• Court Finds Plaintiff's 'Slander of Credit' Claim Preempted by FCRA; Dismisses Plaintiff's TILA and RESPA Claims
  • April 27, 2010 | Author: Matthew Kasey Ratliff
  • Law Firm: Strasburger & Price, LLP - Dallas Office
  • Eng v. Bank of America Home Loans, et al., 2010 U.S. Dist. LEXIS 30440 (N.D. Cal. Mar. 30, 2010)

    Facts: Plaintiff brought various claims against her mortgage company, BAC Home Loans Servicing, LP (“BAC”), including causes of action under the Truth in Lending Act (“TILA”), the Real Estate Settlement Procedures Act (“RESPA”), “slander of credit,” as well as various state law claims. BAC filed a motion to dismiss all of Plaintiff’s claims, and following a hearing on same, the Court granted Defendant’s motion.

    • Truth in Lending. Plaintiff’s cause of action under TILA fails to state a claim for either damages or rescission as both claims are time-barred. There is a one year limitation period for damages and a three year limitation period for rescission. In addition, Plaintiff fails to state a claim for rescission because she fails to allege any facts supporting an ability to tender the loan proceeds.
    • RESPA. Plaintiff’s cause of action for violation of RESPA fails to state a claim because a March 2, 2009 letter from the “mortgage litigation consultant” did not constitute a qualified written request and did not impose any obligation on Defendant, as it did not demand information about loan servicing or identify any RESPA servicing issue.
    • Preemption. Plaintiff’s cause of action for “slander of credit” fails to state a claim because it is based on credit reporting, and as such, is preempted by the Fair Credit Reporting Act (“FCRA”).