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Wilson v. Bank of Am., N.A.

United States District Court, E.D. Pennsylvania

September 24, 2014

BELLA WILSON, individually, and as Administrator and sole heir of the Estate of Damian Wilson, Plaintiff,
v.
BANK OF AMERICA, N.A., Defendant,

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For BELLA WILSON, INDIVIDUALLY, AND AS ADMINISTRATOR AND SOLE HEIR OF THE ESTATE OF DAMIAN WILSON, Plaintiff: IRV ACKELSBERG, LEAD ATTORNEY, LANGER GROGAN & DIVER PC, PHILADELPHIA, PA.

For BANK OF AMERICA, N.A., Defendant: ROBERT WARRING, REED SMITH LLP, PHILADELPHIA, PA.

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MEMORANDUM

RONALD L. BUCKWALTER, SENIOR UNITED STATES DISTRICT JUDGE.

Currently pending before the Court is a Motion to Dismiss filed by Defendant Bank of America, N.A. (" BOA" or " Defendant" ). For the following reasons, the Motion is granted in part and denied in part.

I. FACTUAL BACKGROUND

According to the facts set forth in the Complaint, Plaintiff Bella Wilson (" Plaintiff" or " Wilson" ) is the sole owner of a two-story row house at 6014 Ogontz Avenue, Philadelphia, Pennsylvania (the " Property" ). (Compl. ¶ 8.) The mortgage on the Property (the " Mortgage" ) is owned and serviced by Defendant BOA. (Id. ¶ 9.) The Mortgage was originally made to Plaintiff's deceased son, Damian Wilson, who purchased the house in December 2006 with funds from a BOA mortgage loan. (Id. ¶ 10.) Damian Wilson died on September 21, 2007, and left Plaintiff as his sole heir. (Id. ¶ ¶ 10-11.) Plaintiff made several mortgage payments to BOA until receiving assurances from Damian's friends, who had been living in the house with him just prior to his death, that they would maintain the payments. (Id. ¶ ¶ 11, 13.) Although Plaintiff attempted to confirm with BOA that the mortgage was being maintained, BOA would not provide account information to her. (Id. ¶ 14.)

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On April 8, 2008, Plaintiff was granted Letters of Administration by the Register of Wills for Philadelphia County, thereby making her the formal legal representative for Damian's estate. (Id. ¶ 15.) Thereafter, BOA changed the name of the account holder for the Mortgage to " Estate of Damian Wilson." (Id. ¶ 16.) The Mortgage is presently " underwater," meaning that the debt is in excess of the value of the Property. (Id. ¶ 17.) In April 2009, Plaintiff discovered that the people living in the house had moved out and damaged the property. (Id. ¶ 18.) She contacted BOA and indicated that she wanted to take control of the Property and make repairs, provided that BOA would work with her in bringing the mortgage account current. (Id.) The BOA representative mentioned the possibility of a " loan modification." (Id.)

These events coincided with the economic collapse that occurred in 2008 and the resulting response by the federal government, which included the enactment of the Home Affordable Modification Program (" HAMP" ) on February 18, 2009. (Id. ¶ ¶ 19-20.) HAMP is funded by the federal government, primarily with funds from the Troubled Asset Relief Program (" TARP" ), 12 U.S.C. § 5211. (Id. ¶ 23.) Because BOA accepted $25 billion in TARP funds and additional loan guarantees, it was required to participate in HAMP for the mortgage loans where it functioned as the mortgage " servicer," and it entered into a written HAMP participation agreement with the Treasury Department on April 17, 2009. (Id. ¶ 24.) This participation agreement required BOA, among other things, to implement and operate a HAMP program in accordance with the program directives issues by Treasury, Fannie Mae and/or Freddie Mac. (Id. ¶ 25.) Under HAMP, qualified homeowners who are delinquent or otherwise financially distressed are eligible for a permanent modification of their mortgage so as to lower their monthly mortgage payment to affordable levels, and servicers must structure a hypothetical modified loan in accordance with a sequence called the " waterfall." (Id. ¶ 26.) The terms of the modified loan are based on the borrower's monthly gross income, applying the waterfall. (Id. ¶ 27.) Once the hypothetical loan modification is determined, the servicer applies a " net present value" (" NPV" ) test which, if passed (" NPV-positive" ), qualifies the borrower for the modification. (Id. ¶ 28.)

HAMP directives define a two-step procedure for determining HAMP eligibility: (1) the participating servicer gathers financial information from the homeowner and, if the homeowner is qualified, offers a three-month Trial Period Plan (" TPP" ) agreement based on its calculation of the appropriate modified mortgage payment; and (2) if the homeowner completes the required three TPP payments and continues to provide the relevant documentation, the servicer enters into a permanent loan modification agreement with the homeowner. (Id. ¶ 29.) HAMP program directives expressly provide for qualifying the surviving heirs of deceased borrowers. (Id. ¶ 30.) The program directives also require BOA to evaluate all loans in its servicing portfolios for possible eligibility for HAMP. (Id. ¶ 31.)

Soon after BOA signed its HAMP participation agreement, it identified the Mortgage at issue as one potentially eligible for a HAMP modification, and, in accordance with BOA's instructions, Plaintiff submitted HAMP-related documentation to BOA. (Id. ¶ 32.) The Mortgage was qualified for HAMP in that it was NPV-positive and, by application of the waterfall, the Mortgage could be made current and affordable through a combination of reducing the interest, extending the term, and/or deferring a portion of the principal.

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(Id. ¶ 33.) Nonetheless, on May 20, 2009, BOA initiated a foreclosure action against the Property, naming as defendants " the Estate of Damian Wilson" and " Bella Wilson, as Administratrix and Heir." (Id. ¶ 34.) As part of the foreclosure packet served on her, Plaintiff was encouraged to seek the assistance of a housing counseling agency and to participate in the local state court's Mortgage Foreclosure Diversion Program. (Id. ¶ 36.) Shortly thereafter, Plaintiff arranged to meet with a housing counselor, executed a deed to the Property from herself as Administratrix to herself as the sole heir, and remained in contact with BOA. (Id. ¶ 37.) After meeting with a housing counselor on June 9, 2009, Plaintiff began the process of becoming qualified for the HAMP loan modification. (Id. ¶ 38.)

On July 2, 2009, Plaintiff, her counselor, and BOA appeared at a " conciliation conference" under the state court's Foreclosure Diversion Program, at which point BOA acknowledged that the HAMP application was being processed, represented that the loan would be modified if Plaintiff provided proof that the deed naming her as owner had been duly recorded, and entered into a written agreement with Plaintiff to suspend the foreclosure action. (Id. ¶ 39.) This agreement was submitted to the court and subsequently entered as an order. (Id.) Thereafter, on July 6, 2009, Plaintiff recorded the deed to the Property from the Estate to herself. (Id. ¶ 40.)

On July 25, 2009, by letter addressed to " the Estate of Damian Wilson" at the Property address, and referencing the Mortgage account number, BOA advised Plaintiff that, " [b]ased on an initial review of your current financial situation, you may be eligible for a loan modification as part of the federal government's Home Affordable Modification Program to help homeowners." (Id. ¶ 41.) The letter included the offer of a three-month Home Affordable Modification Trial Period Plan (" TPP Agreement" ) providing for a " trial period payment" (" TPP" ) of $636.24 per month commencing September 1, 2009. (Id.) The letter further advised Plaintiff that the amount of the TPP was " based on the income information that you previously provided to us," and asked Plaintiff to provide supplemental financial information and a Hardship Affidavit explaining the circumstances of the delinquency. (Id. ¶ 42.) It represented that if Plaintiff's additional information confirmed her eligibility for HAMP and she made the three trial payments, " a new loan modification agreement will be sent to you." (Id.)

With the assistance of her housing counselor, Plaintiff prepared the " hardship affidavit," gathered the requested financial information, and sent these materials and the signed TPP agreement to Defendant. (Id. ¶ 43.) Plaintiff mailed to BOA her three TPP payments from September to December 2009. (Id. ¶ 44.) Nonetheless, she never received the permanent HAMP modification agreement before the end of her trial period, as promised. (Id. ¶ 45.) Plaintiff continued to tender monthly payments in the amount specified in the TPP Agreement while awaiting the arrival of the promised modification agreement. (Id.)

On March 11, 2010, BOA sent a letter to Plaintiff personally, not as administratrix, thanking her for " sending us your Trial Period Plan agreement and some of the required documentation," but asking for recent pay stubs and bank statements. (Id. ¶ 46.) Plaintiff complied with this request. (Id.) On May 6, 2010, BOA sent Plaintiff a letter stating that she had been determined not eligible for HAMP because " you did not make all the required Trial Period Plan payments by the end of the

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trial period." (Id. ¶ 47.) Having already made nine payments of $636.24, Plaintiff sent her tenth payment in June 2010. (Id. ¶ ¶ 48-49.) BOA, however, returned the payment in July stating that the funds paid had not been certified, despite the fact that it had never required certified funds before and had accepted her nine previous personal checks. (Id. ¶ 49.) In light of these developments, Plaintiff again sought the assistance of her housing counselor. (Id. ¶ 50.) BOA asked for a new set of financial documents, which Plaintiff and her counselor submitted. (Id. ¶ 51.)

