Jenkins v. BAC Home Loan Servicing, LP
822 F. Supp. 2d 1369
M.D. Ga.2011Background
- Plaintiff executed a Security Deed on his home in favor of Countrywide (lender) and MERS (nominee) to secure a $175,750 note; MERS assigned its interest to BAC on Aug. 18, 2010.
- Plaintiff alleges the Countrywide-to-BAC assignment was fraudulent and that defendants engaged in foreclosure fraud and harassment over an alleged debt.
- Defendants deny the fraud and harassment allegations.
- Plaintiff asserts multiple claims under FDCPA (Counts I-VI), FBPA (Count VII), RESPA (Count VIII), and various contract/ tort theories (Counts IX-XVI).
- Court considers defendants’ Motion to Dismiss and related plaintiff responses; ruling grants the motion and dismisses all claims for failure to state a claim or inapplicability of statutes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FDCPA applies to defendants' conduct | Plaintiff alleges FDCPA violations through mortgage-related actions | Defendants are mortgage servicers and not 'debt collectors' under FDCPA | FDCPA inapplicable to both BAC and McCalla; Counts I–III, IV, VI dismissed |
| Whether Count V (FDCPA 1692f(6)) states a violation | Foreclosure actions fall within 1692f(6) broad scope | There was an enforceable security interest and proper foreclosure | Count V dismissed because BAC had present security interest and actions were not in violation of 1692f(6) |
| Whether FBPA claim (Count VII) survives | FBPA applicable to mortgage-related conduct | Mortgage transactions are heavily regulated and not within FBPA’s private-right scope | Count VII dismissed as mortgage transaction not within FBPA's scope |
| Whether RESPA claim (Count VIII) survives | Defendants failed to respond to qualified written requests | Plaintiff failed to show causal link or damages from RESPA violation | Count VIII dismissed for lack of causation/damages evidence |
| Whether remaining counts (IX–XVI) state claims | Plaintiff purports numerous claims | Claims lack specific facts and proper pleading | All remaining counts dismissed for failure to state a claim |
Key Cases Cited
- Warren v. Countrywide Home Loans, Inc., 342 Fed.Appx. 458 (11th Cir.2009) (FDCPA not applicable to mortgage servicing/foreclosure)
- Bentley v. Bank of Am., N.A., 773 F.Supp.2d 1367 (S.D. Fla. 2011) (FDCPA claims against mortgage servicers insufficient)
- Zeeman v. Black, 156 Ga.App. 82 (Ga. Ct. App. 1980) (FBPA scope limited to unregulated consumer marketplace)
- Dierkes v. Crawford Orthodontic Care, P.C., 284 Ga.App. 96 (Ga. Ct. App. 2007) (Conversion elements require ownership and wrongful possession; demand for possession)
- Chaney v. Harrison & Lynam, LLC, 308 Ga.App. 808 (Ga. Ct. App. 2011) (Defamation requires publication and proof of damages)
- Washington v. Dept. of Children and Families, 256 Fed.Appx. 326 (11th Cir. 2007) (Eleventh Circuit; district court not required to sift through allegations to find claims)