United States District Court, S.D. Ohio, Western Division
H. ANTHONY JAMES, et al., Plaintiffs,
OCWEN LOAN SERVICING, LLC, Defendant.
REPORT AND RECOMMENDATION
Stephanie K. Bowman, United States Magistrate Judge
civil action involves Defendant Ocwen Loan Servicing,
LLC's (“Defendant”) efforts to collect upon
and modify the terms of the defaulted 2011 home loan of
Plaintiffs H. Anthony James and Olive P. James (collectively,
“Plaintiffs”). Currently pending are the
parties' cross-motions for summary judgment. (Docs. 29,
30). For the following reasons, the undersigned recommends
that Defendant's motion (Doc. 29) be GRANTED IN PART and
DENIED IN PART, and that Plaintiffs' motion (Doc. 30) be
GRANTED IN PART and DENIED IN PART.
filed this lawsuit against Defendant in which they sought
relief under three separate federal statutes in relation to
Defendant's efforts to collect on a 2011 Note that is
secured by a mortgage on Plaintiffs' property located at
8019 Glendale Milford Road in Camp Dennison, Ohio. (Doc. 1).
Specifically, in the First Count, Plaintiffs claim that
Defendant violated multiple sections of the Real Estate
Settlement Procedures Act (“RESPA”), 12 U.S.C.
§ 2601, et seq. and Regulation X, 12 C.F.R.
§ 1024.1, et seq. (Id., PageID 8-9).
In the Second Count, Plaintiffs claim that Defendant violated
the Fair Debt Collections Practices Act
(“FDCPA”), 15 U.S.C. §§ 1692c(a)(2),
1692c(c), and 1692f by continuing to communicate with
Plaintiffs directly in connection with the collection of a
debt despite knowing Plaintiffs were represented by an
attorney with respect to that debt. (Id., PageID
8-9). In the Third Count, Plaintiffs seek a declaratory
judgment under 28 U.S.C. § 2201 and Ohio Rev. Code
§ 2721.03 regarding the person entitled to enforce the
Note, the owner of Plaintiffs' obligation, the amount due
and owing under the Note and Mortgage, and whether Plaintiffs
are in default under that Note and Mortgage. (Id.,
FINDINGS OF FACT
parties have submitted what they contend are undisputed
findings of fact in this case. To the extent a genuine
dispute exists, the dispute will be construed in favor of the
February 3, 2006, Plaintiffs signed a Note and Mortgage in
the amount of $154, 800.00 for their home residence located
at 8019 Glendale Milford Road in Camp Dennison, Ohio
(“Loan”). (Doc. 29-2, PageID 269-87; Doc. 30-1,
PageID 392-410). In or about June 2011, IndyMac Mortgage
Services, the then-servicer of the Loan, initiated
foreclosure proceedings against Plaintiffs. (Doc. 27-1,
PageID 118). Those foreclosure proceedings eventually were
dismissed. (Id., PageID 120). On November 1, 2013,
IndyMac transferred the servicing of the Loan to Defendant.
(Doc. 29-2, PageID 261; Doc. 30-2, PageID 425). The Loan was
in default at the time Defendant obtained servicing rights.
(Doc. 30-2, PageID 425).
obtaining servicing rights for the Loan, Defendant began
calling Plaintiffs repeatedly, sometimes multiple times in a
single day. (Doc. 30-3, PageID 444-55; see also Doc.
27-1, PageID 125). On or about January 13, 2015,
Plaintiffs' attorney sent Defendant a letter requesting
that “[a]ll correspondence and negotiations of the debt
with your firm should flow through [the attorney's]
office[.]” (Doc. 30-5, PageID 469). The letter
contained a signed authorization for release of
Plaintiffs' account information to their attorney.
about January 14, 2015, Plaintiffs' attorney sent
Plaintiffs' loan modification application to an attorney
who passed along the application to Defendant on January 16
and January 17, 2015. (Doc. 29-3, PageID 288-366; Doc. 30-6,
PageID 470-93).Defendant's account log indicates that
Defendant received the application on January 19, 2015. (Doc.
30-7, PageID 527-28).
