Complaint — MacDonald v. Fay Servicing, LLC 

Page Ã of Ë

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

Jeffrey E. MacDonald, 

Plaintiff, 

 v. 

Case No. ÂÀ-cv-ÁÉÉÄ

Honorable 

Fay Servicing, LLC, 

Defendant. JURY TRIAL DEMANDED 

COMPLAINT 

Plaintiff Jeffrey E. MacDonald (Plaintiff) brings this action for damages against 

Defendant Fay Servicing, LLC, (Fay) and alleges the following: 

Venue, Jurisdiction, and Parties 

Á. Venue lies properly in this district pursuant to ÂÈ U.S.C. §ÁÃÉÁ(b) because 

the real property at issue in this suit is within this District and a substantial part of the 

events or omissions giving rise to the claim occurred here. 

Â. Subject matter jurisdiction in this Court is proper under ÂÈ U.S.C. § ÁÃÃÁ as 

this action arises under the Dodd-Frank Wall Street Reform and Consumer Protection Act 

(DFA) and the Real Estate Settlement Procedures Act, ÁÂ U.S.C. §§ ÂÆÀÁ, et seq. 

(RESPA). Any and all state law claims that are plead herein or subsequently arise are 

brought through ÂÈ U.S.C. § ÁÃÆÇ. 

Ã. Plaintiff is a natural person who is the owner of the residential property 

located at and commonly referred to as ÅÉÅÀ N. Kenmore Ave., Chicago, IL ÆÀÆÆÀ (the 

Property). 

Case: 1:20-cv-01994 Document #: 1 Filed: 03/26/20 Page 1 of 9 PageID #:1
Complaint — MacDonald v. Fay Servicing, LLC 

Page Ä of Ë

Ä. Defendant Fay is a Delaware corporation licensed to do business in Illinois, 

with its principal place of business located at ÄÂÅ South Financial Place, Suite ÂÀÀ, 

Chicago, Illinois ÆÀÆÀÅ. Fay’s registered agent is Registered Agent Solutions, Inc. 

located at ÉÀÁ South Ând Street, Suite ÂÀÁ, Springfield, Illinois ÆÂÇÀÄ. Fay’s primary 

business is the servicing of mortgage loans across the country, including Illinois. 

FACTS 

Å. This action is brought to enforce Regulation X, ÁÂ C.F.R. § ÁÀÂÄ.Á, et seq., 

implemented by the Consumer Financial Protection Bureau (CFPB) under ÁÂ U.S.C. § 

ÂÆÀÅ(f). 

Æ. Under Regulation X, mortgage servicers are prohibited from failing “to take 

timely action to respond to a borrower's requests to correct errors relating to allocation of 

payments, final balances for purposes of paying off the loan, or avoiding foreclosure, or 

other standard servicer’s duties.” ÁÂ U.S.C. § ÂÆÀÅ(k)(Á)(C).

Ç. Mortgage servicers are prohibited from failing “to comply with any other 

obligation found by the [CFPB], by regulation, to be appropriate to carry out the consumer 

protection purposes of [RESPA].” ÁÂ U.S.C. § ÂÆÀÅ(k)(Á)(E). 

È. Plaintiff alleges claims for relief against Fay for breaches of the specific 

rules under Regulation X as set forth below. 

É. Plaintiff has a private right of action under RESPA pursuant to ÁÂ U.S.C. § 

ÂÆÀÅ(f) which provides for actual damages, statutory damages, and attorney’s fees and 

costs. 

Case: 1:20-cv-01994 Document #: 1 Filed: 03/26/20 Page 2 of 9 PageID #:2
Complaint — MacDonald v. Fay Servicing, LLC 

Page Å of Ë

ÁÀ. In ÂÀÀÂ, Plaintiff obtained a mortgage loan secured by the Property in the 

amount of ÕÇÅ,ÀÀÀ.

ÁÁ. The servicing rights to the Loan were transferred to Statebridge Company, 

LCC in July, ÂÀÁÄ. 

ÁÂ. While Statebridge serviced the Loan, Plaintiff fell behind on payments, a 

foreclosure was filed, and Plaintiff reinstated the Loan in April, ÂÀÁÆ.

ÁÃ. The servicing rights to the Loan were transferred to BSI Financial Services 

in November, ÂÀÁÆ. 

ÁÄ. While servicing the Loan, BSI Financial Services improperly allocated funds 

to a suspense account in the amount of ÕÁÈÈ.ÈÄ and incorrectly applied funds to an 

escrow account. Plaintiff’s loan did not have any escrow account: at all relevant times 

Plaintiff paid the homeowner’s insurance and property taxes directly. 

