Yarney v. Ocwen Loan Servicing, LLC

Decision Date08 March 2013
Docket NumberNo. 3:12–cv–00014.,3:12–cv–00014.
Citation929 F.Supp.2d 569
PartiesSarah C. YARNEY, Plaintiff, v. OCWEN LOAN SERVICING, LLC, et al., Defendants.
CourtU.S. District Court — Western District of Virginia

OPINION TEXT STARTS HERE

Erin Margaret Trodden, Legal Aid Justice Center, Charlottesville, VA, Thomas Dean Domonoske, Attorney at Law, Harrisonburg, VA, for Plaintiff.

Gary L. Edwards, Baker Donelson Bearman Caldwel & Berkowitz, Johnson City, TN, for Defendants.

Memorandum Opinion

NORMAN K. MOON, District Judge.

The Plaintiff Sarah C. Yarney (Plaintiff), pursuant to Fed.R.Civ.P. 56, seeks summary judgment as to liability on all claims asserted in her complaint. Plaintiff alleges that Defendants Wells Fargo Bank N.A., as Trustee for SABR 2008–1 Trust (Wells Fargo), and its loan servicer, Ocwen Loan Servicing, LCC (Ocwen), attempted to collect on her home mortgage loan after she had settled the debt with Wells Fargo. Plaintiff brings three claims for relief in her March 2012 complaint: two under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and one under state law for breach of contract. A hearing on Plaintiff's motion for partial summary judgment took place on February 25, 2013, in Charlottesville, VA. For the following reasons, I grant Plaintiff's motion for partial summary judgment.

I. Background

This case stems from a settlement agreement between Plaintiff and Wells Fargo, which was finalized on March 18, 2011. The agreement resolved a 2009 suit Plaintiff had brought against Wells Fargo, Statewide Mortgage, Equifirst Corporation, and Shaffer Title & Escrow, which had been removed to federal court under the case name Yarney v. Wells Fargo Bank, N.A. et al., 3:09–cv–00050. Around September 2010, Plaintiff received notice that Ocwen had become the new servicer of her Wells Fargo mortgage loan, which had been in default since 2008. Under the terms of the March 18, 2011 settlement agreement, Wells Fargo agreed to accept Plaintiff's deed in lieu of foreclosure, and Plaintiff agreed to dismiss her suit against Wells Fargo with prejudice. Also, Wells Fargo's servicer (Ocwen) was required to instruct the deletion of all trade lines associated with Plaintiff's account—in other words, remove all credit reporting relating to Plaintiff's mortgage loan—as of March 2009, the date Plaintiff's lawsuit was filed in state court.

Plaintiff executed a deed in lieu of foreclosure on the day of the settlement, and mailed it to counsel for Wells Fargo.1 Plaintiff also stipulated to dismissal of her suit against Wells Fargo with prejudice. However, despite the fact that Plaintiff no longer owned the deed or owed any debt to Wells Fargo, Ocwen continued to send Plaintiff monthly bills.2 Each of the bills listed figures under the headings “Current Amount Due” ($1604), “Past Due Amounts DUE IMMEDIATELY” (between $43,312 and $59,353), and “Total Amount Due”, which reached $105,796.03 by the February 2012 statement. See Docket No. 23–13 (Pl.'s Ex. 11). Ocwen also sent Plaintiff a Notice of Intent to Force Place Insurance in September 2011, and then a bill dated October 29, 2011 for the cost of the forced placement of insurance for the 718 West Street property in Charlottesville, though Plaintiff no longer owned the property or resided there.3

Despite these bills and notices, Wells Fargo admits that Ocwen received notice of the March 18, 2011 agreement as early as April 4, 2011. On May 6, 2011, Plaintiff also advised Ocwen representatives by phone that she no longer owned the 718 West Street property. On August 19, 2011, August 21, 2011, and October 6, 2011, Plaintiff's counsel notified Wells Fargo's counsel that Ocwen continued to send Plaintiff bills and notices, and requested that the situation be corrected. In an August 2011 email exchange with Plaintiff's counsel, Wells Fargo's counsel replied that, with regard to Ocwen's continued attempt to collect from Plaintiff, We have once again reminded Ocwen to cease its billing of Mrs. Yarney.” Docket No. 23–11 (Pl.'s Ex. 9).

