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Portley v. Litton Loan Servicing LP

April 5, 2010

JAMES J. PORTLEY PLAINTIFF,
v.
LITTON LOAN SERVICING LP, DEFENDANT.



The opinion of the court was delivered by: Tucker, J.

MEMORANDUM AND ORDER

Presently before this Court are Plaintiff's Motion for Judgment on the Pleadings (Doc. 10), Defendant's Cross-Motion for Judgment on the Pleadings (Doc. 11), Plaintiff's Response in Opposition thereto (Doc. 12), and Defendant's Reply (Doc. 13). For the reasons set forth below, the Court denies both Plaintiff's Motion and Defendant's Cross-Motion.

BACKGROUND

Plaintiff, a Pennsylvania resident who defaulted on his mortgage loan, filed suit against Defendant, a debt collection agency incorporated in Delaware, for alleged violations of the Fair Debt Collection Practices Act ("FDCPA"). Plaintiff is a natural person residing at 7877 Michener Street, Philadelphia, Pennsylvania 19150. (Compl. ¶ 2.) Defendant is a limited partnership that maintains a principal place of business located at 4828 Loop Central Drive, Suite 600, Houston, Texas 77081. Id. On or about June 1, 2007, Option One Mortgage Corporation transferred the servicing rights to the mortgage loan on Plaintiff's Michener Street residence to Defendant. (Compl. ¶ 8.) On or about June 14, 2007, Defendant mailed to Plaintiff a four (4) page welcome letter notifying Plaintiff of the assignment of servicing rights.*fn1 (Compl. ¶ 9.) On or about July 11, 2007, Defendant mailed to Plaintiff a six (6) page Act 91 Notice*fn2 indicating that Plaintiff's mortgage had been in default since March 1, 2007 and that Defendant intended to initiate foreclosure proceedings. (Compl. ¶¶ 10-11.) Plaintiff alleges the Act 91 Notice contains several errors and omissions, namely identifying Defendant as the "lender" rather than the "servicer" of the loan and failing to provide the name and address of the lender.

Page 1 of the Act 91 Notice begins with "This is an official Notice that the mortgage on your home is in default, and the lender intends to foreclose." Page 2 of the Act 91 Notice reads:

ORIGINAL LENDER: Contact Litton Loan Servicing LP CURRENT LENDER/SERVICER: Litton Loan Servicing LP (Compl. Ex. B at 2.) Page 3 of the Act 91 Notice provides:

NOTE: IF YOU ARE CURRENTLY PROTECTED BY THE FILING OF A PETITION IN BANKRUPTCY, THE FOLLOWING PART OF THIS NOTICE IS FOR INFORMATION PURPOSES ONLY AND SHOULD NOT BE CONSIDERED AS AN ATTEMPT TO COLLECT THE DEBT. . . . .

HOW TO CURE THE DEFAULT - You may cure the default within THIRTY (30) DAYS of the date of this Notice BY PAYING THE TOTAL AMOUNT PAST DUE TO THE LENDER, WHICH IS $4,830.40 PLUS ANY MORTGAGE PAYMENTS AND LATE CHARGES WHICH BECOME DUE DURING THE THIRTY (30) DAY PERIOD. Payments must be made either by cashier's check, certified check, or money order made payable and sent to:

Litton Loan Servicing LP

Attention: Cash Management Department

P.O. Box 4387

Houston, TX 77210-4387

IF YOU DO NOT CURE THE DEFAULT - If you do not cure the default within THIRTY (30) DAYS of the date of this Notice, the lender intends to exercise its rights to accelerate the mortgage debt. . . . If full payment of the total amount past due is not made within THIRTY (30) DAYS, the lender also intends to instruct its attorneys to start legal action to ...


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