United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
case is before the court on the Motion for Summary Judgment
of Defendant Roundpoint Mortgage Company
(“RoundPoint”) (Doc. # 38) and the Motion for
Summary Judgment of Defendant First Guaranty Mortgage
Corporation (“First Guaranty” and collectively
“Defendants”) (Doc. # 46). The Motions (Doc. #
38; 46) have been fully briefed, and the parties have filed
evidentiary submissions. (Docs. # 39-45; 47-51; 65-67). After
careful review, and for the following reasons, the court
finds that the RoundPoint's Motion (Doc. # 38) is due to
be granted and that First Guaranty's Motion (Doc. # 46)
is due to be granted.
Relevant Undisputed Facts
November 16, 2012, Plaintiff Allison Harbin
(“Plaintiff” or “Harbin”) executed a
promissory note (the “Note”) in favor of First
Guaranty in the amount of $116, 999.00. (Docs. # 39 at ¶
I.3; 40-1 at ¶ 6; 40-1 at p. 11-12; 65 at ¶
II.a.3). A mortgage on Harbin's property at 245
Stonecreek Way, Helena, Alabama, (the “Mortgage”)
secured the Note. (Docs. # 39 at ¶ I.4; 40-1 at ¶
7; 40-1 at p. 14-22; 65 at ¶ II.a.4). RoundPoint
acquired the servicing rights for the Loan on December 13,
2012. (Docs. # 39 at ¶ I.7; 40-1 at ¶ 10; 40-1 at
p. 26-30; 65 at ¶ II.a.7).
October 1, 2014, Harbin defaulted on the Note. (Docs. # 39 at
¶¶ I.2, I.8; 40-1 at ¶¶ 11, 29; 40-1 at
p. 33, 42; 65 at ¶¶ II.a.2, II.a.8). Starting in
April 2013, RoundPoint sent Harbin at least twenty-five
letters, encouraging her to contact RoundPoint to speak with
them about mortgage assistance. (Docs. # 39 at ¶ I.9;
40-1 at ¶ 12; 40-1 at p. 41-155; 40-2; 41-1 at p. 1-65;
65 at ¶ II.a.9). Harbin did not respond to
RoundPoint's letters by submitting a loss mitigation
package until 2015. (Docs. # 39 at ¶ I.10; 65 at ¶
February 20, 2015, RoundPoint notified Harbin that it was
accelerating the Loan and initiating the foreclosure process.
(Docs. # 40-1 at ¶ 13; 41-1 at p. 67). At that point,
the foreclosure sale was scheduled for April 27, 2015. (Doc.
# 41-1 at p. 67-69). In exchange for one hundred dollars,
Harbin received a forbearance agreement from RoundPoint,
which suspended Harbin's foreclosure until June 3, 2015.
(Docs. # 39 at ¶¶ I.13-15; 40-1 at ¶¶
15-17; 41-1 at p. 77, 82; 65 at ¶¶ II.a.13-15).
submitted a second loss mitigation package on May 25, 2015.
(Docs. # 39 at ¶ I.16; 40-1 at ¶ 18; 41-1 at p.
84-114; 41-2 at p. 1-83; 65 at ¶ II .a.16). On May 29,
2015, she called RoundPoint to inquire about the status of
her loss mitigation package and spoke with RoundPoint
employee Daniel Gerstenfeld (“Gerstenfeld”).
(Docs. # 39 at ¶¶ I.17-18; 40-1 at ¶¶
19-20; 41-2 at p. 85-86; 65 at ¶¶ II. a.17-18;
65-1; 65-2). Gerstenfeld was not Harbin's assigned point
of contact at RoundPoint (Docs. # 39 at ¶ I.18; 40-1 at
¶ 20; 65 at ¶ II.a.18); however, Harbin had been
unable to reach her point of contact, Danyelle Gentry. (Docs.
# 65-1 at p. 3, 8-9; 65-2 at p. 1).
this phone conversation, Gerstenfeld confirmed that
RoundPoint had received documentation from Harbin and
informed Harbin that she needed to submit two more items to
RoundPoint in order to complete her loss mitigation, or
“work out, ” package. (Doc. # 65-2 at p. 1-2).
Harbin explained to Gerstenfeld that there was a sale date on
her house for June 3, 2015, that she was “looking for
more time, ” and that she “need[ed] the sale date
pushed back to figure this out.” (Id. at p.
