678 Fed.Appx. 10 (2nd Cir. 2017), 16-304-bk, Mack v. ResCap Borrower Claims Trust

Docket Nº:16-304-bk
Citation:678 Fed.Appx. 10
Party Name:B F. MACK, Appellant, v. RESCAP BORROWER CLAIMS TRUST, Appeellee
Attorney:FOR APPELLANT: DAVID F. GARBER, Naples, FL. FOR APPELLEE: ADAM A. LEWIS, Morrison & Foerster LLP, San Francisco, CA.
Judge Panel:PRESENT: RALPH K. WINTER, JOSÉ A. CABRANES, GERARD E. LYNCH, Circuit Judges.
Case Date:January 31, 2017
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 10

678 Fed.Appx. 10 (2nd Cir. 2017)

B F. MACK, Appellant,

v.

RESCAP BORROWER CLAIMS TRUST, Appeellee

16-304-bk

United States Court of Appeals, Second Circuit

January 31, 2017

Page 11

Editorial Note:

This case was not selected for publication in the Federal Reporter and Not to be Cited as Precedent. (See Federal Rule of Appellate Procedure Rule 32.1)

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

Appeal from a judgment of the United States District Court for the Southern District of New York (Valerie E. Caproni, Judge; Martin Glenn, Bankruptcy Judge).

FOR APPELLANT: DAVID F. GARBER, Naples, FL.

FOR APPELLEE: ADAM A. LEWIS, Morrison & Foerster LLP, San Francisco, CA.

PRESENT: RALPH K. WINTER, JOSÉ A. CABRANES, GERARD E. LYNCH, Circuit Judges.

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SUMMARY ORDER

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the January 25, 2016 judgment of the District Court be and hereby is AFFIRMED.

Appellant Barry F. Mack appeals from an order of the District Court affirming two orders of the Bankruptcy Court: (1) an order sustaining appellee ResCap Borrower Claims Trust's (the " Trust" ) objection to Mack's proof of claim alleging malicious prosecution; and (2) an order sustaining the Trust's objection to Mack's proof of claim alleging a violation of the Real Estate Settlement Procedures Act (" RESPA" ), 12 U.S.C. § 2605(e). We assume the parties' familiarity with the factual and procedural history of the case, though we summarize the critical portions of that history below.

I. Background

In 2006, Barry F. Mack and his wife, Cheryl Mack, bought a home in Florida. Three years later, when the Macks realized they could no longer afford the mortgage payments on their home, they contacted their loan servicer, GMAC Mortgage LLC (" GMACM" ), to obtain a loan modification. GMACM did not provide the Macks with relief from their mortgage, but instead initiated a foreclosure action against them in Florida state court on behalf of Deutsche Bank, which owned the mortgage at that time. The Macks, however, were not in default on their mortgage. When GMACM realized that it had brought the foreclosure action in error, it contacted local counsel to withdraw the lawsuit. For reasons unknown, local counsel did not move to dismiss the action until three months later.

While the foreclosure action remained pending in Florida state court, the Macks filed counterclaims against Deutsche Bank, seeking damages for slander of title and a violation of RESPA based on a transfer of title without notifying the Macks. Deutsche Bank never responded to the counterclaims (allegedly because of the continued ineptitude of the same local counsel) and the Macks received a default judgment. After the state court issued its default judgment, Deutsche Bank became aware of the counterclaims and moved to set aside the judgment. Ultimately, in February 2013, the state court granted Deutsche Bank's motion to vacate the judgment as to the Macks' RESPA claim, but confirmed the judgment with respect to the Macks' slander of title claim. The Macks received approximately $320,000 in damages.

On October 26, 2009, about a month after GMACM brought its...

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