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Leavells v. Kondaur Capital Corp.

United States District Court, E.D. Michigan

June 30, 2015

ANDREA LEAVELLS, Plaintiff,
v.
KONDAUR CAPITAL CORPORATION, Defendant.

ORDER GRANTING MOTION TO DISMISS

Pending before the court is a Motion to Dismiss, filed by Defendant Kondaur Capital Corporation (“Konduar”) on May 4, 2015. (Dkt. # 20). Having reviewed the briefs, the court concludes a hearing is unnecessary. See E.D. Mich. LR 7.1(f)(2). For the reasons stated below, the court will grant the motion.

I. BACKGROUND

Plaintiff Andrea Leavells defaulted on her loan with Bank of America. After the default, non-party Bank of America sold the loan to Matawin Ventures Trust Series 2014-2 (“Matawin”). (Dkt. # 15-1, Pg. ID 196.) The sale was effective August 21, 2014. (Id. at 188.) Leavells received several communications in conjunction with the sale of the loan.

A. September 10, 2014

On September 10, 2014, Bank of America sent a letter to Leavells (the “Bank of America Letter”). (Id. at 196.) The letter, titled “Important Message About Your Home Loan, ” notified Leavells that, beginning October 1, 2014, servicing of her loan would be transferred to Kondaur. (Id.) The notice provides contact information for questions regarding the transfer for both Bank of America and Kondaur. (Id. at 197.) The notice did not specify a loan balance or otherwise seek to compel payment from Leavells. In fact, the notice advised Leavells that “Bank of America, N.A. will stop accepting payments from [her on] September 30, 2014.” (Id.)

B. September 18, 2014

On September 18, 2014, Kondaur sent a letter to Leavells (the “September 18 letter”). (Id. at 188.) The letter was titled “Notification of Assignment, Sale or Transfer of Your Mortgage Loan.” (Id.) The letter advised Leavells that “effective August 21, 2014, [her] mortgage loan was assigned, sold or transferred to Kondaur Capital Corporation, as Separate Trustee of Matawin Venture Trust Series 2014-2.” (Id.) The transfer did “not affect any term or connection of the Mortgage, Deed of Trust or Note and th[e] notice require[d] no action on [Leavells’s] part.” (Id.) The letter also provided contact information for Konduar and advised that Leavells must “send [her] monthly payments directly to Kondaur Capital Corporation at the address on [her] mortgage statement.” (Id.)

C. September 30, 2014

On September 30, 2014, Kondaur sent a second letter to Leavells (the “September 30 letter”), this time notifying her of Kondaur’s assumption of responsibility for servicing her loan (as distinct from the sale of the loan). (Id. at 192.) Unlike the September 18 letter, but consistent with the Bank of America Letter, the second letter advised her that “Bank of America, N.A. will stop accepting payments” and “Kondaur will start accepting payments” on October 1, 2014. (Id.) The letter also provided contact information for both Bank of America and Kondaur. (Id.) The letter also stated that “[a]s of September 11, 2014 $88, 446.21 is owed on the account.” (Id.)

The letter also contained a Fair Debt Collection Practices Act notification. (Id. at 194.) The notification stated that:

Kondaur Capital Corporation must inform you that this communication is from a debt collector attempting to collect a debt and any information obtained will be used for that purpose. If the Addressee of this communication is anyone whose debt has been discharged pursuant to (or who is under the protection of) the bankruptcy laws of the United States, this communication is intended solely for informational purposes and does not constitute a demand for payment.

(Id.) The letter further provided Leavells an opportunity to dispute the validity of the debt and informed her that “Kondaur Capital Corporation, as Separate Trustee of Matawin Venture Trust Series 2014-2 is the current creditor to whom the debt is now owed.” (Id. at 193.)

D. December 23, 2014

On December 23, 2014, Kondaur sent a third letter to Leavells, entitled “Notice of Default and Intent to Accelerate and Foreclose” (the “December 23 ...


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