3). Gerstenfeld told Harbin to “get that documentation
into us and then we will try to do what we can to get that
sale postponed.” (Id. at p. 3-4). After Harbin
stated that another RoundPoint employee “said that
would postpone [the sale], ” Gerstenfeld said that he
“had someone else look over the account with [him] and
they are saying that [the sale] is still set to go” and
then went to find another person to “give [him] more
clarification.” (Id. at p. 4). Gerstenfeld
next “had someone else look over the account”
with him and told Harbin, “It does look like [the sale]
has been suspended temporarily. Just go ahead and send in
that remaining documentation that I went over with
you.” (Id.). Harbin asked Gerstenfeld to
confirm in an email that the sale date of her home had been
temporarily postponed. (Id. at p. 4-5).
p.m. on the same day that Harbin spoke with Gerstenfeld
(i.e., May 29, 2015), Gerstenfeld emailed Harbin and
stated that two documents (page two of one of her bank
account statements and Form 4506T) were needed for her loss
mitigation package. (Doc. # 65-1 at p. 1).
minutes later, Harbin responded to Gerstenfeld and stated,
During our conversation I asked you about the postponement of
the June 3rd sale day in which you confirmed after speaking
with another constituent of Roundpoint Mortgage. You stated
it had been temporarily postponed and I asked you to also
include that confirmation within your email in which you
agreed. Please confirm the sale date on my house has been
(Id.). At 3:45 p.m., Harbin again emailed
Gerstenfeld with documents to “complete [her] Workout
Package” and requested that he “please confirm
that [the] sale date of June 3rd has been postponed . . .
.” (Id. at p. 2). At 3:51 p.m., Gerstenfeld
responded to Harbin stating, “The Foreclose
[sic] has been suspended temporarily.”
2, 2015, RoundPoint sent a letter to Harbin stating that her
loss mitigation application was incomplete because it was
missing (1) page two of a bank account statement and (2) a
copy of her homeowners' association (“HOA”)
bill. (Doc. # 41-2 at p. 88). The letter also
stated that her home was scheduled for a foreclosure date of
June 3, 2015. (Id.). On June 3, 2015, the
foreclosure sale was held, and First Guaranty purchased
Harbin's property. (Id. at p. 92-95). As of the
date of the foreclosure sale, Harbin had not submitted a
complete loss mitigation application to RoundPoint and had
valid HOA liens on her property. (Docs. # 39 at ¶¶
I.29-30; 40-1 at ¶ 30; 45-1; 65 at ¶¶
II.a.29-30). Because of these HOA liens, Harbin could not
have conveyed clear title to her property, which would have
been necessary for her to receive approval for a loan
modification from RoundPoint. (Docs. # 39 at ¶ I.29; 65
at ¶ II.a.29). On June 25, 2015, Plaintiff filed this
action against RoundPoint, asserting claims for breach of
contract (Count I), negligence/wantonness (Count II), fraud
(Count III), breach of fiduciary duty (Count IV), and
defamation (Count V). (Docs. # 1; 29; 39 at ¶ I.1; 65 at
2016, RoundPoint stopped servicing the Loan, and the
servicing of the Loan was transferred to Fay Servicing
(“Fay”) on behalf of First Guaranty. (Docs. # 39
at ¶ I.35; 40-1 ¶ 32; 45-2 at p. 8; 47 at ¶
I.1; 51-6 at ¶ 6; 65 at ¶¶ II.a.35, II.b.1).
Harbin was sent a Notice to Vacate Letter on July 20, 2016.
(Doc. # 51-6 at p. 14-15). On July 22, 2016, First Guaranty
filed a complaint against Harbin for ejection
(“Ejection Complaint”) in the Circuit Court of
Shelby County, Alabama. (Id. at p. 17-18).
process server attempted service of the Ejectment Complaint
on Harbin on July 24, 2016, August 1, 2016, August 6, 2016,
and August 7, 2016. (Docs. # 47 at ¶¶ I.8-11; 51-6
at p. 26; 65 at ¶¶ II.b.8-11). On August 1, 2016,
the process server recorded that the note he had left on July
24, 2016 was still on Harbin's garage door and it
appeared that “[n]o one has been coming in and
out” of Harbin's house. (Doc. # 51-6 at p. 26).
When the process server returned on August 6, 2016, his note
was gone, and he noticed that the power and water had been
turned off at Harbin's property. (Id.). The
process server left another note for Harbin to call him.
(Id.). Harbin was successfully served at a
McDonald's restaurant on August 7, 2016. (Doc. # 51-6 at
August 6, 2016, the locks to the front and back doors of
Harbin's property were rekeyed so that Harbin did not
have access to the property. (Docs. # 47 at ¶¶
I.12, I.14; 51-6 at ¶ 15; 65 at ¶¶ II.b.12,
II.b.14). Harbin would have had access to the property
through the garage door if the power had been turned on.
