IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EARL D. WILSON,

Hon.

Plaintiff, Case No.

V.

BAYVIEW LOAN SERVICING, LLC,

Defendant.

COMPLAINT AND JURY DEMAND

NOW COMES Plaintiff, Earl D. Wilson ("Plaintiff) byand through counsel, The Law

Offices ofBrian Parker, PC, and bring this action against the above listed Defendant, Bayview

Loan Servicing, LLC, ("Bayview" or "Defendant") on the grounds set forth herein:

1. PRELIMINARY STATEMENT

1,

Plaintiffbrings this action for damages and injunctive reliefbased upon the Defendants'

violations ofthe Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 etseq. and The

Regulation ofCollection Practices Act (RCPA), codified atMCL 445.251 etseq.,.

2.

The FDCPA is astrict liability statute, which providesfor actual orstatutory damages upon

the showing of one violation. Whether a debt collector's actions are false, deceptive, or

misleading under § 1692(a)-g is based on whether the "least sophisticated consumer" would be

misled by a defendant's actions. Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 329 (6th Cir.

2006).). This standard ensures "that the FDCPA protects all consumers, the gullible as well asthe

shrewd."/Cwmer V. Law Offices ofMichael P. Margelefsky, Z,Z,C., 518 F.3d 433,438 (6th Cir).

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3.

Whetlier a debt collector's actions are false, deceptive, ormisleading under §1692e is

based onwhether the "least sophisticated consumer" would bemisled bydefendant's actions.

Wallace v. Washington Mutual Bank, 683 F.3d. 323, 327 (6^ Cir. 2012), Harvey v. Great Seneca

Fin. Corp., 453 F.3d 324, 329 (6th Cir.2006).

4.

Inapplying the "least sophisticated consumer" standard, the Sixth Circuit has adopted the

"more than one reasonable interpretation standard." Kistner, 518 F.3d at 441. Under that

approach, a collection letter can be "deceptive" if it is open to "morethan one reasonable

interpretation, at least oneof which isinaccurate." Id. (quoting Clomon v. Jackson, 988 F.2d

1314,1319 (2dCir. 1993)). "[T]he 'more than onereasonable interpretation' standard is

applicable tothe entirety of § 1692e asa useful tool inanalyzing the least sophisticated

consumer test." Id.

5.

In Wallace v. Washington Mutual Bank, 683 F.3d323 (6th Cir. 2012), the 6^ Circuit

Court ofAppeals held that a law firm could suffer FDCPA liability for stating the wrong identity

of themortgage's ovmer in a foreclosure complaint similar to the claimPlaintiffmakes herein

their complaint.

6.

Disclosure of a servicing agent or anotherdebt collector instead ofthe owner of the debt

is not sufficient. Bourffv. Rubin Lublin, LLC, No. 10-14618, 674 F.3d 1238; 2012 U.S.App.

LEXIS 5613,2012 WL 971800 (11th Cir. Mar. 15, 2012); Shoup v. McCurdy &Candler, 465

Fed. Appx. 882, 2012 U.S. App. LEXIS 6443 (11th Cir. March 30, 2012).

7.

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"The unpaid principal balance is not thedebt; it isonly a part of thedebt; the Act requires

statement of the debt. The requirement is not satisfied by listing a phone number. What they

certainly could do was to state the total amount due—interest and other charges as well as

principal—on thedate the dunning letter was sent. We think the statute required this." See Miller

V. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, LLC.,2\A F.3d 872, 875, 876 (7th

Cir.2000).

8.

Section 1692(g)(2) specifically requires debt collectors to identify the creditor to whom

the debtis owed in the initial communication or within five daysof the initial communication.

There is nothing in the statute requiring the identity ofthe creditor to be "material" to the

commimication. EunJoo Lee v. Forster &Garbus LLP, 926F.Supp.2d 482,488

(E.D.N.Y.2013).. See also McMillan v. Collection ProfIs, Inc., 455 F.3d 754, 758 (7th Cir.

2006) ("Ifthe required information is not communicated tothe debtor, or if it is provided ina

manner that is 'confusing' to the consumer, § 1692g has been violated.").

9.

"We are persuaded that, in the context of debt collection, the identity of a consumer's

originalcreditor is a critical piece ofinformation, and therefore its false identificationin a

dunning letter would be likely to mislead some consumers in amaterial way." Tourgeman v

Collins FinancialServices, Inc., Court of Appeals, 9'*^ Circuit 2014.

10.

Section 1692g (a)requires that "[w]itliin fivedaysafter the initial communication witha

consumer in connection with the collection ofany debt, a debt collector shall" provide notice of

the amount ofthe debt, the name ofthe creditor, and the debtor's right to dispute orobtain

verification ofthe debt. 15 U.S.C.§ 1692g (a). The statute requires that the specified information

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bedisclosed in a single notice. Castro v. Green Tree Servicing, 10cv7211, 2013 WL 4105196

(S.D.N.Y.,Aug. 14,2013),

11.