Plaintiff's counsel also contacted Ocwen. In an October 20, 2011 letter, counsel informed Ocwen that Plaintiff had representation, and provided Ocwen with a copy of the March 18, 2011 settlement agreement. Docket No. 23–23 (Pl.'s Ex. 21). Further, Ocwen's transaction log for November 5, 2011, confirms that it received a voicemail from Plaintiff's attorney, again stating that Ocwen was not to send any more collection letters or call plaintiff directly. Plaintiff's attorney also demanded that Ocwen send a letter to counsel's office stating that Ocwen would no longer contact the borrower by mail or phone. See Docket No. 23–22 at 2 (Pl.'s Ex. 20) (Ocwen transaction log, 11/5/2011 notes).

Still, Plaintiff states that she received numerous phone calls in December 2011 from individuals identifying themselves as Ocwen representatives, sometimes multiple times per day. Ocwen's transaction logs describe one conversation, from December 30, 2011, during which Plaintiff informed Ocwen about the settlement agreement. See Docket No. 23–14 (Pl.'s Ex. 12) (Ocwen transaction log, 12/30/11 notes) (“Bwr stated she had worked out a settlement agreement year 2011 with Wells Fargo Bank and was upset as she was getting calls from Ocwen about the pmt....”). Plaintiff contacted Ocwen again on January 3, 2012, and reiterated that there was a settlement agreement in place, and that she should no longer be receiving payment notices. Plaintiff recalls a conversation that took place on January 26, 2012, during which an Ocwen representative refused to speak to her attorney, despite Plaintiff's efforts to give him her attorney's name and contact information.

Despite these communications between Plaintiff, her counsel, and Defendants, Plaintiff continued to receive bills directly from Ocwen until February 11, 2012, when Ocwen informed her that they were researching her loan, and would respond within 20 days. Then, on March 8, 2012, Ocwen sent Plaintiff another notice stating that they were continuing to research her loan. In the meantime, however, Ocwen sent payoff quotes to Plaintiff's counsel. On February 12, 2012, Ocwen emailed Plaintiff's counsel stating that she still owed a total of $297,472.82 on her mortgage loan. On March 5, 2012, Ocwen emailed Plaintiff's counsel with another payoff quote, this time totaling $297,605.45. On March 14, 2012, Ocwen emailed Plaintiff's counsel a third payoff quote, totaling $299,068.34. Plaintiff states that she never requested any payoff quote, but as detailed above, through various communications, only informed Ocwen of the settlement agreement and that she did not owe any money. As a result of Ocwen's actions, Plaintiff contends that she is entitled to judgment as a matter of law on her FDCPA claims.

Along with these continued billings and communications, despite the terms of the March 18, 2011 settlement agreement, Ocwen also reported Plaintiff's account to credit bureaus as delinquent. Plaintiff's file with Ocwen contains an April 6, 2011 note that a request was submitted “to have entire trade [line] deleted per below settlement terms.” However, on April 12, 2011, Ocwen reported Plaintiff's account to credit bureaus with an unpaid balance of $191,5721, and $73,270 past due. See Docket No. 23–19 (Pl.'s Ex. 17) (Ocwen transaction log, 4/12/11 notes). In fact, Ocwen continued to report Plaintiff's account to credit bureaus as delinquent until April 2012. See Docket No. 23–20 (Pl.'s Ex. 18). Plaintiff contends that Defendants' actions constituted a breach of the terms of the March 18, 2011 agreement, and that she is entitled to judgment as a matter of law on her state law claim.

II. Legal Standard

Summary judgment under Rule 56 should be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “As to materiality ... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the evidence of a genuine issue of material fact “is merely colorable or is not significantly probative, summary judgment may be granted.” Id. at 249–50, 106 S.Ct. 2505.

In considering a motion for summary judgment, a court must view the record as a whole and draw all reasonable inferences in the light most favorable to the non-moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The party seeking summary judgment bears the burden of showing an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. If the moving party sufficiently supports its motion for summary judgment, the burden shifts to the non-moving party to set forth specific facts illustrating genuine issues for trial. Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir.2008) (citation omitted). On those issues for which the non-moving party has the burden of proof, it is his or her responsibility to oppose the motion for summary judgment with affidavits or other admissible evidence specified in the rule. Fed.R.Civ.P. 56(c); Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315–16 (4th Cir.1993). See also Cheatle v. U.S., 589 F.Supp.2d 694, 698 (W.D.Va.2008) (“Indeed, the non-moving party cannot defeat a properly supported motion for summary judgment with mere conjecture and speculation.”) (citation omitted).

The court's role is to determine whether there is a genuine issue based upon the facts, and “not ... weigh the evidence and determine the truth of the matter.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Ultimately, the trial court has an “affirmative...

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