Schuh v. Sinel

• Decision Date: 14 July 2010
• Docket Number: No. 07 Civ. 366 (LAK).,07 Civ. 366 (LAK).
• Parties: Christopher SCHUH and Diane Schuh, Plaintiffs,v.DRUCKMAN & SINEL, L.L.P., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

751 F.Supp.2d 542

Christopher SCHUH and Diane Schuh, Plaintiffs,

v.DRUCKMAN & SINEL, L.L.P., et al., Defendants.

No. 07 Civ. 366 (LAK).

United States District Court, S.D. New York.

July 14, 2010.

John C. Klotz, Attorney at Law, New York, NY, for Plaintiffs.

Blaise U–Shing Chow, Geoffrey William Heineman, Ropers, Majeski, Kohn & Bentley, P.C., Los Angeles, CA, Eric Corey Weissman, Ropers, Majeski, Kohn & Bentley, P.C., New York, NY, for Defendant Druckman & Sinel, L.L.P.

ORDER

LEWIS A. KAPLAN, District Judge.

Plaintiffs' objections to the report and recommendation of Magistrate Judge Gabriel W. Gorenstein, dated June 29, 2010, are entirely without merit. The motion of defendant Druckman & Sinel, LLP, for summary judgment dismissing the complaint [DI 115] is granted.

SO ORDERED.

REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Christopher and Diane Schuh brought this suit raising a number of claims relating to the efforts by various banks to foreclose on the Schuhs' property following the Schuhs' failure to pay their mortgage. A prior decision of this Court dismissed all of the Schuhs' claims except for a single claim arising under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., against Druckman and Sinel, LLP (“D & S”), the law firm that filed the foreclosure action. D & S has moved for summary judgment. For the reasons that follow, D & S's motion for summary judgment should be granted.

I. BACKGROUNDA. Facts

Unless otherwise stated, the following facts are not in dispute.

On September 16, 1994, the Schuhs obtained a $66,000 loan from Personal Mortgage Corporation secured by a mortgage on their residence. See Mortgage, dated Sept. 16, 1994 (R. 65–72).¹ The Schuhs were in default on their mortgage beginning in 1997. See Second Amended Complaint, filed Apr. 14, 2008 (Docket # 72) (“Compl.”) ¶ 84. In their complaint in this Court, the Schuhs allege that various entities became either the purported assignees of the mortgage or were responsible for servicing the mortgage. Id. ¶¶ 103–107, 110–12.

On May 4, 2004, D & S filed an action in New York State Supreme Court in Saratoga County on behalf of Mortgage Electronic Registration Systems, Inc. (“MERS”) to foreclose on the Schuhs' mortgage. See Verified Complaint, filed May 4, 2004 (R. 33–28). The court granted MERS' motion for summary judgment, see Order for Summary Judgment and Reference, filed Oct. 5, 2004 (R. 20–23), and thereafter granted a Judgment of Foreclosure and Sale, see Judgment of Foreclosure and Sale, filed Jan. 21, 2005 (R. 12–19). While the foreclosure sale was scheduled for March 1, 2005, see Order to Show Cause on Motion to Vacate Default Judgment, filed Nov. 21, 2005 (R. 104–07), the Schuhs served an Order to Show Cause through retained counsel, Frank A. Romano, seeking to stay the foreclosure sale and to vacate both the order granting summary judgment and the judgment of foreclosure, id.; Letter from Frank A. Romano to Hon. Stephen A. Ferradino, dated Feb. 23, 2005 (annexed as Ex. 8 to Heineman Aff.). On October 27, 2005, the court denied the Schuhs' motion to vacate. See Decision and Order, filed Nov. 21, 2005 (R. 9–11). The Schuhs then appealed that decision to the Appellate Division, Third Department, see Notice of Appeal, filed Dec. 21, 2005 (R. 2), and on December 13, 2005, filed a Chapter 13 Voluntary Petition in the United States Bankruptcy Court for the Northern District of New York, see Final Report and Account, undated (R. 217–18). The Schuhs moved again to vacate the order granting summary judgment and the judgment of foreclosure, alleging newly discovered evidence. See Notice of Motion on Renewal and/or for Reconsideration and for Summary Judgment Against Plaintiff, dated Feb. 16, 2006 (R. 173–74); Defendant's Affidavit in Support of Motion on Renewal Presenting New Evidence and for Reconsideration, dated Feb. 16, 2006 (R. 175–88). The court denied that motion on the ground that the evidence was not new. Decision and Order, filed Mar. 27, 2006 (R. 163–65).

The foreclosure sale was held on March 23, 2006, and Christopher Schuh (hereinafter referred to as “Schuh”) was the successful bidder, offering $141,251. See Terms of Sale, dated Mar. 23, 2006 (R. 260–64); Compl. ¶ 136. As was required, Schuh made a partial payment of $14,126 at that time to the court-appointed referee, Stephen Rodriguez. See id. On March 27, 2006, D & S wrote to Schuh to inform him that the closing had to take place no later than 30 days from the date of sale, April 24, 2006; that no adjournments would be permitted; and that failure to close within that time period would result in “the forfeit of the down payment.” Letter from Silvia Cartagena to Christopher Schuh, dated Mar. 27, 2006 (annexed as Ex. 15 to Heineman Aff.). On April 13, 2006, the Schuhs filed a motion in New York State Supreme Court in Saratoga County to stay the closing and to reconsider their motion to vacate the order granting summary judgment and the judgment of foreclosure. See Defendant Druckman & Sinel, LLP's (“The Druckman Firm”) Statement Pursuant to Rule 56.1, filed Dec. 7, 2009 (Docket # 119) (“D & S Rule 56.1 Statement”) ¶ 31 (undisputed by plaintiffs); Notice of Motion to Renew and Vacate Order of Summary Judgment upon New Found Evidence, filed Apr. 13, 2006 (R. 209); Order to Show Cause on Notice of Motion to Renew and Vacate Order of Summary Judgment upon New Found Evidence, dated Apr. 13, 2006 (R. 210–12). The court denied the Schuhs' motion in its entirety. See Decision and Order, filed Aug. 25, 2006 (R. 24–25).

