Means v. Ameriquest Mortg. Co.

• Decision Date: 09 October 2012
• Docket Number: CAUSE NO.: 2:06-CV-409-TLS
• Parties: RODNEY S. MEANS, Plaintiff, v. AMERIQUEST MORTGAGE COMPANY, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

RODNEY S. MEANS, Plaintiff,

v.AMERIQUEST MORTGAGE COMPANY, et al., Defendants.

CAUSE NO.: 2:06-CV-409-TLS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA

October 9, 2012

OPINION AND ORDER

This matter is before the Court on a Motion for Summary Judgment [ECF No. 155] filed by Defendant Deutsche Bank National Trust Company, and a Motion for Summary Judgment [ECF No. 158] filed by Defendant Ameriquest Mortgage Company. For the reasons discussed below, the Court will grant both Motions for Summary Judgment.

PROCEDURAL BACKGROUND

The Court previously outlined the history of this case in its November 24, 2009, Opinion and Order [ECF No. 112]. The Court will here summarize and supplement that procedural history.

The Plaintiff instituted this lawsuit on November 7, 2006, in the Lake Circuit Court, Lake County, Indiana. In his Complaint and Demand for Jury Trial [ECF No. 1], the Plaintiff, Rodney S. Means, alleged that Defendants Ameriquest Mortgage Company and Mortgage Information Services, Inc., violated the federal Truth in Lending Act ("TILA" or "the Act"), 15 U.S.C. §§ 1601 et seq., Indiana's UCC disclosure law, I.C. §§ 24-4.5-3-301 et seq., and Indiana's civil deception and civil mischief statutes, I.C. §§ 34-24-3-1, 35-43-1-2, 35-43-5-3, and were liable under theories of misrepresentation and breach of contract/promissory estoppel. On December 8, 2006,Defendant Ameriquest Mortgage Company removed the case to this Court. (Notice of Removal, ECF No. 2.)

In 2008, the Court granted the Plaintiff's requests to file both a First and a Second Amended Complaint [ECF Nos. 40 & 59]. The following parties were then added as Defendants: Deutsche Bank National Trust Company as Trustee for Asset-Backed Pass-Through Certificates, Series 2006-R-1; Ameriquest Capital Corporation; ACC Capital Holdings Corporation; and Ameriquest Mortgage Securities, Inc.

On October 27, 2008, the Plaintiff filed a Chapter 7 Voluntary Petition in the bankruptcy court, which automatically stayed all pending court proceedings including this litigation. (Notice of Bankruptcy, ECF No. 87.) On April 20, 2009, the bankruptcy court issued an order discharging the Plaintiff's debt in bankruptcy.

In 2009, after the bankruptcy discharge, the Plaintiff filed a series of motions requesting that the Court restore the case to its trial docket. On November 24, 2009, the Court entered an Opinion and Order denying the Plaintiff's request, which the Court construed as a motion to withdraw the reference from the bankruptcy court. (Op. & Order, ECF No. 112.) However, after the bankruptcy court declined to exercise jurisdiction on August 4, 2010 [ECF No. 113], the Court granted the Plaintiff's renewed motion to restore the case to the trial docket in a telephonic status conference held on December 14, 2010. On March 17, 2011, the Court entered an Opinion and Order [ECF No. 123] granting the Plaintiff leave to file a Third Amended Complaint [ECF No. 124] which no longer listed the following defendants: Defendant Mortgage Information Services, Defendant ACC Capital Holdings, and Defendant Ameriquest Capital Corporation. On May 5, 2011, the Court granted the Plaintiff leave to file a Fourth Amended Complaint [ECF No. 132] which clarified that the bankruptcy trustee was no longer a plaintiff in this matter. At atelephonic conference held on June 27, 2012, the Court granted the Plaintiff's motion to dismiss Defendant American Home Mortgage Servicing. The only Defendants remaining in this matter as of June 27, 2012, are Ameriquest Mortgage Company and Deutsche Bank National Trust Company.

