority and responsibility to make decisions regarding loan r S o ^ S to ^ S f f l S or approveor S s a p p ^ oi &mse decSions. It is the ̂ ^ » r ^hohas tekS ail forwaKled your oonrespondence to Nationstar, and mey responded and assigned Ms .^fClmL^Mnlcfey as their nepresentaSve with whom you can discuss your specifc concerns. You can contact Wte. BrlnWey directly via telephone at (ph: 9728941598) or via email at kimber1y.brinktey@nationstarmail.com Bank in^anyway.^he t r S t i does not mediate Ltween the s enSand the investor. I have included a brochure that further explains the roles of the servicer and trustee that I hope you find helpful. Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 29 of 32 5 Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 30 of 32 Certified mail receipt# 7010 3090 0003 5729 4558 Ken Joseph July 19,2012 596 Middleton Place Grayson, GA 30017 443-270-2222 sem252525@aol.com Oregon Secretary Of State Kate Brown Notary Division Notary Public Complaint Specialist 255 Capital St. NE Suite 151 Salem, OR 97310-1327 Oregon Attomey General John Kroger Oregon Department of Justice Criminal Investigation Division 1162 Court Street NE Salem, OR 97301-4096 RE: Notary Public Complaint Dear Notary Specialist, Pursuant to Oregon Notary Law ORS 192.001 and others, I am formally requesting the Secretary of State of tiie State of Oregon and tiie Attomey General ofthe State of Oregon investigate tiie possible notary violations and possible criminal actions of Oregon Notary Public Shelby Tisdale, Commission No.409809 I believe that the attached documents are false and/or forged and have been unlawfully filed into a public office in the State of Georgia, Gwinnett county in violation of Georgia and Oregon Codes (O.C.G.A. § 45-17, O C G A. § 44-2, O C G A § 44-14, C.R.S. § 12-55 and otiiers) I also believe Oregon Notary Public Shelby Tisdale is in fact a "robo-signer" assisting banks in committing felonious acts of filing false and/or forged documents into a public office in the State of Georgia, Gwinnett county in violation of Georgia and Oregon Codes (O.C.G.A. § 45-17, O.C.G.A. § 44-2, O.C.G.A. § 44- 14, C.RS.§ 12-55 and otiiers) I also believe Oregon Notary Public Shelby Tisdale has committed Notary Fraud and other felonious acts against myself Ken Joseph; The State of Georgia, The County of Gwinnett and possibly others; and is attempting to conceal his criminal acts by withholding his record book, which would prove conclusively that Oregon Notary Public Shelby Tisdale has violated Ms oath of office, and is assisting the banks as a "robo-signer." I therefore request your office to investigate the actions of Oregon Notary Public Shelby Tisdale and determine a finding of fact and conclusion of law conceming the aforementioned facts. Accordingly, if your office agrees tiiat Oregon Noteay Public Shelby Tisdale has violated any ofthe Notary laws of Oregon, or others, I request the appropriate actions be taken against Oregon Notary Public Shelby Tisdale and that I be informed of all actions pursuant to the Constitution and the Bill of Rights. I am formally notifying your office of Oregon Notary Public Shelby Tisdale possible felonious acts in accordance witii Titie 18 USC § 4 - Misprision of Felony. Please order Oregon Notary Public Shelby Tisdale respond to this request pursuant to ORS 192.240 and others. Please order Oregon Notary Public Shelby Tisdale produce a copy of his journal pursuant to ORS 194.005 and 194.152. In closing, I would like this office to consider tiie fact that Oregon Notary Public Shelby Tisdale possible criminal acts are being committed using a govemment issued authority; and under color of state law to deprive me of my constitutionally protected civil rights; and are die sole cause and relevant factors that have allowed a bank to commence an unlawful foreclosure on my real property. 1 Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 31 of 32 Certified mail receipt* 7010 3090 0003 5729 4558 AH Rights RiSserved, CC: US Bank National Association as trastee Bank of America 2 Case 1:13-cv-04122-JEC-RGV Document 17 Filed 06/23/14 Page 32 of 32