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Duraney v. Washington Mutual Bank F.A.

September 11, 2008

LAURIE L. DURANEY, PLAINTIFF,
v.
WASHINGTON MUTUAL BANK F.A., SHAPIRO & KREISMAN LLC, KEVIN DISKIN, ESQ., MEGAN D.H. SMITH, ESQ., AND LINDSEY HANSEN, DEFENDANTS.



The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronic Filing

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff, Laurie L. Duraney ("Duraney" or "Plaintiff"), brings this action under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p ("FDCPA"), seeking to challenge actions taken by Defendants prior to and during a mortgage foreclosure action (the "Foreclosure Action") that resulted in summary judgment being entered against her in the Court of Common Pleas of Allegheny County Pennsylvania on December 19, 2006. Defendants in the action are: Washington Mutual Bank F.A. ("WAMU"), the foreclosing bank; Shapiro & Kreisman LLC ("S&K"), the law firm that represented WAMU in the Foreclosure Action; Attorneys Kevin Diskin ("Diskin") and Megan Smith ("Smith"), S&K attorneys who handled the litigation; and Lindsey Hansen ("Hansen")(together the "S&K Defendants"), a legal assistant with S&K. Pending before the Court are motions for summary judgment filed on behalf of Duraney, WAMU and the S&K Defendants.

After careful consideration of the motions, the memoranda of the parties, and the entire record, the Court will grant Defendants' motions for summary judgment and deny Plaintiff's motion.

II. PROCEDURAL HISTORY

Plaintiff's complaint was filed in this Court on January 5, 2007.*fn1 Jurisdiction is based on 28 U.S.C. § 1331 and 15 U.S.C. § 1692k(d). Count I is an FDCPA claim against all Defendants except Hansen. Count II is an FDCPA claim against Hansen. Count III is a common law libel and slander claim against all Defendants except Hansen. Count IV is a common law libel and slander claim against WAMU relating to the statement in its letter of September 28, 2005 that Plaintiff had "refused to pay." Count V is a breach of contract claim against WAMU. Count VI alleges bad faith by WAMU. Count VII asks for an injunction against all Defendants from carrying forward the Foreclosure Action or attempting to assess or collect fees or costs. Count VIII is a claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 PA. STAT. §§ 201.1 to 201.9.3 ("UTPCPL") and the Pennsylvania Fair Credit Extension Uniformity Act, 73 PA. STAT. §§ 2270.1 to 2270.6 ("FCEUA"), asserted against all Defendants. Count IX alleges that all Defendants are liable to her under theories of joint and several liability.

On January 31, 2008, various motions to dismiss filed by the Defendants were granted in part and denied in part. As a result, only the FDCPA claims in Counts I and II remain. The motions for summary judgment were filed on March 17, 2008.

III. STATEMENT OF THE CASE

Plaintiff is an adult individual presently residing at 1891 Riverview Drive, Wisconsin Rapids, Wisconsin 54494. (Duraney Dep. at 8.)*fn2 Previously, she lived at 206 Cherry Street, Whitaker, Pennsylvania, in a house that is the subject of this dispute. (Id.)

WAMU is a Federal Association with its home office located in Henderson, Nevada. (WAMU Answer ¶ 2.)*fn3 S&K is a law firm located at 3600 Horizon Drive, Suite 150, King of Prussia, PA 19406. (S&K Defs. Answer ¶ 3.)*fn4 At the time of the events at issue, Diskin was the managing attorney at S&K and supervised both Smith and Hansen, Smith was an attorney with the firm, and Hansen was a legal assistant. They all worked at S&K's King of Prussia office. (Diskin Answers Pl.'s First Set Req. Admis. #36, 37, 65;*fn5 Smith Answer Pl.'s First Set Req. Admis. #65;*fn6 S&K Defs.' Answer ¶ 6; Hansen Answer Pl.'s First Set Req. Admis. #38, 39.*fn7

S&K has served as legal counsel in the filing of numerous complaints in mortgage foreclosure in the Commonwealth of Pennsylvania in which notice must be given pursuant to both Act 6 and Act 91, and Smith and Hansen have been involved in such matters as well. (S&K Defs.' Answer Pl.'s First Set Req. Admis. #63.)*fn8

Plaintiff's Mortgage and Note

Plaintiff purchased a home in Whitaker Borough, Allegheny County, Pennsylvania, in July 1996. (Duraney Dep. at 15.) In order to finance the purchase, she entered into a note and thirty-year mortgage with PNC Mortgage Corporation of America ("PNC"), in which she agreed to make monthly payments to PNC to satisfy the mortgage. (Duraney Dep. at 16-19; see WAMU App. Exs. 1 & 2.) WAMU acquired Plaintiff's mortgage and note as part of its purchase of PNC's residential mortgage business in 2001. (WAMU Answer ¶ 12.)

