Kevelighan v. Trott
| Decision Date | 26 May 2011 |
| Docket Number | Case No. 09-12543 |
| Court | U.S. District Court — Eastern District of Michigan |
| Parties | TRACEY L. KEVELIGHAN, KEVIN W. KEVELIGHAN, JAMIE LEIGH COMPTON, JAMIE LYNN COMPTON, and KEVIN KLEINHANS, Plaintiffs, v. TROTT & TROTT, P.C.; ORLANS ASSOCIATES, P.C.; AMERICA'S SERVICING COMPANY; DEUTSCHE BANK NATIONAL TRUST COMPANY; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; WEBSTER BANK, N.A.; FANNIE MAE; FIRST HORIZON HOME LOANS, aka FIRST TENNESSEE BANK, N.A., aka METLIFE HOME LOANS, aka FIRST HORIZON ASSET SECURITIES, INC.; BANK OF NEW YORK; U.S. BANK HOME MORTGAGE; WELLS FARGO HOME MORTGAGE, and HSBC MORTGAGE CORP., Defendants. |
Honorable Patrick J. Duggan
At a session of said Court, held in the U.S.
of Michigan, on_May 26, 2011.
PRESENT: THE HONORABLE PATRICK J. DUGGAN
On June 29, 2009, Tracey L. Kevelighan, Kevin W. Kevelighan, Jamie LynnCompton, Jamie Leigh Compton, and Kevin Kleinhans filed this purported class-action lawsuit, alleging numerous violations of state and federal law in connection with the administration and enforcement of mortgage agreements. On October 27, 2009, Plaintiffs filed an Amended Complaint spanning 145 pages, containing 634 numbered paragraphs, and naming 40 purported plaintiff and defendant sub-classes.
Several defendants filed motions to dismiss, and this Court issued an Opinion and Order on July 7, 2010 granting these motions in part and denying them in part. Due to the length, complexity, and disorganization of the Amended Complaint, the Court sent a letter to all counsel of record on August 18, 2010, identifying a list of each plaintiff's remaining claims against each defendant. The Court invited counsel to object to the proposed list of claims, and no objections were received. Accordingly, the Court indicated its intent to proceed with the understanding that only the claims in that list were pending.
On February 15, 2011, Defendants The Bank of New York Mellon ("BNY Mellon"), Deutsche Bank National Trust Company ("Deutsche Bank"), and Federal National Mortgage Association ("Fannie Mae") (collectively, "the Mortgagee Defendants") moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiffs filed a response on May 9, 2011, and the Court heard oral argument on May 12, 2011. For the reasons stated below, the Court grants the Mortgagee Defendants' motion.
This suit arises from Defendants' alleged misconduct in administering mortgage and loan agreements. For simplicity, the Court will address separately the set of facts relevant to each Plaintiff's claims.
On March 17, 2006, Tracey Kevelighan obtained a loan from WMC Mortgage Corporation to purchase a home located at 2553 Lamplighter Lane, in Bloomfield Hills, Michigan. The loan was secured by a mortgage on the property. Kevelighan alleges that Deutsche Bank held this mortgage loan, and America's Servicing Company ("ASC") and Wells Fargo Home Mortgage ("Wells Fargo") serviced the loan.
Kevelighan did not pay the property taxes assessed for July 2006, December 2006, or July 2007. Am. Compl. ¶¶ 36-37. ASC sent Kevelighan notices during September and October of 2007 indicating that the taxes were unpaid. Id. at ¶ 39, 41. In a letter dated December 11, 2007, ASC informed Kevelighan that it had paid the delinquent taxes and would establish an escrow account to collect the advance. Id. ¶ 50.
Kevelighan ceased making payments on the loan in April 2008. On May 18, 2008, ASC declared a default, warning that it would accelerate the loan unless the delinquent payments were made. See Am. Compl. Ex. 9. After Kevelighan failed to pay, ASC's foreclosure counsel, Orlans Associates, P.C., sent a letter to her indicating that ASC was accelerating the loan and foreclosure proceedings would soon begin. See Am. Compl. Ex. 10. Kevelighan, acting through her counsel, disputed the default and threatened litigation.
Trott & Trott, P.C. ("Trott") replaced Orlans Associates, P.C. as foreclosure counsel. On April 21, 2009, Trott sent Kevelighan a letter indicating that ASC had requested it to commence foreclosure proceedings. See Am. Compl. Ex. 12. Kevelighan responded through counsel on April 24, 2009, requesting, inter alia, a "reinstatement quote." On May 8, 2009, Trott sent a reinstatement quote to Kevelighan, providing that she couldreinstate her loan by tendering payment of $65,953.10, of which $1,373.00 was recoverable legal fees. See Am. Compl. Ex. 15.
