Burdick v. Bank of America

140 F. Supp. 3d 1325, 2015 U.S. Dist. LEXIS 98236, 2015 WL 4555239
CourtDistrict Court, S.D. Florida
DecidedJuly 28, 2015
DocketCASE NO. 14-62137-CIV-COHN/SELTZER
StatusPublished
Cited by1 cases

This text of 140 F. Supp. 3d 1325 (Burdick v. Bank of America) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burdick v. Bank of America, 140 F. Supp. 3d 1325, 2015 U.S. Dist. LEXIS 98236, 2015 WL 4555239 (S.D. Fla. 2015).

Opinion

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT GREEN TREE SERVICING’S MOTION FOR SUMMARY JUDGMENT

, JAMES I. COHN, United States District Judge

THIS CAUSE is before the Court on Defendant Green Tree Servicing, LLC’s (“Green Tree’s”) Motion for Summary Judgment [DE 105] (“Motion”). The Court has considered the Motion, Plaintiff’s Response [DE 116], and Defendant’s Reply [DE 124]. The Court has also considered Plaintiffs Notice of Supplemental Authority [DE 126] and Defendant’s Response [DE 127], The Court has reviewed the Record in this case and is otherwise advised in the premises.

This case concerns Green Tree’s servicing of Plaintiffs mortgage debt. Plaintiff alleges that in handling Plaintiffs account, Green Tree (1) violated the Federal Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p, by making misleading statements in connection with the collection of a debt [DE 85 at 9-11], (2) violated the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601, et seq., by refusing to conduct a reasonable investigation in response to Plaintiffs inquiry [id. at 11-13]; and (3) committed Negligence Per Se, based upon the same conduct as its purported RESPA violation [id. at 13-15].

As set forth below, the Court - will GRANT in part and DENY in part the Motion. The Motion will be granted as to Plaintiffs Negligence count, and denied as to- all the others. ■

I. Standard

The Court will grant summary judgment 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. The movant “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To [1328]*1328discharge this burden, the movant must demonstrate a lack of evidence supporting the nonmoving party’s case. Id. at 325, 106 S.Ct. 2548.

After 'the movant has met its burden under Rule 56, the burden of production shifts to the nonmoving party who “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party may not rely merely on allegations or denials in its own pleading, but instead must come forward with specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56; Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.

As long as the non-moving party has had ample opportunity to conduct discovery, it must come forward with affirmative evidence to support its claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “A mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be enough- of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). If the evidence advanced by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.

II. Background

Plaintiff sues Green Tree for alleged misconduct in connection with the servicing of the mortgage on his home. [DE 85 at 2.] Plaintiffs- problems stem from the decision of a prior servicer (Bank of America),1 in 2006, to force-place insurance on the property.' [DE 104 at 4.] This decision was improper, in Plaintiffs view. Nevertheless, the force-placed ■ insurance more than doubled Plaintiffs combined monthly mortgage and escrow payments, placing them, beyond Plaintiffs ability to pay,. [M] Plaintiff continued to submit payment at what he believed to be the proper rate, and Bank of America accepted and applied these payments until October of 2009. [Id. at 6.]

In October of 2009, Bank of America stopped immediately crediting the' payments and instead held them in a separate account. [Id. at 6-7.] Plaintiff continued to pay. However, Bank of America would apply the money to Plaintiffs debt only after enough' accrued for a full monthly payment, including the force-placed insurance premiums. In September 2011, Bank of America stopped accepting Plaintiffs payments altogether, and decided to foreclose on the home. [Id. at 7.] At this time, even though Plaintiff had made his original monthly payment every month, Plaintiffs account reflected that Plaintiffs last payment came in May 2010. [Id.]

Defendant Green Tree became the servi-cer of Plaintiffs mortgage in December of 2012. [Id. at 9.] Two of its actions underlie this suit. First, on February 11, 2014, Plaintiffs foreclosure' attorney sent Green Tree a letter that constituted a Qualified Written Request under RESPA. [Id. at 10.] The letter observed that, on February 22, '2013, Plaintiff received correspondence from Green Tree stating that he had not made any payment on his mortgage “since June 1, 2010.” [Id. 10; DE 85-5 at 5.] The letter further' stated that this was not true, and that Plaintiff made payments “well into "2011, and stopped doing so only after his payments were repeatedly returned.” [DE 104 at 10; DE 85-5 at 6.] More than a month later, Green Tree responded. [DE 104 at 11; DE 85-6 at1.] [1329]*1329Green Tree observed that Plaintiff had filed a voluntary Chapter 13 bankruptcy petition in November 2013, and that any objection to Green Tree’s characterization of the debt should have been made in that action. [DE 104 at 11; DE 85-6 at 1.] In response to Plaintiff’s further inquiry, Green Tree sent Plaintiff’s lawyer another letter that did explain the discrepancy. [DE 104 at 11-12; DE 85-8 at 1.]

Second, Plaintiff complains of two other letters from Green Tree to his attorney. The first is a “Monthly Information Statement” attached to Plaintiff’s Complaint [DE 859]. It reflects four “Insurance Advance Disbursements” totaling $3,634.50. [DE 104 at 15; DE 85-9 at 1.] It also includes the following notice, in all caps:

THIS IS NOT A BILL. THIS STATEMENT IS FOR INFORMATIONAL PURPOSES ONLY. PLEASE PAY THE BANKRUPTCY TRUSTEE OR GREEN TREE DIRECTLY, ACCORDING TO THE TERMS OF YOUR BANKRUPTCY PLAN.

[DE 104 at 15; DE 85-9 at 1.]

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Bluebook (online)
140 F. Supp. 3d 1325, 2015 U.S. Dist. LEXIS 98236, 2015 WL 4555239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burdick-v-bank-of-america-flsd-2015.