Is a mortgage servicer a "debt collector" under the FDCPA?

[bad98roadster]

I have several correspondences from Bank of America N.A., BAC Home loans and ReconTrust with the declaration "This communication is from a debt collector" printed at the bottom of their letters to me. They have all sent me at least one notice with the "30 days to dispute..." language included in the letter.

Is a mortgage servicer a "debt collector" under the FDCPA?

[usagi555]

It's possible that they could be. I have a friend who is dealing with BofA and BAC who is wondering that himself. I don't know about your case, but with his, I tend to think that they are, and I also tend to think that it would be very difficult to prove it.

FYI, just because somebody puts "This is a communication from a debt collector" on their letters does not mean that the FDCPA applies to them in your case. It could simply be that it applies sometimes and not others because sometimes they are collecting debts for another and other times they are collecting for themselves. Or perhaps some states require that message when the FDCPA doesn't, so they just put it on everything as a CYA measure.

[bad98roadster]

The servicer claims they are not the note holder. They claim that the loan is in default. They state they are a debt collector.

I would plead that they were a debt collector by definition of the FDCPA and by their own declaration.

How do you think it would be difficult to prove?

[iamwilliam]

It would be difficult to prove. There is only a thin line that separates both definition. At some point, they can be debt collector. However, there are instances when they don't. I guess it depends. I have a few acquaintances also who are also wondering about it like you do. I just hope I would not be able to experience that personally. It's probably a headache.

[1stStep]

This is my thinking...

if they include the language, then they have subjected themselves to the FDCPA. Feel free to use it against them.

[KentWA]

I have read more than a couple of cases where including the language in the letter was the deciding point on whether they were or not. The least sophisticated consumer would assume so if they said they were.

[Guest usctrojanalum]

if they include the language, then they have subjected themselves to the FDCPA. Feel free to use it against them.

I've seen Capital One Bank and HSBC use the language on past due letters as well though.

[legaleagle]

I think that anyone legally entitled to collect money on a debt is a debt collector by law. BOA Home Loans is the old Countrywide. I don't know who Recon Trust is, but if they have been hired by BOA to collect a delinquent account, they would be legally entitled to contact you. It is true that the servicer does not own the note, your loan was sold. Find out who bought it. Probably Bank of NY Mellon. You can get this info thru discovery if there is a case. I did. It will require a confidentiality agreement. In case of a foreclosure action, they would have to be named as an interested party or substitute defendant. They don't like that. Was this a CW mortgage? If so, I'm your guy.

[bad98roadster]

I think that anyone legally entitled to collect money on a debt is a debt collector by law. BOA Home Loans is the old Countrywide. I don't know who Recon Trust is, but if they have been hired by BOA to collect a delinquent account, they would be legally entitled to contact you. It is true that the servicer does not own the note, your loan was sold. Find out who bought it. Probably Bank of NY Mellon. You can get this info thru discovery if there is a case. I did. It will require a confidentiality agreement. In case of a foreclosure action, they would have to be named as an interested party or substitute defendant. They don't like that. Was this a CW mortgage? If so, I'm your guy.

Original lender was America's Wholesale Lender. Original servicer was Countrywide Home Loans Inc. (no alleged delinquency)

Subsequent servicer was BAC Home Loans Servicing, LP, a subsidiary of Bank of America N.A. (serviced while current for several years, then alleged delinquent)

MERS, as beneficiary, substituted ReconTrust, a subsidiary of Bank of America N.A. as trustee. (this sub. occurred after the alleged delinquency)

24 months later BAC substitutes BofA N.A in as servicer (During the alleged delinquency)

Please post or pm me any information/insights through your experiences. =)

[legaleagle]

I never got involved with MERS, but everything else sounds similar as far as servicing goes. You need to find out who owns the note. 99% chance it's BONYM. Don't bother calling them, they won't have a clue. It will be part of a PSA agreement which you won't be able to get unless there is a court case.

America's Wholesale Lender is Countrywide, purchased by BOA in 2009. Bad move. Cost them over ten billion so far.

Why are they saying the loan is delinquent? Often you can be making the payments as required and still go into arrears because of property tax increases and or homeowner's insurance escrow. The excess accumulates as arrears. Also, is this an option ARM loan? If so, extra interest may be being tacked onto the loan every month, which increases the balance and thus the payment keeps going up.

Also, how was the loan taken? At a CW office with their people, or through a mortgage broker? Loans that go through brokers turn out to be real screw jobs with all kinds of RESPA violations and outright fraud. CW knew about this stuff and turned a blind eye. You should read AG Lisa Madigan's complaint against them, (Illinois) it should still be on line. They've been sued by almost every AG in the country including Jerry Brown. They used one guy who had a felony record. Did you have a lawyer?