On August 9, 2010, BOA sent Plaintiff a letter entitled " Partial Payment Agreement," which provided for new monthly payments of $700/month. (Id. ¶ 52.) She signed and returned the letter with a payment of $700. (Id.) That letter did not refer to the HAMP program or explain what happened to either her pre-existing TPP Agreement or the funds she paid pursuant to that agreement. (Id. ¶ 53.) Instead, it represented that, on December 1, 2010, BOA would decide, at its sole discretion, whether to modify the loan, or demand resumption of payments or immediate reinstatement of the loan. (Id.) Plaintiff complied with the " Partial Payment Agreement" and sent BOA $700 postal money orders beginning in August 2010. (Id. ¶ 54.)

On November 5, 2010, BOA sent Plaintiff a letter thanking her for " successfully completing your Special Forebearance Plan," and informing her that, as a result, BOA would " review your loan for a modification." (Id. ¶ 55.) December 1, 2010--which was the decision date referenced in the " Partial Payment Agreement" --passed without BOA offering a loan modification or making any other payment demands. (Id. ¶ 56.) Plaintiff continued to pay $700/month, which BOA accepted from August 2010 though March 2011. (Id. ¶ ¶ 56-57.) In April 2011, Plaintiff tendered a $700 payment, which BOA returned with a note stating only, " The amount remitted does not represent the total due." (Id. ¶ 58.) During the period that BOA was accepting the $700 payments, Plaintiff was in active contact with one of BOA's departments that referred to itself as the " Home Retention Division." (Id. ¶ 59). While representatives from this Division initially requested more documents, they suddenly stopped communicating with her, representing that she was " not in the system." (Id.) At one point, they referred her to the Assumptions Department, but that Department sent her back to the Home Retention Department, who continued to deny her status as a mortgagor. (Id. ¶ 59.)

On April 5, 2012, forty-nine states (including Pennsylvania), the District of Columbia, and the federal government entered into consent judgments with BOA and four other mortgage servicers arising out of a national investigation of foreclosure-related misconduct. (Id. ¶ 60.) In the National Mortgage Settlement (" NMS" ), BOA made financial commitments to modify mortgages over and above what it had already generally committed to under the HAMP program, with special attention to underwater loans like Plaintiff's. (Id. ¶ 61.) It also became obligated to change its servicing practices, including (a) notifying all borrowers of available " loss mitigation" alternatives to foreclosure, such as HAMP, before foreclosing; (b) converting all languishing TPP agreements to permanent loan modifications; and (c) restricting any further " dual-track" foreclosure and HAMP processing. (Id.) Finally, it agreed to various restrictions on the fees and charges paid on delinquent mortgage accounts. (Id. ¶ 62.)

Notwithstanding this NMS, BOA entered a default judgment in foreclosure against Plaintiff on May 29, 2012, and

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scheduled a sheriff's sale. (Id. ¶ 63.) It did so without complying with any of its obligations under the NMS. (Id.) The default judgment included additional charges in fees, as follows: inspection fees of $581, representing a monthly charge; $2,175 for " legal fees; " and $1,742.66 for " cost of suit and title." (Id. ¶ 64.) BOA ultimately stayed the scheduled sheriff's sale, but continued to schedule subsequent sales, stay those sales, and schedule new sales. (Id. ¶ 65.) On July 22, 2013, BOA sent Plaintiff two letters. In one letter, BOA advised Plaintiff that she would not be considered for a loan modification " under the terms of the settlement" because " you withdrew that request on July 19, 2013." (Id. ¶ 66.) In the other one, BOA stated, " We are unable to complete our modification because the person who requested the loan modification is not a borrower on the mortgage loan." (Id.) Plaintiff claims that these conflicting letters were erroneous. (Id. ¶ 67.)

