Herrera v. Bank of Am., N.A.
| Decision Date | 31 August 2016 |
| Docket Number | Case No. 15-cv-62156-BLOOM/Valle |
| Parties | JOSEFINA HERRERA Plaintiff, v. BANK OF AMERICA, N.A., U.S. BANK N.A. and RUSHMORE LOAN MANAGEMENT SERVICES LLC, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
THIS CAUSE is before the Court upon Defendants U.S. Bank, N.A. ("U.S. Bank") and Rushmore Loan Management Services, LLC's ("Rushmore") Motion for Summary Judgment, ECF No. [83], and Bank of America, N.A.'s ("BOA") Motion for Summary Judgment, ECF No. [84]. The Court has carefully reviewed the Motions, all supporting and opposing submissions, the record in this case, and applicable law. For the reasons set forth below, the Motions are granted.
On August 1, 2007, Plaintiff Josefina Herrera ("Plaintiff") executed and delivered a note and mortgage in the amount of $865,350.00 to BOA. BOA Statement of Undisputed Facts, ECF No. [84] at 3, ¶ 1 ("BOA SOF"); U.S. Bank and Rushmore Statement of Undisputed Facts, ECF No [83] at 2, ¶ 4 ("U.S. Bank and Rushmore SOF"); Plaintiff Statement of Material Facts, ECF No. [88], [89], ¶ 1 ("Pl. SOF"). Plaintiff defaulted on the loan by failing to make payments due and in December of 2011, BOA initiated a foreclosure action against Plaintiff in the Seventeenth Judicial Circuit in and for Broward County.2 BOA SOF ¶ 2; U.S. Bank and Rushmore SOF ¶ 4; Plaintiff's Statement of Material Facts in Opposition to U.S. Bank and Rushmore's SOF, ECF No. [89] ("Pl. Opp'n U.S. Bank and Rushmore") ¶ 2; Plaintiff's Statement of Material Facts in Opposition to BOA's SOF, ECF No. [88] ("Pl. Opp'n BOA") ¶ 2. On March 20, 2012, Charles Neustein, Esq. appeared in the foreclosure action on behalf of Plaintiff. U.S. Bank and Rushmore SOF ¶ 4.
The loan transferred ownership from BOA to U.S. Bank as Legal Title Trustee for Truman 2013 SC3 Title Trust. Id. ¶ 5. Loan service was transferred from BOA to Rushmore on January 21, 2014. Id. On July 21, 2014, Plaintiff filed for relief under Chapter 7 of the Bankruptcy Code through counsel Timothy S. Kingcade, Esq. Id. ¶ 6. In the bankruptcy proceeding, Plaintiff indicated that Rushmore was the creditor for the loan and did not dispute the debt. Id. (citing Ex. F, ECF No. [83-7]). Plaintiff stated a desire to retain the property if modified, but did not enter into a modification agreement. Id. Plaintiff obtained a discharge on December 4, 2014 and Defendants obtained relief from the automatic stay on November 18, 2014. Id.
On August 19, 2014, the Neustein Law Firm withdrew as counsel of record for Plaintiff. Id. ¶ 7. Plaintiff was not represented by an attorney until attorney Richard Adams entered an appearance on February 2, 2015. Id. On April 24, 2015, the parties entered into a confidential settlement agreement, which was signed by attorney Lydia Quesada of the Law Offices of Adams & Associates, P.A., on behalf of Plaintiff. U.S. Bank and Rushmore SOF ¶ 8; Ex. J, ECF No. [83-10] ("Settlement Agreement"); Quesada Aff., ECF No. [81-1] ¶¶ 3-5 ( ). Plaintiff has not disputed or controverted U.S. Bank and Rushmore's assertion that the parties entered into the Settlement Agreement and that the Settlement Agreement was signed on Plaintiff's behalf. The Settlement Agreement contains the following provision:
Defendant [Josefina Herrera] hereby waives all claims against the Plaintiff [U.S. Bank, N.A. as Legal Title Trustee for Truman 2013 SC3 Title] and Rushmore Loan Management Services LLC and any defenses that they may have to this foreclosure action. Defendant further agrees to release and forever discharge the Plaintiff and Rushmore Loan Management Services LLC, from any and all state or federal claims, demands or causes of action asserted, existing or claimed against either or all of them by reason of arising from or related to the Dispute, which may exist from the origination of this loan to the date of this Agreement.
U.S. Bank and Rushmore SOF ¶ 8; Ex. J ¶ 5 (the "Release").
