Bivens v. NewRez LLC f/k/a New Penn Fin., LLC and d/b/a Shellpoint Mortg. Servicing and CitiMortgage, Inc. (In re Bivens) (Adv. Pro. No. 20-09018)

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Plaintiff filed a complaint containing three claims for relief: (1) violation of the discharge injunction, (2) violation of the automatic stay, and (3) violation of Bankruptcy Rule 3002.1(c). Defendant CitiMortgage Inc., a former holder/servicer of Plaintiff’s mortgage, requested dismissal of the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted on all three causes of action. The Plaintiff alleged that the Defendant violated the § 524(i) discharge injunction with misapplication of payments and an inflated account payoff balance. Following In re Williams, 612 B.R. 682 (Bankr. M.D.N.C. 2020), the Court determined that the Plaintiff’s allegations that CitiMortgage transferred Plaintiff’s mortgage account with an inflated balance due to misapplied payments is sufficient to constitute an act to collect for the purposes of withstanding a motion to dismiss under Rule 12(b)(6). The Court also found that the Plaintiff plausibly pled the elements required for violation of the automatic stay under § 362(k) and for violation of Bankruptcy Rule 3002.1(c).
 

Date: 
Thursday, March 25, 2021
Published: 
No
Index Heading: 
Dismissal
Affirmed: