Adams v. Bank of Am., N.A.

Decision Date14 February 2017
Docket NumberCase No.: 2:15–01855–RDP
Parties Michael ADAMS, et al., Plaintiffs, v. BANK OF AMERICA, N.A., Defendant.
CourtU.S. District Court — Northern District of Alabama

Kenneth J. Lay, Hood & Lay LLC, Birmingham, AL, for Plaintiffs.

Brian Alexander Wahl, James Jackson Hill, IV, Bradley Arant Boult Cummings LLP, Birmingham, AL, for Defendant.



I. Introduction

This case is before the court on Defendant's Motion for Summary Judgment (Doc. # 30), filed on August 1, 2016. The Motion is fully briefed and supported by the parties' evidentiary submissions. (Docs. # 31, 39, 40). In this case, Plaintiffs are two borrowers whose loan is owned and serviced by Defendant. Beginning in 2004, Plaintiffs began having difficulties making their monthly mortgage payments. The parties executed multiple loan modifications. Nevertheless, Defendant contends that Plaintiffs regularly missed loan payments. Accordingly, Defendant provided notice to Plaintiffs that they were in default and later began foreclosure proceedings. Plaintiffs filed this lawsuit and allege that Defendant's conduct amounted to a breach of the mortgage contract. Plaintiffs further allege that Defendant's conduct was in violation of various federal statutes related to lending practices, and additionally contend that Defendant's publication of communications related to their purported default was defamatory. Defendant's Motion for Summary Judgment (Doc. # 30) is due to be granted.

II. Relevant Undisputed Facts1

On October 25, 2001, Plaintiffs executed a promissory note which was secured by a mortgage on real property located in Bessemer, Alabama. (Doc. # 31–2 at ¶ 5; Doc. # 31–5 at p. 7). On July 1, 2011, Defendant succeeded to the interests of BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP, the original entity servicing the Loan, and, accordingly, has serviced the Loan since its origination. (Doc. # 31–7 at p. 7; 31–2 at ¶ 6). The beneficial ownership and accompanying rights and obligations under the Mortgage were assigned to Defendant on August 2, 2011. (Id. at ¶ 6; Doc # 31–8 at p. 14).

In 2004, Plaintiffs fell behind on their monthly mortgage payments and faced acceleration and foreclosure based on their default. (Doc. # 31–2 at ¶ 8; 31–7 at p. 8). Wishing to avoid this result, Plaintiffs sought from Defendant a loan modification agreement and the parties ultimately agreed to and executed an amended restated Note on October 8, 2004. (Doc. # 31–2 at ¶ 9; Doc. # 31–3 at p. 13; Doc. # 31–8 at pp. 19–21, 23–25). Nonetheless, Plaintiffs continued to struggle to make their mortgage payments, and on August 29, 2011, the parties agreed to and executed a second loan modification agreement and amended and restated Note. (Doc. # 31–2 at ¶ 11; Doc. # 31–3 at p. 19; Doc. 31–8 at pp. 32–36, 38–42). Defendant has held the amended and restated Note since its execution. (Doc. # 31–2 at ¶ 11).

Following this second Loan Modification, Plaintiffs again struggled to make their mortgage payments. (Doc. # 31–3 at p. 21). In fact, Defendants contend that Plaintiffs only attempted to make two mortgage payments from the time period spanning August 1, 2012November 25, 2014. (Doc. # 31–2 at ¶ 12; Doc. # 31–8 at pp. 44–61). The first of these payments was offered on September 7, 2012, and was only in the amount of $400, which was less than a full mortgage payment.2 (Doc. # 31–2 at ¶ 12). Defendant contends that Plaintiffs attempted to make the second of these payments on January 31, 2013, but their check was returned for insufficient funds in Plaintiffs' bank account. (Doc. # 31–2 at ¶ 12). Plaintiffs, in their Response (Doc. 39), dispute that they failed to make their monthly mortgage payments, but cite only generally to their depositions and affidavits for support of that position.3

On September 17, 2012, in response to Plaintiffs' failure to make mortgage payments, Defendant sent Plaintiffs a notice of intent to accelerate the Loan. (Doc. # 31–7 at p. 26; Doc. # 31–9 at pp. 2–3). Defendant sent a letter offering to schedule a face-to-face meeting to discuss the possibility of loan assistance; however, Plaintiffs did not schedule a meeting, and representatives from Defendant were unsuccessful in their attempts to meet Plaintiffs at the property. (Doc. # 31–2 at ¶ 14; Doc. # 31–9 at p. 5).