Another foreclosure sale was scheduled for November 13, 2006, and the Schuhs unsuccessfully tried to enjoin that sale by seeking a stay in the Appellate Division, Third Department. See Decision and Order on Motion, dated Nov. 9, 2006 (R. 346). The Schuhs were able to delay the scheduled foreclosure sale by filing a second voluntary Chapter 13 petition in the Northern District of New York. See Chapter 13 Bankruptcy Petition, dated Nov. 10, 2006 (annexed as Ex. 3 to Heineman Aff.).

In the meantime, and at some point after the March 2006 foreclosure sale, the Schuhs took steps to secure funds from Countrywide Mortgage. See Deposition of Christopher Schuh, dated Oct. 27, 2009 (annexed as Ex. 2 to Supplemental Affirmation of Geoffrey W. Heineman in Support of Motion for Summary Judgment of Defendant Druckman & Sinel, LLP, filed Dec. 8, 2009 (Docket # 121) (“Heineman Supp. Aff.”)) (“Schuh Dep.”), at 92–94. Countrywide Mortgage used Linear Title, a title company, to assist in preparation of the financing. See Email from Rusty Solomon to Silvia Cartagena, dated Sept. 28, 2006 (annexed as Ex. 17 to Heineman Aff.) (“September Linear Title Email”). On September 29, 2006, Countrywide issued a loan commitment letter to Diane Schuh for $91,813.15, see Schuh Commitment Letter, dated Sept. 29, 2006 (annexed as Ex. D to Supplemental Affirmation of Geoffrey W. Heineman in Support of Motion for Summary Judgment of Defendant Druckman & Sinel, LLP, filed Apr. 9, 2010 (Docket # 132) (“Heineman Second Supp. Aff.”)), though no closing occurred on that date.

Eventually, on November 24, 2006, Countrywide issued a “Notice of Loan Approval and Loan Commitment” in the amount of $130,000 to Diane Schuh. Notice of Loan Approval and Commitment, dated Nov. 24, 2006 (annexed as Ex. I to Opposing Declaration of John C. Klotz, filed Jan. 8, 2010 (Docket # 122) (“Klotz Decl.”)); Opposing Declaration of Christopher Schuh, filed Jan. 8, 2010 (Docket # 123) (“Schuh Decl.”) ¶ 44. On the same date, Theresa Giannavola of Linear Title sent a fax to D & S requesting “a new payoff statement” from D & S. See Fax from Theresa M. Giannavola to Druckman & Sinel, dated Nov. 24, 2006 (annexed as Ex. 18 to Heineman Aff.) (“Linear Title Fax”). The fax states in its entirety: “Please send a new payoff statement immediately for the above borrower!” It is signed by “Theresa M. Giannavola, Esq.” The letterhead on the fax reads “Linear Title & Closing,” gives an address in Rhode Island, and contains the fax number “(866) 634–5116.” Id. Five calendar days (and three business days) later, D & S sent, via facsimile, the letter that is alleged to have violated the FDCPA. The letter, dated November 29, 2006, is addressed to “Theresa Giannavola, Esq.” See Letter from Dana Athanasio to Theresa Giannavola, Esq., dated Nov. 29, 2006 (annexed as Ex. 20 to Heineman Aff.) (“Nov. 29 Letter”). Underneath Giannavola's name in the place where an address would normally occur is written “c/o Christopher Schuh.” Schuh's name is not followed by any address. Above Giannavola's name appears the same fax number that was contained in Giannavola's November 24 fax to D & S.

The Nov. 29 Letter stated that “payoff figures good through December 15, 2006” required one check to HSBC Mortgage Services for $111,938.55 and a second check to D & S for $13,250 for legal fees. Id. The letter also included a statement that “[t]he figures quoted in this statement are not to be considered an estoppel and must be verified prior to acceptance of any payment.” Id. The letter attached two copies of the payoff amounts through December 15, 2006 on HSBC letterhead. Id. at 2–3.

In Schuh's deposition testimony, Schuh stated that he could not remember either Linear Title or Theresa Giannavola, that he had not had conversations with either Giannavola or Linear Title, and that he did not remember seeing the Nov. 29 Letter at the time it was sent. See Schuh Dep. at 129–31. In an errata sheet for his deposition transcript, however, Schuh stated that he did see the Nov. 29 Letter, though he did not state when he saw it. See Christopher Schuh Errata Sheet, dated Dec. 21, 2009 (annexed as Ex. N to Klotz Decl.) (“Errata Sheet”), at 2.

In December 2006, the Schuhs stayed the sale by making a payment to the court towards the payoff figure. See Amended Decision and Order, dated Jan. 19, 2007 (R. 26–29). On ...