On February 5, 2003, Tracey and Kevin Kevelighan obtained a loan from The Prime Financial Group, Inc., secured by a mortgage on a home located at 32001 Staman Court, in Farmington Hills, Michigan. Am. Compl. Ex. 21. The Kevelighans allege that Fannie Mae held this loan and Wells Fargo serviced it. Am. Compl. ¶ 112. The Kevelighans did not pay the property taxes assessed for July and December 2007. Id. at ¶ 123. Wells Fargo later paid these taxes and established an escrow account to collect the advance. Id. at ¶ 151. In a letter dated November 10, 2008, Trott notified the Kevelighans that Wells Fargo had asked Trott to begin foreclosure proceedings. See Am. Compl. Ex. 41. The foreclosure sale was adjourned several times and eventually held on June 16, 2009. Am. Compl. ¶ 204.
On December 27, 2004, Jamie Lynn Compton and Jamie Leigh Compton obtained a loan of $230,500 from First Horizon. The loan was secured by a mortgage on a home located at 4622 Deerhaven Park Drive, in Lowell, Michigan. See Am. Compl. Ex. 46. The Comptons allege that BNY Mellon held this loan and First Horizon Home Loan Corporation ("First Horizon") serviced it. Am. Compl. ¶ 208.
The Comptons did not pay the property taxes assessed for December 2006 and July 2007. Am. Compl. ¶¶ 219-20. First Horizon paid these taxes on September 13, 2007 and notified the Comptons that it would establish an escrow account to collect the advance.This raised the expected monthly payment on the loan. For the next few months, the Comptons tendered only the original payment amount, which First Horizon rejected. Id. at ¶¶ 232-33. On January 30, 2008, First Horizon sent the Comptons a letter indicating that the loan was in default, and requested payment of $2,451.18 by February 29, 2008. First Horizon notified the Comptons on May 13, 2008 that the account had been referred to counsel to institute foreclosure proceedings. See Am. Compl. Ex. 50.
On May 14, 2008, Trott notified the Comptons that their loan had been accelerated and that they could request a reinstatement quote. See Am. Compl. 1 51. The Comptons have not alleged that they requested such a quote, and they admit that they did not pay any attorney's fees in connection with the loan. Jamie Leigh Compton Dep. Oct. 27, 2010 71:16-17. On July 3, 2008, First Horizon purchased the Deerhaven Park property at a sheriff's sale.
On January 3, 2007, Jamie Lynn Compton and Jamie Leigh Compton obtained a loan of $204,800 from HSBC Mortgage Corporation ("HSBC"). The loan was secured by a mortgage on property located at 900 Beech Street, in Lowell, Michigan. See Defs.' Br. Supp. Mot. Ex. 43. The Comptons allege that Fannie Mae held this loan. Am. Compl. ¶¶ 246-47.
The Comptons fell behind on the loan payments, and in a letter dated May 28, 2008, Trott notified them that HSBC had referred the account to Trott to begin foreclosure proceedings. Defs.' Br. Supp. Mot. Ex. 44. The Federal Home Loan Mortgage Corporation eventually purchased the property at a sheriff's sale in July 2008.
Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The central inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it 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, 2512 (1986). After adequate time for discovery and upon motion, Rule 56 mandates summary judgment against a party who fails to establish the existence of an element essential to that party's case and on which that party bears the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). The movant has an initial burden of showing "the absence of a genuine issue of material fact." Id. at 323, 106 S. Ct. at 2553.
Once the movant meets this burden, the non-movant must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986). To demonstrate a genuine issue, the non-movant must present sufficient evidence upon which a jury could reasonably find for the non-movant; a "scintilla of evidence" is insufficient. Liberty Lobby, 477 U.S. at 252, 106 S. Ct. at 2512. The court must accept as true the non-movant's evidence and draw "all justifiable inferences" in the non-movant's favor. Id. at 255, 106 S. Ct. at 2513. The inquiry is whether the evidence presented is such that a jury applying the relevant evidentiary standard could "reasonably find for either the plaintiff or the defendant." Id., 106 S. Ct. at 2514.
Plaintiffs claim that the Mortgagee Defendants required immediate repayment of tax advances and collected excessive attorney's fees, in violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. The Mortgagee Defendants argue that they must be granted summary judgment on these claims, because: (1) the FDCPA does not govern their alleged conduct; (2) the communications regarding attorney's fees did not...
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