Anderson v. Ameriquest Mortgage Company et al

OCR transcription for search; preserved printed pages are authoritative

Case 06-04137 Doc36 _ Filed 09/26/06 Entered 09/26/06 14:55:52 Desc Main
Document Page 1of4

UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS

IN RE : CHAPTER 13

DIANE L. ANDERSON,

DEBTOR : CASE NO.04-44554-JBR
DIANE L. ANDERSON,

PLAINTIFF,

Vv. : AP. NO. 06-4137

AMERIQUEST MORTGAGE COMPANY and
AMC MORTGAGE SWERVICES,
DEFENDANTS.

ORDER ON DEFENDANTS’ MOTION TO DISMISS

The Defendants have filed a Motion To Dismiss and Supplemental Motion to Dismiss
seeking dismissal of Counts I, IV, V, VII, and VIII. The Plaintiff opposes the Motion and
Supplemental Motion. It is hereby ORDERED as follows:

1. In Count I the Plaintiff alleges that the Defendants! failed to respond to a qualified
written request under the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605(e) which was
sent approximately three months after the foreclosure sale. As the Defendants note, the Plaintiff
fails to allege that she was harmed by the failure to respond and therefore the Count must be
DISMISSED.

2. Count IV is for fraud based upon alleged misrepresentations made by the Defendants’

'The Plaintiff refers to the Defendants collectively even though in Count I she alleges that
the qualified written request was sent to AMC Mortgage Services, Inc. The Court shall also refer

to the Defendants collectively.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Case 06-04137 Doc36 _ Filed 09/26/06 Entered 09/26/06 14:55:52 Desc Main
Document Page 2 of 4

employees. Despite the Defendants’ contention that fraud is not pled with specificity, the
Complaint pleads the dates when the allegedly fraudulent representations were made, the names
of the Defendants’ employees who made the allegedly false representations, and the substance of
the communications. The Motion to Dismiss is DENIED with respect to Count IV.

3. In Count V the Plaintiff seeks judgment pursuant to M.G. L. C. 93A. She concedes
that she did not send the Defendants a demand letter and argues that none is required because
they do not have a place of business within the Commonwealth. As the Defendants argue,
however, a demand letter is required if a potential defendant has assets located in Massachusetts.
The Defendants argue that the mortgages secured by property located within the Commonwealth
are “assets within the commonwealth,” an argument which the Plaintiff does not address. Given
that the mortgage at issue herein is recorded in the Commonwealth and that the security for the
mortgage, which gives the mortgage its value, is located in the Commonwealth, there is at least
one aset located here in Massachusetts. Therefore the failure to send a demand letter is fatal to
this Count and thus Count V is DISMISSED.

4. The Defendants seek dismissal of Count VII which seeks relief under the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seg. on the grounds that they are not

debt collectors as the Plaintiff treats the two separate entities as one. That an unsophisticated

borrower may not discern the le

determination of whether either of the Defendants was a debt collector. Moreover the

Defendants have failed to demonstrate on the record currently before the Court that they are

Case 06-04137 Doc36 _ Filed 09/26/06 Entered 09/26/06 14:55:52 Desc Main
Document Page 3 of 4

entitled to the shelter carved out by 15 U.S.C. § 1692a(6)(B).”

5. The Defendants also seek dismissal of Count VII on the grounds that it is barred by the
one year statute of limitations. The Plaintiff, however, claims that the foreclosure sale was the
ultimate violation of the FDCPA. That event occurred approximately six months prior to the
filing of this adversary proceeding and therefore the Motion is DENIED with respect to Count
VU.

6. The Defendants seek dismissal of Count VII, brought pursuant to the Federal Truth in
Lending Act, 15 U.S.C. § 1601 et seg. The Defendants argue that a violation based on their
alleged failure to give the Plaintiff notice of her right to rescind occurred at the loan closings,
more than one year prior to initiation of this proceeding. Therefore the Defendants argue that the
claim is barred by the statute of limitations. As the Defendants acknowledge, however, the
statute, however, may be tolled if the Defendants fraudulently concealed the violation. In the
Complaint the Plaintiff alleges that employees of the Defendants repeatedly advised her she had
nothing to worry about and that Ameriquest was not going to take her house. When she called to
complain that she was upset that she had received an adjustable rate loan, she was told there was
nothing she could do because the loan closing had occurred more than a week prior to the

telephone conversation. It may well be that the Plaintiff can prove grounds for equitable tolling

2s

4qgmidqana

Fy
ot
>

a limitatinna + tha rarnnr A hof; tha MOniuirt
6 LUD tauOs ana uius, OF wie TOCOTa oO U vv

not proper. The Motion is DENIED with respect to Count VIII.

*That section excepts from the definition of debt collector “any person while acting as a
debt collector for another person, both of whom are related by common ownership or affiliated
by corporate control, if the person acting as a debt collector does so only for persons to whom it
is so related or affiliated and if the principal business of such person is not the collection of

debts...”

Case 06-04137 Doc36 _ Filed 09/26/06 Entered 09/26/06 14:55:52 Desc Main
Document Page 4 of 4

7. The Plaintiff shall have 30 days from the date of this Order to amend the complaint.

Dated: September 26, 2006

el B. Rosenthal
United States Bankruptcy Judge