first paragraph of any newspaper story.” DiLeo v. Ernst & Young,
901 F.2d 624, 627 (7% Cir. 1990). Thus, Plaintiff must plead the
time, place and content of the allegedly fraudulent
misrepresentation, as well as the parties to that communication.
Corley v. Rosewood Care Center, Inc. of Peoria, 142 F.3d 1041, 1050
(7% Cir.1998); see also Taylor v. Bob O’Connor Ford, Inc., No. 97
C 720, 2000 WL 876920, at *2 (N.D.I1l. June 29, 2000). Further, a
plaintiff must plead a complaint alleging a violation of the ICFA
with the same level of particularity and specificity as that
required under common law fraud. Connick v. Suzuki Motor Co.,
Ltd., 675 N.E.2d 584, 593 (Ill. 1996).

In the present matter, Plaintiffs’ Amended Complaint
adequately sets forth a claim for violation of the ICFA.
Plaintiffs’ allegations regarding improper billing for sham
“property preservation” fees and the resulting misrepresentation in
Plaintiffs’ mortgage account statements are sufficient to assert a

fraud cause of action.?

? Illinois courts, apparently suspicious of the motives of plaintiffs’ attorneys’ fees,
repeatedly caution against transforming every breach of contract into consumer fraud. Long v.
Wix Auto, No. 00 C 5842 (N.D.IIl January 4, 2001) (Mot. to Dismiss Op.)(Judge Zagel);
Golembiewski v. Hallberg Ins. Agency, 635 N.E.2d 452, 460 (1 Dist. 1994). “Every individual
breach of contract between two parties... does not amount to a cause of action cognizable under
the (ICFA)... If the (ICFA) did apply, then common law breach of contract actions ‘would be
supplemented in every case with an additional and redundant remedy.” Golembiewski, 635
N.E.2d at 121 (quoting Exchange National Bank v. Farm Bureau Life Ins. Co, 438 N.E.2d 1247,
1250 (Ill. 1982)). However, the complaint adequately pleads an ICFA claim concerning
Defendant’s purported misconduct in charging “property preservation” fees; further, the claim
raises factual issues that should not be decided on a motion to dismiss. Sorce v. Naperville Jeep
Eagle, Inc., 722 N.E.2d 227, 232 (2" Dist. 1999).

13


Agreement adjusted Plaintiffs’ monthly payments and how Defendant
could allocate Plaintiffs’ payments. Defendant maintains
Plaintiffs then defaulted on the Agreement and Defendant moved to
reinstate foreclosure proceedings. Plaintiffs mailed to Defendant
a “qualified written request” for information about their loan and
the Agreement and then filed the present complaint. Plaintiffs
recognize the existence of the Agreement, see Compl. Exhibit H, but
fail to mention or discuss the allegations regarding foreclosure
and the Agreement.
ANALYSIS
Count I: Breach of Contract

In Count I, Plaintiffs allege Defendant violated the terms of
the mortgage, note and Agreement by imposing “speed pay” fees and
“property preservation” fees. First, Defendant is entitled to
charge these fees for actual work done. Second, even when the
Court accepts Plaintiffs’ allegations as true, Defendant
appropriately charged Plaintiffs for “speed pay” fees. However,
Plaintiffs have properly alleged a claim for breach of contract
regarding the “property preservation” fees, i.e. Plaintiffs have
alleged Defendant did nothing to generate these fees and Defendant
has not stated what it actually did to earn the fees.

“Speed Pay” Fees
In their Amended Complaint, Plaintiffs state “[f]rom time to

time plaintiffs have made payments by wire transfer. On such


property's value and (2) the lender's rights in the

property. Under these circumstances, the lender has full

authority to pay for these actions and then charge them

to the borrower. There is no limitation on what the

lender may do and pay for except that it must be

necessary to protect its rights in or the value of the

property. The lender's actions do not, for example, have

to be reasonable, economical, or fair to the borrower.

