Lage v. Ocwen Loan Servicing LLC

• Citation: 145 F.Supp.3d 1172
• Decision Date: 18 November 2015
• Docket Number: Case No. 14-cv-81522-BLOOM/VALLE
• Parties: John Lage and Maria Mantilla, Plaintiffs, v. Ocwen Loan Servicing LLC, Defendant.
• Court: U.S. District Court — Southern District of Florida

145 F.Supp.3d 1172

John Lage and Maria Mantilla, Plaintiffs,

v.Ocwen Loan Servicing LLC, Defendant.

Case No. 14-cv-81522-BLOOM/VALLE

United States District Court, S.D. Florida.

Signed November 18, 2015

Filed November 19, 2015

Jessica Lynn Kerr, Jessica L. Kerr, P.A., Fort Lauderdale, FL, Ashley Renee Eagle, Christina Nicole Zanakos, The Law Offices of Jeffrey N. Golant, P.A., Jeffrey N. Golant, Coral Springs, FL, for Plaintiffs.

Steven G. Hall, Baker, Donelson, Bearman, Cadwell & Berkowitz, PC, Atlanta, GA, Eve Alexis Cann, Baker Donelson, Fort Lauderdale, FL, for Defendant.

OMNIBUS ORDER DENYING PLAINTIFFS' MOTION TO STRIKE AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

BETH BLOOM, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Defendant Ocwen Loan Servicing, LLC's Motion for Summary Judgment, ECF No. [50] (the “Motion”) and Plaintiffs, John Lage and Maria Mantilla's Motion to Strike Defendant's Affidavit, ECF No. [59] (the “Motion to Strike”) (collectively, the “Motions”). Having reviewed the Motions, all supporting and opposing filings, the record in this case, and with the benefit of oral argument on November 10, 2015, the Court is now fully advised. For the reasons that follow, Defendant Ocwen Loan Servicing, LLC's Motion is GRANTED.

I. BACKGROUND AND RELEVANT FACTS

This action arises from Defendant Ocwen Loan Servicing, LLC's purported violations of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. (“RESPA”) and its implementing regulations, 12 C.F.R. part 1024 (“Regulation X” or “Regulation”). See generally Complaint, ECF No. [1] (“Compl.”). In short, Plaintiffs, John Lage (“Lage”) and Maria Mantilla (“Mantilla”) (collectively, “Plaintiffs”), assert that Defendant Ocwen Loan Servicing, LLC (hereinafter, “Ocwen”) neglected Plaintiffs' loss mitigation application and otherwise failed to abide by the loss mitigation and notice of error procedures established by RESPA and Regulation X. See id. at ¶¶ 16-27. In addition, Plaintiffs assert a claim for common-law negligence stemming from the aforementioned statutory violations. Id. at ¶¶ 28-34.

Before addressing the facts of this case, the Court is compelled to comment on the manner in which the record has been presented. A summary judgment movant's initial burden consists of a “responsibility [to] inform [ ] the... court of the basis for its motion and [to] identify[ ] those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). While the record is voluminous, certain exhibits contain reduced, illegible documents. See, e.g. Exhibit F, ECF No. [49-6], Exhibit G, ECF No. [49-7] at 6-18. More troubling, however, is the parties' casual citation to sizable exhibits without reference to particular pages or documents contained therein. See, e.g., Motion at 10 (citing to “generally Exhibits G, H, and I,” which, collectively, contain over 400 pages); Plaintiffs' Statement of Facts, ECF No. [49] at ¶ 8 (containing general references to various exhibits); Plaintiffs' Response, ECF No [54] at 9-11 (referencing hundreds of pages of deposition testimony without providing a pincite). “Judges are not like pigs, hunting for truffles buried in briefs.” See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) (Posner, J.). “Likewise, district court judges are not required to ferret out delectable facts buried in a massive record.” Chavez v. Sec'y Florida Dep't of Corr., 647 F.3d 1057, 1061 (11th Cir.2011). Nevertheless, after thorough review, the Court has discerned the following facts.

On July 11, 2006, Plaintiffs obtained a loan with a principal balance of $786,700.00 from Greenpoint Mortgage Funding, Inc., secured by a mortgage on their property in Boynton Beach, Florida. See Ocwen's Statement of Material Facts, ECF No. [49] (hereinafter, “Ocwen SOF”) at ¶ 1; Plaintiffs' Response Statement of Facts, ECF No. [53] (hereinafter, “Pls. SOF”) at ¶ 1. Three years later, Plaintiffs fell behind on their loan payments, and on October 23, 2009, a complaint to foreclose the mortgage was filed. Ocwen SOF at ¶ 2; Pls. SOF at ¶ 2. In February 2013, Ocwen became the servicer of the loan. Ocwen SOF at ¶ 4; Pls. SOF at ¶ 4. On October 1, 2013, a final judgment of foreclosure was entered against Plaintiffs and a foreclosure sale was set for January 29, 2014. Ocwen SOF at ¶ 6; Pls. SOF at ¶ 6.

