United States District Court, M.D. Alabama, Northern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
F. MOORER, UNITED STATES MAGISTRATE JUDGE.
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
(1) Defendant Eva Banks's Motion for Summary Judgment
(Doc. 175, filed 10/05/2017)
(2) Defendants', One West Bank, FSB
(“OWB”), 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”) 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,
(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).
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 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
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
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).
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).
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,  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).
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).
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).
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.
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).
Court also referred Plaintiff to the Pro Se Assistance
Program 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).
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 §2601 ...