Henriquez v. Green Tree Servicing, LLC (In re Henriquez)

536 B.R. 341
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedSeptember 1, 2015
DocketCase No.: 10-21876-JRS; Adversary Proceeding Case No.: 14-2126-JRS
StatusPublished
Cited by18 cases

This text of 536 B.R. 341 (Henriquez v. Green Tree Servicing, LLC (In re Henriquez)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henriquez v. Green Tree Servicing, LLC (In re Henriquez), 536 B.R. 341 (Ga. 2015).

Opinion

ORDER

James R. Sacca, U.S. Bankruptcy Court Judge

Presently before the Court are the parties’ cross-motions for summary judgment regarding whether the Defendant violated the discharge injunction. (Docs. 16 & 17); the Plaintiffs’ motion to strike the Defendant’s response to their motion for summary judgment; and (Doc. 27) the Defendant’s motions to strike portions of the Plaintiffs’ affidavits. (Docs. 24 & 25).

Facts

In May 2005, the Plaintiffs obtained a mortgage from Bank of America secured by real property (the “Loan”) located in Sterling, Massachusetts (the “Property”). (Def.’s Statement of Undisputed Material Facts (“Def.’s SOMF”) ¶1; Pis.’ Statement of Material Facts (“Pis.’ SOMF” ¶ 1). The Plaintiffs allege that sometime in early 2010 they moved from the Property to Georgia. (Pis.’ SOMF ¶ 2).

On April 26, 2010, the Plaintiffs filed for chapter 7 bankruptcy relief in this Court [343]*343and received a discharge, including a discharge of their personal liability on the Loan, on August 10, 2010. The Plaintiffs indicated on the Chapter 7 Individual Debtor’s Statement of Intention form that they intended to retain the property. There is no evidence that the debt was reaffirmed.

At some point after their discharge, the Plaintiffs contend that they decided to surrender the Property and informed Bank of America of their decision.1 (Pis.’ SOMF ¶ 10). In 2013, the Loan was transferred to EverBank. (Pis.’ Mot. for Summ. J. Ex. 7). In May 2014 the Defendant began servicing the Loan on behalf of EverBank. (Compl. Ex. 1; Def.’s SOMF ¶ 2; Pis.’ SOMF ¶ 26). Shortly after it began servicing the Loan, on May 27, 2014, the Defendant conducted a foreclosure sale of the Property. (Def.’s SOMF ¶ 3; Pis.’ SOMF ¶ 27). The foreclosure deed was recorded on October 7, 2014. (Melissa Barry Aff. Ex. D). The Defendant also sent various written communications to the Plaintiffs, received phone calls from the Plaintiffs, and reported information to the credit bureaus, all of which the Plaintiffs claim are violations of the discharge injunction.

Overall, the Plaintiffs presented seven written communications from the Defendant that they allege violated the discharge injunction. Each was sent to the Plaintiffs, not at the Massachusetts Property, but at their address in Georgia. The written communications the Plaintiffs received from the Defendant fall into two different categories: (1) informational letters (Def.’s SOMF ¶¶ 4, 6-7, 9; Compl. Exs. 1, 3-4, 9); and (2) letters notifying the Plaintiffs that the Defendant will and eventually did place insurance on the Property and that the Plaintiffs are responsible for the cost. (Def.’s SOMF ¶¶ 5, 8; Compl. Exs. 2, 8). The Plaintiffs also attached as exhibits various documents related to the foreclosure of the Property, but do not allege that those are a violation of the discharge injunction. (Compl. Exs. 5, 6, 7, 11; Pis.’ Resp. in Opp’n to Def.’s Mot. for Summ. J. 24-25, Doc. 26).

The Plaintiffs reopened their bankruptcy case in June 2014 and, thereafter, filed this adversary proceeding contending that the Defendant violated the discharge injunction and seeking sanctions for contempt due to the various violations.2 The Plaintiffs seek compensatory damages for the time they’ve expended, damages for emotional distress, and punitive damages. (Compl.20). The Defendant asserts that none of its actions violated the discharge injunction. The Plaintiffs and Defendant have now filed cross-motions for summary judgment. In addition, Plaintiffs have filed a motion seeking to strike the Defendant’s response to their motion for summary judgment, and the Defendant filed two motions to strike certain portions of the Plaintiffs’ affidavits. All of these motions are now before the Court.

Summary Judgment Standard

Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to [344]*344judgment as a matter of law. Fed. R. Civ. P. 56. The substantive law applicable to the case determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual issue is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. Id. The Court “should resolve all reasonable doubts about the facts in favor of the' non-movant, and draw all justifiable inferences in his favor.” United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir.1991) (citations and punctuation omitted). The court may not weigh conflicting evidence or make credibility determinations. Hairston v. Gainesville Sun Publ’g. Co., 9 F.3d 913, 919 (11th Cir.1993), reh’g denied, 16 F.3d 1233 (1994) (en banc).

For issues upon which the moving party bears the burden of proof at trial, he must affirmatively demonstrate the absence of a genuine issue of material fact as to each element of his claim on that legal issue. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). He must support his motion with credible evidence that would entitle him to a directed verdict if not controverted at trial. Id. If the moving party makes such a showing, he is entitled to summary judgment unless the non-moving party comes forward with significant, probative evidence demonstrating the existence of an issue of material fact. Id.

Discussion

A. Motions to Strike

The Plaintiffs ask the Court to strike the Defendant’s response to their motion for summary judgment as untimely. The Plaintiffs’ motion for summary judgment was filed on May 8, 2015. The Defendant filed its response on June 1, 2015. Pursuant to BLR 7007-l(c), a party has twenty-one days to respond to a motion for summary judgment and its failure to respond to such a motion indicates no opposition. The Defendant argues its response was timely because Fed. R. Bankr.P. 9006(f) allows for an extra three days for a response under certain conditions. June 1, 2015 is three days after the twenty-one day response time in this case.3 The Court will not consider the Defendant’s response untimely and will not strike it. Even if the response was untimely, the Court would allow the response as such alleged untimeliness was de minimis and did not prejudice the Plaintiffs. Even if the Court did strike the Defendant’s response, the Defendant still filed a cross-motion for summary judgment clearly indicating that it opposes the Plaintiffs’ motion for summary judgment and making the same arguments as in the response it filed. In addition, even if a motion for summary is unopposed, the Court must still consider the motion on its merits; it will not be granted outright. The Plaintiffs must be entitled to judgment as a matter of law in order to be entitled to summary judgment, which the Court concludes the Plaintiffs are not.

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Cite This Page — Counsel Stack

Bluebook (online)
536 B.R. 341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henriquez-v-green-tree-servicing-llc-in-re-henriquez-ganb-2015.