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Burke v. Nationstar Mortgage, LLC

United States District Court, E.D. Virginia, Richmond Division

July 28, 2015

FLOYD RONALD BURKE, on behalf of himself and others similarly situated Plaintiffs,
NATIONSTAR MORTGAGE, LLC, et al., Defendants.


JAMES R. SPENCER, Senior District Judge.

THIS MATTER is before the Court on a Motion to Dismiss ("Motion") filed by Defendants Nationstar Mortgage, LLC ("Nationstar") and EverBank, a federal savings association ("EverBank")[1] (collectively, "Defendants"). ECF No. 11. Plaintiff Floyd Ronald Burke ("Plaintiff"), on behalf of himself and others similarly situated, opposes the Motion. ECF No. 18. For the reasons stated below, the Court will GRANT IN PART and DENY IN PART Defendants' Motion.


On December 16, 2014, Plaintiff filed a seven-count Class Action Complaint in this Court. Plaintiff alleges the following: "breach of contract for breach of [the] implied covenant of good faith and fair dealing, " ("Count I"), a class claim ("Count II") as well as an individual claim ("Count III") for violations of the Federal and Virginia Equal Credit Opportunity Act ("ECOA") ("Count II"), violation of the Real Estate Settlement and Procedures Act ("RESPA") ("Count IV"), violations of the Fair Debt Collection Practices Act ("FDCPA") ("Counts V and VI"), and breach of contract ("Count VII"). On March 13, 2015, Defendants moved to dismiss Count I, Count III, and Counts V and VI.[2] ECF No. 11. Plaintiff filed a Response on April 17, 2015, in which he voluntarily withdrew Counts V and VI, the FDCPA alleged in the Class Action Complaint. ECF No. 18. On April 30, 2015, Defendants filed a Reply. ECF No. 21. This matter is now ripe for review.


Plaintiff purports to represent a class of homeowners who have been damaged by Nationstar's alleged failures to comply with applicable law in connection with their mortgage loan modification requests.

The following is taken from the facts as set forth in Plaintiff's Complaint, which the Court takes as true in reviewing Defendants' Motion to Dismiss. See Warth v. Seldin, 422 U.S. 490, 501 (1975). In June of 2008, Plaintiff "executed a Note in the principal sum of $101, 246.00 and Deed of Trust secured by his primary residence and backed by the Federal Housing Administration (PHA')." Complaint ("Compl.") ¶ 14. After Plaintiff executed the loan documents, "Bank of America acquired the servicing rights for [his] mortgage" on or about July 1, 2008. Id. ¶ 23. In 2011, Plaintiff "experienced financial hardship due primarily to divorce" and "filed [for] Chapter 7 bankruptcy, " but "filed a Statement of Intention to reaffirm his mortgage debt to Bank of America." Id. ¶¶ 24-25. When Plaintiff received his bankruptcy discharge in November of 2011, he was "current on his mortgage." Id. ¶ 26.

On November 14, 2012, Plaintiff, still "current on his mortgage" payments of "757.27 per month, " applied to Bank of America for a new loan in the form of "a loan modification." Id. ¶¶ 27-28. Subsequently, "[b]y letter dated November 20, 2012, Bank of America informed [Plaintiff] that it had received his application for loan modification and requested additional income documentation, which [he] immediately provided." Id. ¶ 30. Thereafter, "Bank of America notified [Plaintiff] that servicing of the loan had been transferred to Nationstar beginning December 4, 2012." Id. Plaintiff then started "making payments of $739.90 to Nationstar."[3] Id. ¶¶ 31. "In January 2013, [Nationstar] sent a letter to [Plaintiff] offering review for Home Affordable Modification Program (HAMP), " to which Plaintiff responded by "submitt[ing] the completed application and required documents." Id. ¶ 32. On "February 2, 2013, Nationstar Mortgage sent a letter to [him] stating he was in default for the January 1, 2013 and February 1, 2013 payments." Id. ¶ 33.

Plaintiff alleges that in Tin May 2013, his mortgage payment increased to $747.28 per month." Id. ¶ 34. On May 2013, Nationstar informed Plaintiff that "he had been approved to enter into a Trial Period Plan... under the FHA HAMP Modification Program." Id. ¶ 35. Specifically, Plaintiff alleges that the letter approving the TPP provided:

Congratulations! You are approved to enter into a trial period plan under the FHA HAMP Modification Program. This is the first step toward qualifying for more affordable mortgage payments. Please read this letter so that you understand all the steps you need to take to modify your mortgage payments.

Id. ¶ 36. With respect to payments, according to Plaintiff, the letter from Nationstar instructed:

What you need to do... To accept this offer, you must make new monthly "trial period payments" in place of your normal monthly mortgage payment. Send your monthly trial period payments instate [sic] of your normal monthly mortgage payment as follows:

• 1st payment: $575.40 by 7/1/2013 • 2nd payment: $575.40 by 8/1/2013 • 3rd payment: $575.40 by 9/1/2013 • 4th ...

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