United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE
16, 2017, the Magistrate Judge filed a report and
recommendation recommending that the court grant Caliber Home
Loans' motion for summary judgment; deny Linda
Kirby's motion for partial summary judgment; decline to
exercise supplemental jurisdiction over the remainder of the
action between Star Properties and Ms. Kirby; and remand the
case to the Circuit Court of Jefferson County, Alabama. (Doc.
102). Ms. Kirby filed objections to the report and
recommendation. (Doc. 105).
objections, Ms. Kirby argues that the Magistrate Judge failed
to consider the evidence in the light most favorable to her,
the non-movant, and that the Magistrate Judge committed
several legal errors in reaching the conclusion set forth in
the report. The court will consider the objections
Kirby claims the Magistrate Judge erred by finding that
Caliber was entitled to determine when a loss mitigation
application is complete. However, RESPA gives a servicer that
power. See 12 C.F.R. 1024.41(b)(1). Under the
statute, a servicer is entitled to determine when an
application is complete.
this general principle is limited by specific exceptions in
the statute. RESPA requires a servicer to treat an
application as complete if the only outstanding information
“is not in control of a borrower.” 12 C.F.R.
1024.41(b)(1), Supp. I. Ms. Kirby claims the Magistrate Judge
“did not address or consider this very important
limitation.” (Doc. 105 at 20). But the Magistrate Judge
did consider, interpret, and apply the provision in
his analysis. (Doc. 102 at 51-52).
crux of Ms. Kirby's objections to the Magistrate
Judge's recommendation about her RESPA claim is that she
disagrees with his interpretation of the law. However, the
Magistrate Judge correctly concluded that the provision
applies when the servicer-not the borrower- requests
information from a third-party. This reading conforms to the
statutory obligation of the borrower to supply the servicer
with the necessary information to evaluate her eligibility
for loss mitigation options.
Magistrate Judge also correctly found that Caliber's
timeframe for submission of the additional documents was
reasonable. Caliber gave Ms. Kirby 30 days to submit the
materials. In effect, Ms. Kirby complains that Caliber gave
her too much time to respond. If Caliber had done as
she now wishes, she would have had 29 days instead of 30 days
to respond to Caliber's request. Providing a borrower
more time to respond cannot be unreasonable.
the Magistrate Judge correctly concluded that Ms. Kirby
submitted an incomplete loss mitigation application. Caliber
had the statutory authority to determine when the application
was complete, and Ms. Kirby did not submit documents the
servicer required in a timely fashion. The accuracy or
reliability of Caliber's records is immaterial when the
parties do no dispute that Ms. Kirby did not provide
documents requested by Caliber. The Magistrate Judge
correctly found that the undisputed facts show that the
application was incomplete.
the Magistrate Judge correctly concluded that Caliber did not
have a duty to search its own files to supplement Ms.
Kirby's incomplete application. Further, even if such a
duty existed and Caliber searched its own records, Ms.
Kirby's applications would remain incomplete. No evidence
suggests any document she previously submitted would satisfy
Caliber's requests and complete her February 2014
Kirby argues that the Magistrate Judge erred by concluding
that her torts claims against Caliber were barred because the
only duty between the parties was contractual. However, the
Magistrate Judge correctly applied Alabama law. Ms. Kirby
places great weight on Ogletree v. Bank of Am.,
N.A., No. 1:11-CV-489-VEH, 2012 WL 4340024 (N.D. Ala.
Sept. 17, 2012). The court agrees with the Magistrate Judge
that Olgetree does not persuasively establish that
Alabama law imposes a duty of care on a loan servicer who
voluntarily agrees to consider loss mitigations options for a
borrower. As Judge Ott previously noted, reading
Olgetree for that proposition is to “read the
case too broadly.” Tidmore v Bank of Am.,
N.A., No. 4:15-CV-2210-JEO, 2017 WL 467473, at *5 (N.D.
Ala. Feb 3, 2017). Further, RESPA cannot serve as a source of
a duty under state law to consider loss mitigation options.
See 12 C.F.R. § 1024.41. The Magistrate Judge
correctly concluded that Caliber is entitled to summary
judgment on Ms. Kirby's tort claims.
court also agrees with the Magistrate Judge's
recommendation to deny Ms. Kirby's motion for partial
summary judgment against Caliber. Having found that Caliber
is entitled to summary judgment on Ms. Kirby's claims
against it, it logically follows that Ms. Kirby is not
entitled to summary judgment against Caliber.
court has carefully reviewed and considered de novo
all the materials in the court file, including the report and
recommendation and Ms. Kirby's objections. The court
OVERRULES Ms. Kirby's objections;
ADOPTS the Magistrate Judge's report;
and ACCEPTS his recommendation to grant
summary judgment for Caliber on all claims made by Ms. Kirby
(doc. 58), deny Ms. Kirby's motion for partial summary
judgment (doc. 67), and remand the remaining state-law claims
and counterclaims ...