United States District Court, S.D. Ohio, Eastern Division
Vascura Magistrate Judge.
OPINION & ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE.
matter is before the Court on Cross-Motions for Summary
Judgment - Defendants' Motion for Summary Judgment (ECF
No. 36) and Plaintiffs' Motion for Summary Judgment (ECF
No. 37). For the reasons set forth below, the Court
GRANTS IN PART AND DENIES IN PART
Defendants' Motion and GRANTS IN PART AND DENIES
IN PART Plaintiffs' Motion.
September of 1995, Plaintiffs Kimberly Baker and Dennis Baker
executed a promissory note and mortgage to finance the
purchase of their home, located at 4500 Edler Court, Hilliard
Ohio (the “Property”). (ECF No. 37-1 at
¶¶ 3, 4). On May 22, 2008, Countrywide Home Loans,
Inc. (“Countrywide”) filed a foreclosure action
against the Bakers in the Franklin County Common Pleas Court.
(ECF No. 36-4). The Bakers allege that the foreclosure action
was the first notification they received from Countrywide
that they were in default on their mortgage. (ECF No. 37-1 at
September 21, 2009, the Common Pleas Court entered a judgment
and decree of foreclosure for Countrywide (the
“Foreclosure Judgement”). (ECF No. 36-1). The
Court of Appeals affirmed the judgment on appeal.
Countrywide Home Loans, Inc. v. Baker, 10th Dist.
Franklin App. No. 09AP-968, 2010-Ohio-1329. Countrywide then
assigned the mortgage to Defendant Aurora Loan Services LLC
(“Aurora”), who was substituted as the plaintiff
in the foreclosure action in place of Countrywide. (ECF No.
37-1 at ¶ 10).
of 2012, the Property was auctioned off at a sheriff's
sale. (Id. at ¶ 11). In July of 2012, Aurora
transferred the servicing of the Bakers' mortgage loan to
Defendant Nationstar Mortgage LLC (“Nationstar”).
(Id. at ¶ 12). On August 9, 2012, Aurora
assigned its auction bid to Nationstar. (ECF No. 36-2). A few
days later, on August 13, 2012, the Common Pleas Court
entered an order confirming the auction and ordering the
sheriff to deed the Property to Nationstar (the
“Confirmation Judgment”). (ECF No. 36-3). The
sheriff did so, and the deed was recorded on September 11,
2012. (ECF No. 36-5). Nationstar then executed a deed to
Defendant Secretary of Veterans Affairs (the
“VA”), which was recorded on November 29, 2012.
(ECF No. 36-6). The VA later recorded a deed that conveyed
the Property back to Nationstar. (ECF No. 36-9).
February 28, 2013, the Common Pleas Court docketed an Agreed
Entry Vacating Plaintiff's Judgment Entry & Decree of
Foreclosure and Dismissing Its Complaint (ECF No. 37-5). The
Agreed Entry stated that the Foreclosure Judgment
“should be vacated on the grounds that Plaintiff's
post-sale title investigation revealed multiple tax liens
neither identified nor extinguished in the
foreclosure.” (Id.). The parties agreed to
dismiss the action without prejudice pursuant to Federal Rule
of Civil Procedure 41(a). (Id.).
the Foreclosure Judgment was vacated, Nationstar began
sending the Bakers mortgage statements and other
correspondence. (ECF No. 37-1 at ¶ 14). The Bakers then
hired counsel to address Nationstar's collection
activity. (Id. at ¶ 15). The Bakers'
counsel sent Nationstar a letter dated February 28, 2014 (the
“Letter”). (ECF No. 37-6). The Letter states that
the Bakers “dispute all late fees, charges, inspection
fees, property appraisal fees, forced placed insurance
charges, legal fees, and corporate advances charged” to
the Bakers' account. (Id.). The Letter
represents that the Bakers believe their account with
Nationstar was “in error for the following reasons: the
balance due is erroneous due to excessive fees and
interest.” (Id.). The Letter then requested
eight categories of information:
1. The name, address, and telephone number of the owner of
the note, plus the name of the master servicer of the note.
2. The date that the current note holder acquired this
mortgage note, and from whom it was acquired.
