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Mark E. Schaefer v. Indymac Mortgage Services et al.

October 16, 2012


The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge

Opinion No. 2012 DNH 185


Mark Schaefer brought suit in state court against IndyMac Mortgage Services; OneWest Bank, FSB; Federal National Mortgage Association; and Harmon Law Offices, P.C., alleging various state law torts and breach of the implied covenant of good faith and fair dealing arising from the defendants' involvement in the foreclosure of his home. The defendants removed the case to this court and move to dismiss the case. Schaefer objects.


On November 26, 2007, Mark Schaefer entered into a refinancing loan with IndyMac Bank, FSB ("IndyMac Bank") for $211,296, which was secured by a mortgage on Schaefer's home at 19 High View Circle in Gilford, New Hampshire. OneWest Bank, FSB ("OneWest") was at all relevant times the loan servicer of the mortgage.*fn1

In 2009, Schaefer failed to make timely payments on his mortgage, resulting in default. Schaefer applied for and entered into a mortgage modification agreement with OneWest that same year.

Schaefer made his monthly payments consistent with the requirements of his loan modification until late 2011, when he again defaulted. In January 2012, Schaefer obtained a loan modification application from OneWest's website. On January 19, 2012, OneWest, which had been assigned the mortgage from IndyMac Bank and also continued to act as the loan servicer, sent Schaefer an invoice that included the total arrearage owed on his loan.

On January 30, 2012, Harmon Law Offices, P.C. ("Harmon"), sent Schaefer a letter informing him that it had been retained by OneWest to foreclose on Schaefer's home. The letter provided Schaefer with the total amount left on the mortgage and gave instructions on how to request a reinstatement quote. Schaefer followed those instructions and twice requested a reinstatement quote through Harmon's website, on February 6 and February 16, 2012. Both times, Schaefer received the following automated message: "Thank you. Your request has been received. We will forward the reinstatement or payoff information to you when it is obtained from your lender or servicer or the lender or servicer will send this information to you directly." Schaefer did not receive a reinstatement quote from either Harmon or OneWest in response to his request.

On February 14, 2012, Schaefer received a foreclosure notice from Harmon informing him that a foreclosure sale was scheduled for March 12, 2012.*fn2 On February 16, Schaefer faxed to OneWest a loan modification packet, which included 28 pages of information related to his application. Three days later, Schaefer called OneWest, and was told that OneWest did not receive a significant portion of his application. Schaefer promptly re-sent 19 pages of his application.

In his application, Schaefer disclosed that another individual, Kathryn Russell, was going to contribute to his mortgage payment. In a letter dated February 23, 2012, and by a phone call, OneWest requested that Schaefer provide additional financial information for Russell. In the letter, Schaefer was directed to fax all materials related to Russell to 1-866-235-2366.

In a second letter from OneWest also dated February 23, 2012, Schaefer was advised that Elizabeth Milian and her team of associates were assigned to his loan, and that Milian would be Schaefer's "customer contact manager" (the "Milian Letter"). The Milian Letter informed Schaefer that Milian and her team were available "to help review your current situation and evaluate possible workout options for your loan." The letter further advised Schaefer that Milian and her team would be his point of contact throughout the process, and that they would "be available to answer any questions you may have while your loan is being reviewed." The letter contained contact information, including a fax number, which was different from the fax number provided in the first letter.

On February 28, 2012, Schaefer faxed Russell's financial information to OneWest. Schaefer, however, did not fax it to the number provided in the first letter. Instead, he faxed it to the number provided in the Milian Letter.

Several days later, OneWest called Schaefer to ask about Russell's financial information. Schaefer informed the OneWest representative that he had faxed the information to the number provided in the Milian Letter. The representative told Schaefer that the information should have been faxed to the number in the first letter, and instructed him to fax the materials to that number. Schaefer faxed Russell's information to that number on March 9, 2012, three days before the scheduled foreclosure.

OneWest and Schaefer had no further contact prior to the foreclosure. On March 12, 2012, Fannie Mae conducted a foreclosure auction of Schaefer's home and was the high bidder and ...

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