Wrongful Foreclosure or Breach of Contract: The Importance of Proper Pleading
It is necessary to allege sufficient facts so a court can determine if a claimant has a viable claim. Failure to allege sufficient facts opens the claim up to possible dismissal. Foxx v. Ocwen Loan Servicing, LLC, 8:11-CV-1766-T-17EAK, 2012 WL 2048252 (M.D. Fla. 2012).
In Foxx, George J. Foxx (“Foxx”), a homeowner, sued Ocwen Loan Servicing, LLC (“Ocwen”), Deutsche Bank Trust NA, and two lawyers for wrongfully foreclosing upon his home. Ocwen sent Foxx an offer to modify his mortgage if he filled out certain paperwork and forwarded it and the first modification payment to Ocwen. Foxx mailed the paperwork and payment to Ocwen, which he considered to be an acceptance of Ocwen's offer to modify the mortgage, thus creating a new, modified agreement. Foxx then sent three more payments under the alleged modification agreement to Ocwen. Ocwen nonetheless filed suit to foreclose upon Foxx's home. In support of his wrongful foreclosure, Foxx brought six claims: 1) a claim under the Fair Debt Collection Practices Act (FDCPA); 2) a claim under the Fair Credit Reporting Act (FCRA); 3) a claim under the Florida Consumer Collection Practices Act (FCCPA); 4) a claim under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA); 5) a claim for intentional infliction of emotional distress; and 6) a claim for breach of contract. A motion to dismiss was filed by all of the defendants in the case. Upon hearing the motion, the Court dismissed all of Foxx’s claims because the complaint was so lacking in factual allegations in support of those claims. The Court noted that when properly pleaded, Foxx’s claim pled as a breach of contract claim may be viable.
If you have a mortgage loan that has been foreclosed upon and think you may have a claim for wrongful foreclosure or breach of contract, contact the experienced real estate litigation attorneys at Schecter Law today at (954) 779-7009 to best protect your interests.