Halkiotis v. WMC Mortg. Corp., No. 3:12-cv-01507 (MPS)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Writing for the CourtMichael P. Shea, District Judge
Citation144 F.Supp.3d 341
Parties Carey J. Halkiotis, Plaintiff, v. WMC Mortgage Corp., et al., Defendants.
Docket NumberNo. 3:12-cv-01507 (MPS)
Decision Date17 November 2015

144 F.Supp.3d 341

Carey J. Halkiotis, Plaintiff,
v.
WMC Mortgage Corp., et al., Defendants.

No. 3:12-cv-01507 (MPS)

United States District Court, D. Connecticut.

Signed November 17, 2015


144 F.Supp.3d 344

Carey J. Halkiotis, Sharon, VT, pro se.

Claudia M. Sklar, Adam D. Lewis, O'Connell, Attmore & Morris, LLC, Hartford, CT, Steven J. Zakrzewski, Gordon & Rees LLP, Glastonbury, CT, for Defendants.

MEMORANDUM OF DECISION

Michael P. Shea, District Judge

Pro se Plaintiff Carey J. Halkiotis asserts claims against Defendant Saxon Mortgage Services, Inc. (“Saxon”), arising out of the parties' mortgage agreement.1 The Amended Complaint (ECF No. 86) sets forth the following claims: (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) violation of the Connecticut Unfair Trade Practices Act (“CUTPA”), (4) violation of the Connecticut Creditors' Collection Practices Act (“CCPA”), (5) violation of the Federal Debt Collection Practices Act (“FDCPA”), and (6) trespass. The core of Halkiotis's lawsuit is that Saxon misapplied his monthly payments during the time it serviced his loan, which forced him to incur extra fees, damaged his credit rating, and caused him emotional distress. He also claims that Saxon is responsible for damage done by a company that Saxon hired to secure the property when it mistakenly believed Halkiotis had abandoned the property. Saxon has moved for summary judgment on all counts, arguing that it was entitled to hold in suspense or reject Halkiotis's payments because they were insufficient and that it cannot be held liable for the property damage because the company it hired was an independent contractor and, alternatively, no trespass occurred. (ECF No. 95.) Because a genuine dispute of material fact exists as to a limited contention concerning a single payment,

144 F.Supp.3d 345

I DENY summary judgment as to a minor portion of the breach of contract claim (Count One). Because there is a genuine dispute as to whether Saxon reasonably determined that Halkiotis had abandoned his property, I DENY summary judgment as to the trespass claim (Count Six). I GRANT summary judgment as to all remaining claims (most of Count One and Counts Two through Five).

I. Background

Unless indicated otherwise, the following facts are undisputed according to the parties' Local Rule 56(a) statements.2

A. Original Mortgage Agreement and Forced Placed Insurance Policy

In connection with his purchase of a property in Washington, Connecticut, Halkiotis signed an adjustable interest rate note with WMC Mortgage Corporation (“WMC”) in exchange for a loan with a principal balance of $398,060.00, secured by a mortgage, on September 9, 2005. (Def.'s SOF, ECF No. 96, ¶ 1.) Chase Home Finance (“Chase”) was responsible for servicing the loan, but on May 31, 2007, Chase transferred its servicing rights to Saxon. (Id. at ¶ 11.) Saxon held the servicing rights to Halkiotis's loan until November 16, 2009, when it transferred the servicing rights to Ocwen Loan Servicing, LLC (“Ocwen”). (Id. at ¶ 56.)

Several provisions of the Mortgage Agreement are pertinent here.3 First, if Halkiotis submitted an insufficient amount in a monthly payment, Saxon could reject the payment or hold it in suspense. (Def.'s MSJ, Ex. 1-B (“Mortgage Agreement”) § 1.) Second, Halkiotis was responsible for paying, in addition to amounts for principal and interest, monthly “Escrow Funds” for payments relating to, among other costs, property taxes and insurance premiums. (Id. at § 3.) Third, Halkiotis was responsible for maintaining insurance protecting the property against damage. (Id. at § 5.) If Halkiotis failed to maintain such insurance coverage, Saxon could purchase the insurance of its choice and charge Halkiotis for the cost of the “forced placed” policy. (Id. ) Finally, if Halkiotis failed to adhere to his obligations under the Mortgage Agreement or abandoned the property, Saxon could take reasonable and appropriate actions to protect its interest in the property, including making repairs and changing the locks. (Id. at § 9.)