On April 1, 2013, March 8, 2014, and July 21, 2014, Plaintiffs submitted applications to be considered for a third loan modification. (Doc. # 31–2 at ¶ 15; Doc. # 31–9 at pp. 8–11, 14–20, 22–27). On each of these signed applications, Plaintiffs provided their cellphone numbers and, in signing, acknowledged, "I consent to being contacted concerning this request for mortgage assistance at any e-mail addresses or cellular or mobile telephone I have provided to the Servicer." (Doc. # 31–3 at p. 4; Doc. # 31–5 at p. 3; Doc. # 31–9 at pp. 8–11, 14–20, 22–27). On September 3, 2014, Defendant offered Plaintiffs a "Trial Period Plan" as a potential means of securing a permanent loan modification. (Doc. # 31–2 at ¶ 17; Doc. # 31–9 at pp. 29–30). Under the Trial Period Plan, Plaintiffs were required to return a signed copy of the Trial Period Plan Agreement by October 3, 2014 and remit three payments of $935.72 on October 1, 2014, November 1, 2014, and December 1, 2014, respectively. (Id. ).

Defendant contends that it never received an executed copy of the Trial Period Plan Agreement and Plaintiffs did not make any of the three Trial Period Plan payments on or before the day that they were due.4 On April 11, 2015, Defendant did not approve Plaintiffs for an additional loan modification, due to their purported failure to submit timely Trial Period Plan payments. (Doc. # 31–2 at ¶ 20, Doc. # 31–9 at pp. 36–37).

Defendant scheduled a foreclosure sale of the property to be held in June 2015. (Doc. # 39–1 at pp. 2, 4). Accordingly, Plaintiffs hired legal counsel for representation related to the scheduled foreclosure. (Doc. 31–6 at p. 2). On July 17, 2015, Plaintiffs, through counsel, sent a Qualified Written Request ("QWR") to Defendant.5 (Doc. # 31–2 at ¶ 21, Doc. # 31–9 at pp. 39–40). Defendant contends that it acknowledged receipt of the QWR, and, on August 21, 2015, sent a letter responding to Plaintiffs' QWR. (Doc. 31–2 at ¶ 21; Doc. 31–9 at pp. 42–43, 45–47). Plaintiffs disagree, and contend that they have no personal knowledge of receiving Defendant's correspondence. (Doc. # 31–3 at pp. 24–25).

Additionally, Plaintiffs attempted to dispute their credit report with Defendant. (Doc. # 31–5 at p. 19). However, Plaintiffs admit that they never attempted to notify a consumer reporting agency about their disputed credit, and Defendant received no notice from a consumer reporting agency about a credit dispute concerning the Loan. (Id. ; Doc. # 31–6 at p. 4; Doc. # 31–2 at ¶ 22). Defendant did not conduct a foreclosure sale on the Property, and no entity, including Defendant, has attempted to complete a foreclosure sale following the initiation of the present lawsuit. (Doc. # 31–2 at ¶ 23, Doc. # 31–6 at p. 2). Plaintiffs are not currently making any monthly mortgage payments on the Loan, and Defendants contend that the Loan is currently in default because of Plaintiffs' missed payments.6 (Doc. # 31–3 at p. 14; Doc. # 31–2 at ¶ 24; Doc. # 31–8 at pp. 41–61).

III. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, Rule 56(c) requires the non-moving party to go beyond the pleadings and—by pointing to affidavits, or depositions, answers to interrogatories, and/or admissions on file—designate specific facts showing that there is a genuine issue for trial. See id. at 324, 106 S.Ct. 2548.

The substantive law will identify which facts are material and which are irrelevant. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (" Anderson "). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. See Allen v. Bd. of Pub. Educ. f or Bibb Cty. , 495 F.3d 1306, 1314 (11th Cir. 2007) ; Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine, "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. See id. at 249, 106 S.Ct. 2505.

When faced with a "properly supported motion for summary judgment, [the non-moving party] must come forward with specific factual evidence, presenting more than mere allegations." Gargiulo v. G.M. Sales, Inc. , 131 F.3d 995, 999 (11th Cir. 1997). As Anderson v. Liberty Lobby, Inc. , teaches, under Rule 56(c) a plaintiff may not simply rest on her allegations made in the complaint; instead, as the party bearing the burden of proof at trial, she must come forward with at least some evidence to support each element essential to her case at trial. See Anderson , 477 U.S. at 252, 106 S.Ct. 2505. "[A] party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [her] pleading, but ... must set forth specific facts showing...

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