United States District Court, D. South Carolina, anderson/Greenwood Division
Betty Land; and Michelle Stephanie Brown, as Personal Representative of the Estate of Gary F. Land, Plaintiffs,
Green Tree Servicing, LLC; Five Brothers Mortgage Company Services and Securing, Inc.; PDQ Maintenance Solutions Inc; Steve Thompson; Maintain It Now LLC; James Dean; Scope Field Services; and Debbie Raker, Defendants
Betty Land, Michelle Stephanie Bowen as Personal
Representative of the Estate of Gary F. Land, Plaintiffs:
John Phillips Linton, Jr, Jon Lawrence Austen, Thomas P
Gressette, Jr, LEAD ATTORNEYS, Pratt-Thomas Walker,
Green Tree Servicing LLC, Defendant: Benjamin Rush Smith,
III, Graham Ross Billings, LEAD ATTORNEYS, Carmen Harper
Thomas, Nelson Mullins Riley and Scarborough, Columbia, SC.
Five Brothers Mortgage Company Services and Securing Inc,
Defendant: Eric K Englebardt, LEAD ATTORNEY, Turner Padget
Graham and Laney, Greenville, SC; Thomas Charles Salane, LEAD
ATTORNEY, Turner Padget Graham and Laney, Columbia, SC.
Maintenance Solutions Inc, Steve Thompson, Defendants: Jason
Alan Pittman, Sterling G Davies, LEAD ATTORNEYS, McAngus
Goudelock and Courie, Columbia, SC.
M. Cain, United States District Judge.
matter is before the court on two separate motions to
dismiss. (ECF Nos. 50 and 59). Defendant Green Tree Service,
LLC (" Green Tree" ) filed a motion for partial
dismissal seeking to have the wrongful death and survival
claims dismissed. (ECF No. 50). Plaintiffs Betty Land and
Michelle Stephanie Brown, as Personal Representative of the
Estate of Gary F. Land, (collectively " Plaintiffs"
) filed a response opposing the motion (ECF No. 62) and Green
Tree filed a reply (ECF No. 67). Defendants Maintain It Now,
LLC, and James Dean (" Moving Defendants" ) filed a
motion to dismiss seeking to have the claims pursuant to the
Fair Debt Collection Practices Act (" FDCPA" )
dismissed against them. (ECF No. 59). Plaintiffs filed a
response opposing the motion (ECF No. 71), and Moving
Defendants filed a reply (ECF No.74).
Betty Land and her late husband, Gary Land, owned property at
308 Mountain View in Westminister, South Carolina, which in
2012 was subject to a mortgage held by the Bank of New York
Mellon (" Bank" ). (ECF No. 46 ¶ 20, 2nd Am.
Compl. ¶ 20). In August 2012, the Bank began foreclosure
proceedings against the Lands. Id. at ¶ 21. The
Lands counterclaimed for wrongful foreclosure. Id.
at 22. In October 2012, the Lands took out a second mortgage
and, with the proceeds, brought their first mortgage with the
Bank current. Id. at ¶ ¶ 27, 28.
Green Tree became the loan servicer for the Bank of New York
on September 16, 2012. (2nd Am. Compl. ¶ 23). Defendant
Five Brothers acted as an agent for Green Tree in regard to
loans in Oconee county. Id. at ¶ 24. In
February 2013, the Lands and the Bank agreed to execute a
settlement to dismiss the foreclosure as moot. Id.
at ¶ 29. In March 2013, the Lands executed a settlement
(" Release" ) and their counsel sent the settlement
paperwork to Green Tree. Id. at ¶ 30.
allege that Gary Land was in poor health during this time and
the Lands' attorney asked Green Tree not to contact the
Lands because this would cause Gary stress and would be
detrimental to his health. (2nd Am. Compl. ¶ ¶ 32,
34-36). Plaintiffs allege, however, that Green Tree continued
to send the Lands threatening letters regarding the
foreclosure, and Green Tree would regularly drive by the
Lands' property, park, and take pictures. Id. at
¶ ¶ 37-39.
April 4, 2013, Plaintiffs allege a representative of Green
Tree was parked near the Lands' home taking pictures when
Gary Land confronted him and was told that his home was being
foreclosed upon by Green Tree. Id. at ¶ ¶
39-40. The Lands' attorney contacted Green Tree and asked
if Green Tree was going to honor the Release and informed
Green Tree that Gary Land had a heart problem and his doctor
had advised him to reduce his stress. Id. at ¶
45. Green Tree confirmed that it planned to execute the
Release shortly. Id. at ¶ 48.
April 11, 2013, Green Tree sent letters to Gary Land and
Betty Land alleging they were in default, and sent a billing
statement dated April 11, 2013, to them indicating that they
were still in default on their mortgage. (2nd Am. Compl.
April 21, 2013, Plaintiffs allege another Green Tree
representative stopped in front of the Lands' property to
take pictures when Gary Land confronted him and again Land
was informed that the property was being foreclosed and that
the representative needed information about who was on the
property so that eviction proceedings could be started. (2nd
Am. Compl. at ¶ ¶ 55, 58-59). Gary Land was very
upset by the conversation and within hours had a massive
heart attack and died. Id. at ¶ 60.
Gary's death, Betty Land has continued making the
mortgage payments, but alleges that Green Tree has failed to
timely credit her account, provide her access to her online
account, forced her to acquire expensive insurance, and
refused her request that all contact be made through her
attorney. Id. at ¶ ¶ 62, 66. In their
Second Amended Complaint, Plaintiffs allege claims for