We interpret this language to authorize fees that

(1) [lender] actually incurred in filing a proof of claim

in the plaintiffs' bankruptcy, as well as (2) property

inspection fees actually incurred because of plaintiffs’

default and bankruptcy.
Majchrowski, 6 F.Supp.2d at 964-65 (emphasis added); see also
Walker v. Countrywide Home Loans, Inc., No. B145102, 2002 WL
1068266, at *10, (Cal.App. 2 Dist. May 30, 2002). Here, Defendant
charged Plaintiffs monthly $100 “property preservation” fees as a
result of Plaintiffs’ default. While paragraph 7 of the mortgage
clearly empowered Defendant to take whatever actions necessary to
protect its property in default and to bill Plaintiff for these
expenses, Defendant has not stated or shown what it actually did
here to merit reimbursement by Plaintiffs. Defendant is authorized
to charge “property preservation” fees for work actually done to
protect its property, but Defendant must actually perform work to
receive reimbursement.

Since the Court accepts Plaintiffs’ allegations as true ina
motion dismiss, Plaintiff has adequately pleaded a claim for breach
of contract when it alleged these “sums are merely book entries in

favor of itself and do not represent actual payments or

liabilities.” Compl. 71l1(d). Further, whether Defendant "actually


and effect.

Def. Mot. to Dismiss Ex. 1 (emphasis in original). Defendant
charged Plaintiffs for the service of confirming that Plaintiffs
paid in valid funds, on time and otherwise in compliance with the
Agreement. Plaintiffs do not allege they were unaware Defendant
would charge them for this service. Rather, Plaintiffs maintain
“[nJeither plaintiffs’ note and mortgage nor any others provide
that the mortgage company may impose charges for accepting
payments. The imposition of charges by the recipient of a wire
transfer for the privilege of accepting it is contrary to standard
commercial practice and the understanding of the public.” Compl.
q8. However, “speed pay” fees are permitted and Plaintiffs can
plead no set of facts to support the allegation such fees
constitute a breach of contract. Defendant is not required to
specifically state every service-related fee in Plaintiffs’ note or
mortgage. “The mortgage and note cannot anticipate every service
request made by a borrower. The borrower is not entitled to
services from the lender free of charge just because the lender did
not anticipate the request.” Jerik v. Columbia Nat’l., Inc., No.
97 C 6877, 1999 WL 1267702, at * 4 (N.D.I11 Sept. 30, 1999) (citing
Cappellini v. Mellon Mortgage Co., 991 F.Supp. 31, 39 (D.Mass.
1997) and Cain v. Source One Mortgage Servs. Corp., No 43041-6-I,
1999 WL 674776, at *1 (Wash.Ct.App. Aug.30, 1999)). Further, while

the Court accepts all well-pleaded factual allegations as true,


occasions Fairbanks has levied a $15 ‘speed pay fee’”. Compl. 18
(emphasis added). Plaintiff introduced the term and concept of
“speed pay” fees and Defendant further defines this service.
Defendant offers “speed pay” to permit a borrower to automatically
withdraw funds from their account and to post those funds as
certified funds to the borrower’s mortgage account. Such a debit
or wire transfer service guarantees a mortgage payment is
immediately credited as paid in full to avoid a default; this
service may be particularly useful when time is of the essence and
the borrower wishes to avoid obtaining a cashier’s check or money
order and the risk and/or expense of overnight mail.

The Amended Complaint states Plaintiff utilized the “speed
pay” service to satisfy their commitment under the Agreement. See
Compl. 98. The Agreement states in relevant part:

1. If any payment remitted pursuant to this
agreement is not in certified funds, this
Forbearance Agreement shall be considered null
and void.

2. It is expressly understood and agreed that
time is and shall be of the essence as to each
payment required to be made by the Mortgagors
pursuant to this Agreement. There is no grace
period.

koe kk

4. All funds received by Mortgagee under this
Agreement are non-refundable and may be held
in suspense account or applied to the amount
owing, solely at Mortgagee’s discretion. Upon
successful completion of this agreement, all
funds collected under this agreement shall be
applied to the amounts due.

5. In all other respects, all of the provisions
of the Note and Mortgage and any collateral
loan documentation shall remain in full force


Compl. 911, 18. “Property preservation” fees are actual expenses
incurred by the lender in preserving the value of the mortgaged
property in default and the lender’s rights in that property. See
Majchrowski v. Norwest Mortgage, Inc., 6 F.Supp.2d 946, 964-65
(N.D.I11. 1998) (property preservation fees and costs incurred for
actual work performed are permitted under Paragraph 7).

Regarding the first allegation, Paragraph 7 of the mortgage
expressly provides for the imposition of such fees.