Upon receiving the servicing rights to Halkiotis's mortgage, Saxon incorrectly deemed Halkiotis to be in default. (Def.'s SOF ¶¶ 12–14; Pl.'s SOF, ECF No. 118, ¶¶ 12–14.) On August 20, 2007, after receiving

144 F.Supp.3d 346

information demonstrating that Halkiotis was not in default, Saxon corrected Halkiotis's account status and waived “any fees assessed to his account.” (Def.'s SOF ¶ 14.) Saxon also sent a “correction [letter] to the national bureaus advising them to remove any derogatory credit reporting information.” (Id. at ¶ 15; see Def.'s MSJ Ex. 1-G.)4

As noted, the Mortgage Agreement required that Halkiotis's property be covered by hazard insurance. (See Mortgage Agreement § 5.) Saxon sent Halkiotis a letter, dated September 20, 2007, requesting that Halkiotis include Saxon's “Mortgage-Payee Clause” on his insurance policy. (Def.'s MSJ Ex. 1-H.) Saxon also requested in the letter that Halkiotis forward a copy of his current policy to Saxon. Saxon sent Halkiotis another letter, dated October 4, 2007, stating, “[o]ur records indicate that the hazard insurance on your property is due to expire in approximately 14 days,” and that “[y]our loan requires that we have evidence of continued hazard insurance in force at all times.” (Def.'s MSJ Ex. 1-I.) Saxon again requested a copy of Halkiotis's policy in the October 4 letter. (Id. ) Saxon sent Halkiotis a letter dated October 18, 2007, stating that, according to its records, his hazard insurance had expired, again requesting a copy of the policy, and notifying him that if he did not provide proof of insurance, Saxon would purchase coverage at his expense. (Def.'s SOF ¶ 17; Def.'s MSJ Ex. 1-K.) There is no evidence in the record that Halkiotis responded to these letters. Halkiotis asserts that Saxon “should have received information from Chase [Saxon's predecessor] that the insurance had been previously renewed for the August 18, 2007 – August 18, 2008 period” (Pl.'s SOF ¶ 22), but he cites no supporting evidence and no provision of the Mortgage Agreement relieving him of his responsibilities in the event that Saxon's predecessor did not forward pertinent information. Halkiotis submits an affidavit in which he avers that he “continuously had insurance in place on the Property” while Saxon was servicing the loan (Pl.'s Aff., ECF No. 120, at ¶ 11), and also cites a letter from State Farm Agent David De Lotto to Saxon, dated October 2, 2008, in which De Lotto informs Saxon that Halkiotis had “maintained continuous homeowner's insurance” at the property “effective August 17th, 2005,” and that Halkiotis had paid “up until August 15, 2008” (Pl.'s SOF, Ex. 2).

There is no evidence in the record, however, that Saxon received notice of insurance coverage before December 13, 2007, at which point it initiated a $5,721.00 forced placed insurance policy covering the period of August 15, 2007, to August 15, 2008. (Def.'s SOF ¶ 18.) Saxon sent Halkiotis a letter dated December 18, 2007, informing Halkiotis of this purchase and stating that $5,721.00 would be charged to his loan. (Id. at ¶ 19.) On January 2, 2008, Saxon received from Halkiotis proof of an insurance policy covering the period of September 17, 2007, to September 17, 2008. (Anderson Aff. ¶ 15; Def.'s MSJ Ex. 1-L.) As a result, Saxon cancelled the policy it had purchased and credited Halkiotis's escrow account $5,204.96 – $516.04 less than the amount Saxon had charged to Halkiotis's loan after initiating the forced placed policy. (Def.'s SOF ¶ 21.) Saxon refused to credit Halkiotis in full because, according to Saxon, it did not receive evidence that the property was covered for the period between August 15, 2007 and

144 F.Supp.3d 347

September 17, 2007. (Id. at ¶ 22.) Saxon notified Halkiotis of the partial credit by letter dated January 7, 2008. (Def.'s MSJ Ex. 1-M.)

