Richard v. Caliber Home Loans, Inc.

DENNIS G. RICHARD, Plaintiff, v. CALIBER HOME LOANS, INC., et al., Defendants.

Case No.: 2:15;cv-2647

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

April 12, 2018

JUDGE GEORGE C. SMITH

Magistrate Judge Deavers

OPINION AND ORDER

This matter is before the Court upon Defendants Caliber Home Loans, Inc.'s ("Caliber") and VOLT RPL XI Asset Holdings Trust's (the "Trust") Renewed Motion for Summary Judgment and Submission of Additional Evidence (Doc. 111), as well as the parties' cross-motions for summary judgment (Docs. 86 and 102) on certain claims that were not disposed of in the Court's previous summary judgment Order (Doc. 110). The motions are fully briefed and ripe for disposition. For the following reasons, summary judgment in favor of Defendants is GRANTED IN PART and DENIED IN PART, and summary judgment in favor Plaintiff is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

This case arises from a mortgage obtained by Plaintiff Dennis Richard for a home purchased in 2005. (Doc. 3, Compl. at ¶ 23). This lawsuit is Richard's third lawsuit against Caliber relating to their servicing of his mortgage. Each of the earlier two lawsuits resulted in settlements and dismissals of Richard's claims. Richard brought suit in this case, alleging violations of the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq., the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq., and the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601, et seq.

The facts underlying all three suits are set forth in detail in the Court's previous Order (Doc. 110) disposing of certain portions of the parties' cross-motions for summary judgment (Docs. 86 and 102) and will not be repeated here. As part of that Order, the Court found it was unable to rule on certain claims because the record did not provide sufficient evidence of the amount owed by Richard on the mortgage at the time he entered into the second settlement agreement ("SSA") with Defendants. (Id. at 14-15). The Court therefore directed Defendants

to provide sufficient evidence that the underpayments in 2014 directly led to the amount due that was sent to Plaintiff in March 2015. This evidence should include, but should not be limited to, documents evidencing the existence of the debt, documents evidencing the imposition of any fees or costs, and evidence which provides the dates of Plaintiff's changing amount due.

(Id. at 15). The Court also directed Defendants to provide calculations and evidence of their damages. (Id. at 25).

As requested, Defendants filed the present Motion, attaching an affidavit of Serge Alexis, a default servicing officer for Caliber, and documentation regarding Richard's payments, outstanding balances, and Defendants' damages. (Doc. 111-1, Alexis Aff. and attached Exhibits 1-9). Defendants' Motion also invites the Court to reconsider portions of the earlier Order that were unfavorable to Defendants. The Court turns to this aspect of Defendants' Motion first.

II. REQUEST FOR RECONSIDERATION

Defendants ask the Court to exercise its discretion under Federal Rule of Civil Procedure 54(b) to modify the interlocutory Order to the extent it granted summary judgment for Richard on certain claims. Defendant is correct that the Order is interlocutory and therefore "may be revised at any time before the entry of a judgment adjudicating all the claims." Fed. R. Civ. P.54(b). Typically, however, courts will reconsider previous interlocutory orders only "when there is (1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent manifest injustice." Louisville/Jefferson Cty. Metro Gov't v. Hotels.com, L.P., 590 F.3d 381, 389 (6th Cir. 2009).

Defendants ignore this standard in their briefing and assert only that "[t]hrough the Summary Judgment Order, the Court narrowed the issues in this matter significantly. The parties and the Court can now focus in greater detail on the specific communications and [ ] theories at issue." (Doc. 111, Defs.' Mot. at 3). But the Court "narrowed the issues" by already deciding the claims that Defendants are now attempting to re-argue; reconsidering them at this stage would undo any of the narrowing accomplished in the previous Order. Defendants also have not presented any new evidence or new arguments that they could not have included with their previous summary judgment briefs. Finding no compelling reason to revisit its previous decisions, the Court declines to exercise its discretion to modify the Order. The Court now turns to the remaining claims on summary judgment.