3. The date your firm began servicing the loan.
4. A complete payment history of how payments and charges
were applied, including the amounts applied to principal,
interest, escrow, and other charges.
5. The current interest rate on this loan and an accounting
of any adjustments.
6. A statement of the amount necessary to reinstate this
7. A complete copy of the loan closing documents, including a
copy of the note and mortgage.
8. A copy of all appraisals, property inspections, and risk
assessments completed for this account.
received the Letter on March 4, 2014, and sent a
correspondence to the Bakers' counsel on March 6, 2014,
acknowledging receipt of the Letter and stating that
Nationstar was in the process of reviewing the Bakers'
concerns. (ECF No. 1 at ¶ 85; ECF No. 36-8). Nationstar
subsequently sent a response letter dated March 21, 2014 (the
“Response”). (ECF No. 37-7). The Response stated
that the owner of the note was Defendant Lehman Brothers
Holdings, Inc. (“Lehman Brothers”) and that
Nationstar was the servicer. (Id.). The Response
included an address for Lehman Brothers and instructed the
Bakers to contact Nationstar directly with any questions.
(Id.). The Response stated that the “loan and
related documents were reviewed and found to comply with all
state and federal guidelines that regulate them.”
(Id.). It further stated:
You asked us to provide Appraisal, property inspections, risk
assessments, the current interest rate, which is 6%, and an
accounting of any adjustments. Additionally, we normally
provide Nationstar's Welcome letter and most recent
Billing Statement, but after conducting an investigation,
Nationstar is unable to locate the information you requested.
This information is unavailable. However, we did review the
account, and all transactions appear to be correct from our
records review. If you think this is an error in the
servicing of the account, please let us know so that we can
investigate and resolve any potential servicing error.
Kimberly Baker and Dennis Baker initiated this action against
Defendants Nationstar, Aurora, Lehman Brothers, and the VA on
October 15, 2015, alleging violations of the Real Estate
Settlement Procedures Act (“RESPA”) (Count I) and
the Fair Debt Collection Practices Act (“FDCPA”)
(Count V). (ECF No. 1). The Complaint seeks declaratory
judgment and injunctive relief extinguishing any rights of
Defendants to enforce the mortgage loan and prohibiting them
from doing so (Counts II and IV). (Id.). The
Complaint further seeks to quiet title to the Property in
Plaintiffs' favor (Count III). (Id.).
filed an Answer on December 18, 2015, stating that the United
States has no interest in the Property and requesting to be
dismissed from the action. (ECF No. 7). Aurora, Lehman
Brothers, and Nationstar (“Defendants”) filed an
Answer to the Complaint on December 14, 2015. (ECF No. 5).
Defendants filed a Motion for Summary Judgment on September
29, 2017. (ECF Nos. 36). On the same day, the Bakers filed a
Motion for Summary Judgment as to liability only, seeking to
schedule a trial to determine the amount of their damages.
(ECF No. 37). The Motions for Summary Judgment are now ripe
STANDARD OF REVIEW
Rule of Civil Procedure 56(a) provides, in relevant part,
that summary judgment is appropriate “if the movant
shows that there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of
law.” In evaluating such a motion, the evidence must be
viewed in the light most favorable to the nonmoving party,
and all reasonable inferences must be drawn in the non-moving
party's favor. United States Sec. & Exch.
Comm'n v. Sierra Brokerage Servs., Inc., 712 F.3d
321, 327 (6th Cir. 2013) (citing Tysinger v. Police
Dep't of City of Zanesville, 463 F.3d 569, 572 (6th
Cir. 2006)). This Court then asks “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.'” Patton
v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting
Anderson v. Liberty Lobby, 477 U.S. 242, 251-52
(1986)). “[S]ummary judgment will not lie if the
dispute is about a material fact that is ‘genuine,'
that is, if the evidence is such that a reasonable jury could
return a verdict for the non-moving party.”
Anderson, 477 U.S. at 248.
initial matter, the Court notes that Plaintiffs have never
objected to the VA's request to be dismissed from this
action (ECF No. 7), and the VA has not participated any
further in this matter. The Court hereby
DISMISSES the VA from the above-captioned
matter. The claims alleged against the remaining Defendants
are discussed in turn below.