Rosendale v. Mr. Cooper Grp.

1

DONALD P. ROSENDALE, Plaintiff, v. MR. COOPER GROUP INC. d/b/a NATIONSTAR MORTGAGE /d/b/a/ Champion Mortgage & NATIONSTAR MORTGAGE LLC Directly and as Loan Servicer for an Unspecified Nationstar HECM Acquisition Trust, Defendants.

No. 19-cv-9263 (NSR)

United States District Court, S.D. New York

April 5, 2024

OPINION & ORDER

NELSON S. ROMAN, UNITED STATES DISTRICT JUDGE

Pro se Plaintiff, Donald Rosendale (“Plaintiff”) brings this action against the remaining defendants, Mr Cooper Group, Inc. d/b/a Nationstar Mortgage d/b/a Champion Mortgage and Nationstar Mortgage LLC, directly and as a Loan Servicer for an Unspecified HECM Acquisition Trust (collectively, “Defendants”). Plaintiff's asserts claims sounding in: (1) the Real Estate Settlement Procedures Act (“RESPA”) 12 U.S.C. § 2605(e) (“Section 2605”); (2) common law conversion; (4) common law gross negligence; (5) violation of N.Y. Gen. Bus Law (“GBL”) § 349 (“Section 349”); (6) common law breach of contract; (7) reformation or extinguishment of a reverse mortgage; and (8) negligent and intentional infliction of emotional distress.

Presently before the Court is Defendants' motion for summary judgment seeking dismissal of Plaintiff's Third Amended Complaint, (“TAC”, ECF No. 75), in its entirety. For the reasons articulated below, the Court GRANTS the motion and dismisses the Complaint.

FACTUAL BACKGROUND

The facts below are taken from Defendants' Local Rule 56.1^[1] Statement (“Def. 56.1”, ECF No. 223, Ex. 2) Plaintiff's Response to Defendants' Local Rule 56.1 Statement (“Pl. Resp. 56.1”, ECF No. 238) affidavits, declarations, and exhibits,^[2] and are not in dispute except where so noted.

Before proceeding, the Court notes at the outset that Plaintiff has also submitted a document titled “VOLUME II: Sworn affidavit with Exhibits” (“Pl. Affidavit” see ECF No. 239). This document, unlike Pl. Resp. 56.1, is made under penalty of perjury. (Pl. Affidavit p.14). The Court further notes that “[w]here a party wishes to have a court consider documents which are not yet part of the court's record, the documents must be attached to and authenticated by an appropriate affidavit and the affiant must be a competent witness through whom the documents could be received into evidence at trial.” New York ex rel. Spitzer v. Saint Francis Hosp., 94 F.Supp.2d 423, 426 (S.D.N.Y.) (citing Crown Heights Jewish Community Council, Inc. v. Fischer, 63 F.Supp.2d 231 (E.D.N.Y. 1999)).

The purpose of Pl. Affidavit is also unclear. It contains a “Preliminary Statement” and runs through Plaintiff's entire history on the property in question because “[t]o fully grasp [Plaintiff's] injuries in this action, [it is necessary to] start at the beginning ....” (Pl. Affidavit p.1). For purposes of a motion for summary judgment, not so-as Local Rule 56.1 requires, the parties are to provide “a separate, short and concise statement, in numbered paragraphs, of . . . material facts as to which it is contended that there exists a genuine issue to be tried.” See S.D.N.Y. Loc. R. 56.1(a), (c) (emphasis added). Finally, appended to Pl. Affidavit are the same exhibits attached to Pl. Resp. 56.1. (Compare Pl. Affidavit pp.16-63 with Pl. Resp. 56.1 pp.13-58).

Despite these failings and in light of Plaintiff's Pro se status, the Court will consider both Pl. Resp. 56.1 and Pl. Affidavit to the extent they elucidate facts that are genuinely in dispute, material, and supported by evidence.

The Property

Plaintiff is the owner of real property located at 4848 Route 44, Amenia, New York 12501 (the “Property”). (Defs. 56.1 ¶ 1). Plaintiff took title to the Property by deed dated December 9, 1982 (the “Deed”).^[3] (Id.; see also Defs. (V) Ex. 14). Included within the description of the Property is parcel of land described as an “abandoned road”. (Id.; see also Defs. (V) Ex. 14). The Property is not subdivided. (Pl. Resp. 56.1 ¶ 2).

The Reverse Mortgages

Plaintiff obtained a mortgage from BNY Mortgage Company LLC on May 23, 2007 (the “2007 Mortgage”). (Defs. 56.1 ¶ 4). The property description for the 2007 Mortgage is largely the same in the Deed, though it omits “thence on said Barton's Line, South 8 % [degrees] West 22 chains 95 links ....” (Compare Defs. Ex. (V) 15, p.5 with Defs. Ex. (V) 14, p.1). Plaintiff nevertheless did not object to the property description in the 2007 Mortgage. (Defs. 56.1 ¶ 4).

Plaintiff gave a reverse mortgage to MetLife Home Loans (“MetLife”) on June 4, 2009 (the “2009 Reverse Mortgage”). (Id. ¶ 5). The 2009 Reverse Mortgage contains the same property description as the Deed. (Id. ¶ 6; compare Defs. Ex. (D) B, p.3 with Defs. Ex. (V) 14, p.1). Plaintiff did not request that Schedule A to the 2009 Reverse Mortgage only apply to his house and five acres. (Id.). MetLife received a lien against the entire farm under the 2009 Reverse Mortgage. (Id.). At no point was Plaintiff aware of any writing from himself or his attorney intended to inform MetLife that he only intended the 2009 Reverse Mortgage to cover five acres and Plaintiff's home. (Id. ¶ 10). The 2009 Reverse Mortgage loan officer never indicated as such, either. (Id. ¶ 10). No escrow or set-aside account was established at the closing of the 2009 Reverse Mortgage. (Id. ¶ 12).

