Washington v. Green Tree Servicing LLC
| Decision Date | 05 May 2017 |
| Docket Number | Case No. 1:15-cv-354 |
| Parties | JONNA WASHINGTON, Plaintiff, v. GREEN TREE SERVICING LLC, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Litkovitz, M.J.
Plaintiff Jonna Washington brings this action against defendants Green Tree Servicing LLC1 ("Green Tree") and EverBank under the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 1601 et seq.; the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.; and Ohio common law. This matter is before the Court on plaintiff's motion for summary judgment (Doc. 52), defendants' response in opposition (Doc. 63), and plaintiff's reply memorandum (Doc. 64). This matter is also before the Court on defendants' motion for summary judgment (Doc. 54), plaintiff's response in opposition (Doc. 62), defendants' reply memorandum (Doc. 66), and plaintiff's sur-reply (Doc. 67).
In August 1998, plaintiff's mother Janet Washington executed a general warranty deed granting to herself and plaintiff a joint tenancy with the right of survivorship to a home located at 1045 Church Avenue in Cincinnati, Ohio. (General Warranty Deed, Exh. A, Doc. 52-1). In June 2002, Janet Washington executed a note to Safeway Mortgage in the principal amount of $101,000. (Note, Exh. B, Doc. 52-2 at 1-4). Plaintiff did not sign the note. (See id. at 3). Janet Washington and plaintiff granted Safeway a mortgage on the property to secure the note.(Mortgage, Exh. B, Doc. 52-2 at 5-19). The mortgage listed Janet Washington and plaintiff as borrowers. (Id. at 5). The mortgage contained the following relevant provision:
13. Joint and Several Liability; Co-signers; Successors and Assigns Bound. Borrower covenants and agrees that Borrower's obligations and liability shall be joint and several. However, any Borrower who co-signs this Security Instrument but does not execute the Note (a "co-signer"): (a) is co-signing this Security Instrument only to mortgage, grant and convey the co-signers interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c) agrees that Lender and any other Borrower can agree to extend, modify, forbear or make any accommodations with regard to the terms of this Security Instrument or the Note without the co-signer's consent.
(Id. at 14).
Janet Washington died in September 2007. (Certificate of Death for Janet Washington, Exh. C, Doc. 52-3). Plaintiff attests that after her mother's death, she continued to make loan payments for a number of years. (Affidavit of Jonna Washington, Exh. D, Doc. 52-4 at ¶ 6). However, she missed some payments over the next four to five years. (Deposition of Jonna Washington, Doc. 55-1 at 34).
In May 2013, defendant Everbank filed a foreclosure complaint against plaintiff in the Hamilton County, Ohio Court of Common Pleas.2 (Complaint for Foreclosure, Exh. E, Doc. 52-5 at 1). The foreclosure complaint stated that plaintiff's mother was deceased and the note and mortgage were in default. (Id. at 2). Because plaintiff was not a party to the promissory note, defendant Everbank was "not seeking a personal judgment against [plaintiff] but [was] seeking instead to enforce its security interest." (Id.). On May 1, 2014, servicing of the loan was transferred from Everbank to Green Tree. (Doc. 56-1 at 44). On May 6, 2014, plaintiffsubmitted an application for a loan modification. (Uniform Borrower Assistance Form, Exh. F, Doc. 52-6).
On May 22, 2014, Green Tree filed for an order of sale in the state court. (Praecipe for Order for Sale, Exh. H, Doc. 52-8). That same day Green Tree sent a letter addressed to plaintiff's mother indicating that the loan modification application was incomplete because it did not include a list of expenses and pay stubs reflecting the most recent 30 days' earnings. (Letter from Green Tree to Janet Washington dated May 22, 2014, Exh. I, Doc. 52-9). However, on May 30, 2014, Green Tree sent a letter addressed to plaintiff's mother indicating that the loan modification application was complete and was under review. (Letter from Green Tree to Janet Washington dated May 30, 2014, Exh. J, Doc. 52-10). On July 3, 2014, Green Tree sent a letter addressed to plaintiff's mother indicating that she was approved for an account modification trial period plan and directing her to make three payments to Green Tree under that plan from August to October 2014. (Letter from Green Tree to Janet Washington dated Jul. 3, 2014, Exh. K, Doc. 52-11 at 1, 5). The letter stated: "After all trial period payments are timely made and you have met all of the applicable qualification requirements, your mortgage will then be permanently modified." (Id. at 5).
