Martinez v. Weyerhaeuser Mortg. Co.

• Decision Date: 30 August 1996
• Docket Number: No. 94-1610-CIV.,94-1610-CIV.
• Citation: 959 F.Supp. 1511
• Court: U.S. District Court — Southern District of Florida
• Parties: Leslie MARTINEZ and Sherry Lynn Ulsh, on behalf of themselves and all others similarly situated, Plaintiffs, v. WEYERHAEUSER MORTGAGE COMPANY, Defendant.

959 F.Supp. 1511

Leslie MARTINEZ and Sherry Lynn Ulsh, on behalf of themselves and all others similarly situated, Plaintiffs, v. WEYERHAEUSER MORTGAGE COMPANY, Defendant.

No. 94-1610-CIV.

United States District Court, S.D. Florida.

August 30, 1996.

COPYRIGHT MATERIAL OMITTED

Daniel A. Edelman, Cathleen M. Combs, O. Randolph Bragg, Edelman & Combs, Chicago, IL, Charles McLeon Baird, Atlanta, GA, for plaintiffs.

Alan Jay Kluger, Andrew Paul Gold, Kluger, Peretz, Kaplan & Berlin, Miami, FL, David B. Kaplin, Brownstein & Zeidman, David J. Butler, Tacie H. Yoon, Elaine A. Panagakos, Swidler & Berlin, Washington, DC, for defendant.

ORDER GRANTING, IN PART, AND DENYING, IN PART, DEFENDANT'S MOTION TO DISMISS AND FOR PARTIAL SUMMARY JUDGMENT

RYSKAMP, District Judge.

THIS CAUSE came before the Court upon Defendant Weyerhaeuser Mortgage Company's Motion to Dismiss and For Partial Summary Judgment [DE 116-1, 116-2], dated October 20, 1995. In connection with the affidavits filed in support of and in opposition to that motion, Defendant Weyerhaeuser Mortgage Company filed a Motion to Strike the Affidavit of Edward C. Lawrence [DE 149], dated March 1, 1996 and Plaintiffs filed a Motion to Strike the Second Affidavit of Tina Fitch and motion to Grant them Leave to Respond to New Arguments in Weyerhaeuser's Reply [DE 153-1, 153-2]. These motions have been fully briefed and are ripe for adjudication.

I. BACKGROUND

Plaintiff Leslie Martinez commenced this class action on August 4, 1994 against Defendant Weyerhaeuser Mortgage Company ("Weyerhaeuser") for alleged violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq. ("TILA"). On September 13, 1995 Plaintiff filed an Amended Complaint—Class Action joining Sherry Lynn Ulsh as an additional representative Plaintiff. Ulsh joined in Martinez' TILA claims and also maintains that Weyerhaeuser violated the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. ("RESPA").

The allegations contained in the Amended Complaint arise out of separate credit transactions between Plaintiffs and Defendant Weyerhaeuser and the manner in which certain fees were disclosed in their credit documents as well as whether or not those fees were paid for services actually performed. On May 11, 1994 Plaintiff Martinez entered into a mortgage loan transaction with Weyerhaeuser to purchase a home. Likewise, on September 14, 1994 Plaintiff Ulsh entered into a mortgage loan transaction with Weyerhaeuser to purchase a home. Both mortgages were originated by Unlimited Mortgage Services ("Unlimited"), a mortgage broker, which offered them to Weyerhaeuser's Boca Raton, Florida office for underwriting and funding. (Fitch Aff., ¶ 2.) In connection with these transactions, Martinez and Ulsh both received Truth in Lending disclosure statements, an Itemization of Amount Financed, and HUD-1 Settlement Statements from Weyerhaeuser either at or before the closing of the loan.

In Counts I and II of the Amended Complaint, Martinez and Ulsh allege that Weyerhaeuser violated TILA and committed unfair and deceptive trade practices by excluding certain fees from the finance charge that were instead disclosed under the amount financed in their TILA disclosure documents. As a result of these practices, Plaintiffs claim in Count III that Weyerhaeuser was unjustly enriched. Plaintiff Ulsh additionally alleges in Count IV that Weyerhaeuser violated RESPA by making prohibited payments to her mortgage broker, Unlimited.

Weyerhaeuser has moved the Court to dismiss the Amended Complaint, in part, and to grant partial summary judgment in Weyerhaeuser's favor.