The First Default

On May 31, 2005 and again on June 2, 2005, Plaintiff missed a mortgage payment when WAMU attempted to automatically withdraw the payment from her bank account but the account had insufficient funds. (WAMU Answer ¶¶ 12-13.) WAMU sent Plaintiff a letter on June 7, 2005, notifying her of the missed payment. (Duraney Dep. at 171-72; see WAMU App. Ex. 3.)

She does not dispute that a payment due to WAMU on July 1, 2005, was missed. (Duraney Dep. at 38.) Under the terms of the note and mortgage, the missed payment constituted a default which authorized WAMU to accelerate the balance due on the note and mortgage. (Note and Mortgage, App. Exs. 1 & 2.)

Plaintiff took no steps to cure the default on the note and mortgage between June 7, 2005 and September 14, 2005. (Duraney Dep. at 30-34.) WAMU thereafter sent Plaintiff an "Act 91 Notice" dated September 14, 2005, further informing her of the default. (Duraney Dep. at 33; Docket No. 86-6.) WAMU contends that the "Act 91 Notice" dated September 14, 2005, was in compliance with all Pennsylvania pre-foreclosure notice requirements and that it accurately recited all amounts due and owing to WAMU. Plaintiff responds that the notice consisted of only four sheets of paper and that it was insufficient because it did not contain the name and listing of any consumer credit counseling agencies as required under Pennsylvania law, 35 PA. CONS. STAT. § 1680.401c. (Duraney Aff. at 1.)*fn9 The September 14, 2005 letter stated that "we may report information about your account to credit bureaus. Late payments, missed payments or other defaults on your account may be reflected in your credit report."

The September 28, 2005 Agreement

WAMU and Plaintiff entered into an arrangement on September 28, 2005, whereby she was given the opportunity to cure the default by making a series of six payments to WAMU beginning September 30, 2005 and ending February 15, 2006. (WAMU App. Ex. 4; Duraney Dep. at 174-75.) The six payments would allow her to catch up on the outstanding principal, interest, and escrow she owed WAMU. The payment arrangement was set forth in a letter dated September 28, 2005, from WAMU to Plaintiff. (WAMU App. Ex. 4.) The letter stated in boldfaced print that "we have told a credit bureau about a late payment, missed payment or other default on your account." WAMU admits that it furnished a report of late payment to a credit reporting agency. (WAMU Resp. Pl.'s Req. Admis. #23.) The S&K Defendants do not participate in credit reporting and, in this instance, did not furnish information about Plaintiff to a credit reporting agency. (S&K Defs. Answer Pl.'s First Req. Admis. #24, 25.)

In the letter, WAMU informed Duraney that it would automatically withdraw the first of the six payments, and that she was to mail the other payments to WAMU. Plaintiff correctly notes that the letter did not describe how the payments would be made. As described below, the arrangement regarding the method of payment for the first installment appears to have been verbal.

On September 30, 2005, the first payment of $715.00 ($700.00, plus a $15.00 service fee) was automatically deducted by a one-time "Just-in-Time" electronic funds transfer. A letter sent to her confirming this transaction stated that: "As per your verbal authorization on September 28, 2005, this one-time request will be processed in the amount of $715.00, and will be applied to the loan as of September 30, 2005." (WAMU App. Ex. 5; Duraney Dep. at 185-86.) There is no dispute concerning the $15.00 service fee.

The Second Default

According to the September 28, 2005 payment arrangement, the second payment was due to WAMU on October 15, 2005. Plaintiff did not mail any payment to WAMU on that date or thereafter. She believed that the bank would automatically withdraw the funds from her account. (Duraney Aff. at 1.) WAMU believed that Plaintiff was obligated to mail in the payment. As noted above, the September 30, 2005 letter referred to her "one-time request" for the first payment to be made by automatic withdrawal.

Plaintiff's failure to make the second payment placed her in default of the September 28, 2005 repayment agreement. On October 24, 2005, WAMU sent her another "Act 91 Notice" as the required pre-foreclosure notice in Pennsylvania. (WAMU App. Ex. 6; Duraney Dep. at 190-91.)

