Hawkins-El v. First American Funding, LLC
2012 U.S. Dist. LEXIS 134139
| E.D.N.Y | 2012Background
- Pro se plaintiff James S. Hawkins-El, III sues FAF and individual FAF employees asserting RESPA, FDCPA, common-law fraud, and negligence claims.
- Loan originated as a $100,000 Washington Mutual HELOC secured by a Queens, NY property; Washington Mutual merged into JPMorgan, which assigned the loan to FAF on August 3, 2010.
- Plaintiff disputed the debt in 2010, and FAF sent notices, including a good-bye letter and documentation of the loan and assignment.
- OCC responded in 2010 indicating JPMorgan/MF were not shown to have violated loan covenants and that information could be disputed factually.
- Plaintiff alleges RESPA and FDCPA violations, plus negligence and fraud, based on FAF's collection practices and representations.
- The court grants summary judgment for Defendants on all counts and dismisses the complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does RESPA apply to a subordinate lien loan and were requests qualified written requests? | Hawkins-El argues his letters are qualified written requests requiring responses. | FAF contends subordinate loans are not covered and requests are not qualified; seeks dismissal. | RESPA applies and the letters were qualified requests; RESPA claim dismissed on merits. |
| Did FAF violate the FDCPA by debt collection after verification and by alleged misrepresentations? | Plaintiff asserts FAF failed verification, continued collection while disputed, and misrepresented attorney status. | FAF argues it verified the debt and did not engage in prohibited conduct; allegations are unsupported. | Assuming FDCPA applicability, no material FDCPA violation; summary judgment for Defendants on FDCPA claim. |
| Whether there is a cognizable duty in negligence and whether Defendants owed non-contractual duties. | Plaintiff contends RESPA/FDCPA duties extend to a tort duty of care. | Defendants argue there is no non-contractual duty owed to Plaintiff. | No cognizable non-contractual duty; negligence claim dismissed. |
| Whether the common-law fraud claim is adequately pled and supported by evidence under Rule 9(b). | Plaintiff asserts misrepresentations about compliance with RESPA/FDCPA and attorney status. | Fraud claims lack Rule 9(b) specificity and evidentiary support. | Fraud claim dismissed; no evidence of actionable misrepresentation with requisite specificity. |
Key Cases Cited
- Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219 (2d Cir. 1994) (summary judgment standard; evidence must show genuine dispute)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (genuine issue of material fact required for trial)
- Scott v. Harris, 550 U.S. 372 (2007) (reversal if no reasonable jury could find for nonmovant)
- Hughes v. Rowe, 449 U.S. 5 (1980) (pro se pleadings given liberal construction)
- Marcus v. AT&T Corp., 138 F.3d 46 (2d Cir. 1998) (fraud elements require specificity and intent)