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Thomason v. One West Bank

United States District Court, M.D. Alabama, Northern Division

February 12, 2018

STEVEN THOMASON, Plaintiff,
v.
ONE WEST BANK, FSB, et. al., Defendants.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          TERRY F. MOORER, UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Pursuant to 28 U.S.C. § 636(b)(1), this case was referred to the undersigned United States Magistrate Judge for review and submission of a report with recommended findings of fact and conclusions of law. (Docs. 4, 78). Pending before the Court is:

(1) Defendant Eva Banks's Motion for Summary Judgment (Doc. 175, filed 10/05/2017)
(2) Defendants', One West Bank, FSB (“OWB”)[1], Ocwen Loan Servicing, LLC (“Ocwen”, Deutsche Bank National Trust Company as trustee for Home Equity Mortgage Loan Asset-Backed Trust Series INABS 2006-A, Home Equity Mortgage Loan Asset-Backed Certificates Series INABS 2006-A (“Deutsche Bank”)[2] and Mortgage Electronic Registration Systems, Inc. (“MERS”) (collectively referred to as “Defendants”) Motion for Summary Judgment (Doc. 182, filed 10/16/2017) and Brief in Support (Doc. 183, filed 10/16/17);
(3) Plaintiff's Motion for Summary Judgment with Attachments (Doc. 186, Exs. 1-57 filed 10/16/2017) and Brief in Support (Doc. 196, filed 11/28/2017) and Amended Appendix of Attachments. (Doc. 197, Exs. 1-75).

         II. FACTUAL BACKGROUND

         On October 19, 2005, Ms. Thomason, Plaintiff's wife, sought assistance in applying for a mortgage loan with Lucious Trimble and his brokerage, Chase Mortgage Company[3] to purchase a home at 901 Seibles Road in Montgomery, Alabama. (Doc. 175, Eva Bank MSJ, Thomason Depo., Ex. 1 at pp. 129-130; Ex. 4 at pp.1-5 and 8-9). Previously in 2005, Wachovia Bank foreclosed on a loan taken out solely in Plaintiff's name on property located at Alamont Drive in Montgomery, Alabama. (Doc. 175, Eva Bank MSJ, Ex. 5A). Because of the foreclosure's negative effect on Plaintiff's credit, he could not qualify to obtain another mortgage loan at that time. (Doc. 175, Eva Bank MSJ, Ex. 1 Thomason Depo. at pp. 70-71, 81-83; Ex 2. Affidavit of Thomas Russell).

         Thereafter, on November 28, 2005, Ms. Thomason individually borrowed $78, 375.00 from EvaBank (“the Loan”) pursuant to two promissory notes. (Doc. 183, Defendants' Brief in support of MSJ, Ex. 2-A). Plaintiff did not sign the notes, did not borrow any money from EvaBank, undertook no obligation to repay the same, and was not a borrower under the terms of the notes. Id. To secure the Loan, Ms. Thomason and Plaintiff signed two mortgages to MERS, as nominee for EvaBank and its successors and assigns. (Doc. 183, Defendants' Brief in support of MSJ, Ex. 2-B). Plaintiff signed the mortgages solely as an accommodation mortgagor, as the Seibles Road Property was to be his and Ms. Thomason's residence. Id. Both mortgages specifically state as follows:

“any Borrower who co-signs this Security Instrument but does not execute the Note (a “co-signer”): (a) is co-signing this Security Instrument only to mortgage, grant and convey the co-signer's interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay sums secured by this Security Instrument; and (c) agrees that Lender and any other Borrower can agree to extend, modify, forbear or make any accommodations with regard to the terms of Security Instrument or the Note without the co-signer's consent”

Id. at ¶13 (first mortgage), ¶11 (second mortgage). In November 2005, Eva Bank sold the Plaintiff's mortgage to Indy Mac Bank. (Doc. 89 at ¶18).