Defendant Deutsche Bank filed its Motion for Summary Judgment [ECF No. 155] on January 23, 2012, along with a Memorandum in Support [ECF No. 156], a Statement of Material Facts [ECF No. 157], and an Amended Statement of Material Facts [ECF No. 168-10] filed when the Court granted the Agreed Motion to File Amended Local Rule 56-1 Statements [ECF No. 168]. The Plaintiff filed a Response [ECF No. 169] to Defendant Deutsche Bank's Motion on February 21, and Defendant Deutsche Bank filed a Reply [ECF No. 175] on March 8. Additionally, Defendant Ameriquest Mortgage Company (AMC) filed its Motion for Summary Judgment [ECF No. 158] on January 24, 2012, along with a Memorandum in Support [ECF No. 159], a Statement of Material Facts [ECF No. 160], and an Amended Statement of Material Facts [ECF No. 168-1] filed when the Court granted the Agreed Motion to File Amended Local Rule 56-1 Statements [ECF No. 168]. The Plaintiff filed a Response [ECF No. 172] to Defendant AMC's Motion on February 23, and Defendant AMC filed a Reply [ECF No. 174] on March 8. Finally, the Court entered an Order on June 28, 2012, granting the Plaintiff's Motion to File Sur-Reply [ECF No. 178]. The Plaintiff filed a Sur-Reply [ECF No. 191] to Defendant AMC's Motion for Summary Judgment on July 17, and Defendant AMC filed a Sur-Sur-Reply [ECF No. 192] on July 30, 2012. The Motions for Summary Judgment are fully briefed and ready for ruling. Furthermore, they are the only pending motions remaining in this matter.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if the facts supported by materials in the record show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56. The motion should be granted so long as no rational fact finder could return a verdict in favor of the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249-50; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also N.D. Ind. L.R. 56-1(a) (stating that the movant must provide a "Statement of Material Facts" that identifies the facts that the moving party contends are not genuinely disputed). In response, the nonmoving party cannot rest on bare pleadings alone but must use the evidentiary tools listed in Rule 56 to designate specific material facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000); N.D. Ind. L.R. 56-1(b) (directing that a response in opposition to a motion for summary judgment must include "a section labeled 'Statement of Genuine Disputes' that identifies the material facts that the party contends are genuinely disputed so as to make a trial necessary"). According to Federal Rule of Civil Procedure 56:

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, the court must construe all facts in a light most favorable to the nonmoving party, view all reasonable inferences in that party's favor, see Bellaver v. Quanex Corp., 200 F.3d 485, 491-92 (7th Cir. 2000), and avoid "the temptation to decide which party's version of the facts is more likely true," Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (noting the often stated proposition that "summary judgment cannot be used to resolve swearing contests between litigants"). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-99. "Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute." Harney v. Speedway Super America, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008).

Summary judgment is the "put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (quotation marks omitted).

THE TRUTH IN LENDING ACT

The Truth in Lending Act ("TILA" or "the Act"), 15 U.S.C. §§ 1601 et seq., was enacted in 1968 "to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit cardpractices." 15 U.S.C. § 1601(a). Congress delegated authority for the implementation of the Act to the Federal Reserve Board, although the 2010 Amendments to the Act gave that authority to the Bureau of Consumer Financial Protection, see id. § 1604, and the comprehensive set of rules for regulating truth in lending is contained in what is known as Regulation Z. "[D]eference is especially appropriate in the process of interpreting the Truth in Lending Act and Regulation Z. Unless demonstrably irrational, Federal Reserve Board staff opinions construing the Act or Regulation should be dispositive." Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565 (1980).

The Act requires that for "each consumer credit transaction other than under an open end credit plan," a creditor must disclose, inter alia, the following: (1) the identity of the creditor required to make disclosure; (2) the "amount financed," using that term (this is the amount of credit of which the consumer has actual use); (3) a statement of the consumer's right to obtain a written...