III. SUMMARY JUDGMENT STANDARD

Both parties move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is appropriate when "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); Berryman v. SuperValu Holdings, Inc., 669 F.3d 714, 716-17 (6th Cir. 2012). The Court's purpose in considering a summary judgment motion is not "to weigh the evidence and determine the truth of the matter" but to "determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial exists if the Court finds a jury could return a verdict, based on "sufficient evidence," in favor of the nonmoving party;evidence that is "merely colorable" or "not significantly probative," however, is not enough to defeat summary judgment. Id. at 249-50.

The party seeking summary judgment shoulders the initial burden of presenting the court with law and argument in support of its motion as well as identifying the relevant portions of "'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If this initial burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (after burden shifts, nonmovant must "produce evidence that results in a conflict of material fact to be resolved by a jury").

In considering the factual allegations and evidence presented in a motion for summary judgment, the Court "views factual evidence in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor." Barrett v. Whirlpool Corp., 556 F.3d 502, 511 (6th Cir. 2009). But self-serving affidavits alone are not enough to create an issue of fact sufficient to survive summary judgment. Johnson v. Washington Cty. Career Ctr., 982 F. Supp. 2d 779, 788 (S.D. Ohio 2013) (Marbley, J.). "The mere existence of a scintilla of evidence to support [the non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also Anderson, 477 U.S. at 251.

IV. DISCUSSION

In its previous Order, the Court disposed of Richard's FDCPA claims regarding Caliber's alleged failure to spread Richard's escrow shortage (in favor of Defendants), Caliber's attempt to collect an amount not authorized by the SSA (in favor of Defendants), Caliber's providingconflict due dates to cure the loan default (in favor of Richard), Caliber's indication that it would report the loan default to credit agencies before it could legally take such action (in favor of Richard), and Caliber's allegedly frivolous counterclaims (in favor of Caliber). (Doc. 110 at 12-13, 16-20). The Court now turns to Richard's remaining claims under the FDCPA and Defendants' counterclaims.

A. Richard's Remaining FDCPA Claims

Richard's remaining FDCPA claims involve §§ 1692e(2)(A) and (5). Richard argues that Caliber violated § 1692e(2)(A) when it "falsely represented that Mr. Richard [was past due in the amount of] $2,749.16" in its March 16, 2015 mortgage statement, "when in fact Mr. Richard was current." (Doc. 102, Richard's Mot. for Summ. J. at 20-21). Similarly, Richard argues that Caliber violated § 1692e(5) "by illegally stating it could foreclose on Mr. Richard's home despite the fact that he was not in default" in its April 21, 2015 letter. (Id. at 22). For the same reasons, Richard argues that Caliber's letters of April 21 and April 24, 2015 seeking $1,626.06 (the $2,749.16 in overdue monthly payments, less the unapplied funds of $1,123.10 in Richard's suspense account) to cure his loan default were false and misleading.

Richard's belief that he was current on his mortgage stems from his belief that the SSA eliminated any then-outstanding deficiencies in his mortgage payments. However, the Court previously determined that this was not the case. (Doc. 110, Order at 14-15). Defendants' obligations under the SSA were to waive deferred interest and fees and to spread the escrow deficiency over a period of 60 months. (Doc. 74-1, SSA at § 3, PAGEID #1157). Defendants did not waive any outstanding principal, interest, or escrow balance, and the SSA's integration clause expressly left intact "any applicable notes or mortgages." (Id. at § 10, PAGEID #1158-59). Therefore, so long as Caliber accurately quoted the $1,626.06 amount necessary to cureRichard's loan default, Richard's remaining FDCPA claims are not viable. The additional information provided by Defendants establishes that the quoted amount was accurate.

1. Richard's escrow deposit and adjustment increases as of January 1, 2014

It is undisputed that Richard was current on his mortgage payments as of January 1, 2014. On that date, Richard's monthly charges increased from $1,406.00 to $1,470.12 due to an increase in Richard's escrow deposit and adjustment (stemming from...