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Kaymark v. Bank of America, N.A.

United States District Court, W.D. Pennsylvania

March 31, 2014

DALE KAYMARK, individually and on behalf of other similarly situated and former homeowners in Pennsylvania, Plaintiffs,
v.
BANK OF AMERICA, N.A., and UDREN LAW OFFICES, P.C., Defendants

Page 497

For DALE KAYMARK, individually and on behalf of other similarly situated current and former homeowners in Pennsylvania, Plaintiff: Michael P. Malakoff, LEAD ATTORNEY, Michael P. Malakoff, PC, Pittsburgh, PA.

For BANK OF AMERICA, N.A., and, Defendant: Jonathan J. Bart, LEAD ATTORNEY, Wilentz Goldman & Spitzer, P.A., Philadelphia, PA; Thomas L. Allen, LEAD ATTORNEY, Nellie E. Hestin, Reed Smith LLP, Pittsburgh, PA; Andrew J. Soven, Marc A. Goldich, REED SMITH LLP, PHILADELPHIA, PA.

For UDREN LAW OFFICES, P.C., Defendant: Jonathan J. Bart, LEAD ATTORNEY, Wilentz Goldman & Spitzer, P.A., Philadelphia, PA.

Cathy Bissoon, United States District Judge. United States Magistrate Judge Cynthia Reed Eddy.

Page 498

MEMORANDUM ORDER

Cathy Bissoon, United States District Judge

This case was referred to United States Magistrate Judge Cynthia Reed Eddy for pretrial proceedings in accordance with the Magistrates Act, 28 U.S.C. § § 636(b)(1)(A) and (B), and Rules 72.C, 72.D and 72.G of the Local Rules for Magistrates.

On December 11, 2013, the Magistrate Judge issued a Report and Recommendation (" R& R" ) (Doc. 41) recommending that Defendant Udren Law Offices, P.C.'s (" Udren" ) and Defendant Bank of America, N.A.'s (" BOA" ) Motions to Dismiss (Docs. 24 and 26, respectively) be granted. Service of the Report and Recommendation was made on the parties, and Plaintiff filed Objections (Doc. 44) on January 21, 2014. Udren and BOA each filed a Response (Docs. 50 and 51, respectively). On March 4, 2014, Plaintiff filed a Reply in opposition to Udren's and BOA's Response (Docs. 53 and 54).

The Court finds it appropriate to address certain arguments raised in Plaintiff's Objections, but first will provide a limited background of the case.

I. Background

Plaintiff Dale Kaymark defaulted on a mortgage held by BOA (" the Mortgage" ). On September 13, 2012, Udren, acting on BOA's behalf, filed a Foreclosure Complaint in the Court of Common Pleas of Allegheny County, Pennsylvania. Represented by counsel, Plaintiff contests the foreclosure, and adversary proceedings are currently pending in state court.

The relevant terms of the Mortgage provide that in the event of default, the lender (BOA) may charge the Borrower (Plaintiff) fees for services performed in connection with Borrower's default, including, but not limited to, attorneys' fees, property inspections and valuation fees. See Amended Complaint, Ex. C at p. 3 (Doc. 23).

In his Amended Complaint, Plaintiff states four counts: Count I, against BOA only, for violating the Pennsylvania Fair Credit Extension Uniformity Act (" PFCEUA" ), 73 P.S. § 2270.4(b)(5) and § 2270.4(b)(6); Count II, against Udren only, for violating the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § 1692e(2)(A), e(5) and e(10) and § 1692f; Count III, against BOA and Udren, for violating the Pennsylvania Unfair Trade Practices and Consumer Protection Law (" PUTPCPL" ), 73 ...


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