Phillips v. Ocwen Loan Servicing, LLC
Decision Date | 12 March 2015 |
Docket Number | No. 1:12–cv–3861–WSD.,1:12–cv–3861–WSD. |
Citation | 92 F.Supp.3d 1255 |
Parties | Jeffrey PHILLIPS, On Behalf of Himself and All Other Persons in the State of Georgia who are Similarly Situated, Plaintiff, v. OCWEN LOAN SERVICING, LLC, Defendant. |
Court | U.S. District Court — Northern District of Georgia |
Robert Keegan Federal, Jr., Rene Octavio Lerer, The Federal Firm, LLC, Bruce P. Brown, Bruce P. Brown Law, Atlanta, GA, for Plaintiff.
Brett J. Natarelli, Buckley Sandler, LLP, Chicago, IL, Fredrick S. Levin, Richard E. Gottlieb, Buckley Sandler, LLP, Santa Monica, CA, Sarah–Nell Walsh, William Allen McBride, Jr., Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Atlanta, GA, for Defendant.
This matter is before the Court on Plaintiff Jeffrey Phillips's (“Plaintiff” or “Phillips”) Objections [139] to Magistrate Judge Justin S. Anand's Final Report and Recommendation (“R & R”) [135]. The R & R recommends granting Defendant Ocwen Loan Servicing, LLC's (“Defendant” or “OLS”) Motion for Summary Judgment [104]. Also before the Court is Plaintiff's Motion for a Hearing [141] on his Objections.1
On December 7, 1998, Plaintiff obtained a loan (the “Loan”) from HomeAmerican Credit, Inc., d/b/a/ Upland Mortgage (“Upland”) and executed in favor of Upland a promissory note (the “Note”), in the amount of $86,400. (Note [104.4] ). The Note provides, in pertinent parts:
2. INTEREST
Interest will be charged on unpaid principal until the full amount of principal has been paid. I will pay interest at a yearly rate of 10.890%.
3. PAYMENTS
Repayment of Plaintiff's loan was also secured by a deed (the “Security Deed”) (together with the Note, the “Loan Agreement”) to real property located at 728 Kennolia Drive, Atlanta, Georgia (the “Property”). (Security Deed [104.5] ). The Security Deed was executed in favor of Upland. (Id. ). The Security Deed provides, in pertinent parts:
(Security Deed ¶¶ 3–5, 7, 19, 21).
In May 2005, OLS became the servicer of Plaintiff's loan. (Def's Statement of Material Facts (“SOMF”) at ¶ 6). On May 6, 2005, OLS sent Plaintiff an account statement, which states:
Please note that you have a Simple Interest Loan that accrues interest from the last date that interest was paid through the date your next payment is received. When your next payment is received, the interest amount will be calculated from the date listed in the “Interest Paid Through Date” field (listed above) through the date that your payment was received. It is important to ensure that your payments are received timely and consistently so that your accrued interest each period is limited to approximately one month's interest. If you elect to take advantage of your grace period, please note that this will cause a greater portion or all of your payment to be applied to interest.
(05/06/2005 Account Statement [104.6] ).
On October 30, 2009, OLS offered Plaintiff a loan modification. (Pl's SOMF ¶ 11). Plaintiff did not sign the modification agreement.
On November 20, 2009, OLS sent Plaintiff a Notice of Default, which states that Plaintiff's “mortgage payments are past due, which puts [Plaintiff] in default of [his] loan agreement.” (Notice of Default [140.1] at 1).2 The Notice of Default also states that, as of November 20, 2009, Plaintiff owes $12,068.64, which includes past due principal and interest of $2,446.92, that the “debt is owed to [OLS] as the owner or servicer of your home loan and mortgage,” and that payment is due by December 20, 2009. (Id. ). The Notice of Default provides:
On December 21, 2009, Plaintiff sent a payment, in the amount of $855, to OLS, and OLS returned the payment to Plaintiff. (Def's SOMF ¶ 34). Plaintiff did not make another loan payment to OLS until March 9, 2010. (Id. ¶ 35).
On January 16, 2010, OLS offered Plaintiff another loan modification and sent him a Proposed Modification Agreement (“PMA”). (Def's SOMF ¶ 25; PMA [104.34] ). The PMA states:
(PMA at 1). Plaintiff did not sign the PMA. (Def's SOMF ¶ 26).
On March 1, 2010, Weismann Nowack Curry & Wilco, P.C., on behalf of “Bank of America, National Association, as Successor by Merger to LaSalle Bank National Association, as Trustee for the Registered Holders of Credit Suisse Seasoned Loan Trust 2006–1, Home Equity Pass–Through Certificates, Series 2006–1” (the “Trustee”), sent Plaintiff a Notice of Foreclosure Sale (“NFS”). (NFS [69.5] at 1). The NFS states that the Trustee is the holder of Plaintiff's Note and Security Deed, that OLS is the entity with full authority to negotiate, amend and modify the terms of Plaintiff's mortgage, that Plaintiff had defaulted on his loan obligations, and that, if Plaintiff did not pay the entire balance of his loan, the Trustee would conduct a foreclosure sale of the Property. (Id. ).
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