Nguyen v. Fed. Home Loan Mortg. Corp.
| Decision Date | 21 November 2019 |
| Docket Number | Case No. 3:16-cv-00316-AC |
| Parties | AMY NGUYEN, Plaintiff, v. FEDERAL HOME LOAN MORTGAGE CORPORATION, also known as Freddie Mac; and NATIONSTAR MORTGAGE LLC, Defendants. |
| Court | U.S. District Court — District of Oregon |
FINDINGS AND RECOMMENDATION
In this action, Plaintiff Amy Nguyen ("Nguyen") contends that Defendants Federal Home Loan Mortgage Corporation ("Freddie Mac"), and Nationstar Mortgage LLC ("Nationstar") (collectively "Defendants") have refused to comply with a 2011 settlement agreement involving the Defendants' servicing of a loan for real property. Nguyen brings several causes of action, including the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 16181s-2(a)(1); the Federal Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692-1692o; the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605; Oregon Unlawful Debt Collection Practices Act ("OUDCPA"), OR. REV. STAT. § 646.641; breach of contract; trespass; and declaratory judgment. Presently before the court are Defendants' Motion for Summary Judgment (ECF No. 65) and Nguyen's Motion for Partial Summary Judgment on liability (ECF No. 70). Defendants seek summary judgment on all of Nguyen's claims; Nguyen seeks summary judgment and declaratory relief on her claims on liability only, with damages to be assessed at trial. For the following reasons, the court recommends that Defendants' motion be granted and that Nguyen's motion be denied.
On July 25, 2006, Nguyen took out a loan from Taylor, Bean & Whitaker Mortgage Corporation to finance the purchase of real property located at 1813 Southwest Willowview Terrace, Aloha, OR 97006 (the "Property"). (Decl. Nationstar & Freddie Mac Supp. Mot. Summ. J. ("Janati Decl.") ¶ 5, ECF No. 66.)1 Nguyen purchased the Property for investment purposes. The loan is evidenced by an adjustable rate promissory note (the "Note") executed by Nguyen. Under the terms of the Note, Nguyen agreed to pay $374,800 plus interest and other charges, in exchange for the loan. (Decl. Fay Janati Supp. Defs.' Mot. Summ. J. ("Second Janati Decl.") Ex. 1, ECF No. 79-1.) Nguyen also agreed to make monthly payments, and that if the full monthly payment was not paid each month, she would be in default. (Second Janati Decl. ¶6, Ex.1 ¶¶ 3&7, ECF No. 79-1.) For the first sixty months, Nguyen's payments were $2,264.42, after which her interest payments would change, and would continue to change each six months under theadjustable rate rider executed in conjunction with the Note and Deed of Trust. (Janati Decl. Ex. 1, ¶3, ECF No. 79-1; Pl.'s Ex. 12, ECF No. 91 at 43.)
The Note was secured by a Deed of Trust, executed by Nguyen on July 26, 2006, and recorded in Washington County, Oregon.2 (Janati Decl. ¶ 6 & Ex. 2 at 3, ECF No. 79-2.) Under the Deed of Trust, Nguyen agreed that the lender could return any payment or partial payment if the amount was insufficient to bring the loan current. (Id.) Nguyen agreed that the Note could be transferred to a new lender. (Id.) Nguyen further agreed that if she failed to cure any default, the lender could take steps to protect the Property, including securing the Property and making repairs. (Id. at ¶ 9).
In August 2009, Saxon Mortgage Services, Inc., ("Saxon") began servicing Nguyen's Loan. (Nationstar Decl. ¶ 7.) Nguyen defaulted on the Loan, and Saxon instituted foreclosure proceedings, with a Trustee's sale set for August 7, 2009. (Decl. James P. Laurik ¶4, Ex. B at 3-4, ECF No. 67.) Nguyen filed suit against Saxon, challenging the foreclosure. See Nguyen v. Saxon Mortgage Servs., Inc., Case No. 3:10-cv-00353-HZ (the "2010 Action"). The Trustee's sale was rescinded on June 8, 2010. (Id. at 20.) Following a settlement conference conducted by U.S. District Judge Michael Simon, the parties reached an agreement to resolve the 2010 Action. (Pl.'s Ex. 1, ECF No. The terms of the agreement were put on the record, and later memorialized in a formal Settlement Agreement signed by Nguyen on September 6, 2011. (Laurik Decl. ¶ 9; Pl.'s Ex. 1, ECF No. 91 at 2.) The Settlement Agreement provided that the reinstatement balance (theamount necessary to bring the Loan current), was $88,128.96. (ECF No. 79-6; ECF No. 91, Ex. 3.) (Pl.'s Mot. Summ. J. at 5; Defs.'s Mot. Summ. J. at 9.) Under the Settlement Agreement, Nguyen agreed to make a lump sum payment of $60,000 to Saxon to be applied to the reinstatement balance. (ECF No. 79-6). Saxon agreed to credit $10,000 toward the reinstatement balance. (ECF No. 79-6.) The Settlement Agreement also provided that the remaining reinstatement balance of $17,128.96 would be distributed over a twelve-month period and added to Nguyen's regular mortgage payments. (ECF No. 79-6.) (Pl.'s Mot. Summ. J. at 5; Defs.' Mot. Summ. J. at 9.) The Settlement Agreement required Saxon to prepare a separate formal repayment plan (the "Repayment Plan"). (ECF No. 79-6) (Nationstar Decl. ¶10, Ex. 6.)
