Madura v. BAC Home Loans Servicing, LP

655 F. App'x 717
CourtCourt of Appeals for the Eleventh Circuit
DecidedJune 30, 2016
DocketNo. 15-10090
StatusPublished
Cited by8 cases

This text of 655 F. App'x 717 (Madura v. BAC Home Loans Servicing, LP) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Madura v. BAC Home Loans Servicing, LP, 655 F. App'x 717 (11th Cir. 2016).

Opinion

PER CURIAM:

Andrzej Madura and his wife, Anna Do-linska-Madura (the “Maduras”), pro se, appeal denial of their motion under Federal Rule of Civil Procedure 62.1 for an indicative ruling and motion under Federal Rule of Civil Procedure 60(b) for relief from the final judgment, following summary judgment for Bank of America (“BOA”) on the Maduras’ Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605(b),(c), & (e), claims and BOA’s counterclaim of foreclosure. We affirm.

I. BACKGROUND

A. Underlying Facts

On July 26, 2000, Madura obtained a residential home loan, secured by his principal residence, from Full Spectrum Lending, Inc. Both he and his wife signed the mortgage. Countrywide Home Loans, Inc. (“Countrywide”) subsequently purchased the loan. In March 2001, the Maduras contacted Countrywide and requested to repay their loan in full. Countrywide informed the Maduras a prepayment penalty applied and sent them a payoff demand, including the prepayment penalty. In May 2001, the Maduras sent Countrywide a letter demanding immediate rescission of their loan agreement, because of alleged fraud and forgery. Countrywide refused to rescind the loan but agreed to waive the prepayment penalty. The Maduras did not repay the loan in full; instead, they continued to make monthly mortgage payments [719]*719until November 1, 2006, when they ceased making payments. In April 2007, Countrywide sent Madura a notice of default and acceleration. In 2009, Countrywide changed its name to BAC Home Loans Servicing, L.P. (“BAC Home Loans”), and in 2011, BAC Home Loans merged with BOA. In February 2012, BOA sent Madu-ra a re-notice of default and acceleration. Madura did not cure the default.

B. Present Litigation

1. Complaint, Answer, and Counterclaim

In November 2011, the Maduras filed a complaint alleging RESPA violations. BOA answered and later filed a counterclaim for foreclosure against the Maduras. The Ma-duras filed a number of documents in response to the foreclosure counterclaim, including two motions to dismiss, a motion for summary judgment on statute-of-limitations grounds, an answer, and an amended answer, all of which the judge denied or struck.

Thereafter, the Maduras filed a 140-page answer to BOA’s foreclosure counterclaim, denying the allegations and raising 71 affirmative defenses. They asserted (1) BOA lacked standing to foreclose; (2) they had rescinded the loan in May 2001; (3) the loan documents had been forged and fraudulently altered; and (4) in asserting its foreclosure counterclaim in this case, BOA had failed to comply with a consent judgment it had entered into in a different case in federal District Court for the District of Columbia.

2. Motions for Summary Judgment and Related Motions in Limine

BOA subsequently moved for summary judgment on the Maduras’ RESPA claims and on its foreclosure counterclaim. Regarding the foreclosure counterclaim, BOA argued the Maduras’ affirmative defenses lacked merit and were barred in large part by collateral estoppel and res judicata, because the Maduras already had litigated or should have litigated those defenses in their previous lawsuits concerning their home-mortgage loan.1 In support of its motion for summary judgment, BOA filed the affidavit of Brieanne Siriwan, an officer of BOA, to authenticate the loan documents.

The Maduras opposed BOA’s motion and filed their own motion for partial summary judgment on the foreclosure counterclaim. In support of their motion for par-. tial summary judgment, the Maduras filed several Forensic Document Examination Reports from Thomas Vastrick, a purported expert in forensic document examination. Vastrick’s reports stated Madura’s initials on the promissory note, and both his and his wife’s signatures on the Truth in Lending Act (“TILA”) Disclosure Statement, appeared to have been forged.

The Maduras also filed two motions to strike Siriwan’s affidavit and argued it was inadmissible as hearsay, and BOA had violated Federal Rule Civil Procedure 26 by failing properly to disclose Siriwan as a witness in discoveiy. Thereafter, BOA moved to strike or exclude Vastrick’s reports and argued the reports did not meet the standard for the admission of expert testimony under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, [720]*720125 L.Ed.2d 469 (1993). The Maduras opposed BOA’s motion and requested a Dau-bert hearing. The judge directed BOA to furnish the original promissory note and any other original documents BOA wanted the judge to consider; BOA complied.

3. Motions for Summary Judgment

On July 17, 2013, the judge granted BOA’s motion for summary judgment on both the Maduras’ RE SPA claims and BOA’s foreclosure counterclaim. The judge also granted BOA’s motion to strike Vas-trick’s forensic reports. The judge found eacji of Vastrick’s reports fell short of Dauberb’s requirements, because they contained no discussion of how Vastrick reached his conclusions, and the Maduras had presented no cogent arguments concerning his qualifications, methodology, or how his reports would assist the trier of fact.

Concerning BOA’s foreclosure counterclaim, the judge first addressed the Madu-ras’ motion for partial summary judgment. The judge found the Maduras’ rescission argument failed, because their May 2001 lettpr did not rescind their loan; even if it had, the Maduras ratified their obligations under the note by continuing to make mortgage payments for more than five years after the claimed rescission. The judge also found BOA properly had au-thepticated the loan documents via Siri-wan’s affidavit and determined her affidavit satisfied the requirements of Federal Rule of Civil Procedure 56, because it was made with personal knowledge, set out facts that would be admissible in evidence, and showed she was competent to testify on the matters contained therein. The judge declined to strike Siriwan’s affidavit based on the Maduras’ failure-to-disclose argument and stated her analysis would not change, even if the affidavit were stricken. Furthermore, the Maduras’ reliance on Vastrick’s reports in support of their forgery and fraud arguments was unavailing, because the judge could not consider those reports under Daubert. The judge likewise rejected the Maduras’ contention BOA lacked standing to foreclose, because BOA possessed the note when it filed the foreclosure counterclaim and therefore was entitled to enforce it. Consequently, the judge denied the Maduras’ motion for partial summary judgment.

Regarding the Maduras’ affirmative defenses, the district judge first rejected the defenses challenging BOA’s standing to foreclose, because there was no genuine issue of material fact concerning BOA’s standing.

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655 F. App'x 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/madura-v-bac-home-loans-servicing-lp-ca11-2016.