On August 1, 2013, Plaintiff sent BOA the first of four written inquiries (" Inquiry #1" ) sent pursuant to the Real Estate Settlement Procedures Act (" RESPA" ), 12 U.S.C. § 2605(e). (Id. ¶ 68.) This inquiry called BOA's attention to the contradictory and erroneous July 22, 2013 letters, asked why her HAMP agreement was not honored and whether BOA would honor it now, and asked what specific loss mitigation alternatives were available to save the house. (Id. ¶ 68.) BOA sent Plaintiff a " Reinstatement Calculation" on September 19, 2013, that included figures for the fees and charges that were different from the ones listed in the judgment. (Id. ¶ 69.) BOA represented that the following charges or fees had been added to the account: $521.42 for Inspection Fees, $1,775 for foreclosure attorney fees, and $4,658.07 for Foreclosure Expenses. (Id. ¶ 69.)

On October 1, 2013, Plaintiff sent BOA her Inquiry #2, in which she asked for an explanation and breakdown of the Inspection Fees and the Foreclosure Expenses. (Id. ¶ 70.) On October 8, 2013, BOA sent Plaintiff a response to Inquiry #1, which only partially responded to the inquiry and contained material errors about her account, as follows:

o With regard to Plaintiffs request for the reasons her initial HAMP application and completed payment agreements were not honored, BOA stated that she failed to complete her initial TPP payments, but not specifying what payment had supposedly been missed, and stating erroneously that Plaintiff had declined a second HAMP offer.
o BOA acknowledged that the second July 22, 2013, in which it deemed her not HAMP eligible because she was not the original mortgagor, was sent in error.
o BOA provided no explanation about the so-called " Partial Payment Agreement" BOA gave her in August 2010.

( Id. ¶ 71.) On November 5, 2013, Plaintiff sent BOA Inquiry #3, wherein she disputed missing a TPP payment during the 2009-10 period and requested a copy of the complete account history. (Id. ¶ 72.) She also asked BOA to review her history, correct her account records, and reconsider her for HAMP. (Id.) BOA sent Plaintiff an account history on December 5, 2013, showing some, but not all of the activity on the account. (Id. ¶ 73.)

On January 15, 2014, Plaintiff sent BOA Inquiry #4, which was divided into two sections. (Id. ¶ 74.) The first part, labeled a " Notice of Error," asserted that the sheriff's sale had been scheduled in error, requested correction of the mishandling of Plaintiff's HAMP application, and

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sought removal of improper fees and expenses billed by BOA's foreclosure firm. (Id.) The second part, labeled a " Request for Information," sought itemized information and documents, including, among other items, servicing logs maintained by BOA regarding communications between Plaintiff and BOA's representatives; audio files of any of these conversations; and copies of documents received from Plaintiff or her representatives regarding her request for loan modification or other loss mitigation. (Id. ¶ 75.) Plaintiff also requested copies of property inspection reports and " invoices received from the foreclosure firm and paid by Bank of America for fees or costs related to the foreclosure and included in the current balance of my account." (Id.)

On January 24, 2013, BOA sent Plaintiff a second response letter purportedly responding to Inquiry #3 and Inquiry #4. (Id. ¶ 76.) This response:

o Stated that the TPP payment Plaintiff had supposedly missed was the January 2010 payment.
o Stated that the " true reason" for the denial of HAMP was that she was not the original mortgagor, not that she had declined assistance.
o Advised her that she should call BOA's Assumption Department, but warning that " [a]lthough you administer Damian Wilson's estate, that is not the same thing as assuming the Loan and becoming a borrower" and that " the Loan must be contractually current if you wish to qualify for an assumption."

( Id.) This letter also provided incomplete responses to Inquiry #2 in that it (a) failed to provide any explanation for the property inspection charges, stating only that property inspection charges had been increased to $812; and (b) did not explain why the foreclosure fees and expenses were almost $3,000 more than the previous quote. (Id. ¶ 77.)

On January 27, 2014, BOA sent additional information to Plaintiff, partially responding to Inquiry #4, but failed to provide most of the specific documents sought, including (a) those pertaining to BOA's consideration of Plaintiff for loan modification or other assistance, including copies of its servicing logs noting communications with Plaintiff and documents submitted by Plaintiff; (b) copies of property inspection reports; and (c) copies of invoices paid by BOA to its foreclosure firm with respect to the Property. (Id. ¶ 78.) BOA has continued to schedule, stay, and reschedule sheriff's sales of the Property. (Id. ¶ 79.) Presently, the Property is scheduled for sale by the Philadelphia Sheriff on June 3, 2014. (Id.) Plaintiff has incurred approximately $44,000 in out-of-pocket expenses related to her efforts to save the Property. (Id. ¶ 80.)