Under the Repayment Plan, the reinstatement balance was identified as $74,759.96, and that Nguyen's $60,000 lump sum payment was due by October 15, 2011. (Pl.'s Ex. 2, ECF No. 2.) According to the Repayment Plan, Nguyen's monthly payments would be $2,206.05 from November 2011 through October 2012. (ECF No. 79-7.) The $2,206.05 represented her regular monthly payment plus the remaining reinstatement balance. (ECF No. 79-7.) In the Repayment Plan, Nguyen also agreed that she is responsible for "any increase in monthly payment amounts which may accrue as the result of changes in interest rate, escrow impound for taxes and insurance," and that such amounts should be added to the payment amounts due under the Repayment Plan. (Pl.'s Ex. 2, ECF No. 91 at 10.) Nguyen signed the Repayment Plan on October 19, 2011. (ECF No. 79-7.) On December 9, 2011, the parties entered a Stipulated Judgment of Dismissal dismissing the 2010 Action. (Laurik Decl. Ex. C.) Nguyen paid the $60,000 payment on October 27, 2011. (Pl.'s Ex. 4, ECF No. 91.) Nguyen made monthly payments of $2,206.05 from November 2011 through April 2012. (Pl.'s Ex. 5, ECF No. 91 at 19.)
On January 19, 2012, Saxon sent Nguyen a letter indicating that the interest rate on her adjustable rate note had increased from 3.125 percent to 3.5 percent, thereby increasing the monthly payment on the Loan from $976.04 to $1,093.17. (Pl.'s Ex. 13, ECF No. 91.) Saxon informed Nguyen that the new interest rate and monthly payment would take effect March 1, 2012.3 (Id.)
On March 27, 2012, Saxon informed Nguyen that Ocwen Loan Servicing LLC ("Ocwen") would begin servicing her loan, effective April 16, 2012. (Janati Decl. ¶ 11, Ex. 8, ECF No. 79-8.) On April 20, 2012, Ocwen sent Nguyen a letter detailing the amount of unpaid principal, interest, late charges, collection costs, escrow advances, and suspense balance, totaling $403,275.20 on the Loan as provided in its records. (Pl.'s Ex. 6, ECF No. 91 at 28.)
On May 1, 2012, Nguyen sent Ocwen a letter stating that she disputed the total amount of $403,275.20 due on her Loan, that she disputed late charges, collection costs, escrow advances, and suspense balances. (Sealed Laurik Decl. Ex. D, ECF No. 75, Pl.'s Ex. 7, ECF No. 91 at 29.) Nguyen further stated that she set up monthly repayments of $2,206.05 until October 15, 2012 with Saxon, and that as of March 1, 2012, her interest rate is 3.5 percent. (Id.) On May 14, 2012, Nguyen made a monthly payment of $2,264.43. (Pl.'s Ex. 5, ECF No. 91 at 19.)
On May 10, 2012, Nguyen's attorney, Steven C. Burke, contacted Judge Simon for assistance. (Pl.'s Ex. 6, ECF No. 91 at 20-21.) Judge Simon retained jurisdiction to handle disputesabout the Settlement Agreement reached between Saxon and Nguyen. (Pl.'s Ex. 6, ECF No. 91 at 20-22, ECF No. 91.) In the May 10, 2012 letter, Mr. Burke discussed that after receiving Nguyen's initial payment of $60,000, Saxon had not received her first two payments as provided under the Repayment Plan, and that Nguyen's Loan status was incorrectly being reported as "in foreclosure." (Id. at 20-21.) Mr. Burke noted he had been in touch with Saxon's attorney, David Elkanich, and discovered that Saxon had made an error by assigning an incorrect account number to her payments. (ECF No. 91 at 21.) Mr. Burke provided that although Saxon had corrected the issue concerning the account number, Saxon not provided adequate written documentation reflecting how Nguyen's payments had been applied. Mr. Burke further indicated that when Ocwen took over servicing the Loan, Ocwen had no understanding of the settlement. (Id.)
In response, Saxon provided a letter to Judge Simon on May 22, 2012 providing some details, but indicating that Nguyen's Loan had been service-released to Ocwen, and additional details needed to be worked out with Ocwen.4 (Sealed Laurik Decl. Ex. E at 1, ECF No. 78.) Nguyen's attorney and Saxon's attorney traded multiple emails attempting to straighten out the Repayment Plan with Ocwen. (Pl.'s Ex. 25, ECF No. 91-1 at 22-42; Pl.'s Ex. 26, ECF No. 91-2 at 3-7.) Meanwhile, Nguyen continued to make monthly payments of $2,204.05 (just shy of the Repayment Plan amount) on June 15, 2012, July 13, 2012, and August 6, 2012. (Pl.'s Ex. 5, ECF No. 91 at 19.)
On July 5, 2012, Ocwen sent Nguyen a letter indicating that the interest rate on her Loan was set to adjust on August 1, 2012, and that the change would take effect on September 1, 2012.(ECF No. 91 at 46.) Nguyen's monthly payment would change from $1,093.17 to $1,093.18. (ECF No. 91 at 46.)
On September 5, 2012, Nguyen made a monthly payment of $1,093.18, and on October 10, 2012, Nguyen made a monthly payment of $1,094.00. (Pl.'s Ex. 5, ECF No. 91 at 19.) The September and October 2012 payments are considerably less than the $2,206.05 required monthly payments set forth in the Repayment Plan. On November 8, 2012 and December 3, 2012...
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