II. STANDARD OF REVIEW

Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a complaint need only be "a short and plain statement of the claim," and as long as the pleadings "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests," notice pleading has been satisfied. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). A motion to dismiss should not be granted unless the plaintiff can prove no set of facts in support of its claim entitling it to relief. Id. at 45-46, 78 S.Ct. at 101-02. When considering a motion to dismiss, the Court must accept all the plaintiff's allegations as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

The legal standard when considering a motion for summary judgment differs substantially from that of a motion to dismiss. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed. R.Civ.P. 56(c). The moving party bears the initial burden of showing, by reference to materials on record, that there are no genuine issues of material fact to be decided at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir.1991). A moving party may discharge this burden by exposing an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. at 2553-54.

If a moving party satisfies this burden, the nonmoving party must then "go beyond the pleadings," and by its own affidavits, or by "depositions, answers to interrogatories, and admissions on file," establish that a genuine issue of fact remains for trial. Id. at 324, 106 S.Ct. at 2553. A "genuine" dispute as to a material fact exists if 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, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

III. DISCUSSION

As a preliminary matter, the parties have filed motions to strike the affidavits of Edward C. Lawrence and the Second Affidavit of Tina Fitch. Because these affidavits concern the Motion to Dismiss and Summary Judgment before the Court, the motions to strike must be resolved before reaching the merits.

A. Motions To Strike.

The Federal Rules of Civil Procedure require that affidavits supporting or opposing a motion for summary judgment be made: (1) on personal knowledge of the affiant, (2) setting forth facts as would be admissible in evidence, and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit. Fed.R.Civ.P., 56(e). In interpreting this rule, the Court agrees that although "naked opinions" are admissible from experts under the Federal Rules of Evidence, "[a]dmissibility does not imply utility." Mid-State Fertilizer Co. v. Exchange Nat. Bank of Chicago, 877 F.2d 1333, 1339 (7th Cir.1989). To usefully support a motion for summary judgment, an affidavit must "`set forth facts' and by implication in the case of experts (who are not `fact witnesses') a process of reasoning beginning from a firm foundation." Id. (citing, American Key Corp. v. Cole Nat. Corp., 762 F.2d 1569, 1579-80 (11th Cir.1985)). "An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process." Mid-State, 877 F.2d at 1339.

Applying these principles and reviewing the parties' briefs, the Court finds that portions of Edward C. Lawrence's affidavit violate Rule 56(e). Specifically the following is hereby stricken from Mr. Lawrence's affidavit: (1) the conclusion in paragraph three that Unlimited and Weyerhaeuser "charged unreasonable and excessive fees in the Ulsh transaction"; (2) the conclusion in paragraph 4 that Unlimited and Weyerhaeuser "jointly deceived Ms. Ulsh by disguising the size and nature of the settlement charges to make them appear reasonable and normal within the mortgage banking industry"; (3) and the assertion in paragraph 5 that "Unlimited did not disclose to Ms. Ulsh that she was paying an above market interest rate or explain other pricing and closing cost options." The Court finds that Mr. Lawrence failed to support these allegations with the proper foundation and will therefore not consider those assertions in adjudicating the motion for Partial Summary Judgment.

Next, addressing Plaintiffs' Motion to Strike the Second Affidavit of Tina Fitch, the Court again finds cause to strike. On December 15, 1995, Weyerhaeuser filed the affidavit of Tina Fitch, the branch manager of the Boca Raton, Florida office, in support of its Motion to Dismiss and for Summary Judgment. After Plaintiffs responded in opposition, Weyerhaeuser then attached the Second Affidavit of Tina Fitch to its reply brief filed February 29, 1996. Plaintiffs assert that the reply brief and the second affidavit of Tina Fitch raise arguments not made in either the initial motion or Plaintiffs' response.

Southern District of Florida Local Rule 7.1(C) provides that a reply memorandum "shall be strictly limited to rebuttal of matters raised in the memorandum in opposition without reargument of matters covered in the movant's initial memorandum of law. No further or additional memoranda of law shall be filed without prior leave of Court." Based on the plain language of this rule, the Court finds that the movant may not raise new arguments in a reply brief. Thus, the portions of Tina Fitch's second affidavit and the reply memorandum that raises new arguments, will be stricken. Because these arguments will not be considered, it is not necessary for Plaintiffs to respond in opposition as requested in their March 27, 1996 motion.

B. November 29, 1994 Motion to Dismiss.

On November 29, 1994, before Plaintiff Martinez amended her Complaint to join Sherry Lynn Ulsh as an additional representative Plaintiff, Weyerhaeuser filed a Motion to Dismiss which was fully briefed by both parties. In the Motion to Dismiss and for Partial Summary Judgment before the Court, Weyerhaeuser incorporates that Motion to Dismiss by reference. As Plaintiffs note, however, the claims contained in Counts II and III of the Amended Complaint are much...