15 U.S.C. §1692g requires thatinitial letters disclose the actual owner of the loan, not a

master servicer, agent orsimilar partyclaiming the rightto payment on behalfof the owner.

BourjfV. Rubin Lublin LLC, 674 F.3d 1238 (11*'' Cir. 2012); Wallace v. Washington Mutual

BankFA, 683 F.3d 323 {6'^ Cir. 2012).

IL PARTIES

12.

The Plaintiff, Earl D. Wilson is a natural person and consumer, a resident ofFenton,

Genesee County, State of Michigan, and a "consumer" as defined by theFDCPA and RPCA.

13.

The Defendant, Bayview Loan Servicing, LLC. is a debt collector and servicerof

defaulted mortgage loans inwith resident agent offices inEast Lansing, Ingham County, State of

Michigan and is engaged inthe business ofusing the mails and telephone tocollect consumer

debts originally owed to others, including residential mortgage debts. See Glazer v. Chase Home

Finance LLC, 704 F. 3d 453.

III. JURISDICTION AND VENIJK

14.

This court has jurisdiction over this Complaint pursuant to the FDCPA, 15 U.S.C. §

1692k(d), 28 U.S.C. § 1331 and 28 U.S.C. § 1367. Venue in thisjudicial district is proper

because the pertinent events tookplacehere.

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IV. STATUTORY STRUCTURE

FAIR DEBT COLLECTION PRACTICES ACT (FDCPA^

15.

The FDCPA was passed toeliminate abusive debt collection practices by debt collectors,

to insure that those debt collectors who refrain from using abusive debt collection practices are

not competitively disadvantaged, and to promote consistent State action toprotect consumers

against debt collection abuse. 15 U.S.C. § 1692.

16.

Under the FDCPA, a "consumer" is any natural person obligated orallegedly obligated to

pay any debt. 15 U.S.C. §1692a(3).

17.

Under theFDCPA, "debt" means any obligation or alleged obligation of a consumer to

pay money arising outof a transaction in which themoney, property, insurance, orservices

which are the subject ofthe transaction are primarily for personal, family, orhousehold

purposes. 15 U.S.C. § 1692a(5).

18.

Under the FDCPA, a "debt collector" isany person who uses any instrumentality of

interstate commerce orthemails inany business the principal purpose for which isthe collection

ofany debts, orwho regularly collects orattempts to collect, directly orindirectly, debts owed or

due or asserted to beowed or due to another. 15 U.S.C. § 1692a(6).

19.

Adebt collector may not use any false, deceptive, ormisleading representation ormeans

in connection with thecollection of anydebt. 15 U.S.C. § 1692e.

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REGULATION OF COLLECTION PRACTICES ACT (RPCA^

20.

The Regulation of Collection Practices Act (RPCA), MCL 445.251 et seq. is an act to

regulate the collection practices of certain persons; to provide for thepowers and duties ofcertain

state agencies; and to provide penalties and civil fines.

21.

"Claim" or"debt" means an obligation oralleged obligation for the payment ofmoney or

thing ofvalue arising out ofan expressed orimplied agreement orcontract for a purchase made

primarily for personal, family, or household purposes.

22.

"Collection agency" means a person directly orindirectly engaged insoliciting a claim

for collection or collecting or attempting to collect a claim owed or due or asserted to be owed

ordue another, orrepossessing or attempting to repossess a thing ofvalue owed or due or

asserted to be owed ordue another person, arising out ofan expressed orimplied agreement.

Collection agency includes a person representing himselfor herselfas a collection or

repossession agency ora person performing the activities ofa collection agency, onbehalfof

another, which activities are regulated by Act No. 299 ofthe Public Acts of 1980, as amended,

being sections 339.101 to 339.2601 ofthe Michigan Compiled Laws. Collection agency

includes a person who furnishes or attempts to furnish a form or a written demand service

represented to be a collection orrepossession technique, device, orsystem to be used to collect

orrepossess claims, if the form contains the nameof a personotherthan the creditor in a

manner indicating that a request ordemand for payment isbeing made by a person other than

the creditor even though the form directs the debtor to make payment directly to the creditor

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rather thanto the otherpersonwhose name appears on the form. Collection agency includes a

person whousesa fictitious name or the name of another in the collection or repossession of

claims to conveyto the debtor that a third person is collectingor repossessing or has been

employed to collect or repossess the claim.

23.

"Communicate" meansthe conveying of information regarding a debt directly or

indirectly to a person through any medium.

24.

"Consumer" or "debtor" means a natural person obligated or allegedly obligated to paya

debt.

25.

