Carson v. Ocwen Loan Servicing, LLC
| Decision Date | 08 January 2019 |
| Docket Number | Civil Action No. 15-cv-02841-RM-KLM |
| Citation | 365 F.Supp.3d 1163 |
| Parties | Carlee C. CARSON, Plaintiff, v. OCWEN LOAN SERVICING, LLC, and HSBC Bank USA, N.A., as Trustee on behalf of Ace Securities Corp. Home Equity Loan Trust and for the Registered Holders of Ace Securities Corp. Home Equity Loan Trust, Series 20070HE2, Asset Backed Pass-Through Certificates, Defendants. |
| Court | U.S. District Court — District of Colorado |
Kenneth James Buechler, Buechler Law Office LLC, Denver, CO, for Plaintiff.
Cynthia Dawn Lowery-Graber, Michael James Hofmann, Paul J. Lopach, Morton Adam Lewis, Bryan Cave Leighton Paisner LLP, Denver, CO, for Defendants.
ORDER ON MOTION FOR SUMMARY JUDGMENT
At issue is whether Defendants Ocwen Loan Servicing, LLC ("Ocwen") and HSBC Bank USA, N.A., as Trustee on behalf of Ace Securities Corp. Home Equity Loan Trust and for the Registered Holders of Ace Securities Corp. Home Equity Loan Trust, Series 20070HE2, Asset Backed Pass-Through Certificates, ("HSBC") (Ocwen and HSBC, collectively, "Defendants") wrongly assessed charges and fees, and claimed default, on a loan made to Plaintiff Carlee C. Carson ("Carson").
This matter is before the Court on Defendants' Revised Motion for Summary Judgment (the "Motion") (ECF No. 66 ) seeking summary judgment in their favor on the remaining five claims in this case. Plaintiff Carlee C. Carson ("Carson") has filed a Response in Opposition (the "Response") (ECF No. 76 ), to which Defendants have filed a Reply in Support (the "Reply") (ECF No. 79 ). The matter is ripe for resolution.
In August 2006, Carson borrowed $ 136,000 from People's Choice Home Loan, Inc. to purchase property in Palmer Lake, Colorado (the "Property"). The loan was secured by a Promissory Note (the "Note") and Deed of Trust (the "DOT") (collectively, the "Mortgage Loan"). The Mortgage Loan contains provisions which, as relevant here, covered assessment of charges and fees, insufficient payments, escrow for taxes and insurance, and defaults. Payments were due on the first day of each month beginning October 1, 2006.
On November 1, 2006, Ocwen acquired servicing rights to the Mortgage Loan. By January 2007, Carson began receiving phone calls from Ocwen claiming the Mortgage Loan was in default by failing to make the monthly payments due. The parties dispute whether Ms. Carson was in default as Ocwen claimed. By March 2011, Carson retained an attorney to assist with her disputes with Defendants over the Mortgage Loan.1
In or about July 2011, Carson entered into a Loan Modification Agreement (the "Modification Agreement"). The Modification Agreement required an initial down payment of $ 812.42, which Carson paid, and payment of principal and interest ("PI") of $ 655.40 thereafter. The parties dispute when Carson's obligation to make payments would begin – Ocwen asserts the regular payment obligation would begin on August 1, 2011 (as provided in the Modification Agreement), while Carson asserts that it was not to begin until she received a fully executed Modification Agreement. It is, however, undisputed that Carson did not pay until November 2011, after she received the fully executed Modification Agreement.
The Modification Agreement did not set forth what amounts, if any, were required to be escrowed for taxes and insurance. However, prior to the receipt of the executed Modification Agreement, Carson received an Annual Escrow Account Disclosure Statement Projections for Coming Year ("Escrow Statement") dated September 9, 2011, for the upcoming escrow year (November 2011 to October 2012).2 (ECF No. 66-11, pp. 4-7.) The Escrow Statement provided that beginning November 1, 2011, Carson's monthly mortgage payment would increase to $ 944.90, consisting of $ 655.40 in PI and $ 289.50 in taxes and insurance (collectively, "PITI"), due to an anticipated escrow shortage for the coming escrow year. Carson, however, did not always pay this amount; she sometimes paid less. Many of Carson's payments for the escrow year was also late. Ocwen declared Carson's account to be in default and held Carson's payments in a suspense account because they were insufficient to cover the monthly $ 944.90 PITI.