On April 23, 2015, the state court entered a Judgment for Foreclosure against Plaintiff. Id. ¶ 9 (citing Ex. K, ECF No. [83-11]); BOA SOF ¶ 3. Plaintiff did not move to vacate the Judgment, but retained a new attorney, Jeanne M. Siebert, on July 16, 2015 and moved to cancel the foreclosure sale due to a short sale, which was granted. U.S. Bank and Rushmore SOF ¶ 9. Plaintiff again moved to cancel a second foreclosure sale due to another short sale, which was granted, but the court indicated there would be no more cancellations. Id. ¶ 10. Despite the prior order, Plaintiff moved to cancel the third foreclosure sale due to another short sale, which was granted, but the court again indicated there would be no more cancellations. Id. ¶ 11. Two days before the fourth foreclosure sale, Plaintiff filed a Notice of Removal of the Foreclosure Action, removing the case to federal court. Id. ¶ 12 (citing Ex. O, ECF No. [83-15]). On March 25, 2016, this Court entered an order remanding the foreclosure action back to state court. See Case No. 16-cv-60048- BB; Ex. Q, ECF No. [12]. Plaintiff also filed a second bankruptcy proceeding, and the bankruptcy court granted U.S. Bank relief from an automatic stay and barred Plaintiff from filing bankruptcy for a two year period. U.S. Bank and Rushmore SOF ¶ 12.
According to BOA, it placed the following calls to Plaintiff: (1) on October 23, 2013, Gabriella Quesada, a representative of BOA called Plaintiff and, when unable to reach her, left Plaintiff a message asking her to return the call; (2) on October 30, 2013, Ms. Quesada called Plaintiff's cell phone and, when unable to reach her, left Plaintiff a message asking her to return the call; (3) on November 7, 2013, Ms. Quesada called Plaintiff, but Plaintiff refused to confirm her identify and the phone call did not proceed; (4) on November 12, 2013, Ms. Quesada called Plaintiff's cell phone and, when unable to reach her, left Plaintiff a message asking her to return the call; and (5) on November 25, 2013, Ms. Quesada called Plaintiff's cell phone and reached her to discuss the decline letter that was sent to her with respect to the loan modification. BOA SOF ¶ 4-9.3 On November 5, 2013, BOA also notified Plaintiff by written correspondence that they did not receive evidence of acceptable hazard insurance for the property and had, therefore, purchased a lender-placed hazard insurance policy. Id. ¶ 6; Ex. C1, ECF No. [88-3] at 59.
According to U.S. Bank and Rushmore, Rushmore is the servicer for the loan and never used an automated dialer and all communications with Plaintiff were done by a natural person. U.S. Bank and Rushmore SOF ¶ 14. On September 25, 2015, Plaintiff called Rushmore seeking a short sale, which was declined on September 30, 2015. Id. ¶ 15. U.S. Bank acts as the Trustee for the owner of the loan and asserts that it has had no communication with Plaintiff for the loan. Id. ¶ 16.
Plaintiff, proceeding pro se,4 filed the instant action on October 13, 2015, alleging violations of the federal Fair Debt Collection Practices Act ("FDCPA"), the Florida Consumer Collection Practices Act ("FCCPA"), and the Telephone Consumer Protection Act ("TCPA"), as well as breach of the implied covenant of good faith and fair dealings. See Compl., ECF No. [1].5 On December 29, 2015, the Court granted in part BOA's Motion to Dismiss, dismissing the FDCPA claims (Counts I, II, III, and IV) as to BOA, dismissing with prejudice Plaintiff's breach of implied covenant of good faith and fair dealings claim (Count VIII), and dismissing Plaintiff's TCPA claim (Count IX) with leave to amend. See ECF No. [30]. Plaintiff failed to submit an amended complaint and on January 25, 2016, the Court entered an order stating that the Complaint shall serve as the operative pleading in this matter, except as to those counts dismissed in the Court's Order on Motion to Dismiss. See ECF No. [37]. The remaining claims allege violations of 15 U.S.C. § 1692d (Count I), 15 U.S.C. § 1692e(2)(A) (Count II), 15 U.S.C. § 1692e(10) (Count III), and 15 U.S.C. § 1692b(6) (Count IV) against U.S. Bank and Rushmore and violations of Fla. Stat. § 559.72(9) (Count V), Fla. Stat. § 559.72(7) (Count VI), and Fla. Stat. § 559.72(18) (Count VII) against BOA, U.S. Bank, and Rushmore. To the extent the prior order did not fully dispose of Count VIII for breach of implied covenant of good faith and fair dealing, that claim is also addressed infra.
A party may obtain summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The parties may support their positions by citation to the record, including inter alia, depositions, documents, affidavits, or declarations. Fed. R. Civ. P. 56(c). An issue is genuine if "a reasonable trier of fact could return judgment for the non-moving party." Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it "would affect the outcome of the suit under the governing law." Id. (quoting Anderson, 477 U.S. at 247-48). The Court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in its favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006); Howard v. Steris Corp., 550 F. App'x 748, 750 (11th Cir. 2013) (). However, material facts set forth in the movant's statement of facts and supported by record evidence are deemed admitted if not...
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