Attempts to collect debt not owed

Posted on Posted in Complaints, Finance


Borrower filed Bankruptcy Chapter XXXX on or about XX/XX/XXXX . Borrower ‘s first post- petition payment was due on XX/XX/XXXX . The servicer of the loan, XXXX XXXX XXXX , posted that first post petition payment to a pre-petition payment due date of XX/XX/XXXX . The servicer, XXXX XXXX XXXX and Bayview Loan Services misapplied more than sixty ( 60 ) timely payments as past due. The borrower has not received any billing statements or any other statements or notices from the service r, Bayview Loan S ervicing from XX/XX/XXXX through XX/XX/XXXX because Bayview is currently sending all statements and notices to an address that is NOT the borrower ‘s address of record.

The Borrower sent a RESPA QWR to Bayview Loan Servicing on XX/XX/XXXX , requesting specific certain information. Bayview used a form letter to respond to the borrower ‘s concerns that her payments were being misapplied and to imply that the servicer had not reasonably investigated her error claim. Bayview further did not respond completely until more than one-hundred seventeen ( 117 ) days after their confirmed receipt of this borrower ‘s QWR, that specifically requested the payoff balance of the loan. Bayview has failed to provide an accurate payoff of the loan within the time allowed by FDCPA. Bayview has further provided more tha n 3 d ifferent alleged default amounts. On XX/XX/XXXX Bayview alleged the balance due was {$3900.00} which is ; different from the {$2300.00} as in the Notice of Default Letter a nd both of those balances are different from the Billing statement of XX/XX/XXXX that shows a balance of {$4800.00}.

Aside from Bayview never sending to the borrower nor her attorney the Debt Validation Letter , the letter in itself is violates 15 U.S.C. 1692e bec ause it misstates the law, omits a material term required by 1692g ( a ), and misrepresents consumer rights under the FDCPA. See 15 U.S.C. 1692g.

The communication alleged in this case omitted a material term required b y 1692g ( a ). Specifically, the letter did not inform the borrower that she must dispute her debt in writing to trigger her verification rights under 1692g ( b ). By omitting this requirement, the Collectors instructed the borrower that she could invok e 1692g ( b ) by disputing her debt by callinga misstatement of the law surrounding debt-verification requests. This misrepresentation was not apparent on the face of the letter ; it would thus state a claim even in jurisdictions that apply the competent lawyer standard The FDCPA exists to protect consumers against debt collection abuses. 15 U.S.C. 1692 ( e ). Consumer-protection laws are not made for the protection of experts, but for the public.

From XXXX to XXXX , the borrower has never received any billing statements, Notice of Default Letters, Debt Validation letter or any other information regarding the mortgage account from the servicer, Bayview Loan Servicing, because Bayview has sent all billing statements and notices to an address, that has NOT been the borrowers address since XXXX . Attached see the proof obtained by borrower RESPA QWR that the most recent billing statement was NOT sent to the same address that Bayview Loan Servicing and XXXX XXXX XXXX XXXX has as the address of record for the borrower. This in itself violate FDCPA. Also, Bayview Loan Se rvicing sent this Debt Validation letter to that said address which was not the borrower ‘s address, during the time when the Borrower was actively under Chapter XXXX Bankruptcy and while the borrower was represented by an Attorney. Bayview at no time sent th is Debt Validation Letter to the borrower ‘s Bankruptcy Attorney. Thereby leaving the borrower and her attorney unaware of any default and there by Bayview h as denied the borrower her rights under FDCPA. The borrower NEVER received any statements or the Debt Validation Letter until on or about XX/XX/XXXX when Bayview responded to borrower ‘s RESPA request from XX/XX/XXXX

Because Bayview did not provided to the borrower the payment transaction history from XXXX for more than 117 days past her date of requesting in her XX/XX/XXXX QWR, those actions were intentional and contributes to the timeliness of the borrower ‘s discovery of more than 60 misapplied payments by XXXX XXXX XXXX and Bayview Loan Servicing. In Bayview ‘s letter dated XX/XX/XXXX , B ayview Loan Servicing admitted to have discovered at least 1 mi sapplied payment as proof provided by the borrower. Between the time frame of XX/XX/XXXX throught XX/XX/XXXX , Bayview Loan Servicing and XXXX XXXX XXXX has misapplied and reapplied more tha n seventy-five ( 75 ) payments. Most of which were during an active Chapter XXXX Bankruptcy protection post-petition phase. On XX/XX/XXXX the borrower sent to Bayview Loan Servicing , XXXX XXXX XXXX & Foreclosing Attorney XXXX XXXX XXXX XXXX Bayview and all other parties ( TBD ) involved has committed more th an 5 RE SPA violations which is a pattern or practice of non-compliance with the servicing requirements of RESPA. Bayview Loan Servicing & XXXX XXXX XXXX and XXXX XXXX XXXX XXXX has committed the following acts that violate TILA and more to be determined late r : 1 ) F ailed to proved accurate payoff in 7 days because of misapplied payments. 2 ) fa iled to promptly credit payment s 3 ) Pyra miding late fees and other misc. fee s 4 ) failed to send monthly statements and default notices due to being sent to an address that is different from the address Bayview and XXXX XXXX XXXX XXXX used to respond to QWR responses. Bayview was aware of address changed in XXXX . 5 ) Bayview sent Debt Validation Letter d irectly to the borrower BUT to an address previously used by the borrower BUT never sent the letter to the attorney representing the borrower in an active Chapter XXXX case.

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