Protection of Lender’s Rights in the Property. Tf
Borrower fails to perform the covenants and agreements
contained in this Security Instrument, or there is a
legal proceeding that may significantly affect Lender’s
rights in the Property (such as a proceeding in
bankruptcy, probate, for condemnation or forfeiture or to
enforce laws or regulations), then Lender may do and pay
for whatever is necessary to protect the value of the
Property and Lender’s rights in the Property. Lender’s
actions may include paying any sums secured by a lien
which has priority over this Security Instrument,
appearing in court, paying reasonable attorneys’ fees and
entering on the Property to make repairs. ...

Any amounts disbursed by Lender under this paragraph 7
shall become additional debt of Borrower secured by this
Security Instrument.

Compl. Ex. B, @ 7 (emphasis added). This language in the
parties’ mortgage entitles Defendant as lender to incur costs to
protect the property at issue. In Majchrowski, the court addressed
this same language and correctly stated a lender has broad leyway
as to what it may do and charge to the mortgagee.

When the borrower breaches any covenant in the

Security Instrument or goes into bankruptcy, this

language unequivocally permits the lender to take
whatever action is necessary to (1) protect the mortgaged


‘Minyte Order Forma (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judi ‘li i Sitting Judge if Oth
Mor Magisrate Judge William J. Hibbler than Assigned Judge

CASE NUMBER 02 C 665 DATE 6/13/2002
CASE TITLE Chatman v. Fairbanks Capital Corp.

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
nature of the motion being presented.]

MOTION:
Defendant’s Motion to Dismiss (#5-1)
DOCKET ENTRY:
qd) a Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) a Answer brief to motion due____._ Reply to answer brief due__
(4) a Ruling/Hearing ons set for__aat
(5) o Status hearing [held/continued to] [set for/re-set for] on__———ssetfor__—_—sat
(6) oa Pretrial conference [held/continued to] [set for/re-set for]on___setfor__———sat__—.
” o Trial {set for/re-set for]on__—_at
(8) Q [Bench/Jury trial] [Hearing] held/continued toa
9) a This case is dismissed [with/without] prejudice and without costs [by/agreement/pursuant to]

OFRCP4(m) O General Rule 21 OFRCP41(a)(1) O FRCP41(a)(2).

(10)  TM [Other docket entry] For the attached reasons, the Court GRANTS in part and DENIES in part the
Motion to Dismiss. Specifically, the Court grants the motion to dismiss Plaintiffs’ claims regarding
the “speed pay” fees and denies the motion to dismiss the claims concerning the “property
preservation” fees. Plaintiffs have adequately put Defendant on notice of claims for breach of
contract, TILA, ICFA and RESPA. Enter Memorandum, Opinion and Order.

ap o [For further detail see order on the reverse side of the original minute order.]

No notices required, advised in open court.

No notices required.
umber of notices

Notices mailed by judge's staff. mM 18 . 1N0L

Notified counsel by telephone.

date docketed

| Docketing to mail notices.
Mail AO 450 form a fy ints

Copy to judge/magistrate judge. .
NOD LIYLSIA "Sf
Ww yaa

courtroom v

deputy’s
JHC initials sooty ae 2
DateMtmk rebbived in
central Clerks Offige pa 4-9

Ul Usa tht

mailing deputy initials



credit, TILA “is not a general prohibition of fraud in consumer
transactions or even in consumer credit transactions.” Gibson v.
Bob Watson Chevrolet-Geo, Inc., 112 F.3d 283, 285 (7% Cir. 1997).

Under its authority “to elaborate and expand the legal
framework governing commerce in credit” and pursuant to TILA, the
Federal Reserve Board implemented governing regulations, commonly
known as Regulation Z. See Ford Motor Credit Co. v. Milhollin, 444
U.S. 555, 559-60 (1980); 12 C.F.R. § 226 (1999). These regulations
mandate the disclosures be made clearly and conspicuously in
writing and include, among other things, the amount financed, the
finance charge, the annual percentage rate, total of payments, and
total sale price. See 12C.F.R. § 226.17(a), 226.18 (b) (da) (e) (g) (3).

In the present case, Plaintiffs allege Defendant violated TILA
when it failed to give Plaintiffs correct disclosures and instead
provided an incorrect adjustment notice that stated a higher loan
balance due to Defendant’s allegedly improper “property
preservation” fees. Compl. 931. Plaintiffs have adequately stated
a TILA claim. Further, as stated above regarding Count I, a motion
to dismiss will not address the merits of a complaint; factual
issues remain, i.e. the existence of actual work done to merit
“property preservation” fees, and these issues intertwine Counts I,
II, III and IV.