WAMU asserts that the "Act 91 Notice" dated October 24, 2005, was in compliance with all Pennsylvania pre-foreclosure notice requirements and that it accurately recited all amounts due and owing. Plaintiff again contends that the notice did not contain the names and listing of any consumer credit counseling agencies as required under Pennsylvania law. (Duraney Dep. at 193.) In addition, she maintains that the October 24, 2005 notice did not reflect the full payment of $700.00 made on September 30, 2005. Duraney further contends that because she had paid $700.00, $454.98 of which covered the July 1 payment, the remaining $245.02 should have been credited towards the August 1 payment. The October 24, 2005 notice, however, specifically referred to $245.02 as a "credit" that was subtracted from the amounts she owed. (WAMU App. Ex. 6.)

Finally, Duraney states that she believed that she could and should ignore any default notices sent to her after September 28, 2005 because the letter memorializing the repayment agreement stated that "You may still receive billing statements or default letters from Washington Mutual; however as long as you are in compliance with the terms of this agreement, you may disregard the notices." (Duraney Dep. at 178; WAMU App. Ex. 4.) Therefore, she did not respond to the October 24 notice.

WAMU asserts that it made numerous attempts to contact Plaintiff by telephone after service of the Act 91 Notice in October 2005, and thereafter in November 2005. (Duraney Dep. at 45-57, 149-58; WAMU Supp. Resp. Pl.'s Interrog. #18.*fn10 ) It contends that, although she knew that WAMU was attempting to contact her regarding late payments, she made no effort to contact WAMU and make arrangements to bring her note and mortgage current. Plaintiff responds that only one of these phone calls "made live contact" with her (as opposed to her answering machine), that she did not know who was attempting to call her since the callers did not identify themselves, instead leaving only a phone number concerning a "personal business matter," and that the single contact was by a rude man who insulted her to the point where she hung up on him. (Duraney Dep. at 45-63.)

The Foreclosure Action

The Foreclosure Action was commenced by S&K on December 9, 2005, in the Court of Common Pleas of Allegheny County at Docket No. GD 05-032266. (WAMU App. Ex. 7.)

WAMU had retained S&K as outside counsel to commence foreclosure proceedings against Plaintiff. (WAMU Supp. Resp. Pl.'s Interrog. #9.)*fn11 The complaint was served on Plaintiff on December 19, 2005 at 9:50 p.m. (Duraney Dep. at 106.)*fn12

On December 20, 2005, Lindsey Hansen of S&K responded by letter to Plaintiff's request for information concerning the amount necessary to reinstate her loan. Hansen wrote as follows:

Please be advised as of this date the amount due to WASHINGTON MUTUAL BANK is $2,967.04. This amount represents a Reinstatement through January 20, 2006. This amount does not include outstanding attorney's fees or costs associated with this office's handling of the matter. All figures are subject to verification and may change since we are not authorized to delay the foreclosure action. Currently, the outstanding attorney fees and costs are $1,219.50. ...

Therefore, prior to tendering any funds, it will be necessary for you to contact this office and advise of the approximate date you anticipate being able to forward funds to Reinstate. We will then provide you with the amount needed at that time. Any funds forwarded without contacting our office or which are insufficient to Reinstate will be subject to being returned by certified mail. If further information or clarification is necessary, please feel free to contact this office. We look forward to working with you in this matter. (S&K Defs. App. Ex. J.)*fn13 Upon receiving this letter, Plaintiff understood that she was being required to pay both $2,967.04 and some amount for attorney fees and costs. (Duraney Dep. at 116, 286.)*fn14 On December 22, 2005, Plaintiff called Lindsey Hansen of S&K and, according to her own handwritten notes, left a voicemail message for her stating as follows:

1) I can pay the $2,967.04 immediately

2) I would like an itemized statement because I made a $700 payment on 9/27/05 and this amount does not appear to reflect that

3) I cannot pay legal fees in a lump sum & need a payment plan.

(S&K Defs. App. Ex. G.)

Plaintiff filed an Answer, New Matter and Counterclaim in the Foreclosure Action on January 20, 2006. (WAMU App. Ex. 8.) She raised a number of defenses and claims, arising out of the allegedly defective Act 91 notices:

1. The Act 91 notices were incomplete and inaccurate because WAMU failed to provide her with a list of ...


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