B. Interest Rate Adjustment and Loan Modification

On September 27, 2007, Saxon sent Halkiotis a letter informing him that Saxon was adjusting his mortgage interest rate, effective November 1, 2007. (Anderson Aff. ¶ 17; Def.'s MSJ Ex. 1-N.) Under the adjusted interest rate, Halkiotis's monthly principal and interest payment increased from $2,599.77 to $3,200.82. (Def.'s MSJ Ex. 1-N.) The letter also stated that “[t]his new payment does not include any escrows that may be included in your payment.” (Id. ) Halkiotis acknowledges receiving this letter, but contends that, shortly thereafter, a Saxon employee named Brett Maloney “specifically instructed” him to “maintain the original monthly mortgage payment in the amount of $2,599.77 and submit additional paperwork.” (Pl.'s Aff. ¶ 14; see also Halkiotis Dep. II, June 18, 2014, Pl.'s Obj, Ex. 9, at 40:11–15 (“[I was] guaranteed to continue at the original interest rate by a man named Brett, B-R-E-T-T, Maloney, M-A-L-O-N-E-Y, he was the loss mitigation officer.”).) On November 15, 2007, Halkiotis submitted a payment of $2,599.77. (Def.'s SOF ¶ 24.) Saxon considered this payment insufficient due to the November 1 interest rate change, found Halkiotis to be in default, and...

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5 practice notes
  • Davis v. The Money Source Inc., 3:21-CV-00047 (AWT)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • August 30, 2021
    ...the land of another . . . is subject to liability for harm resulting to others from such trespass.” Halkiotis v. WMC Mortgage Corp., 144 F.Supp.3d 341, 364 (D. Conn. 2015) (citing Restatement (Second) of Torts §427B). Here, TMS contracted with SFLS, which in turn contracted with MMC for MMC......
  • Norboe v. Wells Fargo Bank, N.A., NNHCV136038377
    • United States
    • Superior Court of Connecticut
    • January 31, 2018
    ...the land of another ... is subject to liability for harm resulting to others from such trespass" ); Halkiotis v. WMC Mortgage Corp., 144 F.Supp.3d 341, 364 (D.Conn. 2015) (relying on Restatement § 427B to deny summary judgment on trespass claim under analogous circumstances). See also n.9 a......
  • Onward Search, LLC v. Noble, 3:22-cv-00369 (VAB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • July 11, 2022
    ...makes only a “bare assertion that [Mr. Noble] acted in bad faith” in departing Onward for Beacon Hill. Halkiotis v. WMC Mortg. Corp., 144 F.Supp.3d 341, 359 (D. Conn. 2015). Such assertions are insufficient to establish “a clear or substantial likelihood of success on the merits” as to Onwa......
  • Markey v. Ditech Fin. LLC, No. 3:15-cv-1711 (MPS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • September 22, 2016
    ...the statute of frauds "applies to purported oral modifications to existing mortgage agreements." Halkiotis v. WMC Mortgage Corp., 144 F. Supp. 3d 341, 355 (D. Conn. 2015). It also applies to agreements to forbear from foreclosure. Sovereign Bank v. Licata, 116 Conn. App. 483, 496-97 (2009) ......
  • Request a trial to view additional results
5 cases
  • Davis v. The Money Source Inc., 3:21-CV-00047 (AWT)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • August 30, 2021
    ...the land of another . . . is subject to liability for harm resulting to others from such trespass.” Halkiotis v. WMC Mortgage Corp., 144 F.Supp.3d 341, 364 (D. Conn. 2015) (citing Restatement (Second) of Torts §427B). Here, TMS contracted with SFLS, which in turn contracted with MMC for MMC......
  • Norboe v. Wells Fargo Bank, N.A., NNHCV136038377
    • United States
    • Superior Court of Connecticut
    • January 31, 2018
    ...the land of another ... is subject to liability for harm resulting to others from such trespass" ); Halkiotis v. WMC Mortgage Corp., 144 F.Supp.3d 341, 364 (D.Conn. 2015) (relying on Restatement § 427B to deny summary judgment on trespass claim under analogous circumstances). See also n.9 a......
  • Onward Search, LLC v. Noble, 3:22-cv-00369 (VAB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • July 11, 2022
    ...makes only a “bare assertion that [Mr. Noble] acted in bad faith” in departing Onward for Beacon Hill. Halkiotis v. WMC Mortg. Corp., 144 F.Supp.3d 341, 359 (D. Conn. 2015). Such assertions are insufficient to establish “a clear or substantial likelihood of success on the merits” as to Onwa......
  • Markey v. Ditech Fin. LLC, No. 3:15-cv-1711 (MPS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • September 22, 2016
    ...the statute of frauds "applies to purported oral modifications to existing mortgage agreements." Halkiotis v. WMC Mortgage Corp., 144 F. Supp. 3d 341, 355 (D. Conn. 2015). It also applies to agreements to forbear from foreclosure. Sovereign Bank v. Licata, 116 Conn. App. 483, 496-97 (2009) ......
  • Request a trial to view additional results

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