Plaintiff initiated the present action against Defendant BOA on April 30, 2014. The Complaint sets forth five causes of action, as follows: (1) violation of RESPA for failing to conduct a " reasonable investigation" in response to Plaintiff's Notice of Error included in Inquiry #4 (id. ¶ ¶ 81-95); (2) violation of RESPA for failing to properly respond to Plaintiff's Requests for Information (id. ¶ ¶ 96-105); (3) violation of the Pennsylvania Unfair and Deceptive Practices and Consumer Protection Law (" UTPCPL" ) (id. ¶ ¶ 106-114); (4) breach of the TPP contract (id. ¶ ¶ 115-119); and (5) promissory estoppel/detrimental reliance. (Id. ¶ ¶ 120-126.)

Defendant filed a Motion to Dismiss the Complaint on June 30, 2014, and Plaintiff responded on July 30, 2014. Defendant then filed a Reply Brief on August 13, 2014, making this Motion ripe for judicial consideration

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II. STANDARD OF REVIEW

Under Rule 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R. Civ. P.12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the United States Supreme Court recognized that " a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555. Following these basic dictates, the Supreme Court, in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), subsequently defined a two-pronged approach to a court's review of a motion to dismiss. " First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Thus, although " Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79.

Second, the Supreme Court emphasized that " only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679. " Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. A complaint does not show an entitlement to relief when the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct. Id.; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232-34 (3d Cir. 2008) (holding that: (1) factual allegations of complaint must provide notice to defendant; (2) complaint must allege facts suggestive of the proscribed conduct; and (3) the complaint's " 'factual allegations must be enough to raise a right to relief above the speculative level.'" (quoting Twombly, 550 U.S. at 555)).

Notwithstanding these new dictates, the basic tenets of the Rule 12(b)(6) standard of review have remained static. Spence v. Brownsville Area Sch. Dist., No. Civ.A.08-626, 2008 WL 2779079, at *2 (W.D. Pa. July 15, 2008). The general rules of pleading still require only a short and plain statement of the claim showing that the pleader is entitled to relief and need not contain detailed factual allegations. Phillips, 515 F.3d at 233. Further, the court must " accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Finally, the court must " determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).

III. DISCUSSION

Defendant seeks to dismiss the entirety of Plaintiff's Complaint on several grounds: (1) Plaintiff has no standing to bring claims in her individual capacity; (2) Plaintiff's RESPA claims are deficiently pled; (3) Plaintiff's UTPCPL claim fails because there is no private right of action under HAMP; (4) Plaintiff's breach of contract claim fails because it duplicates a private cause of action under HAMP and because there is no HAMP guideline authorizing

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a permanent modification of a mortgage loan in the name of an estate; and (5) Plaintiff's promissory estoppel/detrimental reliance claim fails because her argument is based on a contract. Plaintiff, in turn, disputes each of these assertions.

A. Plaintiff's Claims Brought in Her Individual Capacity

Defendant's first challenge asserts that Plaintiff lacks standing to bring any of her claims--either under RESPA or under state law--in her individual capacity. Upon consideration of the relevant jurisprudence, the Court agrees.

First, as to all of Plaintiff's state law claims (Counts III, IV, and V), it is well-established under Pennsylvania's Survival Act that " [a]ll causes of action, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants." 42 Pa. Cons. Stat. § 8302. In turn, " all actions that survive a decedent, must be brought by or against the personal representative of the decedent's estate." Prevish v. Nw. Med. Ctr. Oil City Campus, 692 A.2d 192, 200 (Pa. S.Ct. 1997). " Proceeds recovered belong to the estate and are available to pay the decedent's debts and distributed to heirs, legatees or distributees as general assets of the estate." Rogan v. Cnty. of Lawrence,Pa., No. Civ.A.12-1375, 2013 WL 3369146, at *7 (W.D. Pa. July 2, 2013). The heirs may only recover damages recuperated by the estate as beneficiaries of that estate. Id.

In this case, Plaintiff never assumed the loan in her individual capacity. The original foreclosure action was brought on May 20, 2009, with Defendant initiating an action against the Property, naming as defendants " the Estate of Damian Wilson" and " Bella Wilson, as Administratrix and Heir." (Id. ¶ 34.) The initial offer of a HAMP TPP Agreement was sent to the " Estate of Damian Wilson" and the contract was signed by Plaintiff in her capacity as Administratrix. (Id. ¶ 41.) Moreover, the Complaint contains no allegation that Plaintiff ever assumed the Loan on the Property, as opposed to transferring the deed to the Property to her name. As such, Plaintiff does not have standing to bring suit on state law claims in her own right as an heir to the Property, but she may properly pursue them as personal representative of the Estate.

