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Harbin v. Roundpoint Mortgage Co.

United States District Court, N.D. Alabama, Southern Division

March 27, 2018




         This 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.

         I. Relevant Undisputed Facts[1]

         On 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).

         On 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 ¶ II.a.10).

         On 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).

         Harbin 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).

         During 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 it[2] 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).

         At 3:10 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).

         Ten 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 postponed.

(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.” (Id.).

         On June 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.[3] (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).[4] (Docs. # 1; 29; 39 at ¶ I.1; 65 at ¶ II.a.1).

         In June 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).

         A 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 p. 26).

         On 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).

         On 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).[5] (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 ¶¶ II.a.32-33).

         The 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).

         II. Summary Judgment Standard

         Under 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.

         The 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.

         When 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 omitted).

         Summary 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 250-51).

         “[A]t 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 ...

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