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Land v. Green Tree Servicing, LLC

United States District Court, D. South Carolina, anderson/Greenwood Division

October 13, 2015

Betty Land; and Michelle Stephanie Brown, as Personal Representative of the Estate of Gary F. Land, Plaintiffs,
v.
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

          For 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, Charleston, SC.

         For Green Tree Servicing LLC, Defendant: Benjamin Rush Smith, III, Graham Ross Billings, LEAD ATTORNEYS, Carmen Harper Thomas, Nelson Mullins Riley and Scarborough, Columbia, SC.

         For 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.

         For PDQ Maintenance Solutions Inc, Steve Thompson, Defendants: Jason Alan Pittman, Sterling G Davies, LEAD ATTORNEYS, McAngus Goudelock and Courie, Columbia, SC.

         ORDER

         Timothy M. Cain, United States District Judge.

         This 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).

         I. Background/Procedural History

         Plaintiff 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.

         Defendant 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.

         Plaintiffs 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.

         On 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.

         On 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. ¶ 52-53).

         On 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.

         Following 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 ...


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