Plaintiff gave a second reverse mortgage to the Secretary of Housing and Urban Development (“HUD”) on June 4, 2009 (the “HUD Reverse Mortgage”). (Id. ¶ 7). The same day, Plaintiff executed a Home Equity Conversation Loan Agreement (“HECLA”). (Id. ¶ 8). The 2009 Reverse Mortgage was used to pay off the 2007 Mortgage. (Defs. 56.1 ¶ 9). MetLife assigned the 2009 Reverse Mortgage to Champion Mortgage Company on September 7, 2012. (Id. ¶ 13). On October 20, 2022, Nationstar assigned the 2009 Reverse Mortgage to Mortgage Assets Management, LLC. (Id. ¶ 14). The ultimate owner of the 2009 Reverse Mortgage, however, is the Federal National Mortgage Association. (Id. ¶ 15).

Defendants serviced Plaintiff's reverse mortgage from July 1, 2012 through March 1, 2022. (Id. ¶ 3). On the latter date, Defendants transferred the servicing rights to Plaintiff's reverse mortgage to PHH Mortgage Services. (Id.).

Plaintiff's RESPA Claim

On August 23, 2019, Defendants sent Plaintiff a letter requesting proof of payment with respect to property taxes and hazard insurance. (Id. ¶ 16; see also Defs. Ex. (D) BB). The letter indicated that failure to resolve the issue could lead the 2009 Reverse Mortgage becoming due and payable, potentially resulting in a foreclosure action. (Id.) Even so, the letter indicated that Defendants and HUD would prefer to avoid foreclosure in favor of a solution that would result in Plaintiff keeping his home. (Id.). Plaintiff disputed he owed any taxes in a letter dated September 2, 2019. (Id. ¶ 17; Defs. Ex. (V) 16). The parties dispute whether Plaintiff received a letter from Defendants dated September 6, 2019, which acknowledged receipt of Plaintiff's September 2, 2019 letter. (See Defs. 56.1 ¶ 18, Pl. Resp. 56.1 ¶ 18).

Defendants sent a substantive response on September 18, 2019, stating that their records indicated Plaintiff's hazard insurance expired on August 5, 2018. (Id. ¶ 19; Defs. Ex. (D) FF). Plaintiff responded to this letter on September 25, 2019, again disputing that his taxes and insurance were delinquent. (Id. ¶ 21; Defs. Ex. (V) 18). Defendants acknowledged receipt of this letter on September 30, 2019. (Id. ¶ 22; Defs. Ex. (D) II). In the interim, Plaintiff wrote to Defendants requesting an accounting of an escrow account on September 19, 2019. (Id. ¶ 20).

Plaintiff again responded to the September 18 letter on October 8, 2019 and requested a copy of the Cancellation Notice issued by Liberty Mutual. (Id. ¶ 23; Defs. Ex. (V) Ex. 19). Defendants acknowledged receipt of this letter in a response dated October 10, 2019. (Id. ¶ 24). On October 23, 2019, Defendants responded substantively to Plaintiff's letter dated September 25, 2019. (Id. ¶ 25; Defs. Ex. (D) MM). That letter summarized information regarding reverse mortgage lending, the terms of the mortgage, loan servicing, an escrow account, the appraisal procured at loan origination, and Plaintiff's obligations to timely pay property taxes and hazard insurance premiums. (Id.; Defs. Ex. (D) (MM)). Defendants then obtained a Lender Placed Insurance policy on October 29, 2018. (Id. ¶ 19; Defs. Ex. (D) MM).

The parties dispute whether Defendants alleged failure to either acknowledge or formally respond to Plaintiff's letters caused Plaintiff harm. (See Defs. 56.1 ¶ 26; Pl. Resp. 56.1 ¶ 26).

Hazard Insurance

On July 5, 2018, Liberty Mutual issued Plaintiff a bill in the amount of $239.82 for his hazard insurance premium. (Defs. 56.1 ¶ 27). Liberty Mutual issued a notice of non-payment to Plaintiff, and sent a Cancellation Notice to Defendants, on August 6, 2018. (Id. ¶¶ 27-28). A copy of the Cancellation Notice was also sent to Plaintiff. (Id. ¶ 28; Defs. Ex. (D) K). On August 7, 2018 Liberty Mutual emailed Plaintiff notifying him that his homeowner's insurance was at risk of cancellation for failure to pay. (Id. ¶ 29; Defs. Ex. (V) 20).

Defendants sent a letter to Plaintiff on August 8, 2018 requesting proof of hazard insurance. (Id. ¶ 30). Plaintiff paid the outstanding $239.82 balance on August 17, 2018. (Id. ¶ 31). Defendants assert that they sent a second letter to Plaintiff requesting proof of hazard insurance on August 29, 2018 (Id. ¶ 32); Plaintiff contends he “has no record of receiving” such a record. (Pl. Resp. 56.1 ¶ 32).

On September 5, 2018, Liberty Mutual sent Plaintiff a bill in the amount of $265.91 for his hazard insurance premium. (Defs. 56.1 ¶ 33). Defendants sent Plaintiff another letter requesting proof of hazard insurance on September 28 2018. (...