Phh Mortgage Corp. v. Ramsey

17 N.E.3d 629 (2014)

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Nature of the Case

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Facts

D purchased real estate for use as a rental property. He executed a promissory note payable to Coldwell Banker and used the funds to finance the real estate purchase. The note was secured by a mortgage in favor of Coldwell Banker. After the closing, D deeded the property to Precision. P subsequently became the holder of the note and mortgage. Things were great until August 2009 when D attempted to pay his monthly mortgage through a 'pay now' link on P's website, referred to as 'Speedpay,' as he had been doing for six years. P received an error message informing him that his payment could not be processed. He tried again on August 6 and 10 but received the same error message. On August 13, 2009, appellee tried to pay online again via Speedpay, and this attempt appeared successful, but he did not receive a confirmation number. D telephoned and was told this his payment would be 'pushed' through the system, and he was given a confirmation number for his August 2009 payment. On August 16, D got a notice that his payment was late. D telephoned the helpline and was told that the website was having problems, but his payment would be processed. On September 3, 2009, D went to the site to make his September payment, and he realized that his August 2009 payment had still not been credited. He attempted to make an online payment via Speedpay and received an error message. D called and P said the payment would be processed but the late payment would be reported to the credit bureaus. On September 8, 2009, P issued appellee a notice of intent to foreclose. On September 9, 2009, D traveled to a physical office to make payments, but he was told by representatives that the office did not accept payments. D spoke to a representative, but the representative never contacted him again as to a solution. On September 10, 2009, D mailed a payment for August and September, but the payment was never processed or returned to him. D tried again for October with an October and November payment, but it was never processed nor returned. D stopped trying in December. P foreclosed and eventually, they changed the door locks, and D was unable to continue renting. P sued D for foreclosure. P filed a motion for summary judgment, and it was granted. D appealed and on remand and the court denied P foreclosure and awarded D judgment for $1550. P eventually appealed. The magistrate found that P waived the terms of the contract by accepting electronic payments from D for six years without objection.