There seems to be no relief in sight for Countrywide Home Loans, as a West End couple has just filed a new lawsuit alleging that the lender stopped automatically withdrawing loan funds and wrongly foreclosed on their home.
Brian and Ahli Sparkman assert Countrywide had been automatically drafting their mortgage payment from their bank account for one full year, then for reasons unknown, stopped and foreclosed on them.
Even though several months elapsed before Countrywide foreclosed, the couple claims they didn't notice that the payment was no longer being withdrawn.
In attempt to save their home, the Sparkmans filed a suit requesting injunctive relief on Jan. 14 in the Jefferson County District Court. That same day, Judge Gary Sanderson, 60th District Court, approved a temporary restraining order that stopped Countrywide from evicting the couple.
According to the plaintiffs' petition, the couple's home is located at 3935 Sunburst Drive in Beaumont. The Sparkmans first went through Countrywide for their home loan Jan. 6, 2006. On Jan. 1, 2008, Countrywide conducted a foreclosure sale of the property. The Sparkmans claim they were unaware that the foreclosure took place.
"Upon entering into the mortgage agreement with Defendant, Plaintiffs elected to have their monthly mortgage payment automatically drafted from their bank account by Defendant," the suit said. "For one full year Defendant drafted Plaintiffs' monthly payment from their bank account."
The suit goes on to allege that Countrywide stopped withdrawing the mortgage payment and proceeded to foreclose.
"Plaintiffs did not cancel the draft," the suit said.
"It does not appear to be a bank error because other bills are being paid by automatic withdrawal out of the Plaintiffs' account. Therefore, Countrywide must have made an error in cancelling the automatic withdrawal. In any event, Plaintiffs stand ready, and hereby tender the full amount of the note payments which were not withdrawn from Plaintiffs' bank account."
Countrywide has already served the couple with a notice to vacate.
The Sparkmans claim Countrywide's actions are a violation of the Texas Deceptive Trade Practices Act and a breach of contract.
"Based on the facts stated above, it is probable that Plaintiffs will recover from the Defendant after a trial on the merits because Plaintiffs were not given notice that the monthly payments were not going to be drafted from their account and they had no knowledge that the payments were not being made," the suit said.
"Defendant's computer error and subsequent foreclosure constitutes a breach of the contract/deed of trust between the parties," the suit said.
"Furthermore, Defendant represented it would automatically withdraw the payments and by failing to do so, constitutes a misrepresentation under the Deceptive Trade Practices Act. Plaintiffs have a probable right to relief because Defendant has no right to pursue any Forcible Detainer action or Writ of Possession on the Property, being that the foreclosure occurred during a time period when Defendant itself was not drafting the monthly payments as instructed."
In addition to a permanent injunction, the Sparkmans are suing for actual and consequential damages, plus mental anguish.
Even though Judge Sanderson approved the temporary restraining order, the case has been assigned to Judge Bob Wortham, 58th Judicial District, who has been out the last week.
The couple is represented by attorney Wyatt Snider of the Snider & Byrd law firm.
Case No. A181-012