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New-Howard v. JPMorgan Chase Bank, N.A.

United States District Court, Third Circuit

November 18, 2013

DEONNE NEW-HOWARD and EDGAR HOWARD, Plaintiffs,
v.
JPMORGAN CHASE BANK N.A., Defendant.

MEMORANDUM AND ORDER

CURTIS JOYNER, District Judge.

Before the Court are Defendant's Motion for Summary Judgment (Doc. No. 24), which was renewed by Order of the Court as to the Woolston Avenue loan only (Doc. No. 51), and Plaintiffs' Response letter to the Court dated October 29, 2013 (Doc. No. 52). For the reasons outlined herein, the Court GRANTS in part and DENIES in part Defendant's motion.

II. BACKGROUND

The pro se Plaintiffs, Deonne R. New-Howard and Edgar A. Howard, bring an action against JP Morgan Chase Bank, N.A., for violation of the Pennsylvania Fair Credit Extension Uniformity Act ("FCEUA"), 73 Pa. Stat. Ann. § 2270.1 et seq, the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 23 Pa. Stat. Ann. § 201-1 et seq., and the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. The present action was filed on January 11, 2011 in the Court of Common Pleas, Philadelphia County, and was then removed to this Court in April 2011. (Doc. No. 1).

The facts relevant to the instant motion are as follows. On January 31, 1985, Plaintiff Deonne New and her mother Josie New entered into a mortgage agreement (the "Woolston loan" or "the loan") with Clarion Mortgage Company in which Plaintiff undertook to pay, in monthly installments to Clarion Mortgage, $22,000 plus 13.125% annual interest. (Def. Mot. For Summary Judgment at Ex. A ("Def. Ex. A"); Aff. Of Silvia Juarez at ¶ 4 ("Juarez Aff.")). On the same day, Plaintiff was granted the deed to the property located at 6856 Woolston Avenue, Philadelphia, PA, in exchange for $21,000. (Affidavit of Sheila Raftery Wiggins at ¶ 10 ("Wiggins Aff."); Def. Ex. 9). The loan was then assigned to the Department of Housing and Development ("HUD"). (Def. Ex. A). On February 23, 1996, the loan was assigned from HUD to EMC Mortgage Corporation ("EMC") (Aff. of Sylvia Juarez at ¶ 5; Def. Ex. B), and in March of that year, the Woolston loan was modified to be a fixed rate mortgage of 7.5% annual interest. (Def. Ex. C). The unpaid principal balance on the loan at the time was $33,891.95, and Plaintiff's monthly payments were $279.85. Id. On May 30, 2008, JP Morgan Chase Bank, N.A. ("JPM") acquired EMC. (Juarez Aff. at ¶ 2). At that time, JPM began servicing the Woolston loan Id. at ¶ 7.

On August 15, 2008, Plaintiffs wrote a letter to EMC asking them to "begin escrowing for [her] homeowner's insurance." (Def. Ex. D). The Defendant understands this as a request to escrow funds for the hazard insurance required under the terms of the mortgage. (Def. Mot. for Summary Judgment at 5). On August 18, 2008, Plaintiffs made a payment to EMC of $393.15. (Amended Complaint, Doc. No. 10, at Ex. D at 9). EMC wrote to Plaintiffs on September 16, stating that Plaintiffs' insurance policy with AllState had lapsed on March 6, 2008, due to nonpayment. (Def. Ex. D). EMC further informed Plaintiffs as follows:

According to the terms of your loan agreement, it is your responsibility to provide the lender with proof of insurance at each renewal period. In the event you fail to provide evidence of insurance, a lender may obtain coverage to protect its interest in case of damage to the property. Because [EMC] did not receive your insurance renewal for the 2008-2009 policy periods, EMC will secure force-placed coverage on this property... Effective with the October 2008 installment your new monthly payment is $667.18... As a reminder, your loan is past due for the September 2008 installment in the amount of $393.16.

Id. Also on September 16, 2008, EMC sent Plaintiffs a statement that listed the "past due amount" on Plaintiffs' account as $393.16, and the "current amount due" as $393.16. (Am. Compl. at ¶ 23, Ex. E). It assessed $27.63 in late fees. Id. The statement noted that a further late charge of $13.81 would be assessed if Plaintiffs did not pay the amount due by September 16, the same day on which the statement had been issued. Id. It calculated Plaintiffs' total amount due as $813.94.[1] Id. The statement listed the "Year-To-Date Hazard Insurance Paid" as $0.00. (Am. Compl. at Ex. E). On September 23 and November 3, 2008, Plaintiffs made payments to EMC of $406.96. (Am. Compl. at Ex. D at 8-9).