Count III: Illinois Consumer Fraud Act

To prove a violation of the ICFA, Plaintiffs must allege (1)

11


incurred" these fees is a factual question beyond the Court’s
cursory review on a motion to dismiss and may entail discovery for
later review on summary judgment. See Majchrowski, 6 F.Supp.2d at
965.
Count II: Truth in Lending Act

As a result of Defendant’s allegedly unauthorized charges,
Plaintiffs maintain the notice of interest rate and payment
adjustments Defendant mailed to Plaintiffs fails to accurately
state the loan balance. Specifically, Plaintiffs assert the loan
balance is incorrect because it contains the allegedly improper
“speed pay” and “property preservation” fees and thus violates
TILA. Since the Court stated above that Defendant was permitted to
charge the “speed pay” fees and properly charged them here,
Plaintiffs cannot assert a TILA claim concerning “speed pay” fees.

Congress enacted TILA “to assure a meaningful disclosure of
credit terms so that the consumer will be able to compare more
readily the various credit terms available to him and avoid the
uninformed use of credit, and to protect the consumer against
inaccurate and unfair billing and credit card practices.” 15 U.S.C.
§ 1601(a); see also Walker v. Wallace Auto Sales Inc., 155 F.3d
927, 932 (7% Cir. 1998). In keeping with this purpose, TILA
requires creditors to clearly disclose finance terms under the
credit transaction. See 15 U.S.C. § 1638(a). Despite its broad

purpose of protecting consumers from being misled about the cost of

10


Plaintiffs cannot state a claim that Defendant breached the terms
of the mortgage and note when each “speed pay” fee “was deducted
from the incoming wire instead of being applied to principal or
interest,” Compl. 98; the Agreement explicitly states Defendant is
contractually entitled to allocate the fees at Defendant’s
discretion. Def. Mot. to Dismiss Ex. 1, {4 ("All funds received by
Mortgagee under this Agreement are non-refundable and may be held
in suspense account or applied to the amount owing, solely at
Mortgagee’s discretion.” (Emphasis added) )

Plaintiffs used Defendant’s service to transfer funds to avoid
the delay and expense of a trip to the bank for certified funds and
to the post office for immediate shipping. Defendant charged
Plaintiff for the service and published the charge on Plaintiffs’
account statement. See Compl. Ex. C (“speed pay fee” charged on
March 19, April 6 and May 31, 2001). Thus, Plaintiff has failed to
state a legal claim for a breach of contract regarding “speed pay”
fees. See also Gofis v. County of Cook, 754 N.E.2d 374, 383 (1%
Dist. 2001) (voluntary payment doctrine applied to payment of fee by
delinquent taxpayers).

“Property Preservation” Fees

Plaintiffs also maintain the “property preservation” fees
charged by Defendant are improper because (1) such fees are not
authorized by Plaintiffs’ mortgage and note and (2) such fees are

“fraudulent” and “bogus” charges for work not actually performed,


(1993). However, the Court need not stretch the allegations
beyond their sensible and reasonable implications. Chan v. City of
Chicago, 777 F.Supp. 1437, 1440 (N.D.I11.1991).

In reviewing a Rule 12(b) (6) motion to dismiss for failure to
state a claim, the Court’s review is limited to the allegations
contained in the pleadings themselves. However, documents
incorporated by reference or attached to the pleadings as exhibits
are considered part of the pleadings for all intents and purposes.
Fed. R. Civ. P. 10(c). In addition, “documents that a defendant
attaches to a motion to dismiss are considered part of the
pleadings if they are referred to in the plaintiff's complaint and
are central to her claim.” Venture Associates Corp. v. Zenith Data
Systems Corp., 987 F.2d 429, 431 (7 Cir. 1993).

