James v. Ocwen Loan Servicing, LLC, Case No. 1:17-cv-0501

Decision Date12 December 2017
Docket NumberCase No. 1:17-cv-0501
PartiesH. ANTHONY JAMES, et al., Plaintiffs, v. OCWEN LOAN SERVICING, LLC, Defendant.
CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio

Dlott, J.

Bowman, M.J.

REPORT AND RECOMMENDATION

This civil action involves Defendant Ocwen Loan Servicing, LLC's ("Defendant") efforts to collect upon and modify the terms of the defaulted 2011 home loan of Plaintiffs H. Anthony James and Olive P. James (collectively, "Plaintiffs"). Currently pending are the parties' cross-motions for summary judgment. (Docs. 29, 30). For the following reasons, the undersigned recommends that Defendant's motion (Doc. 29) be GRANTED IN PART and DENIED IN PART, and that Plaintiffs' motion (Doc. 30) be GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Plaintiffs filed this lawsuit against Defendant in which they sought relief under three separate federal statutes in relation to Defendant's efforts to collect on a 2011 Note that is secured by a mortgage on Plaintiffs' property located at 8019 Glendale Milford Road in Camp Dennison, Ohio. (Doc. 1). Specifically, in the First Count, Plaintiffs claim that Defendant violated multiple sections of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601, et seq. and Regulation X, 12 C.F.R. § 1024.1, et seq. (Id., PageID 8-9). In the Second Count, Plaintiffs claim that Defendant violated the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. §§ 1692c(a)(2), 1692c(c), and 1692f by continuing to communicate with Plaintiffs directly in connection with the collection of a debt despite knowing Plaintiffs were represented by an attorney with respect to that debt. (Id., PageID 8-9). In the Third Count, Plaintiffs seek a declaratory judgment under 28 U.S.C. § 2201 and Ohio Rev. Code § 2721.03 regarding the person entitled to enforce the Note, the owner of Plaintiffs' obligation, the amount due and owing under the Note and Mortgage, and whether Plaintiffs are in default under that Note and Mortgage. (Id., PageID 9-10).

II. FINDINGS OF FACT

Both parties have submitted what they contend are undisputed findings of fact in this case. To the extent a genuine dispute exists, the dispute will be construed in favor of the nonmoving party.

On February 3, 2006, Plaintiffs signed a Note and Mortgage in the amount of $154,800.00 for their home residence located at 8019 Glendale Milford Road in Camp Dennison, Ohio ("Loan"). (Doc. 29-2, PageID 269-87; Doc. 30-1, PageID 392-410). In or about June 2011, IndyMac Mortgage Services, the then-servicer of the Loan, initiated foreclosure proceedings against Plaintiffs. (Doc. 27-1, PageID 118). Those foreclosure proceedings eventually were dismissed. (Id., PageID 120). On November 1, 2013, IndyMac transferred the servicing of the Loan to Defendant. (Doc. 29-2, PageID 261; Doc. 30-2, PageID 425). The Loan was in default at the time Defendant obtained servicing rights. (Doc. 30-2, PageID 425).

After obtaining servicing rights for the Loan, Defendant began calling Plaintiffs repeatedly, sometimes multiple times in a single day. (Doc. 30-3, PageID 444-55; see also Doc. 27-1, PageID 125). On or about January 13, 2015, Plaintiffs' attorney sent Defendant a letter requesting that "[a]ll correspondence and negotiations of the debt with your firm should flow through [the attorney's] office[.]" (Doc. 30-5, PageID 469). The letter contained a signed authorization for release of Plaintiffs' account information to their attorney. (Id.).

On or about January 14, 2015, Plaintiffs' attorney sent Plaintiffs' loan modification application to an attorney who passed along the application to Defendant on January 16 and January 17, 2015. (Doc. 29-3, PageID 288-366; Doc. 30-6, PageID 470-93).1 Defendant's account log indicates that Defendant received the application on January 19, 2015. (Doc. 30-7, PageID 527-28).2

On January 20, 2015, Defendant sent Plaintiffs a letter to the Camp Dennison address that acknowledged receipt of their application. (Doc. 29-4, PageID 367-68; Doc. 30-8, PageID 542-43). Plaintiffs received that acknowledgement letter from Defendant. (Doc. 27-1, PageID 131).

