As Benjamin Franklin said, “Energy and persistence conquer all things.” Bradley attorneys spent three years in litigation persistently pointing out the lack of actual injury from an allegedly delayed Fair Debt Collection Practices Act (FDCPA) notice before winning the case.
Yeager v. Ocwen Loan Servicing, LLC, 2017 WL 701387 (M.D. Ala. Feb. 22, 2017) involved the transfer of servicing rights on a block of mortgage loans from a prior servicer to Ocwen Financial Corporation, one of the largest mortgage companies in America. Roughly 17 days before the transfer was to be effective, Bradley’s client and the prior servicer sent a combined “hello/goodbye” letter to the affected borrowers as authorized by Regulation X. This letter fulfilled the notice of transfer requirements in the consumer protection statute RESPA (Real Estate Settlement Procedures Act).
The plaintiff contended that Ocwen was required to send the debt validation notice (DVN) required by 15 U.S.C. §1692g within five days after the notice of transfer. Ocwen instead waited until it actually acquired servicing rights to the debt and then sent the DVN the following day. According to the plaintiff, this was 13 days too late.
In 2014, long before the Supreme Court’s landmark decision in Spokeo v. Robins, 136 S. Ct. 1540 (2016), Bradley attorneys moved to dismiss the case for lack of actual injury from the alleged delay and lack of standing with Article III of the Constitution. Bradley argued that Congress could not eliminate the Article III actual injury requirement by statute and, therefore, even a plaintiff seeking only statutory damages had to prove some injury resulting from the alleged statutory violation.
The magistrate rejected the argument, and the judge adopted the magistrate’s recommendation. Bradley then answered, attached the DVN sent the day after Ocwen actually acquired servicing rights, and moved for judgment on the pleadings under Rule 12(c). That motion was also denied.
In 2016, the Supreme Court issued its Spokeo decision, which confirmed that the requirement of actual and concrete injury fully applies in statutory damage cases. Bradley then renewed the motion for judgment on the pleadings. Again, the magistrate recommended denial of the motion, based on the unpublished and nonprecedential opinion of the Eleventh Circuit in Church v. Accretive Health, 2016 WL 3611543 (11th Cir. July 6, 2016). This opinion held that the total failure to send a notice required by the FDCPA was actual injury.
Ocwen objected to the magistrate’s recommendation, distinguishing Church and countering with the recent decision of the Eleventh Circuit in Nicklaw v. Citimortgage, 839 F. 3d 998 (11th Cir. 2016). This decision held that the mere delay in filing a document required by a state statute was not Article III injury without some resulting harm.
This time, following oral argument presented by Bradley attorney Mike Pennington, the Honorable Myron Thompson granted judgment in Ocwen’s favor.