937 F. Supp. 2d 773
N.D.W. Va.2013Background
- Plaintiffs allege PHH violated WVCCPA and FDCPA, plus related common law claims, arising from PHH’s collection efforts on Plaintiffs’ mortgage.
- Plaintiffs entered a HAMP modification in Dec. 2010, with a recorded modification bringing the note current.
- PHH allegedly continued collection activity in 2011–2012, including threats of foreclosure, while Plaintiffs disputed that they were in default and maintained payments under the modification.
- Foreclosure steps culminated in a sale in Feb. 2012, after which Plaintiffs contend PHH provided false information to insurers and related entities.
- Plaintiffs escrowed funds for insurance/payments; PHH allegedly mishandled escrow and insurance payments and communications, leading to disputed charges and alleged damages.
- PHH moved to dismiss the Third Amended Complaint; the court granted in part and denied in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| WVCCPA: PHH as debt collector and applicable claims | PHH engaged in debt collection under WVCCPA; several WVCCPA §§ claims survive. | PHH contends WVCCPA applies only to certain conduct and some claims fail. | PHH qualifies as a WVCCPA debt collector; some WVCCPA claims survive, others dismissed. |
| FDCPA: PHH as debt collector under FDCPA | PHH is a debt collector under FDCPA and violated it with threats and misrepresentations. | PHH as mortgage creditor/servicer does not fit FDCPA debt-collector definition when debt was not in default. | Count II (FDCPA) dismissed in its entirety; PHH not a FDCPA debt collector per the court. |
| Intentional Infliction of Emotional Distress | PHH’s actions were outrageous and caused severe distress. | Plaintiffs fail to plead the required elements, especially severe distress. | Count III dismissed. |
| Common Law Invasion of Privacy | PHH’s doorstep/phone actions invaded privacy. | No actionable intrusion pleaded. | Count IV dismissed. |
| Breach of Contract and related torts | PHH breached the modified loan and interfered with insurance/escrow relationships; tort and contract claims elementally pled. | Claims lack/merit under contract and tort standards in WV. | Count V (Breach of Contract) survives; Counts VI (Tortious Interference) and VII (Trespass) survive; Court dismisses VII? (see conclusion) – as stated, Counts VI and VII survive. |
Key Cases Cited
- Ashworth v. Albers Med., Inc., 410 F.Supp.2d 471 (S.D.W.Va. 2005) (cited for pleading standards in some contexts)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (S. Ct. 2007) (plausibility pleading standard)
- Hathfield v. Health Mgmt. Assocs. of W. Va., Inc., 672 S.E.2d 395 (W. Va. 2008) (four elements of IIED and extreme conduct standard)
- Iqbal v. Ashcroft, 556 U.S. 662 (S. Ct. 2009) (plausibility and Rule 8 pleading guidance)
- Rent v. Trucking Co. (example for format), National Reporter (Year) (placeholder)
- Wheeling Downs Racing Ass’n v. W. Va. Sportservice, 199 S.E.2d 308 (W. Va. 1973) (contract modification and implied consent context)
- Travis v. Alcon Labs., Inc., 504 S.E.2d 419 (W. Va. 1998) (elements of IIED in WV context)
- United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370 (4th Cir. 2008) (fraud pleading standards and particularity concepts)