United States District Court, S.D. West Virginia, Charleston
JESSICA A. STOLER, Plaintiff,
PENNYMAC LOAN SERVICES, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr., Judge
is defendant PennyMac Loan Services, LLC's
(“PennyMac”) motion for summary judgment, filed
August22, 2019. The plaintiff, Jessica A. Stoler, filed a
response, to which the defendant has replied.
case involves the plaintiff's April 2014 $109, 693.00
mortgage loan, provided under United States Department of
Agriculture's (“USDA”) Single Family Housing
Guaranteed Loan Program and serviced by defendant PennyMac.
Compl. at ¶¶ 4, 6.
February 2017, plaintiff experienced a hardship that made it
difficult for her to afford her monthly loan payments. Compl.
at ¶ 7. On March 1, 2017, plaintiff submitted a loss
mitigation application to PennyMac. Mot. Summary Judgment,
“ECF # 50, ” ¶ 9. The court notes that a
loss mitigation application “means an oral or written
request for a loss mitigation option, ” which is
“an alternative to foreclosure.” 12 C.F.R. §
1024.31. When an applicant submits a loss mitigation
application, the servicer must determine whether the
applicant qualifies for a loan modification to help the
applicant bring the account current. See ECF # 50, Ex. B-1,
6. On April 7, 2017, PennyMac sent plaintiff a letter denying
plaintiff's loss mitigation application. Id. at
2017, plaintiff's situation worsened when she lost her
job; she again submitted a loss mitigation application to
PennyMac on June 8, 2017. Compl. at ¶ 9; ECF # 50 at
¶ 11. On June 30, 2017, PennyMac provided plaintiff with
a forbearance plan from July 2017 to December 2017, reducing
monthly payments from $704.95 to $411.73. ECF # 50, Ex. A-7.
November 2017, plaintiff became unable to make her
forbearance payments because her unemployment income expired.
ECF # 50, Ex. D, 24. She then attempted without success to
contact PennyMac several times over a six-week period to
inquire about permanent modification of her loan.
Plaintiff's Mem. In Opposition, “ECF # 53, ”
Ex. B, 25-27. PennyMac attempted to call plaintiff four times
in November 2017 to discuss plaintiff's employment status
and the November 2017 monthly payment. ECF # 50 at ¶ 14.
Plaintiff failed to make the forbearance payments for
November and December 2017. ECF # 50 at ¶ 13.
December 5, 2017, PennyMac denied plaintiff's request for
a further forbearance plan because plaintiff defaulted on the
current forbearance plan. ECF # 50, Ex. A-9. On December 20,
2017, plaintiff spoke with a PennyMac representative about
getting a hold on her foreclosure status and receiving
another loan modification. ECF # 53, Ex. F, 3-4. The PennyMac
representative informed plaintiff that her account reflects
an “active foreclosure” and that a foreclosure
date could be “assigned at any time.” ECF # 50,
Ex B-1, 2. The representative also informed plaintiff that
the foreclosure process would not be suspended until the loss
mitigation application was “awaiting decision” by
PennyMac. ECF # 50, Ex B-2, 4-5.
December 21, 2017, PennyMac sent plaintiff a letter
indicating that plaintiff had called PennyMac the previous
day to start another loss mitigation application process. ECF
# 50, Ex. A-10. PennyMac also enclosed a blank loss
mitigation application. Id. The letter stated that
PennyMac would “continue to accept documentation to
complete this application up until 1/20/2018. . . . If your
application is denied, we will continue to accept good faith
applications up until 37 days before a scheduled sale
sent the loss mitigation application on December 29, 2017.
ECF # 50 at ¶ 20. On January 3, 2018, Seneca Trustees,
Inc. notified plaintiff that a trustee's sale of her
property was scheduled for January 30, 2018. ECF # 50, Ex.
A-11. PennyMac received the plaintiff's loss mitigation
application on January 8, 2018. ECF # 50 at ¶ 20. On
January 10, 2018, PennyMac sent plaintiff a letter denying
plaintiff's loss mitigation application because
“the investor guideline prohibits the modification of a
loan when the borrower requests the modification within 37
days of the foreclosure sale date.” ECF #50, Ex. A-13.
January 25, 2018, plaintiff contacted PennyMac, notifying it
of alleged servicing violations and requesting that future
communications be directed to plaintiff's counsel. ECF #
50, Ex. A-15. After receiving this letter, PennyMac sent
plaintiff written communications and contacted her by
telephone. ECF # 50 at ¶ 27; ECF # 53, Ex. L.
plaintiff's last payment under the forbearance plan in
October 2017 to now, two years later, plaintiff has made two
monthly payments of $705.00, the regular amount due, and two
token payments of $20.00 while continuing to occupy the
property. ECF # 50 at ¶ 29-30.
filed this action in the Circuit Court of Kanawha County on
May 2, 2018, bringing claims for violations of the West
Virginia Consumer Credit Protection Act
(“WVCCPA”) (Count I), negligence (Count II),
tortious interference with contract (Count III), and estoppel
removed the action to this court on June 1, 2018, pursuant to
the court's diversity jurisdiction. The ...