According to a recently published opinion regarding the case of Alleyne Sylvester and Celeste Wenegieme v. Bayview Loan Servicing LLC, District Judge J. Paul Oetken granted in part and denied in part Bayview’s motion to dismiss the case. The plaintiffs are representing themselves and are seeking $750,000 in damages.
Here are the basic facts of the case:
- Alleyne Sylvester took out a mortgage on a property in New York City in January 2005, which was later assigned to Bayview. Sylvester later assigned the property to Wenegieme.
- Bayview filed a foreclosure action on the property in 2011, claiming that neither plaintiff had made a mortgage payment since November 2010. The state court granted summary judgment in this matter.
- Wenegieme moved to dismiss this judgment, claiming that she and Sylvester did send in payments that were not properly credited. This motion was denied based on lack of evidence and because the motion was brought so late, and Bayview moved forward with the foreclosure.
- The plaintiffs responded by filing a lawsuit against Bayview, alleging that the servicer engaged in illegal foreclosure action and intimidation despite the fact that they had proof that payments were made on time. They further allege that the defendants were not transparent in providing the plaintiffs with statements of accounting, and that Bayview continued with foreclosure while the plaintiffs were in the process of modifying their mortgage – a violation of the Dodd Frank Act’s “dual tracking provision.”
The Court understood two arguments brought by the plaintiff: one arising under a provision of the Dodd-Frank Act, and a second argument challenging the district court’s foreclosure decision. In regards to the first argument, Bayview’s motion to dismiss was denied because the court did find evidence of dual tracking. In regards to the foreclosure claim, Bayview’s motion was granted insofar as they seek an injunction or seek to undo the state court’s foreclosure proceeding. The plaintiffs are allowed to continue with their tort claims. Bayview will have 21 days to file an Answer to the remaining claims.