(Docs. # 47 at ¶ I.17; 65 at ¶ II.b.17). Counsel
for Harbin notified counsel for RoundPoint that the locks had
been changed at the property on August 9, 2016. (Docs. # 47
at ¶ I.13; 65 at ¶ II.b.13). On August 10, 2016,
the locks to the front and back doors of Harbin's
property were rekeyed, and a key was left under a flower pot
so that Harbin would have access to the property. (Docs. # 47
at ¶ I.19; 50-4 at p. 23; 56-1 at p. 28-35; 65 at ¶
II.b.19). The property was again rekeyed on August 15, 2016
because the August 10, 2016 rekeying was not satisfactory to
Harbin. (Docs. # 47 at ¶ I.20; 50-4 at p. 23-25; 65 at
¶ II.b.20). Harbin's personal property was not
disturbed during the rekeying processes. (Doc. # 50-4 at p.
25). As of August 15, 2016, Harbin has been able to access
her property. (Doc. # 50-4 at p. 24-25).
September 6, 2016, Harbin filed her First Amended Complaint,
which added First Guaranty as a defendant to this action.
(Doc. # 29). In addition to asserting all of the claims from
the initial Complaint (Doc. # 1) against First Guaranty,
Plaintiff included claims against First Guaranty for
conversion (Count VI), unjust enrichment (Count VII),
trespass (Count VIII), and intentional inflection of severe
emotional distress (Count IX). (Docs. # 20 at ¶ 21; 29). In
the First Amended Complaint, Harbin alleges that she has
suffered mental anguish and emotional distress as a result of
the foreclosure of her property. (Doc. # 29 at p. 15-16). She
has not sought any medical treatment or counseling services
(free or otherwise) in relation to these alleged damages.
(Docs. # 39 at ¶¶ I.32-33; 42-1 at p. 66; 65 at
Ejection Complaint was dismissed on September 11, 2016. (Doc.
# 56-1 at p. 37). Fay, on behalf of First Guaranty, has
ensured that the ejection process against Harbin will not be
initiated again prior to the resolution of this case. (Docs.
# 47 at ¶ I.24; 56-1 at ¶ 23; 65 at ¶
II.b.24). Currently, Harbin remains in possession of the
property (Docs. # 39 at ¶ I.31; 40-1 at ¶ 31; 44-1
at p. 9; 65 at ¶ II.a.31); however, she does not stay at
her home the majority of the time. (Docs. # 39 at ¶
I.34; 44-1 at p. 9-10; 65 at ¶ II.a.34).
Summary Judgment Standard
Federal Rule of Civil Procedure 56, summary judgment is
proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party asking for
summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and
identifying those portions of the pleadings or filings which
it believes demonstrate the absence of a genuine issue of
material fact. Id. at 323. Once the moving party has
met its burden, Rule 56 requires the non-moving party to go
beyond the pleadings and -- by pointing to affidavits, or
depositions, answers to interrogatories, and/or admissions on
file -- designate specific facts showing that there is a
genuine issue for trial. Id. at 324.
substantive law will identify which facts are material and
which are irrelevant. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). All reasonable doubts
about the facts and all justifiable inferences are resolved
in favor of the non-movant. See Allen v. Bd. of Pub.
Educ. for Bibb Cnty., 495 F.3d 1306, 1314 (11th Cir.
2007); Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1115 (11th Cir. 1993). A dispute is genuine “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson,
477 U.S. at 248. If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted.
See Id. at 249.
faced with a “properly supported motion for summary
judgment, [the non-moving party] must come forward with
specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc.,
131 F.3d 995, 999 (11th Cir. 1997). As Anderson
teaches, under Rule 56(c) a plaintiff may not simply rest on
his allegations made in the complaint; instead, as the party
bearing the burden of proof at trial, he must come forward
with at least some evidence to support each element essential
to his case at trial. See Anderson, 477 U.S. at 252.
“[A] party opposing a properly supported motion for
summary judgment ‘may not rest upon the mere
allegations or denials of his pleading, but . . . must set
forth specific facts showing that there is a genuine issue
for trial.'” Id. at 248 (citations
judgment is mandated “against a party who fails to make
a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial.” Celotex
Corp., 477 U.S. at 322. “Summary judgment may be
granted if the non-moving party's evidence is merely
colorable or is not significantly probative.”
Sawyer v. Sw. Airlines Co., 243 F.Supp.2d 1257, 1262
(D. Kan. 2003) (citing Anderson, 477 U.S. at
the summary judgment stage the judge's function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249.
“Essentially, the inquiry is ‘whether the
evidence presents a sufficient disagreement to require
submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.'”
Sawyer, 243 F.Supp.2d at 1262 (quoting
Anderson, 477 U.S. at 251-52); see also LaRoche
v. Denny's, Inc., 62 F.Supp.2d 1366, 1371 ...