On October 15, 2014, Green Tree sent a letter addressed to plaintiff indicating that she was eligible for a loan modification and directing her to sign and return an enclosed loan modification agreement by November 14, 2014. (Letter from Green Tree to Jonna Washington dated Oct. 15, 2014, Exh. L, Doc. 52-12 at 1). Green Tree received the signed loan modification agreement from plaintiff on November 12, 2014. (See Green Tree Servicing Collection Comment List, Exh. G, Doc. 52-7 at 21; Derrick Deposition, Doc. 56-1 at 126). However, Green Tree determined on November 14, 2014 that the loan modification agreement was invalidbecause plaintiff had not assumed the loan. (See Exh. G, Doc. 52-7 at 21; Doc. 56-1 at 126-28). On December 3, 2014, Green Tree contacted plaintiff and scheduled an assumption closing for December 16, 2014 at 4:30 p.m. (See Exh. G, Doc. 52-7 at 19; Doc. 56-1 at 131). On December 4, 2014, Green Tree sent a letter addressed to plaintiff directing her to sign and return a new copy of the loan modification agreement by January 3, 2015. (Letter from Green Tree to Jonna Washington dated Dec. 4, 2014, Exh. M, Doc. 52-13 at 1).
Plaintiff's brother died on December 15, 2014. (Certificate of Death for Broderick Washington, Exh. N, Doc. 52-14). On December 16, 2014 at 8:24 a.m., plaintiff called Green Tree, informed Green Tree of a death in the family, and asked for the assumption closing to be postponed. (See Exh. G, Doc. 52-7 at 19; Audio Recording 20141216, Exh. P (filed under seal)). On December 17, 2014, Green Tree sent plaintiff a letter indicating that she was denied a loan modification because she "failed to provide the final executed modification documents within the required time frame." (Letter from Green Tree to Jonna Washington dated Dec. 17, 2014, Exh. Q, Doc. 52-17 at 1). On December 23, 2014, plaintiff called Green Tree to reschedule the assumption closing and was told that her loan modification application had been closed because she did not appear for the assumption closing scheduled for December 16. (See Audio Recording 20141223-154122, Exh. P (filed under seal)). Plaintiff was told she would have to start the process over again with a new loan modification application. (See id.).
Plaintiff submitted paperwork for a new loan modification application. (See Exh. G, Doc. 52-7 at 9-16; Doc. 56-1 at 158-60, 170-71). Green Tree indicated it did not receive all the required paperwork by the February 22, 2015 deadline and denied a modification. (See Exh. G, Doc. 52-7 at 8-9; Doc. 56-1 at 178-81). Defendants proceeded with foreclosure proceedings and the home was sold at a foreclosure sale on March 5, 2015. (See Order to Vacate, Exh. S, Doc.52-19). After plaintiff filed this lawsuit, defendants unwound the foreclosure sale. (See Motion for Order to Vacate Sale, Exh. R, Doc. 52-18). On April 19, 2016, the parties closed on the loan modification and assumption, which indicated a principal balance of $134,688.34. (See Closing Disclosure, Exh. T, Doc. 52-20 at 3). This principal balance was over $13,000 more than the principal balance would have been under the October 2014 loan modification agreement. (See Doc. 56-1 at 186).
Under Federal Rule of Civil Procedure 56(c), a grant of summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Satterfield v. Tennessee, 295 F.3d 611, 615 (6th Cir. 2002). The Court must evaluate the evidence, and all inferences drawn therefrom, in the light most favorable to the non-moving party. Satterfield, 295 F.3d at 615; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587 (1986); Little Caesar Enters., Inc. v. OPPC, LLC, 219 F.3d 547, 551 (6th Cir. 2000).
The trial judge's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine factual issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The trial court need not search the entire record for material issues of fact, Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), but must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52. "Where the record taken as a whole could not lead a rational trierof fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587.
"RESPA is a consumer protection statute that regulates the real estate settlement process." Hardy v. Regions Mortg., Inc., 449 F.3d 1357, 1359 (11th Cir. 2006) (citing 12 U.S.C. § 2601(a)). In enacting the RESPA, Congress intended "to insure that consumers throughout the Nation are provided with greater and more timely information on the nature and costs of the settlement process and are protected from unnecessarily high settlement charges caused by certain abusive practices that have...
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