ÁÅ. Plaintiff sent BSI Financial Services numerous letters and made numerous 

calls asking BSI to correct its accounting. It did not. 

ÁÆ. Defendant Fay acquired the servicing rights and began servicing the Loan in 

May, ÂÀÁÈ.

ÁÇ. At the time of the transfer to Fay, Plaintiff had made all contractually 

required payments and was current on his loan. 

ÁÈ. In fact, as of the date this Complaint is filed, both Plaintiff’s records and 

Fay’s records show that Plainitff made one payment on his loan in the amount of ÕÄÅÂ.ÂÆ

for each and every month since reinstating his loan in April of ÂÀÁÆ.

Case: 1:20-cv-01994 Document #: 1 Filed: 03/26/20 Page 3 of 9 PageID #:3
Complaint — MacDonald v. Fay Servicing, LLC 

Page Æ of Ë

ÁÉ. Despite the timely payments reflected in the servicing histories provided by 

Fay, Defendant Fay began sending Plaintiff letters in July Àf ÂÀÁÈ indicating it believed 

Plaintiff was delinquent on the Loan. 

ÂÀ. Throughout ÂÀÁÈ and ÂÀÁÉ, Plaintiff made several phone calls to Fay 

attempting to disabuse them of their incorrect belief that Plaintiff was in default. 

ÂÁ. Fay refused to correct its errors based on those calls, so Plaintiff was forced 

to put his dispute in writing. 

ÂÂ. On May ÂÅ, ÂÀÁÉ, Plaintiff sent a letter via Certified Mail to the address 

Fay designated to receive Qualified Written Requests, Notices of Error, and Requests for 

Information and to the attention of Fay’s Customer Service Department located at PO 

Box ÈÀÉÄÄÁ, Chicago, IL ÆÀÆÈÀ-ÉÄÄÁ. 

ÂÃ. That letter indicated that Fay made a servicing error in the accounting of 

Plaintiff’s loan, and stated: 

The error is as follows: 

 When Fay Servicing, LLC took over servicing of the loan, the 

borrower was current. 

 Fay Servicing, LLC incorrectly believes the borrower is in default, 

but the borrower has made all payments as required under the note. 

 For each month since Fay Servicing, LLC took over the servicing 

of this mortgage, the borrower has paid Ì»1⁄4Ĭ.Ĭ1⁄2 as required under 

the note. 

 As a result, Fay Servicing, LLC is incorrect in its accounting and 

improperly applied two late payments to the account. 

ÂÄ. The letter went on to demand that Fay correct the error and send Plaintiff a 

complete payment, transaction, escrow, and account history for the Loan. A copy of that 

letter is attached hereto as Exhibit ī. 

Case: 1:20-cv-01994 Document #: 1 Filed: 03/26/20 Page 4 of 9 PageID #:4
Complaint — MacDonald v. Fay Servicing, LLC 

Page Ç of Ë

ÂÅ. In response, Fay sent Plaintiff a letter (the Response) dated July ÁÈ, ÂÀÁÉ, a 

cÀpy of which is attached hereto as Exhibit Ĭ. 

ÂÆ. Fay’s Response is riddled with false statements. 

ÂÇ. Fay’s Response does not give any substantive explanation for why it 

believes its accounting is correct, other than to recite the tautology that its records 

showed the loan as delinquent. Reciting that tautology does not substitute for performing 

a reasonable investigation of the records to determine where the servicing error was 

made. 

ÂÈ. Fay’s Response also mistakenly ascribes disputes to Plaintiff that he never 

made in his letter: the Response states Plaintiff’s letter made allegations that a 

foreclosure was initiated without following loss mitigation procedures, that Fay imposed 

charges for lender-placed insurance, and that Fay failed to provide Plaintiff with an 

accurate payoff statement. Plaintiff alleged no such errors in his letter. See Exhibit ī. 

ÂÉ. In sum, Fay misconstrued the nature of his dispute, failed to perform a 

reasonable investigation of his dispute, and failed to fix the accounting of the Loan. Fay is 

now falsely accusing Plaintiff of being two months behind on payments, despite the fact 

he has made one monthly contractual payment for every month since reinstating the loan 

in April ÂÀÁÆ.

ÃÀ. Because Fay has failed to substantively respond to numerous telephone 

calls and Plaintiff’s dispute letter, he is left with no choice but to file this lawsuit seeking 

to correct the error and receive compensation for his damages. 

