L.V. Crawford v. Crawford Home Loans, Inc.
| Decision Date | 31 August 2011 |
| Docket Number | Case No. 3:09CV295-PPS-CAN,Case No. 3:09CV247-PPS-CAN |
| Parties | L.V. CRAWFORD and YVETTE CRAWFORD , Plaintiffs, v. COUNTRYWIDE HOME LOANS, INC., LAPORTE COUNTY BOARD OF COMMISSIONERS, LAPORTE COUNTY SHERIFF MICHAEL F. MOLLENHAUER, GARY DILK, and JOHN DOE, Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
This opinion and order were originally issued on August 16, 2010, granting summary judgment to defendant Countrywide Home Loans and against plaintiffs Yvette and L.V. Crawford. By its July 21, 2011 opinion, the Seventh Circuit Court of Appeals affirmed this court's judgments in all respects, but vacated my order and remanded with instructions to enter a "new order specifying which aspects of the Crawfords' complaint were dismissed on jurisdictional grounds and remanding those aspects to the state court from which the case was removed." [DE 110-1, p.1]. Following this direction, I here re-issue the vacated August 16 opinion in an amended form1 so that it remands the two claims over which there is no subject matter jurisdiction. In all other respects, the opinion and order are unchanged.
Like a lot of people these days, L.V. and Yvette Crawford, husband and wife, had difficulty paying their mortgage. Sadly, they were eventually evicted from their home in La Porte, Indiana in May 2009, following foreclosure proceedings in state court. Taking the offensive, the Crawfords came to federal court and filed what can only be described as a scattershot complaint, alleging nearly every claim under the sun. Their second amended complaint [DE 50] sets forth an astounding twenty-two separate claims for relief relating to the foreclosure and eviction.2 The claims against all defendants other than mortgage lender Countrywide Home Loans, Inc. were dismissed by my order of February 12, 1010 [DE 67].3Countrywide now seeks summary judgment. The Crawfords oppose the summary judgment motion, and have filed their own motions asking me to take judicial notice of certain matters and to strike one paragraph of an affidavit relied upon by Countrywide. Before getting into the straightforward facts of this case, I need to discuss the summary judgment standards more than I might otherwise because they bear greatly on the ultimate disposition of this case.
Legal Standards
Summary judgment is appropriate when the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986.) A genuine issue of material fact exists when "the evidence issuch that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986.) "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. To determine whether a genuine issue of material fact exists, the court must review the record, construing all facts in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003).
A party opposing a summary judgment motion "may not rely merely on allegations or denials in its own pleadings" but rather must introduce affidavits or other evidence to "set forth specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e). In other words, it's put up or shut time. Eberts v. Goderstad, 569 F.3d 757, 767 (7th Cir. 2009).
As the party seeking summary judgment, Countrywide is required to (and has) filed its "Statement of Material Facts Not in Dispute,"supported by appropriate citations to discovery responses, depositions, affidavits, and other admissible evidence, as to which Countrywide contends there is no genuine issue. [DE 73, pp.11-14]. The local rules of this court further require that a party opposing summary judgment prepare and file "a 'Statement of Genuine Issues' setting forth, with appropriate citations to discovery responses, affidavits, depositions, or other admissible evidence, all material facts as to which it is contended there exists a genuine issue necessary to be litigated." N.D.Ind. L.R. 56.1(a). Pursuant to Local Rule 56.1(b), the consequences of failing to demonstrate the existence of genuine fact disputes in this manner are significant:
the court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are controverted in the "Statement of Genuine Issues"filed in opposition to the motion, as supported by the depositions, discovery responses, affidavits and other admissible evidence on file.
