Alkan

ORDER DENYING MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (FRCP 12(b)(6))

[Re Docket No. 5, 7, 8, 10]

Defendant Citimortgage Inc.’s motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), was heard on September 10, 2004. Plaintiff Mehmet Alkan opposes the motion. For the reasons set forth below, the court denies the motion.

I. BACKGROUND

In December 1997 plaintiff Mehmet Al-kan obtained a mortgage from defendant. Plaintiffs loan documents from defendant state, “I have the right to make payment of principle at any time before they are due ... I may make a full prepayment or partial prepayments without paying any prepayment charge.” (ComplA 10.) In September 2003, plaintiff mailed a check for $4,109.01 to defendant in an effort to pay down the remaining balance on his loan. Defendant cashed the check, but placed the funds into an “Unapplied Funds” account, as opposed to acknowledging the principle balance of the mortgage was satisfied. In October of 2003, defendant reported plaintiffs account was past due and assessed a late charge. During the following months, defendant engaged in collection efforts including sending allegedly threatening letters and making harassing…