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George Czaplinski v. Bank of America

Summarizing by Lars Fuller


Case Type:
Case Status:
No. 18-1564 (7th Circuit, Nov 07,2018) Not Published
(1) Mortgagor's wife did not have standing to bring suit since she was not named on the property’s title, the mortgage or the note. (2) Borrower/mortgagor has standing to bring suit under RESPA. (3) Legal fees are not damages sufficient to support a claim under RESPA, since the Act specifically includes an attorney's fees provision. (4) Borrower failed to provide evidence showing that his emotional distress was caused by anything but the prior foreclosure suit. (5) Rooker-Feldman doctrine bars most of borrower's claims under Wisconsin law.
Procedural context:
The District Court granted summary judgment against the Plaintiff/Debtor on his action alleging that the mortgage loan servicer had violated RESPA and Wisconsin Law. The Plaintiffs’ action alleged that they had suffered damages in the form of out-of-pocket expenses and emotional distress as a result of the servicer's failure to fully respond to the Plaintiff's qualified written request. The complaint was filed two days before the response to the qualified written request was due. In addition to filing this federal action, the Plaintiffs also filed a motion on the same day in state court in an effort to reopen the 2012 foreclosure suit.
This is a tale of how a consumer bent the Bankruptcy Code and consumer protection laws (RESPA) to remain in a house for years after having defaulted on his payment obligations on his mortgage loan. The consumer/debtor bought a house in 2006. By 2007, he had difficulty paying his mortgage loan payments. The lender modified the mortgage loan twice. The consumer failed to satisfy his obligations under the modifications. On November 13, 2012, the state trial court entered a judgment allowing the lender to foreclose on the mortgage. The debtor did not appeal the judgment, but filed a Chapter 13 petition one month before the scheduled foreclosure sale. During the Chapter 13, the parties once again modified the mortgage loan. The debtor again defaulted, the bankruptcy court granted relief from the automatic stay, and another foreclosure sale was scheduled. Twelve days before the scheduled sale, the debtor converted his Chapter 13 case to a Chapter 7 case, triggering another automatic stay. On July 13, 2016, the debtor received a discharge. The mortgagee rescheduled the foreclosure sale for October 11, 2016. Approximately a month later, on August 15, 2016, the debtor sent a letter to the servicer for the mortgage loan asking for information sufficient to make the request a "qualified written request" under RESPA. This request entailed the servicer answering approximately “twenty-two wide-ranging questions about his account.” The servicer responded within the RESPA 30-day time limit, but did not answer some of the questions since they were deemed to be “too broad.” Two days before the response was due, the debtor and his wife sued the servicer in federal court, and filed a motion in state court attempting to reopen the 2012 foreclosure suit.
Bauer, Hamilton and Scudder

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