"Creditor" or "principal" means a person who offers or extends credit creating a debt or a

person to whom a debtis owed or dueor asserted to beowed or due. Creditor or principal does

notinclude a person who receives an assignment ortransfer or a debt solely forthepurpose of

facilitating collection of thedebt for the assignor ortransferor. Inthose instances, theassignor or

transferor ofthedebt shall continue to be considered the creditor ortheprincipal forpurposes of

this act.

26.

"Person"meansan individual, sole proprietorship, partnership, association, or

corporation.

27.

A person maynot communicate witha debtor, except through billing procedure when the

debtor is actively represented by an attorney, the attomey's name and address areknown, andthe

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attorney hasbeencontacted in writing by the creditgrantor or the creditgrantor's representative

or agent, unless the attorney representing the debtor fails to answer written communication or

fails to discussthe claim on its merits within 30 days after receipt ofthe written communication.

MCL 445.252(h).

28.

The RPCA mirrors the requirements and remedies ofthe FDCPA with the same 6^

Circuit use ofthe "least sophisticated consumer" standard ofKistner, 518 F.3d at 44\. McKeown

V. Mary Jam M Elliott P.C., No. 07-12016-BC, 2007 WL 4326825, at *5 (E.D.Mich. Dec. 10,

2007) (citing Hubhard v. Nat'l Bond and Collection Assocs., Inc., 126 B.R. 422,426

(D.Del.l991)).

V. LAW CONCERNING 15 U.S.C. S 1692g

29.

(a) Notice of debt; contents

Within five days after the initial communication with a

consumer in connection with the collection of any debt, a debt

collector shall, unless the following information is contained in

the initial communication or the consumer has paid the debt,

send the consumer a written notice containing—

(1) the amount ofthe debt',

(2) the name ofthe creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after

receipt ofthe notice, disputes the validity ofthe debt, or any

portion thereof, the debt will be assumed to be valid by the

debt collector;

(4) a statement that ifthe consumer notifies the debt collector in

writing within the thirty-day period that the debt, or any

portion thereof, is disputed, the debt collector will obtain

verification ofthe debt or a copy of a judgment against the

consumer and a copy ofsuch verification or judgment will be

mailed to the consumer by the debt collector; and

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(5) a statement that, upon the consumer's written request within

the thirty-day period, the debt collector will provide the

consumer with the name and address ofthe original creditor, if

different from the current creditor. 15 USC § 1692g -

Validation of debts.

30.

Numerous courts have recognized that the FDCPA's purpose - to eliminate abusive debt

collection practices - would be undermined ifsubsequent debt collectors were excused from

complying withthe requirements contained in section 1692g. Wright v. Ocwen LoanServicing,

LLC, 12-14762,2013 WL 5532687, at 4-5 (E.D.Mich. Oct.7,2013), See, also Lewis v.

Nationstar Mortgage, F.Supp.2d — 13-11693, 2014 WL 1089557, at 7-10 (E.D.Mich. March

18,2014).

31.

Subsection (a)(4) states that if the debtor disputes tlie debtin writing within thirty days,

thedebt collector must obtain verification of thedebtandmust send the debtor a copy of the

verification. Subsection (a)(5) states that, if thedebtor makes a written request, the debtcollector

must providethe name and address ofthe original creditor. Subsection (b) states that if the

debtor disputes the debt in writing within thirty days, the debt collector must cease collection

efforts until the debt collector has verified the debt. Graziano v. Harrison, 950 F. 2d 107 - Court

ofAppeals, 3rd Circuit 1991.

32.

When interpreting the FDCPA, we begin with the language ofthe statute itself, see

Consumer Prod. SafetyComm'n v. GTESylvania, Inc., 447 U.S. 102, 108 (1980),since the intent

of Congress is "best determined by the statutorylanguage it chooses." Sedima, S.P.R.L. v.

Imrex, 473 U.S. 479,495 n.l3 (1985). Schroyer v. Frankel, 197F.3d 1170, 1174 (6thCir. 1999).

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33.

TheFDCPA's bona fide error defense at 15U.S.C. § 1692k(c) does not applyto a

violationof the FDCPA resulting from a debt collectors' incorrectinterpretation ofa legal

requirement ofthe FDCPA. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130

S.Ct. 1605,1611-12(2010).

VL FACTUAL ALLEGATIONS

34.

On October 26, 2012, Bayview sent a letter to Plaintiffinforming him that it was the new

servicer ofthe mortgage formerly serviced by Bank ofAmerica. Please see Exhibit 1.

35.

On October 26,2012, Plaintiffwas in default ofthe mortgage note as ofOctober, 2010.

36.

On or about November 6, 2014, Plaintiffreceived a letter threatening to foreclose on the

debt ifit was not brought current within 14 days by paying all ofthe payment due since October,

2010. Please see Exhibit 2.

37.

The Letter from Bayview did not provide the required Validation and Dispute rights

required under section § 1692g(a) and (b) ofthe FDCPA.