January 20, 2015, Defendant sent Plaintiffs a letter to the
Camp Dennison address that acknowledged receipt of their
application. (Doc. 29-4, PageID 367-68; Doc. 30-8, PageID
542-43). Plaintiffs received that acknowledgement letter from
Defendant. (Doc. 27-1, PageID 131).
second letter from Defendant addressed to Plaintiffs at their
Camp Dennison address is dated January 23, 2015. (Doc. 29-4,
PageID 369-74; Doc. 30-9, PageID 544-49). That letter
contains the salutation “Dear Customer(s), ”
indicates that their “document due date was 6/18/2014[,
]” and requests that Plaintiffs submit the required
documents listed in the letter “as soon as
possible” to allow Defendant to evaluate Plaintiffs for
all available loss mitigation options. (Doc. 29-4, PageID
369; Doc. 30-9, PageID 544). It further states: “Since
your document due date has now passed, you may no longer be
eligible for certain protections under applicable laws and/or
certain loss mitigation options.” (Doc. 29-4, PageID
369; Doc. 30-9, PageID 544). The letter advises the customers
to submit a complete application as soon as possible, noting
that Defendant may still evaluate complete applications
submitted after the document due date. (Doc. 29-4, PageID
369; Doc. 30-9, PageID 544). Defendant's corporate
representative testified that Defendant creates the letter
and then sends it to a third party for mailing. (Doc. 28-1,
PageID 213-14). That corporate representative further
testified that the letter customarily would have been sent by
regular mail unless it was one that had to be sent by
certified mail. (Id., PageID 213). She indicated it
was possible that the third party could have failed to send
the letter as required. (Id., PageID 214).
Defendant's account log includes a notation that the
letter had been sent, but does not display a tracking number
for the letter. (Doc. 30-7, PageID 530). Plaintiff H.
Anthony James testified that he did not receive that second
letter from Defendant. (Doc. 27-1, PageID 133).
February 4, 2015, Plaintiff H. Anthony James resent the
January 13, 2015 request to Defendant that all communications
about the debt on their account be directed to
Plaintiffs' attorney. (Doc. 30-10, PageID 550-51).
Defendant's account log notes receipt of the
authorization on February 9, 2015. (Doc. 30-7, PageID 531).
Defendant continued to place phone calls to Plaintiffs after
receipt of that authorization. (Doc. 30-3, PageID 450-55).
February 14, 2015, Plaintiff H. Anthony James called
Defendant to inquire about his loan modification application
status. (Doc. 30-7, PageID 532). Defendant provided the
requested status update and informed Plaintiff about the
missing documents he needed to complete his loan modification
application. (Id.). Plaintiff made a follow-up
appointment to speak with Defendant about his loan
modification application on February 17, 2015.
(Id.). Defendant's representative thereafter
called and spoke to Plaintiff H. Anthony James on February
17, 2015 per the scheduled appointment. (Doc. 30-7, PageID
533). During that phone call, Plaintiff H. Anthony James was
irate, became argumentative, and refused to send some of the
documents requested by Defendant for the loan modification
application. (Id.). On March 5, 2015,
Defendant's account log notes an email was sent regarding
the missing documents. (Doc. 30-7, PageID 534). Plaintiffs
never submitted the additional information and documents that
Defendant had requested to complete the loan modification
application. (Doc. 29-1, PageID 259).
March 13, 2015, Defendant's representative called
Plaintiffs and Plaintiffs told the representative that
Defendant needed to call Plaintiffs' attorney. (Doc.
30-7, PageID 534). Defendant's representative informed
Plaintiffs that Defendant could not do so because Defendant
used an auto dialer to make the phone calls. (Id.).
Defendant thereafter continued to make phone calls to
Plaintiffs through August 19, 2015. (Doc. 30-3, PageID
SUMMARY JUDGMENT STANDARD
Rule of Civil Procedure 56(a) provides that summary judgment
is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” A dispute is
“genuine” when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A court must view the evidence and draw
all reasonable inference in favor of the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). The moving party has the burden of
showing an absence of evidence to support the nonmoving
party's case. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986).
the moving party has met its burden of production, the
nonmoving party cannot rest on the pleadings, but must
present significant probative evidence in support of their
case to defeat the motion for summary judgment.
Anderson, 477 U.S. at 248-49. The mere scintilla of
evidence to support the nonmoving party's position will
be insufficient; the evidence must be sufficient for a jury
to reasonably find in favor of the nonmoving party.
Id. at 252.
fact that the parties have filed cross-motions for summary
judgment in this case does not alter the applicable standard
The Court reviews each party's motion separately,
determining, for each side, whether a judgment may be entered
in accordance with the standards of Rule 56. Both motions
must be denied if the Court finds there is a genuine issue of
material fact. If however, there is no genuine issue and one
or the other party is entitled to prevail as a matter of law,
the Court will render judgment.
Klaus v. Hilb, Rogal & Hamilton Co. of Ohio, 437
F.Supp.2d 706, 732 (S.D. Ohio 2006).
has moved for summary judgment on all three Counts of
Plaintiffs' Complaint. Plaintiffs, on the other hand,
have moved for summary judgment on portions of their First
and Second Count. The parties' respective arguments on
each Count are addressed below.