On November 14, 2008, Plaintiffs received a statement from EMC that listed the "past due amount" as $0.00, the "current amount due" as $393.16, and assessed two months' worth of late fees, for a total of $420.79. (Am. Compl. at Ex. F). The late charges were assessed at $13.81 per month. Id. The statement listed the "Year-To-Date Hazard Insurance Paid" as $1,231.00. Id. Plaintiff paid EMC $393.16 on November 14, 2008. (Am. Compl. at Ex. D at 8).

On December 16, 2008, Plaintiffs received a statement listing the "past due amount" as $393.16, the "current amount due" as $659.36, and assessed $41.44 in late charges, for a total of $1,103.96. (Am. Compl. at Ex. G). The late charges were assessed at $24.86 per month. Id. The statement noted that a late charge would be assessed if Plaintiff did not pay the amount due by December 16, the same day on which the statement had been issued. Id. The statement listed the "Hazard Insurance Paid" as $1,231.00. Id.

Plaintiff and Defendant then engaged in negotiations regarding a repayment plan. Defendant asserts that Plaintiff "[made] up some payments via some repayment plans" (Def. Mot. for Summary Judgment at 6), while Plaintiffs catalogue various phone calls with EMC representatives beginning in December of 2008. According to Plaintiff,[2] on December 18, 2008, Plaintiff called EMC and spoke with a representative who informed her that her new mortgage payment as of January 2009 would be $468.00 (Am. Compl. at ¶ 35; Def. Ex. 2 at 107), after which Plaintiff paid EMC $468.00 on January 28, 2009. (Am. Compl. at Ex. D at 8). Also in January 2009, EMC called Plaintiff and advised her to make no payments because EMC was in the process of making a new ninety-day payment plan under which, beginning in March 2009, Plaintiff would pay $669.36 per month (Am. Compl. at ¶ 37-38; Def. Ex. 2 at 107). Plaintiff made no payments between January 28, 2009, and March 2, 2009. (Am. Compl. at Ex. D at 8).

In February and March 2009, Plaintiff received letters informing her that she was in default on the Woolston loan. (Def. Ex. HH, II, KK). A notice at the bottom of each letter stated that "EMC is writing regarding the collection of your loan; any information obtained may be used for that purpose." Id.

Plaintiff made payments of $669.36 to EMC from March to July, 2009, though her May payment was only $468. (Am. Compl. at Ex. D at 7-8; Def. Ex. LL). On August 17, Plaintiff called EMC and was informed that EMC wished to make another 90-day repayment plan, and that Plaintiff should not make payments in August or September of 2009. (Am. Compl. at ¶ 44; Def. Ex. 2 at 107). Plaintiff made no payments in August or September 2009. (Am. Compl. at Ex. D at 5-6). Plaintiff engaged in phone calls with EMC representatives in August and September regarding the paperwork necessary for the modification. (Def. Ex. 2 at 107-108). On September 18, 2009, Plaintiff and EMC entered into a written agreement under which Plaintiff would pay $536.00 monthly. (Am. Compl. at Ex. B). The agreement stated that "[t]his account is due for May 01, 2009, through September 01, 2009 mortgage payments and fees." Id. It listed the past amount due as $3,223.57. Id. When Plaintiff called EMC, an EMC representative instructed her to sign and fax to EMC the written agreement if she accepted its terms. (Am. Compl. at ¶ 56-57; Def. Ex. 2 at 108). Plaintiff did so. Id.

From October 2009 to August 2010, Plaintiff made monthly payments of $536.00 or $551.68, (Am. Compl. at Ex. D at 2-5) and spoke regularly with EMC representatives who confirmed receipt of certain payments, and also informed her that her modification was under review with the underwriter. (Def Ex. 2 at 108-110). In November 2009 and February 2010, Plaintiff applied for loan modifications. (Juarez Aff. at ¶ 10; Def. Ex. E). She cited her and her husband's lost income and her mother's diagnosis of cancer, among other things, as the reasons for the requested modification. Id. ...


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