FACTS AND BACKGROUND

Plaintiffs entered into a home mortgage loan with Defendant.
Plaintiffs defaulted on the mortgage and Defendant pursued
foreclosure. To avoid foreclosure, Plaintiffs entered into a

forbearance agreement (the “Agreement”) with Defendant.? The

' While they attached a copy of the mortgage and note as exhibits and referred to the
forbearance agreement in the amended complaint (e.g. Exhibit H), Plaintiffs failed to attach a
copy of the forbearance agreement. Defendant attached a copy of the agreement to its motion to
dismiss and the parties repeatedly refer to this central and necessary document. Accordingly, the
Court may and will consider the forbearance agreement along with the pleadings and exhibits.
Menominee Indian Tribe of Wis. v. Thompson, 161 F.3d 449, 456 (7" Cir. 1998)(documents that
a defendant attaches to a motion to dismiss may be considered only if they are referred to in the
plaintiff's complaint and are central to plaintiff’s claim); see also Wright v. Associated Ins. Cos.,
Inc., 29 F.3d 1244, 1248 (7" Cir. 1994).


Count IV: RESPA

The Cranston-Gonzales Amendments to RESPA place requirements
on servicers of federally related mortgage loans when they receive
a qualified written request from a borrower. 12 U.S.C. § 2605 et
seq. The servicer must provide a written response acknowledging
the receipt of a qualified written request within twenty days of
receiving the borrower's letter. 12 U.S.C. § 2605(e) (1) (A). The
servicer must then do one of three things within sixty days of
receiving the letter: (1) correct the borrower's account and inform
the borrower of those corrections in writing; (2) investigate and
provide a written explanation to the borrower of the reasons that
the servicer believes the borrower's account is correct; or (3)
investigate and provide a written explanation to the borrower of
the reasons that the servicer cannot obtain the information that
the borrower is requesting. Johnstone v. Bank of Am., N.A., 173
F.Supp.2d 809, 812 (N.D.I11.2001) (citing 12 U.S.C. § 2605(e) (2)).
Also, during the sixty days after the servicer receives a qualified
written request from the borrower, the servicer "may not provide
information regarding an overdue payment relating to the borrower's
letter to a consumer reporting agency." Id. at 812-13. RESPA
explicitly provides for individual causes of action and allows for
actual damages, as well as statutory damages upon a showing of a
pattern or practice of noncompliance with the duty to respond to

borrower inquiries. 12 U.S.C. § 2605(f).

14


related alleged misconduct. Therefore, this letter, taken in the
light most favorable to Plaintiffs, satisfies the requirements of
§ 2605(e) (3). See McDonald v. Washington Mut. Bank, No. 99 C 6884,
2000 WL 967994 (N.D.T1l1., Jul 11, 2000).
CONCLUSION

For the foregoing reasons, the Court GRANTS in part and DENIES
in part the Motion to Dismiss. Specifically, the Court grants the
motion to dismiss Plaintiffs’ claims regarding the “speed pay” fees
and denies the motion to dismiss the claims concerning the
“property preservation” fees. Plaintiffs have adequately put
Defendant on notice of claims for breach of contract, TILA, ICFA
and RESPA.

,

IT IS SO ORDERED.
DATED: June 13, 2002

xh

IBBLER, DISTRICT JUDGE

16


request.” Defendant filed the present motion to dismiss all
counts, pursuant to Federal Rule of Civil Procedure 12(b) (6). For
the reasons stated below, Defendant’s motion to dismiss is GRANTED
in part and DENIED in part.
MOTION TO DISMISS STANDARD

A motion to dismiss under Rule 12(b)(6) should test the
sufficiency of the complaint rather than address the merits of the
case. The Court must construe all allegations in the complaint in
a light most favorable to the plaintiff, taking all well-pleaded
facts and allegations within the complaint as true. Bontkowski v.
First Nat. Bank of Cicero, 998 F.2d 459, 461 (7% Cir. 1993).
Because Plaintiffs’ allegations are taken as true, Defendant must
meet a high standard in order to have the complaint dismissed for
failure to state a claim upon which relief may be granted. The
allegations of a complaint should not be dismissed for failure to
state a claim “unless it appears beyond a doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46
(1957); Hartford Fire Insurance Co. v. California, 509 U.S. 764
(1993); Sherwin Manor Nursing Center, Inc. v. McAuliffe, 37 F.3d
1216, 1219 (7% Cir.1994). The Court must construe the present
pleadings liberally in compliance with the notice pleading
provision of the federal rules. Leatherman v. Tarrant County

Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CHARLES CHATMAN and
BERNADETTE CHATMAN
Plaintiffs,
CASE NO. 02 C 665
v.
JUDGE WILLIAM J. HIBBLER