A second letter from Defendant addressed to Plaintiffs at their Camp Dennison address is dated January 23, 2015. (Doc. 29-4, PageID 369-74; Doc. 30-9, PageID 544-49). That letter contains the salutation "Dear Customer(s)," indicates that their "document due date was 6/18/2014[,]" and requests that Plaintiffs submit the requireddocuments listed in the letter "as soon as possible" to allow Defendant to evaluate Plaintiffs for all available loss mitigation options. (Doc. 29-4, PageID 369; Doc. 30-9, PageID 544). It further states: "Since your document due date has now passed, you may no longer be eligible for certain protections under applicable laws and/or certain loss mitigation options." (Doc. 29-4, PageID 369; Doc. 30-9, PageID 544). The letter advises the customers to submit a complete application as soon as possible, noting that Defendant may still evaluate complete applications submitted after the document due date. (Doc. 29-4, PageID 369; Doc. 30-9, PageID 544). Defendant's corporate representative testified that Defendant creates the letter and then sends it to a third party for mailing. (Doc. 28-1, PageID 213-14). That corporate representative further testified that the letter customarily would have been sent by regular mail unless it was one that had to be sent by certified mail. (Id., PageID 213). She indicated it was possible that the third party could have failed to send the letter as required. (Id., PageID 214). Defendant's account log includes a notation that the letter had been sent, but does not display a tracking number for the letter. (Doc. 30-7, PageID 530).3 Plaintiff H. Anthony James testified that he did not receive that second letter from Defendant. (Doc. 27-1, PageID 133).4

On February 4, 2015, Plaintiff H. Anthony James resent the January 13, 2015 request to Defendant that all communications about the debt on their account be directed to Plaintiffs' attorney. (Doc. 30-10, PageID 550-51). Defendant's account lognotes receipt of the authorization on February 9, 2015. (Doc. 30-7, PageID 531). Defendant continued to place phone calls to Plaintiffs after receipt of that authorization. (Doc. 30-3, PageID 450-55).

On February 14, 2015, Plaintiff H. Anthony James called Defendant to inquire about his loan modification application status. (Doc. 30-7, PageID 532). Defendant provided the requested status update and informed Plaintiff about the missing documents he needed to complete his loan modification application. (Id.). Plaintiff made a follow-up appointment to speak with Defendant about his loan modification application on February 17, 2015. (Id.). Defendant's representative thereafter called and spoke to Plaintiff H. Anthony James on February 17, 2015 per the scheduled appointment. (Doc. 30-7, PageID 533). During that phone call, Plaintiff H. Anthony James was irate, became argumentative, and refused to send some of the documents requested by Defendant for the loan modification application. (Id.). On March 5, 2015, Defendant's account log notes an email was sent regarding the missing documents. (Doc. 30-7, PageID 534). Plaintiffs never submitted the additional information and documents that Defendant had requested to complete the loan modification application. (Doc. 29-1, PageID 259).

On March 13, 2015, Defendant's representative called Plaintiffs and Plaintiffs told the representative that Defendant needed to call Plaintiffs' attorney. (Doc. 30-7, PageID 534). Defendant's representative informed Plaintiffs that Defendant could not do so because Defendant used an auto dialer to make the phone calls. (Id.). Defendant thereafter continued to make phone calls to Plaintiffs through August 19, 2015. (Doc. 30-3, PageID 451-55).

III. SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper "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." A dispute is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court must view the evidence and draw all reasonable inference in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party has the burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

Once the moving party has met its burden of production, the nonmoving party cannot rest on the pleadings, but must present significant probative evidence in support of their case to defeat the motion for summary judgment. Anderson, 477 U.S. at 248-49. The mere scintilla of evidence to support the nonmoving party's position will be insufficient; the evidence must be sufficient for a jury to reasonably find in favor of the nonmoving party. Id. at 252.

The fact that the parties have filed cross-motions for summary judgment in this case does not alter the applicable standard of review.

The Court reviews each party's motion separately, determining, for each side, whether a judgment may be entered in accordance with the standards of Rule 56. Both motions must be denied if the Court finds there is a genuine issue of material fact. If however, there is no genuine issue and one or the other party is entitled to prevail as a matter of law, the Court will render judgment.

Klaus v. Hilb, Rogal & Hamilton Co. of Ohio, 437 F. Supp. 2d 706, 732 (S.D. Ohio 2006).

IV. ANALYSIS

Defendant has moved for summary judgment on all three Counts of Plaintiffs' Complaint. Plaintiffs, on the other hand, have moved for summary judgment on portions of their First and Second Count. The parties' respective arguments on each Count are addressed below.

A. RESPA (First Count)

"'RESPA is a consumer protection s...

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