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Durrette v. Wells Fargo Bank

March 20, 2007

SHARON R. DURRETTE (KENNER), PLAINTIFF,
v.
WELLS FARGO BANK, MINNESOTA, N. A. AS TRUSTEE, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Timothy S. Black

ORDER

This civil action is before the Court on defendants' motion to dismiss count I of plaintiff's complaint (doc. 5) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the parties responsive memoranda (docs. 7, 8). Plaintiff's complaint alleges, inter alia, that defendants Wells Fargo Bank, Minnesota N.A. as Trustee ("Wells Fargo") and Ocwen Federal Bank, FSB ("Ocwen) improperly handled her residential mortgage loan account, and the complaint asserts various tort claims and claims under the Fair Debt Collection Practices Act.*fn1

The parties have consented to disposition by the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (See Doc. 11.)

BACKGROUND AND PROCEDURAL HISTORY

This action, originally filed in the Butler County, Ohio Court of Common Pleas, was removed to this Court by defendants on June 20, 2006. (See Doc. 1).

Plaintiff's complaint contains the following factual allegations: On May 17, 2002, plaintiff secured a mortgage with EquiFirst Corporation for her residence in Butler County, Ohio.

Plaintiff asserts that she was unaware that the mortgage was apparently transferred to Wells Fargo after the initial closing. Wells Fargo then retained Ocwen Federal Bank FSB to service the mortgage.

Plaintiff made two initial payments on the mortgage to EquiFrist pursuant to her instructions at the closing.*fn2

On or about August 13, 2002, plaintiff received a letter from Ocwen, notifying her that Ocwen had acquired the servicing rights of the mortgage and that all future payments should be made to Ocwen.

Prior to receiving Ocwen's letter, plaintiff began receiving telephone calls that she was delinquent on her mortgage payments.

Ocwen initially denied that plaintiff had made any payments on her mortgage other than the payments mailed directly to Ocwen, and refused to credit her two initial payments.

As a result of Ocwen's failure to properly credit plaintiff's mortgage with the first two payments, Ocwen began a relentless telephone campaign beginning in August 2002 and continuing beyond the foreclosure and sale of the property to collect "delinquent" payments.

Plaintiff asserts that she was denied refinancing of the mortgage as a direct and proximate result of Ocwen's negligent reporting of delinquency to credit reporting agencies and Ocwen's refusal to provide a payoff statement to the company attempting to refinance the mortgage.

Plaintiff ultimately sold the property. Even after the sale, Ocwen continued to contact plaintiff insisting that a ...


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