Case: 1:20-cv-01994 Document #: 1 Filed: 03/26/20 Page 5 of 9 PageID #:5
Complaint — MacDonald v. Fay Servicing, LLC 

Page È of Ë

Count I 

Violation of ÉÊ C.F.R. § ÉÈÊÌ.ËÍ(e) and ÉÊ U.S.C. § ÊÎÈÍ(k)(É)(E)

ÃÁ. Plaintiff repeats, realleges, and incorporates by reference all preceding 

paragraphs as though fully set forth herein. 

ÃÂ. Fay is a mortgage servicer of Plaintiff’s federally-related Mortgage Loan. 

ÃÃ. The letter Plaintiff sent to Fay on May ÂÅ, ÂÀÁÉ, constitutes a Notice of 

Error for purposes of RESPA and ÁÂ C.F.R. § ÁÀÂÄ.ÃÅ(e), it contained sufficient particular 

information to allow Fay to identify the borrower, and it provided sufficient detail about 

the error to allow Fay to investigate and correct it. 

ÃÄ. Plaintiff sent his May ÂÅ, ÂÀÁÉ letter to the appropriate address designated 

by Fay to receive Notices of Error, and Fay in fact received and responded to his letter. 

ÃÅ. Fay failed to conduct a reasonable investigation in response to Plaintiff’s 

letter dated May ÂÅ, ÂÀÁÉ, and failed to correct the error identified by Plaintiff. 

ÃÆ. As a direct result of Fay’s failure to investigate Plaintiff’s dispute and 

correct the error, Plaintiff suffered actual damages: Plaintiff was forced to spend money 

on postage and copies to send the dispute letter to Fay, and to make copies of records for 

counsel undersigned to review; the amount due on his account has accrued additional fees 

and interest that is allegedly due and owing; and Plaintiff has experienced extreme stress, 

frustration, anxiety, and fear that Fay would wrongfully institute foreclosure proceedings 

which account for compensable emotional distress damages. 

Case: 1:20-cv-01994 Document #: 1 Filed: 03/26/20 Page 6 of 9 PageID #:6
Complaint — MacDonald v. Fay Servicing, LLC 

Page É of Ë

WHEREFORE, Plaintiff prays for judgment against Defendant Fay Servicing, LLC 

as follows: 

I. Actual damages in an amount to be determined at trial; 

II. Statutory Damages insofar as Defendant is shown to have engaged in a 

pattern or practice of conduct that violates RESPA and Regulation X; 

III. Attorney’s fees, costs, and expenses; and 

IV. Any other relief this Court finds just. 

Respectfully submitted, 

Jeffrey E. MacDonald 

By: 

s/Steven J. Uhrich 

Steven J. Uhrich (ÆÃÁÀÃÆÉ)

Uhrich Law, P.C. 

Á N. State Street, Suite ÁÅÀÀ

Chicago, IL ÆÀÆÀÂ

p: ÇÇÃ-ÉÆÉ-ÆÃÃÇ

f: ÇÇÃ-ÄÉÆ-ÆÉÆÈ

steven@uhrichlawpc.com 

 

Case: 1:20-cv-01994 Document #: 1 Filed: 03/26/20 Page 7 of 9 PageID #:7
Complaint — MacDonald v. Fay Servicing, LLC 

Page Ê of Ë

JURY DEMAND 

Plaintiff demands trial by jury on all issues so triable. 

s/Steven J. Uhrich 

Case: 1:20-cv-01994 Document #: 1 Filed: 03/26/20 Page 8 of 9 PageID #:8
Complaint — MacDonald v. Fay Servicing, LLC 

Page Ë of Ë

DOCUMENT PRESERVATION DEMAND 

Plaintiff demands that any defendant named above take affirmative steps to preserve all 

recordings, data, documents, and all other tangible things that relate to Plaintiff, the events 

described herein, any third party associated with Plaintiff, and any account or number or 

symbol relating to them. These materials are likely very relevant to the litigation of this 

claim. If any named defendant is aware of any third party that has possession, custody, or 

control of any such materials, Plaintiff demands that defendant request that such third 

party also take steps to preserve the materials. This demand shall not narrow the scope of 

any independent document preservation duties of any defendant. 

NOTICE OF LIEN AND ASSIGNMENT 

Please be advised that counsel for Plaintiff claims a lien upon any recovery herein for any 

attorney’s fees authorized by the above fee-shifting statutes or awarded by the Court. All 

rights relating to attorney’s fees have been assigned to counsel. 

Case: 1:20-cv-01994 Document #: 1 Filed: 03/26/20 Page 9 of 9 PageID #:9