As to Plaintiff's federal claims, RESPA states that " [w]hoever fails to comply with any provision of this section shall be liable to the borrower for each such failure in the following amounts . . ." 12 U.S.C. § 2605(f). Although the statute does not explicitly define " borrower," RESPA applies only to " federally related mortgage loan[s]," 12 U.S.C. § 2602(1), suggesting that a " borrower" would be the named borrower on that loan. As Plaintiff concedes in her Complaint, " [t]he 'borrower' on the mortgage, within the meaning of 12 U.S.C. § 2605, is 'the Estate of Damian Wilson.' Plaintiff is the legal representative and sole beneficiary of that estate." (Compl. ¶ 85.) Although the Complaint indicates that Plaintiff recorded the deed to the Property from the Estate to herself, at no point does the Complaint allege that Plaintiff assumed the loan on the Property, such that she became the " borrower." As such, the RESPA cause of action belongs only to Plaintiff as Administratrix of the Estate and not to her as an individual heir to the Estate.

Plaintiff's contrary arguments are unavailing. First, she argues that " [t]here is only one Bella Wilson, not two . . . [and] there is no legal basis for deconstructing the complaint into claims brought by two separate Bella Wilsons." (Pl.'s Resp. Opp'n Mot. Dismiss 18.) Plaintiff, however, misunderstands the distinctions between

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her two legal capacities in this case. Were Plaintiff merely the heir to the Estate, she could not pursue her claims. In her legal capacity as the Administratrix of the Estate, however, Plaintiff has standing to bring the enumerated claims.

Second, Plaintiff contends that " [a]s a matter of federal law, when a residential mortgagor dies, a surviving family member who inherits the mortgaged property, takes title and is living in the house must be treated as succeeding borrower on the mortgage loan, not as a stranger that has to apply to assume the mortgage pursuant to the lender's credit standards." (Pl.'s Resp. Opp'n Mot. Dismiss 18.) For this proposition, Plaintiff cites to an irrelevant statute--the Garn-St. Germain Act, 12 U.S.C. § 1701j-3(d)(5)--which prohibits a federal savings and loan institution's exercise of a " due-on-sale" clause upon " transfer to a relative resulting from the death of a borrower." 12 U.S.C. § 1701j-3(d)(5). No " due on sale" clause is involved in this case and Plaintiff has cited no case law showing that principles of this provision have been extended to RESPA.

Third, Plaintiff attempts to assert that the foregoing principle was adopted by the Treasury Department in connection with HAMP and that Defendant was required to evaluate her qualifications for HAMP " as if . . . she was the borrower." (Pl.'s Resp. Opp'n Mot. Dismiss 19 (quoting Making Home Affordable Handbook for Non-GSE Servicers, Ch. II, § 8.8 (vers. 4.4, 3/3/2014).) She goes on to cite the recently-issued interpretive opinion under the Truth in Lending Act clarifying that " where a successor-interest (successor) who has previously acquired title to a dwelling agrees to be added as obligor or substituted for the existing obligor on a consumer credit transaction secured by that dwelling, . . . such a transaction does not constitute an assumption." (Id. at 20 (citing 79 Fed. Reg. 41631-01).) Plaintiff then recites HAMP program directives as specifically providing for qualifying the surviving heirs of decease borrowers, as follows:

Non-borrowers who inherit or are awarded sole title to a property may be considered for HAMP even if the borrower who previously owned the property was not already in a TPP. Such titleholders may be considered for HAMP if they meet all applicable eligibility criteria. In this case, servicers should collect an Initial Package from the non-borrower who now owns the property and evaluate the request as if he or she was the borrower.

( Compl. ¶ 30 (quoting MH Handbook for Non-GSE Servicers, Ch. II, § 8.8.)

To the extent Plaintiff cites interpretative rulings regarding the Truth in Lending Act, however, that statute is not at issue and that ruling was not effective until after the filing of the Complaint in this case. See 79 Fed. Reg. 41631-01 (" This clarification is effective July 17, 2014 and applicable beginning July 8, 2014." ). Further, to the extent Plaintiff relies on the HAMP Handbook, the remainder of § 8.8 states that, " The servicer should process the assumption and loan modification contemporaneously if the titleholder is eligible for HAMP and investor guidelines and applicable law permits assumption of the loan." HAMP Handbook at Ch. 2, ยง 8.8, available at www.hmpadmin.com (emphasis added). As aptly noted by Defendant, ...


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