The Crawfords' opposition here contains two enumerated paragraphs labeled as their "Statement of Genuine Issues." [DE 83, p.1]. Rather than the factual recitations contemplated by the Local Rule or any direct response to Countrywide's asserted facts, these two paragraphs express legal conclusions: the Crawfords were "enticed into a mortgage loan agreement...which was predatory, unconscionable, and unfair" (¶1), and Countrywide has "been identified as a predatory lender by a series of cases brought by state Attorneys General" and "its actions have been shown to be discriminatory toward African Americans" (¶2). These assertions are not factual, they not supported by evidence, and they are not shown to be material. A fact is "material" only if it might change the outcome of a claim under the applicable law, and "[f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Because Countrywide has done what the applicable rules require of it in support of its motion for summary judgment, and because the Crawfords have failed successfully to demonstrate the existence of genuine disputes of the facts specifically stated and supported by Countrywide, I must assume that Countrywide's facts "are admitted to exist without controversy." N.D.Ind. L.R. 56.1(b). Those facts are as follows.
Relevant Facts
Doing business as "America's Wholesale Lender," Countrywide originated a mortgage loan to the Crawfords on or about November 5, 2001 for a property located in La Porte, Indiana. Shortly thereafter, Countrywide sold the loan to Fannie Mae but Countrywide remained the servicer on the loan. After the Crawfords defaulted on their mortgage payments, Countrywidefiled a foreclosure action in the LaPorte Circuit Court, on March 30, 2006. The Crawfords, represented by attorney Gary Dilk, filed an answer to the foreclosure complaint on June 5, 2006. Countrywide filed a motion for summary judgment in the foreclosure proceeding on June 21, 2006, and the motion was granted on August 4, 2006. On that same date, Countrywide assigned its rights and interest in the judgment to Fannie Mae as the owner of the loan.
On September 26, 2006, after Countrywide had filed its praecipe for sheriff's sale of the property, the order of sale was issued to the sheriff. A sheriff's sale was conducted on December 13, 2006, and afterward a sheriff's deed to the property in favor of Fannie Mae was recorded on January 8, 2007. On August 2, 2007, almost nine months after the sheriff's sale, the Crawfords filed in the foreclosure proceeding a Verified Motion for Relief from Judgment. That motion was briefed by the parties, and a hearing held on January 10, 2008. The LaPorte Circuit Court denied the Crawfords' Motion for Relief from Judgment on June 6, 2008. On June 25, 2008, Fannie Mae, through counsel for Countrywide as servicer of the loan, filed its Motion for Writ of Assistance with the LaPorte Circuit Court, seeking to enforce the judgment and sheriff's deed against the Crawfords, who at that time remained in possession of the property. The LaPorte Circuit Court granted the Motion for Writ of Assistance and issued a writ of eviction on June 25, 2008. A week later, the Crawfords filed a notice of appeal as to the denial of their Verified Motion for Relief from Judgment.
On or about October 1, 2008, the Crawfords also filed a Motion to Stay Enforcement of the Judgment. Countrywide objected to the stay, and in the alternative asked the LaPorte Circuit Court to set an appeal bond as security for any stay granted. On October 27, 2008, the LaPorte Circuit Court issued its ruling which held in abeyance the Motion to Stay Enforcement of theJudgment, subject to the Crawfords' monthly payment of $1,200.00 to the Clerk of Court to be held in an escrow account pending the Crawfords' appeal. The order expressly provided that in the event the Crawfords failed to make payment when due, their Motion to Stay Enforcement would be deemed denied and Countrywide could proceed to enforce the Writ of Assistance previously issued by the court.
On November 14, 2008, Countrywide filed a Notice of Default of Order to Stay Enforcement of Judgment, advising the LaPorte Circuit Court that the Crawfords had only deposited $500.00 with the Clerk (not the $1,200.00 required by October 31, 2008), and that based on the court's previous order deeming the motion to stay denied in such an event, Countrywide intended to proceed to enforce the Writ of Assistance.
The affidavit of Melissa Viveros, filed in support of Countrywide's motion for summary judgment, attests that she was charged with responsibility and authority for servicing the Crawfords' loan and has personal knowledge of the facts and events involved in the case. Ms. Viveros further attests that at no time has the Crawfords' race or disabled status factored, in whole or in part, into Countrywide's actions against the Crawfords [DE 72-2, ¶13], and that all of Countrywide's actions against the Crawfords were taken because of the Crawfords' default on the mortgage and...
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