Ocwen thereafter sent Carson other annual escrow statements, calculating the PITI for the upcoming escrow year, based on the projected escrow needed for taxes and insurance. Carson contends that she did not receive many of the annual escrow statements. Nonetheless, Carson did make payments, though they were generally not for the amounts Ocwen calculated as due and were generally not timely made. Carson admits she "consistently" received monthly statements from Ocwen, but asserts the statements were inconsistent in the amounts stated to be due and owing. The Court has not been provided with copies of all the disputed monthly statements. The few monthly statements that were provided show the total amounts did vary from month to month, apparently due to the assessment of fees and other costs, but the monthly PITI did not. (See ECF No. 79-8.)
At some point in time, Carson, through counsel, requested information to support fees and costs Defendants assessed on the Mortgage Loan (as modified). Defendants provided information to Carson but the parties dispute the sufficiency of the information provided. It is unclear to the Court exactly what was requested and what was provided.3
Beginning in 2009, Carson filed several disputes with the credit reporting agencies, who then notified Defendants. Defendants assert they properly investigated Carson's credit disputes but did not report the account as disputed. This lawsuit followed on December 2, 2015.4
In December 2016, during the pendency of this case, Carson sold the Property. At that time, Carson paid the amounts Defendants claimed were due and owing under the Mortgage Loan, as modified, but disputed the amounts claimed.
Carson raised several claims in this action but some have been dismissed. The claims which remain are: (1) breach of contract – Defendants allegedly failed to adhere to their obligations and comply with the terms and conditions of the Mortgage Loan; (2) breach of the duty of good faith and fair dealing implied in the Mortgage Loan; (3) violation of the Fair Credit Reporting Act ("FCRA"); (4) violation of the Fair Debt Collection Practices Act ("FDCPA"); and (5) unjust enrichment. Defendants seek summary judgment on all claims.
Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Gutteridge v. Oklahoma , 878 F.3d 1233, 1238 (10th Cir. 2018). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Stone v. Autoliv ASP, Inc. , 210 F.3d 1132, 1136 (10th Cir. 2000) ; Carey v. United States Postal Serv. , 812 F.2d 621, 623 (10th Cir. 1987). Once the moving party meets its initial burden of demonstrating an absence of a genuine dispute of material fact, the burden then shifts to the nonmoving party to demonstrate the existence of a genuine dispute of material fact to be resolved at trial. See 1-800-Contacts, Inc. v. Lens.com, Inc. , 722 F.3d 1229, 1242 (10th Cir. 2013) (citation omitted). The Court, however, is "not obligated to comb the record in order to make [a party's arguments]." Mitchell v. City of Moore, Okla. , 218 F.3d 1190, 1199 (10th Cir. 2000). Further, "[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citation omitted). The facts, however, must be considered in the light most favorable to the nonmoving party. Cillo v. City of Greenwood Vill. , 739 F.3d 451, 461 (10th Cir. 2013) (citations omitted).
Carson filed this action on December 2, 2015. The parties do not dispute the following limitations of actions apply: (1) one-year for the FDCPA claim; (2) two-year for the FCRA; and (3) three-year for unjust enrichment. The parties dispute whether the three-year statute of limitations ( Colo. Rev. Stat. § 13-80-101(1)(a) ) or the six-year statute of limitations ( Colo. Rev. Stat. § 13-80-103.5 ) applies to the breach of contract and breach of the duty of good faith and fair dealing claims. Defendants contend it is the three-year statute while Carson contends it is the six-year statute.
The Court finds that, based on the arguments of the parties and the claims asserted, the six-year statute of limitations under Colo. Rev. Stat. § 13-80-103.5(1)(a) applies for two reasons. First, "[i]n the absence of a clear expression of legislative intent to the contrary, a statute of limitations specifically addressing a particular class of cases will control over a more general or catch-all statute of limitations." Mortgage Inv. Corp. v. Battle Mountain Corp. , 70 P.3d 1176, 1185 (Colo. 2003) (citation omitted). Section 13-80-101(1)(a), upon which Defendants rely, is the more general statute of the two at issue.
Second, § 13-80-101(1)(a) specifically excepts actions which fall within § 13-80-103.5.5 Actions which fall within § 13-80-103.5(1)(a) include those "for the enforcement of rights set forth in any instrument securing the payment of or evidencing any debt." Here, Carson's claims, as pled, are for the enforcement of rights afforded under the Mortgage Loan, e.g. , for fees to be assessed only if she is in default, and only for fees...
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