RESPA (First Count)
is a consumer protection statute that regulates the real
estate settlement process.'” Washington v.
Green Tree Servicing LLC, No. 1:15-cv-354, 2017 WL
1857258, at *3-4 (S.D. Ohio May 5, 2017) (quoting Hardy
v. Regions Mortg., Inc., 449 F.3d 1357, 1359 (11th Cir.
2006)), report and recommendation adopted, 2017 WL
2599252 (S.D. Ohio June 15, 2017). Through the enactment of
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
developed in some areas of the country.” 12 U.S.C.
§ 2601(a). “‘Although the “settlement
process” targeted by the statute was originally limited
to the negotiation and execution of mortgage contracts, the
scope of the statute's provisions was expanded in 1990 to
encompass loan servicing.'” Marais v. Chase
Home Fin. LLC, 736 F.3d 711, 719 (6th Cir. 2013)
(quoting Medrano v. Flagstar Bank, FSB, 704 F.3d
661, 665-66 (9th Cir. 2012)). “As a remedial statute,
RESPA is construed broadly to effectuate its purposes.”
Mortgage Servicing Rules Under the Real Estate Settlement
Procedures Act (‘Regulation X') is a Consumer
Financial Protection Bureau regulation promulgated pursuant
to section 1022(b) of the Dodd-Frank Act, 12 U.S.C. §
5512(b), and [RESPA], 12 U.S.C. § 2601, et
seq.” Cooper v. Fay Servicing, LLC, 115
F.Supp.3d 900, 903 n.6 (S.D. Ohio 2015). Regulation X imposes
certain obligations on a loan servicer with respect to loss
mitigation generally and the processing of a borrower's
loan modification application. Washington, 2017 WL
1857258, at *3-4. As relevant here, Regulation X requires a
servicer to exercise “reasonable diligence in obtaining
documents and information to complete a loss mitigation
application.” 12 C.F.R. § 1024.41(b)(1). To comply
with this diligence requirement, a servicer must promptly
review a loss mitigation application for completeness and
“[n]otify the borrower in writing within 5 days . . .
after receiving the loss mitigation application that the
servicer . . . has determined that the loss mitigation
application is either complete or incomplete.” 12
C.F.R. § 1024.41(b)(2)(i)(A)-(B). The servicer also
“must include a reasonable date [in the written notice
sent by the servicer] by which the borrower should submit the
documents and information necessary to make the loss
mitigation application complete.” 12 C.F.R. §
borrower may enforce provisions of [§ 1024.41 of
Regulation X] pursuant to section 6(f) of RESPA (12 U.S.C.
2605(f)).” 12 C.F.R. § 1024.41(a). “Whoever
fails to comply with any provision of [RESPA] shall be liable
to the borrower for each such failure[.]” 12 U.S.C.
§ 2605(f). Upon a showing of liability, an individual
may recover actual damages, and any additional damages, as
the court may allow, in the case of a pattern or practice of
noncompliance with the requirements of RESPA and Regulation
X, in an amount not to exceed $2, 000. 12 U.S.C. §
2605(f)(1). An individual also may be awarded the costs of
the action and reasonable attorneys' fees. 12 U.S.C.
moves for summary judgment on each violation of RESPA and
Regulation X alleged by Plaintiffs in their Complaint. (Doc.
29, PageID 246-52). Rather than disputing Defendant's
arguments or moving for summary judgment on each violation
alleged in their Complaint, Plaintiffs narrow their claims by
focusing on three arguments under 12 C.F.R. §§
1024.41(b)(1), (b)(2)(i)(B) and (b)(2)(ii) of Regulation X in
their opposition brief and cross-motion for summary judgment.
(Doc. 30, PageID 386-89; Doc. 31, PageID 557-59; Doc. 36,
PageID 624-25). Both parties contend that no genuine issue
of material fact exists with respect to those three alleged
considered the evidence favorably for each party, the
undersigned recommends granting in part Defendant's
motion for summary judgment and denying Plaintiffs'
motion for summary judgment based on the RESPA claims.
There are genuine issues of material fact as to whether
Defendant sent the written notice required by 12 C.F.R.
argue that Defendant violated Regulation X by failing to send
a written notice stating whether Plaintiffs' loss
mitigation application either was complete or incomplete as
required by 12 C.F.R. § 1024.41(b)(2)(i)(B), and move
for summary judgment on that basis. (Doc. 30, PageID 387-88;
Doc. 31, PageID 558; Doc. 36, PageID 624-25). Defendant, on the
other hand, argues that summary judgment is appropriate
because there is undisputed evidence of mailing, which
includes a copy of the January 23, 2015 letter from its
business records that is addressed to Plaintiffs at the same
address they received a prior letter, an affidavit from its
representative that the letter had been sent, and testimony
from its corporate representative as to the mailing process.
