Mack v. ResCap Borrower Claims Trust

Case Type:
Case Status:
16-304-bk (2nd Circuit, Jan 31,2017) Not Published
1. Proof of claim for malicious prosecution was barred by res judicata effect of prior slander of title action. 2, Proof of claim for debtor's failure to timely respond under RESPA was properly disallowed because notice was sent to debtor's "general inquiries" address and not address for receipt of "QWRs" of which creditor had received notice.
Procedural context:
Appeal from a judgment of the United States District Court for the Southern District of New York affirming the judgment of the United States Bankruptcy Court for the Southern District of New York.
The Macks owned a home in Florida and, when they realized they could no longer afford the mortgage payments, contacted their loan servicer GMAC Mortgage, LLC ("GMAC") to obtain a modification. No modification was granted and GMAC initiated a foreclosure proceeding, however, the Macks were not actually in default of their mortgage. GMAC contacted local counsel to withdraw the proceeding, but local counsel did not do so for more than 3 months. During that time, the Macks filed a counterclaim for slander of title and a default judgment was eventually entered. Also during that period, the Macks sent a Qualified Written Request ("QWR") to GMAC querying why the foreclosure was pending even though they were not in default. The QWR was sent to GMAC's "general inquiries" address and not the address designated for receipt of QWRs. The Macks Never received a response. In May 2012, the ResCap Borrower Claims Trust (which held the underlying mortgage) filed for bankruptcy. The Macks filed a proof of claim (not for the default judgment, which had been paid), but for malicious prosecution and RESPA violations based on the same 2009 foreclosure.
Winter, Cabranes, Lynch

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