Smith v. Nationstar Mortgage, LLC

225 F. Supp. 3d 549, 2016 U.S. Dist. LEXIS 188464, 2016 WL 8117701
CourtDistrict Court, D. South Carolina
DecidedAugust 23, 2016
DocketCivil Action No. 2:15-cv-888-RMG
StatusPublished

This text of 225 F. Supp. 3d 549 (Smith v. Nationstar Mortgage, LLC) is published on Counsel Stack Legal Research, covering District Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Nationstar Mortgage, LLC, 225 F. Supp. 3d 549, 2016 U.S. Dist. LEXIS 188464, 2016 WL 8117701 (D.S.C. 2016).

Opinion

ORDER

Richard Mark Gergel, United States District Court Judge

This matter is before the Court on Defendant Nationstar Mortgage, LLC’s, Motion to Seal Document (Dkt. No. 99). For the reasons discussed below, the Court DENIES the motion.

Background

In March 2007, Plaintiff purchased a residence at 339 Cabell- Street in Charleston, South Carolina. (Dkt. No. 91-3 at 5-6). Plaintiff renovated the property, (Dkt. No. 91-3 at 9-10), and refinanced the loan used to purchase the residence with Sun-Trust Mortgage, Inc. in September 2007.1 (Dkt. No. 91-5). Plaintiff stopped making payments on the loan in September 2008, and on January 2, 2009, SunTrust declared the loan in default. Plaintiff and SunTrust entered into a loan modification agreement on May 15, 2009. (Dkt. No. 91-6).

On August, 31, 2010, SunTrust notified Plaintiff that he had been approved for a trial period plan under the Home Afforda[551]*551ble Modification Program (HAMP) trial agreement (Dkt. No. 91-7). The trial period plan required that he make three payments of $ 1,589.57 each in October, November, and December. The offer letter states in part:

Congratulations! You are approved to enter into a trial period plan under the Home affordable Modification Program. This is the first step toward qualifying for more affordable mortgage payments ... To accept this offer, you must make new monthly “trial period payments in place of your normal monthly mortgage payment.... After all trial period payments are timely made and you have submitted all the required documents, your mortgage would then be permanently modified.... If each payment is not received by SunTrust Mortgage in the month in which is due [sic], this offer will end and your loan will not be modified under the Making Home Affordable program.

Id. at 2. Before the trial period plan finished, however, Plaintiffs mortgage was transferred to Defendant Nationstar.

On December 15, 2010, Nationstar sent Plaintiff a letter stating that it was now servicing his mortgage and that the mortgage was in default. (Dkt. No. 91-8). Plaintiff, who had already made his first two payment under the trial period plan, hand delivered his December payment to a Sun-Trust branch on December 22, 2010. (Dkt. No. 91-9). In a January 31, 2011 letter to Nationstar, Plaintiff stated that he was “going to keep making [his] ‘trial’ payments and [he defied Nationstar] to foreclose [him] over these issues.” (Id. at 4).

On February 11, 2011, Plaintiff wrote a letter to Nationstar stating

I was advised by Fannie Mae level II investigators yesterday that you needed profit and loss documents to begin the modification process of this loan again. I am submitting these documents under protest, as I have since September 2010 had an enforceable agreement for a trial modification in existence between Sun-Trust Bank and myself. I was also advised by the level II investigators that SunTrust had failed to report this September 2010 agreement to the Treasury Department and that this failure to report is what triggered my loan being transferred to Nationstar. As I have maintained all along, this situation has escalated to this level through the non-feasance or malfeasance of someone other than me.

Nationstar subsequently denied Plaintiffs request for a permanent loan modification (Dkt. No. 91-11), and on March 23, 2011, Nationstar initiated foreclosure proceedings against Plaintiff. (Dkt. No. 91-16).2

On June 29, 2011, Nationstar sent Plaintiff a letter informing him that he was approved to enter into a trial period plan under HAMP. (Dkt. No. 91-13). Under the 2011 trial period plan plan, Plaintiff was to make three payments of $1318 in August, September, and October. (Id.). Plaintiff made these three payments, and continued to send Nationstar payments of $1318 each month. (Dkt. No. 91-15).

On December 31, 2014—after Plaintiff had consistently made the $1318 monthly payment for more than three years—Na-tionstar sent Plaintiff a check for $27,780.06 along with a letter stating that “[w]e have recently received payment on your behalf and are returning these funds as they are insufficient to bring your account current.” (Dkt. No. 96-15).

[552]*552On February 26, 2015, Plaintiff filed this action. (Dkt. No. I).3 Plaintiffs remaining causes of action stem from Nationstar’s servicing of the mortgage and its refusal to recognize his completion of the 2010 and 2011 HAMP trial period plans. (Dkt. No. 68 (amended complaint)). Nationstar filed a motion for summary judgment (Dkt. No. 91), and Plaintiff attached a Federal National Mortgage Association (Fannie Mae) employee’s affidavit to his response in opposition. (Dkt. No. 96-30). Nationstar subsequently filed this motion to seal the Fannie Mae employee’s affidavit. (Dkt. No. 99). Plaintiff defers to the Court’s judgment on this matter. (Dkt. No. 102).

Discussion

Nationstar argues that the court should seal the Fannie Mae employee’s affidavit because the public’s right of access to the Fannie Mae employee’s affidavit is outweighed by competing interests. The Court disagrees.

A trial court “may, in its discretion, seal documents if the public’s right of access is outweighed by competing interests.” Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000). However, “[t]he common law presumes a right of the public to inspect and copy “all judicial records and documents.” Virginia Dep’t of State Police v. Washington Post, 386 F.3d 567, 575 (4th Cir. 2004) (quoting Stone v. Univ. of Maryland Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988) (internal quotation marks omitted)). The party seeking overcome this presumption bears the burden of demonstrating that a significant interest outweighs the presumption. Id. “Some of the factors to be weighed in the common law balancing test ‘include whether the records are sought for improper purposes, such as promoting public scandals or unfairly gaining a business advantage; whether release would enhance the public’s understanding of an important historical event; and whether the public has already had access to the information contained in the records.’ ” Id. (quoting In re Knight Publ. Co., 743 F.2d 231, 235 (4th Cir. 1984)).

The overarching theme of Nation star’s motion to seal is that the publication of the affidavit could be damaging to Na-tionstar. This may very well be true. But whether a person could be damaged by the publication of a document it is not the standard by which the Court determines whether a document should be sealed.

The crux of Nationstar’s argument for why the affidavit should be sealed is that it bears the following statement at the bottom of each page: “Proprietary and Confidential—Restricted—Pre-decisional—Not for publication. Contains Nonpublic Information under a Financial Agency Agreement with the U.S. Department of the Treasury. Confidential treatment is required.”4 Nationstar appears to sincerely suggest that “[t]he repeated language clearly states that the document was never intended to be made part of the record or relied upon by a party in this case.” (Dkt. No. 99-3 at 4).

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Related

Ashcraft v. Conoco, Inc.
218 F.3d 288 (Fourth Circuit, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
225 F. Supp. 3d 549, 2016 U.S. Dist. LEXIS 188464, 2016 WL 8117701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-nationstar-mortgage-llc-scd-2016.