         The Loan subsequently fell into various degrees of default. (Doc. 183, Defendants' Brief in support of MSJ; Affidavit of Katherine Ortwerth, Ex. 2 at ¶13). Over the following years, Ms. Thomason was provided with two separate loan modification offers. Ms. Thomason never applied for a loan modification with Eva Bank; rather she applied to Indy Mac Bank in 2007, but was denied. (Amended Complaint, Doc. 89 at ¶¶ 22-23). Later in July 2008, Ms. Thomason was offered a loan modification, and a second loan modification was offered in June 2009. (Doc. 183, Defendants' Brief in support of MSJ, Ex. 2-D). Ms. Thomason accepted the 2008 modification offer and returned the necessary paperwork to implement the same. Id. The signed documents necessary to accept the subsequent 2009 modification offer were never returned. (Doc. 183, Defendants' Brief in support of MSJ; Affidavit of Katherine Ortwerth, Ex. 2 at ¶13). Ms. Thomason passed away in October 2009. Payments continued on the Loan for a year after Ms. Thomason's death but eventually ceased. The last payment on the Loan was made on November 4, 2010 and was applied to the payments due on August 1 and September 1, 2010. (Doc. 183, Defendants' Brief in support of MSJ, Affidavit of Katherine Ortwerth, Ex. 2 at ¶ 14; Ex. 2-C).

         The record includes a March 24, 2010 copy of a letter from Plaintiff addressed to Indy Mac Mortgage Services wherein Plaintiff advised of his wife's death. However, there is no confirmation in the record of its mailing by Plaintiff or of its receipt by IndyMac Mortgage Services. (Doc. 186-16, Plaintiff's Motion for Summary Judgment). The record also includes a November 30, 2011 copy of a letter wherein Plaintiff advised he had faxed a copy of his wife's death certificate and responded that he did not need to respond to the request for executor of estate because he was a borrower on the original loan. Again, however, there is no confirmation in the record of its mailing by Plaintiff or of its receipt by any Defendant. Moreover, the letter contains no indication of the addressee. (Doc. 197-29, Plaintiff's Motion for Summary Judgment).

         Plaintiff claims that these and other letters are qualified written requests (“QWRs”) under the Real Estate Setttlement Procedures Act (“RESPA”). (Amended Complaint, Doc. 89 at ¶¶ 53, 56, 76, 77, 100). Specifically, Plaintiff claims to have sent QWRs dated November 30, 2011, March 24, 2012, [4] May 10, 2012, and June 4, 2012 to IndyMac Mortgage, and QWRs dated January 28, 2015 and February 4, 2015 to Ocwen. (Id.; Doc. 196 at pp. 13-20, Plaintiff's Motion for Summary Judgment). Plaintiff admits that none of the alleged QWRs were sent to MERS or Deutsche Bank. (Defendants' Brief in support of MSJ, Doc. 183; Ex. 1 Thomason Depo. at pp. 331, 336, 352).

         On November 1, 2013, servicing of the Loan transferred to Ocwen. (Doc. 183, Defendants' Brief in support of MSJ, Ex. 2-E). On April 14, 2015, Ocwen sent Plaintiff a family transfer package for the Loan. (Doc. 183, Defendants' Brief in support of MSJ, Ex. 2-J). Plaintiff never returned the Family Transfer Package needed to transfer the Loan into his name. (Doc. 183, Defendants' Brief in support of MSJ; Affidavit of Katherine Ortwerth, Ex. 2 at ¶25; Ex. 1 Thomason Depo. at 390, 392). However, Plaintiff was aware that he needed to complete the Family Transfer Package in order to receive a loan modification, but testified that he did not return the package because he did not trust the companies. (Doc. 183, Defendants' Brief in support of MSJ; Ex. 1 Thomason Depo. at 390, 392).

         When questioned about the reasons stated by IndyMac Mortgage and Ocwen for not giving him a loan modification, Plaintiff testified that “[t]he reason that we've cleared today on the record was that I wasn't on the note . . . It had nothing to do with my income . . . But they've already said that I didn't qualify because I wasn't on the loan.” (Doc. 183, Defendants' Brief in support of MSJ; Ex. 1 Thomason Depo. at 534). In fact, Plaintiff acknowledged as early as May 2012 that he was advised by letter he could not obtain a loan modification because he was not a borrower on the Loan. (Doc. 186-19, Plaintiff's Motion for Summary Judgment; Doc. 183, Defendants' Brief in support of MSJ; Ex. 1 Thomason Depo. at 301-302). Plaintiff also admits in his pleadings that he “was told by Indy Mac that he was not approved for the loan modification because he was not named on the note on the first mortgage.” (Amended Complaint, Doc. 89 at ¶ 48). Because Plaintiff never became a borrower under the Notes, he has not been approved for or offered a loan modification or other loss mitigation assistance. (Doc. 183; Defendants' Brief in support of MSJ; Affidavit of Katherine Ortwerth, Ex. 2 at ¶ 26).

         III. Procedural History

         On July 11, 2012, Plaintiff filed a Complaint with this Court alleging various claims arising from Defendant OWB's handling of his “application for a loan modification”. (Doc. 1). OWB filed a Motion to Dismiss the Complaint. (Doc. 6). A Report and Recommendation was entered wherein it recommended granting the Motion to Dismiss and dismissing the Complaint with prejudice. (Doc. 15). Thereafter, Plaintiff filed a Motion to Amend the Complaint to add additional claims and parties. (Doc. 17). A Supplemental Report and Recommendation was entered which recommended denying Plaintiff's Motion to Amend the Complaint. (Doc. 27). By Opinion and Judgment, the Court adopted both the initial Recommendation and the Supplement Recommendation, dismissing Plaintiff's Complaint with prejudice and denying Plaintiff's Motion to Amend. (Docs. 30, 31).

         Plaintiff appealed the dismissal to the Eleventh Circuit. (Doc. 32). On December 16, 2014, the Eleventh Circuit entered its opinion affirming the dismissal of Plaintiff's Complaint, but reversing the denial of Plaintiff's motion to amend and remanding “with instructions to the district court to allow Mr. Thomason to amend his RESPA claim and to address the proposed new claims and defendants.” (Doc. 42 at p. 12). On remand, the Court entered an order requiring Plaintiff to file an amended complaint setting out the factual allegations that supported his claims and adding any new defendants. (Doc. 44). In his Amended Complaint, Plaintiff added MERS, Ocwen, Deutsche Bank, and EvaBank as parties and stated various causes of action. (Doc. 49). On April 3, 2015, OWB, Ocwen, Deutsche Bank and MERS filed a Motion to Dismiss the Amended Complaint pursuant to Rules 8 and 12(b)(6) of the Federal Rules of Civil Procedure. (Doc 56). On April 17, 2015, Eva Bank also filed a Motion to Dismiss the amended complaint or to require a more definite statement. (Doc. 66). Thereafter, the Court entered an Order denying Defendant's Motions to Dismiss with leave to renew but requiring Plaintiff to amend his Complaint once again to set forth a more definite, comprehensible statement of the case. (Doc. 78).

         The Court also referred Plaintiff to the Pro Se Assistance Program[5] for aid in drafting an amended complaint that complied with the Court's orders and the Federal Rules of Civil Procedure. (Docs. 76 and 79). On June 10, 2016, Plaintiff filed his most recent Amended Complaint. (Doc. 89). The Amended Complaint was essentially a restatement of the factual allegations contained in the previous filings regarding unlawful discrimination, civil rights violations, conspiracy and bank fraud. Plaintiff incorporated these allegations into another claim for civil rights violations and discrimination, as well as claims for violation of the ECOA, RESPA, FHA, FDCPA ADTPA, and RICO. Thereafter, Defendants OWB, Ocwen, Deutsche Bank and MERS filed another Motion to Dismiss (Doc. 93) and Defendant Eva Bank also filed another Motion to Dismiss. (Doc. 94).

         By Opinion and Judgment entered on March 22, 2017, the District Judge adopted the March 1, 2017 Recommendation, with exception. (Docs. 108, 112 and 113). The Court's Opinion and Judgment on Defendants' Motion to Dismiss dismissed Plaintiff's claims under the ECOA, FDCPA, RICO, and ADTPA. Id. The Court also dismissed Plaintiff's FHA claim with respect to allegations concerning loan origination and with respect to modification proceedings occurring before March 3, 2013. Id. Accordingly, the Court ruled that the claims surviving the Motions to Dismiss were as follows:

1) Claims for violations of the Real Estate Settlement Procedures Act. 12 U.S.C ยง2601 ...

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