(Doc. 29, PageID 248-49; Doc. 32, PageID 567-70; Doc. 35,
PageID 612-13). Defendant contends that Plaintiffs rely on
nothing more than the unsupported, self-serving testimony of
Plaintiff H. Anthony James, which is insufficient to create a
genuine issue of material fact. (Doc. 32, PageID 567-70; Doc.
35, PageID 612-13).
copy of the January 23, 2015 letter provides the starting
place for the analysis. It is undisputed that Defendant has a
copy of a letter dated January 23, 2015 in its business
records that is addressed to Plaintiffs at the same Camp
Dennison address where they admit they received the January
20, 2015 letter mailed by Defendant. Defendant's account
log contains a notation that the January 23 letter was sent.
This evidence supports Defendant's argument that it
mailed the letter.
other evidence presented is probative of non-mailing. The
January 23 letter uses a generic salutation of “Dear
Customer(s)” rather than the personalized salutation of
“Dear H. Anthony James, Olive P. James” used in
the January 20 letter that Plaintiffs received. (Doc. 29-4,
PageID 367, 369). The January 23 letter also identifies
Plaintiffs' original document due date as June 18, 2014,
which was six months before Plaintiffs even submitted their
loan modification application. (Id.). Defendant has
offered no explanation for the puzzling inclusion of this due
date. Viewed together, this evidence could indicate that the
letter contained in Defendant's business records was
never finalized for mailing.
to those irregularities in the January 23 letter is the
testimony from Defendant's corporate representative. That
corporate representative testified that a third party mails
the letters on Defendant's behalf, such that she was
unable to say definitively that the January 23 letter had
been mailed. (Doc. 28-1, PageID 213-14). She also conceded
that the third party potentially could have failed to mail
the letter. (Id., PageID 214). Although she did
testify that the letter customarily would be sent by regular
mail if it was not one that had to be sent by certified mail,
she did not know whether the January 23 letter was one that
had to be sent by certified mail. (Id., PageID 213).
No tracking number or certified mail receipt has been
provided for the January 23 letter that would definitively
prove the fact of mailing.
the testimony of Plaintiff H. Anthony James, it is further
probative of, but cannot conclusively establish, non-mailing
of the letter. Although Defendant claims the testimony is
merely unsupported, self-serving testimony that cannot be
considered on summary judgment, the undersigned disagrees.
The testimony has not been provided in a vacuum. Defendant
has claimed that Plaintiffs' receipt of the January 20
letter demonstrates that the January 23 letter had been sent
properly to Plaintiffs' current address. (Doc. 29, PageID
248-49; Doc. 32, PageID 567-70; Doc. 35, PageID 612-13).
Following Defendant's logic, Plaintiffs would have
received the January 23 letter if it had been sent.
Plaintiff H. Anthony's testimony of non-receipt (Doc.
27-1, PageID 133) therefore directly counters Defendant's
argument as to mailing. That testimony also is supported by
the other above-referenced evidence that is probative of
averment of Defendant's Senior Loan Analyst that the
January 23 letter was sent is not based on personal knowledge
of mailing by the third party. Instead, that averment is
based on information gleaned from the business records of
Defendant that are discussed above. (Doc. 29-1, PageID 259).
The credibility of that averment therefore depends upon
whether the evidence contained within Defendant's
business records is found to be the most convincing on the
issue of mailing. As that determination is within the
province of the jury, the Senior Loan Analyst's averment
cannot be conclusive evidence of mailing.
Defendant's reliance on the “mailbox rule”
(Doc. 32, PageID 568; Doc. 35, PageID 612) is misplaced. The
mailbox rule presumes the fact of mailing. Reynolds v.
Reliance Standard Life Ins. Co., No. C-3-06-010, 2006 WL
2990385, at *7 (S.D. Ohio Oct. 18, 2006) (“The
‘mailbox rule' provides that once a notice
is mailed, it is presumed to be received in due
course.”) (emphasis added). Here, there are genuine
issues of material fact as to whether Defendant actually
mailed the January 23 letter in the first instance, which
make the rule inapplicable to this analysis.
the undersigned recommends denying summary judgment to both
parties on Plaintiffs' claim under 12. C.F.R. §
1024.41(b)(2)(i)(B) for failure to notify Plaintiffs in
writing as to whether the ...