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Christenson v. CitiMorgage, Inc.

United States District Court, E.D. Missouri, Eastern Division

December 14, 2016

EUGENE CHRISTENSON and SHARON CHRISTENSON, Plaintiffs,
v.
CITIMORGAGE, INC., Defendant.

          MEMORANDUM AND ORDER

          CAROL E. JACKSON, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on defendant's motion to transfer this action to the District of Colorado, pursuant to 28 U.S.C. § 1404(a). Plaintiffs have filed a response in opposition to the motion and the issues are fully briefed.

         I. Background

         This is the second lawsuit that plaintiffs Eugene and Sharon Christenson have brought against CitMortgage, Inc., alleging that it failed to adequately respond to a Qualified Written Request (QWR), [1] as that term is defined by the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2601-2617. The first lawsuit was filed in the United States District Court for the District of Colorado, which entered final judgment in favor of defendant on June 7, 2016.

         On April 20, 2009, plaintiffs executed a promissory note secured by a deed of trust on their real property located in Grand Junction, Colorado. The note and deed of trust are held by defendant, which is a mortgage servicer. Christenson v. Citimortgage, Inc., No. 12-CV-02600-CMA-KLM, 2013 WL 5291947, at *1 (D. Colo. Sept. 18, 2013). Plaintiff Eugene Christenson was laid off in 2009 and, by May 2010, plaintiffs were in default under the note and deed of trust. See id. at *3.

         Foreclosure and Bankruptcy Proceedings

         On Oct. 8, 2010, defendant commenced a foreclosure proceeding. [Doc. # 3 at 3]. On June 28, 2011, plaintiffs filed for Chapter 13 bankruptcy, thereby staying the foreclosure proceeding. Christenson, 2013 WL 5291947, at *3. On November 4, 2011, the bankruptcy court confirmed a plan which required plaintiffs to make monthly payments on the past due amounts. In September 2014, defendant withdrew the foreclosure proceeding. [Doc. # 3 at 3]. On September 9, 2014, the bankruptcy court granted the trustee's motion to dismiss the bankruptcy case because plaintiffs failed to make the payments required under the plan. See In re Christenson, No. 11-25398-SBB (D. Colo.) [Docs. ##42 and 43].

         March 2011 Letter and District of Colorado Lawsuit

         On March 31, 2011, plaintiffs sent defendant “a formal written inquiry under 12 U.S.C. § 2605(e), ” asking what actions it had taken regarding “loss mitigation” and “special forbearance.” See Letter [Doc. # 3-2 at 1]. Defendant failed to respond. Christenson II, 2013 WL 5291947, at *3. On October 1, 2012, plaintiffs filed suit in the District of Colorado, alleging that defendant violated RESPA by failing to respond to their March 2011 letter. Id. at *4. On September 18, 2012, the district court dismissed this claim, finding that the March 2011 letter was not a qualified written request under RESPA because it did not relate to the servicing of plaintiffs' loan.[2] Id. at *6; see also Christenson v. Citimortgage, Inc., No. 12-CV- 02600-CMA-KLM, 2014 WL 4637119, at *3 (D. Colo. Sept. 16, 2014) (denying motion to reconsider dismissal of RESPA claim). Plaintiffs subsequently amended their complaint to add claims that (1) defendant's failure to respond to the March 2011 letter constituted a violation of Colorado Revised Statute § 38-40-103, and (2) defendant engaged in unfair and deceptive practices in violation of the Colorado Consumer Protection Act. [See Doc. #4-6 (Third Amended Complaint)]. On June 7, 2016, the Colorado court entered summary judgment in favor of defendant on these claims. Christenson v. CitiMortgage, Inc., No. 12-cv-2600 CMA-KLM [Doc. # 102].

         October 2014 Letter

         On October 30, 2014, plaintiffs sent defendant another letter to “dispute your servicing of our mortgage. Please consider this letter a ‘qualified written request' under [RESPA], 12 U.S.C. § 2605(e).” Plaintiffs then asked a series of questions directed to defendant's loss mitigation activities, substantially similar to those posed in their 2011 letter. See Letter [Doc. # 3-1] (“We previously sent a request on March 31, 2011. Our letter is largely a repetition . . .”]. On December 1, 2014, defendant sent a response, signed by Amanda Friedhoff, Legal Support Specialist. Ms. Friedhoff advised plaintiffs that, prior to initiating foreclosure, CMI “explored a variety of loss mitigation options, ” citing eight letters defendant sent to plaintiffs between November 23, 2009, and November 27, 2010. Ms. Friedhoff also stated that the foreclosure had been withdrawn and that CMI was “renewing our loss mitigation review.” Finally, she asked the plaintiffs to complete and return the “CitiMortgage Customer Hardship Assistance Package” that was included with the letter.[3] Letter [Doc. # 3-3].

         The Current Lawsuit

         Final judgment was entered in the first lawsuit on June 7, 2016. Plaintiffs filed this action on July 14, 2016. In Count I, they assert a claim pursuant to RESPA, alleging that defendant's response to the October 2014 letter was false and evasive in violation of 12 U.S.C. § 2605. They seek damages for severe emotional distress plus attorneys' fees and costs. In Count II, they seek a declaratory judgment that any claim defendant has against them for breach of the note and acceleration of the debt was a compulsory ...


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