Benner v. Bank of America, N.A.
2013 U.S. Dist. LEXIS 2810
| E.D. Pa. | 2013Background
- Plaintiff Charles Benner is a Pennsylvania homeowner whose loan is serviced by Bank of America.
- Mortgage allows lender to charge for default-related services, including property inspections, and permits interior inspections with notice.
- Plaintiff defaulted in 2009 and was charged a $262.50 inspection fee.
- Act 91 pre-foreclosure notices urged cure or HEMAP; notices included an inspection fee amount and 30-day cure window.
- Defendant replaced Wilshire Credit as servicer in 2010 and issued a loan modification offer in 2011 that still listed the inspection fee.
- Plaintiff filed suit on October 20, 2011 alleging FDCPA, Act 6, FCEUA/UTPCPL, unjust enrichment, and RESPA claims; defendant moved to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether property inspection fees violate FDCPA §1692e/1692f | Benner argues fees are false/misleading under §1692e and not authorized by the agreement. | Fees are expressly permitted by the mortgage and Act 6, and not deceptive. | Fees do not violate FDCPA; claims dismissed. |
| Whether Act 6 damages allow recovery for unpaid inspection fees | Fees are damages under Act 6 §504. | Damages require actual loss; fees unpaid do not constitute damages; premature suit. | Count IV dismissed; damages requirement not met. |
| Whether FCEUA/UTPCPL claim lies for FDCPA violations | FDCPA violations support UTPCPL via FCEUA. | UTPCPL requires ascertainable loss; fees unpaid do not show loss; no private UTPCPL action for FCEUA here. | Count III dismissed; no UTPCPL claim based on FDCPA here. |
| Whether RESPA responses claim survives | Defendant failed to adequately respond to Qualified Written Requests (QWRs). | Requests sent to wrong office or not properly served; however, RESPA duties owed if properly served. | Count VI survives; RESPA claim permitted based on failures to respond within time and damages alleged. |
Key Cases Cited
- Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379 (3d Cir. 2000) (three-category test for 1692f(1) charges under state law)
- In re Sacko, 394 B.R. 90 (Bankr.E.D. Pa. 2008) (inspections must be reasonable and necessary; cost recovery depends on facts)
- In re Cervantes, 67 B.R. 816 (Bankr.E.D. Pa. 1986) (courts allowed inspection fees under mortgage terms if reasonable)
- In re Burwell, 107 B.R. 62 (Bankr.E.D. Pa. 1989) (inspections may be denied if not authorized by mortgage; consider necessity)
- Albanese v. Portnoff Law Assocs., Ltd., 301 F. Supp. 2d 389 (E.D. Pa. 2004) (damages under Act 6; lien presence; distinguishes paid vs unpaid)
- Mendez v. Bank of Am. Home Loans Servicing, LP, 840 F. Supp. 2d 639 (E.D.N.Y. 2012) (similar contract language; fee challenges rejected)
- Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364 (3d Cir. 2011) (FDCPA is remedial; least sophisticated debtor standard)