DOCKETED

FAIRBANKS CAPITAL CORP.
Defendant.

weyers se

MEMORANDUM AND OPINION

Mr. and Mrs. Charles and Bernadette Chatman (“Plaintiffs”)
allege Fairbanks Capital Corporation (“Defendant”) engaged in
unlawful mortgage servicing practices. Plaintiffs allege
Defendant: breached the terms of Plaintiffs’ note and mortgage by
imposing certain “speed pay” and “property preservation” fees
(Count I); violated the Truth in Lending Act ("TILA"), 15 U.S.C.
§ 1602 et seq., and Regulation Z, 12 C.F.R. §226.20(c), by
improperly adding these fees to Plaintiffs’ unpaid principal loan
balance and thus incorrectly stating Plaintiffs’ loan balance on
the statutorily required variable-rate adjustment disclosure
(Count II); violated the Illinois Consumer Fraud and Deceptive
Business Practices Act ("ICFA"), 815 ILCS 505/2 et seq., by
asserting the allegedly unauthorized and unperformed “speed pay”
and “property preservation” fees (Count III); and violated the Real
Estate Settlement Practices Act (“RESPA”), 12 U.S.C. §2605, by

allegedly failing to respond to Plaintiffs’ “qualified ri

| |


Defendant engaged in a deceptive act or practice; (2) Defendant
intended that Plaintiffs rely on that deception; (3) the deception
occurred in the course of conduct involving trade or commerce; and
(4) the act proximately caused damage. Williams v. Thomas Pontiac,
Inc., No. 99 C 882, 1999 WL 787488, at *3 (N.D.I11. Sept. 24, 1999)
(citing B. Sanfield, Inc. v. Finlay Fine Jewelry Corp., 168 F.3d
967, 970-71 (7% Cir.1999)). “Unlike TILA, the ICFA ‘does not
mandate any particular form or subject of disclosure, but rather is
a general prohibition of fraud and misrepresentation.” Greisz v.
Household Bank (Illinois), 8 F. Supp.2d 1031, 1043 (N.D. Ill.
1998) (citing Lanier v. Associates Finance, Inc., 499 N.E.2d 440,
447 (Ill. 1986)). Because TILA and Regulation Z are laws
administered by the Federal Reserve Board, a “defendant’s
compliance with the disclosure requirements of the Truth in Lending
Act is a defense to liability under the Illinois Consumer Fraud
Act.” Lanier, 499 N.E.2d at 447.

Further, Federal Rule of Civil Procedure 9(b) requires that
"({i]n all averments of fraud ... the circumstances constituting the
fraud or mistake shall be stated with particularity." Fed. R. Civ.
P. 9(b). The Seventh Circuit has stated clearly that Rule 9(b)
requires a plaintiff to state “with particularity" any
“circumstances constituting fraud.” Id. “Although the states of
mind may be pleaded generally the ‘circumstances’ must be pleaded

in detail. This means the who, what, when, where, and how: the

12


In the present case, Plaintiffs allege they mailed a
“qualified written request” to Defendant, Defendant failed to
acknowledge and react to the letter, and thus Defendant violated
RESPA. Defendant argues Plaintiff did not act in good faith and
maintains Plaintiffs’ letter was a litigation strategy that
requested information governed by the rules of discovery in the
Federal Rules of Civil Procedure.

Defendant offers an interesting and persuasive challenge to
Plaintiffs’ RESPA claim. RESPA's principle purpose is to protect
home buyers from material non-disclosures in settlement statements
and abusive practices in the settlement process. Cortez v. Keystone
Bank, No. 98-2457, 2000 WL 536666, at *10 (E.D.Pa. May 3, 2000).
Here, Plaintiffs’ filed the present complaint before the expiration
of the sixty days for Defendant to answer the “qualified written
request.” If Plaintiffs sincerely desired the information they
requested in their letter, then it stands to reason they might have
given Defendant the opportunity to respond in the time allotted.

However, the Court must view the facts in the present motion
to dismiss in the light most favorable to Plaintiffs and finds
Plaintiff’s October 13, 2001 letter constitutes a "qualified
written request" for the purpose of deciding Defendant's motion to
dismiss. This letter identifies that Plaintiffs questioned and
disputed the application of their payments under the Agreement, the

accounting of “speed pay” and “property preservation” fees and

15