38.

The Defendant is a debt collector under 15 U.S.C. § 1692a(6)(F)(iii) that received the

servicing rights ofthis note after the Plaintiff had allegedly defaulted on the home loan back in

2010 with Bank ofAmerica.

39.

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It is a violation of the FDCPA for a debt collector to contact a debtor after receiving a

validation/verification notice and without first validating or verifying the debt. 15U.S.C. 1692g(b).

40.

Further, Defendant has failed to detail the true amount ofthe debt that is owed by first

saying that the total owed is $63,897.79 but then saying in the same letter at Exhibit 2:

Next Payment Due 11/1/2010

Total Monthly Payments Due: $59,207.62

Late Charges: $147.78

Other Charges: Uncollected NSF Fees: $0.00

Other Fees: $0.00

Corporate Advance Balance: $0.00

Unapplied Balance: $0.00

TOTAL YOU MUST PAY TO CURE DEFAULT: $63,897.79

41.

The $59,207.62 added to $147.78 adds up to $59,355.40 and not the $63,897.79 claimed

to be owed by Defendant at Exhibit 2.

42.

Bayview violated the FDCPA by not providing the required Validation and Dispute notice

in its communications with Mr. Wilson that would have afforded him the right to seek a written

explanation ofthe amount owed in Exhibit 2.

VIL CLAIMS FOR RELIEF

Count 1-Fair Debt Collection Practices Act

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43.

Plaintiffrealleges the above pleadings.

44.

Defendants have violated the FDCPA. Defendants' violations ofthe FDCPA include, but

are not necessarily limited to, the following:

a. Defendant violated 15 U.S.C. 1692e by using false, deceptive and misleading

representations and means in connection with the collection or attempted

collection of a debt using the letters above; and

b. Defendant collected on the debt and violated 15 U.S.C. 1692d by engaging in

any conduct the natural consequence ofwhich is to harass, oppress, or abuse

any person in connection with the collection of a debt; and

c. Defendant collected on the debt and violated 15 U.S.C. 1692g(a)(l) by failing

to state the details ofthe amount ofdebt owed in the letter at Exhibit 2: and

d. Defendant collected on the debt and violated 15 U.S.C. 1692g(a)(2) by failing

to identify the name ofthe creditor who holds the mortgage loan in the letter;

and

e. Defendant did not provide the dispute and verification notice within five days

ofthe initial contact and violated 15 U.S.C. 1692g as mentioned above.

Wherefore, Plaintiffseeksjudgment against Defendant for:

a. Statutory and Actual damages for Plaintiffin the amount of$1,000.00 pursuant

to 15 U.S.C. 1692k(a)(2)(A) and (B);

b. Costs and reasonable attorney's fees pursuant to 15 U.S.C. 1692k(a)(3); and;

c. Such further relief as the court deems just and proper.

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Count 2-Michigan Collectioii Practices Act

45.

Defendantshave violated the RPCA. Defendant's violations ofthe RPCA include,but are

not necessarily limited to, the following:

a. DefendantviolatedMCLA445.252(n) by using a harassing,oppressive, or

abusive method to collect a debt, using the letters as mentioned above; and

b. Defendant violated MCLA 445.252(e) Making an inaccurate, misleading,

untrue, or deceptive statement or claim in a communication to collect a debt or

concealing or not revealing the purpose of a communication when it is made

in connection with collecting a debt at as mentioned above; and

c. Defendanthas violated MCLA445.252(f) Misrepresenting in a

communication with a debtor 1 or more ofthe following:

(i) The legal status ofa legal action being taken or threatened.

(ii) The legal rights ofthe creditor or debtor;

d. Defendanthas violated MCLA445.252(q) by failing to implementa

procedure designed to preventa violation by an employee such as continuing

to contact a represented debtor.

Wherefore, Plaintiffseeksjudgment against Defendants for:

a. Statutory and Actual damages for Plaintiff in the amount of $50.00, trebled to

$150.00 for a willful violation, pursuantto M.C.L. 445.257(2);

b. Equitable, declaratory and injunctive relief pursuant to M.C.L. 445.257(1),

including but not limited to, a declaration that defendant's debt collection

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practices violated the RPCA, as well as an injunction, enjoining Defendants

from using letters that violate Michigan law; and

c. Reasonable attorney's fees and court cost pursuant to M.C.L. 445.257(2).

Vlll. JURY TRIAL DEMAND

Plaintiff demands a Trial by Jury on all issues.

Respectfully submitted,

LAW OFFICES OF BRIAN P. PARKER, P.C.

/s/Brian P. Parker

Dated: November 28,2014 BRIAN P. PARKER (P486I7)

Attorney for Plaintiff

2000 Town Center, Suite 1900

Southfield, MI 48075

(248) 642-6268

brianparker@collectionstopper.com

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