Three weeks before the scheduled foreclosure sale, on January 8, 2014, Plaintiffs faxed a loss mitigation application to Ocwen. See Ocwen SOF at ¶ 7; Pls. SOF at ¶ 7; Exhibit “F” to Ocwen SOF, ECF No. [49-6] (“Exhibit F”) at 1 (containing facsimile transmittal sheet bearing January 8, 2014 date and stating that “a complete loan modification package” was enclosed). In a letter dated January 9, 2014, Ocwen acknowledged receipt of the application and informed Plaintiffs that they would be notified if additional documents were required. See Exhibit “G” to Ocwen SOF, ECF No. [49-7] (hereinafter, “Exhibit G”) at 1-2. On January 10, 2014, Plaintiffs were advised that additional paystubs were required. See Ocwen SOF at ¶ 8. The same day, Mantilla forwarded Ocwen a copy of various paystubs. Exhibit G at 3-18.¹ Ocwen believed Mantilla's submission to be inadequate as they were missing certain pay periods, a year-to-date gross pay. See id. at 19. When Mantilla allegedly failed to provide such information, Plaintiffs' HAMP loan application was denied. See id. (stating that the Plaintiffs would not receive a HAMP loan modification because Ocwen “previously requested additional information from [Plaintiffs] which has not been received; therefore, [Ocwen] [was] unable to continue [its] review for workout solutions”). Nevertheless, Ocwen continued to work with Plaintiffs regarding the possibility of a loan modification. See generally Exhibit “H” to Ocwen SOF, ECF No. [49-8] (hereinafter, “Ocwen Activity Logs” or “Activity Logs”) at 77-111 (indicating ongoing communications with Plaintiffs). On January 24, 2014, the parties attended mediation where Plaintiffs agreed to provide the requested paystubs and additional employment information and documentation. Ocwen SOF at ¶ 9; Pls. SOF at ¶ 9. On January 28, 2014, the January 29, 2014 foreclosure sale was rescheduled to March 14, 2014, seemingly so Plaintiffs could avail themselves of the loss mitigation procedures available under Regulation X. See State Court Docket, ECF No. [49-2] at 18; Ocwen SOF at ¶ 10; Pls. SOF at ¶ 10; Ocwen Activity Logs at 83.²

Ocwen repeatedly informed Plaintiffs that the application was incomplete, sending additional requests for information and documentation on January 31, 2014 and February 13, 2014. See Exhibit G at 23, 26. The January 31, 2014 letter once again requested that Plaintiffs provide “[c]opies of the 2 most recent pay stubs for [Mantilla].” Id. at 23 (the “January 31st Letter”). Pursuant to 12 C.F.R. § 1024.41(b)(2)(i) and (ii),³ the January 31st Letter advised Plaintiffs that the required documentation should be submitted on or before March 4, 2014, a mere ten (10) days before the scheduled foreclosure sale. Id. Then, on February 13, 2014, Ocwen again informed Plaintiffs that the application remained incomplete and requested more substantial documentation, namely: (1) a hardship affidavit; (2) a signed 4506-T form for each borrower; (3) the two most recent paystubs with year-to-date income for each borrower; (4) a completed Dodd-Frank Certification; and (5) a signed HAMP Financial form. Id. at 26. Yet again, on February 28, 2014, Ocwen informed Plaintiffs that their application was incomplete. See id. at 109 (the “February 28th Letter”). However, rather than identify the supplemental information required, the February 28th Letter merely directed Plaintiffs to call Ocwen's Customer Care Center and noted that this unidentified documentation must be submitted by May 12, 2014, nearly a month after the home was scheduled to be sold. Id. at 109–10.

Throughout this time, Plaintiffs repeatedly communicated with Ocwen's representative regarding the status of their application. See Ocwen's Requests for Admission and Plaintiffs' Response, ECF No. [49-13] at ¶¶ 11, 23. For instance, Ocwen received several communications from Plaintiffs on or about February 25 or 26, 2014, where Plaintiffs provided additional employment and pay records. See Exhibit G at 82-108.

On March 3, 4, and 6, 2014, Ocwen received what appears to be the requested documentation. See id. at 112–28. Thus, according to Ocwen, Plaintiffs application became complete on or about March 7, 2014. Indeed, on March 7, 2014, Plaintiffs received a letter from Ocwen informing them that their application was deemed complete. See Ocwen's Requests for Admission and Plaintiffs' Response, ECF No. [49-13] at ¶ 14; see also Exhibit G at 131. Two days later, on March 9, 2015, Ocwen expressly denied Plaintiffs' request for a loan modification because, “[a]s of the date of th[e] letter, [the Plaintiffs'] loan ha[d] a confirmed sale date within 7 days.” Exhibit G at 133. Although the Plaintiffs sought to cancel the foreclosure sale on March 13, 2014, the request was denied and the foreclosure sale occurred as planned. See Ocwen SOF at ¶ 15; Pls. SOF at ¶ 15.

On September 4, 2014, while Plaintiffs continued to occupy the home, Plaintiffs sent Ocwen a “Qualified Written Request/Notice of Error,” asserting that Ocwen failed to comply with Regulation X, 12 C.F.R. § 1024.41, “and specifically invoking the error resolution procedures established by RESPA and Regulation X.” Compl. at ¶ 13; see also Qualified Written Request/Notice of Error, ECF No. [1-1] (hereinafter, “Plaintiffs' NOE” or “NOE”). Plaintiffs' NOE claimed that Ocwen shirked its...