McAndrew v. Deutsche Bank National Trust Co.
977 F. Supp. 2d 440
M.D. Penn.2013Background
- In 2005 McAndrew took a $93,500 mortgage from Ameriquest on property in Wilkes‑Barre; the mortgage was assigned to Deutsche Bank in 2009 and AHMSI was employed to service the loan.
- AHMSI repeatedly requested and collected escrow payments for taxes/insurance that McAndrew disputed; she sent multiple proofs of insurance and requested documentation, but AHMSI allegedly failed to substantiate charges and returned several certified checks after admitting errors.
- AHMSI sent a pre‑foreclosure notice in October 2011 showing default beginning July 2011; McAndrew later requested a payoff which defendants did not provide.
- Defendants reported the loan as in default to credit agencies, allegedly harming McAndrew’s credit; McAndrew continued to make some escrow payments despite disputes.
- McAndrew filed a three‑count complaint in state court asserting: (1) RESPA § 2605(e) and § 2609 violations against Deutsche Bank; (2) § 2609 against AHMSI; and (3) FDCPA and Pennsylvania FDCPA claims against AHMSI. Defendants removed and moved to dismiss under Rule 12(b)(6).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Deutsche Bank is liable under RESPA § 2605(e) | McAndrew: § 2605(e) duties apply to lenders as well as servicers; Deutsche Bank can be liable | Deutsche Bank: § 2605(e) applies only to the loan servicer; AHMSI was the servicer, not Deutsche Bank | Court: Dismiss § 2605(e) claim against Deutsche Bank with prejudice because AHMSI, not Deutsche Bank, serviced the loan |
| Whether a private cause of action exists under RESPA § 2609 (escrow rules) | McAndrew: RESPA’s remedial purpose implies a private right to enforce § 2609 | Defendants: § 2609 contains no private remedy; Congress provided only administrative enforcement and omitted § 2609 from the federal limitations/remedies provisions | Court: No private right exists under § 2609; dismiss § 2609 claims with prejudice |
| Whether AHMSI is a “debt collector” under the FDCPA | McAndrew: AHMSI repeatedly sought escrow payments after being told they were not owed, so it is a debt collector | AHMSI: Servicer exemption applies; loan was not in default when AHMSI obtained servicing rights, so FDCPA does not apply | Court: AHMSI is a servicer, not a debt collector (servicer obtained loan before default); dismiss FDCPA claim with prejudice |
Key Cases Cited
- Cort v. Ash, 422 U.S. 66 (interpreting factors for implying private causes of action)
- Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11 (Congressional intent paramount in implying remedies)
- Touche Ross & Co. v. Redington, 442 U.S. 560 (ameliorative purpose alone does not imply private remedy)
- Litton Mortg. Co. v. Louisiana, 50 F.3d 1298 (5th Cir.) (no private right under § 2609)
- Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379 (3d Cir.) (FDCPA generally applies only to debt collectors)
- Dahl v. AmeriQuest Mortg. Co., 954 A.2d 588 (Pa. Super. Ct.) (lender may be liable under § 2605(e) only if it acted as servicer)
- Lingad v. Indymac Fed. Bank, 682 F. Supp. 2d 1142 (E.D. Cal.) (only one entity may be treated as servicer for § 2605 purposes)
- Sarsfield v. CitiMortgage, Inc., 667 F. Supp. 2d 461 (M.D. Pa.) (district court conclusion that § 2609 contains no private right)