United States District Court, S.D. Alabama, Southern Division
ANASTASIA P. DIEHL, Plaintiff,
THE MONEY SOURCE, INC., et al., Defendants. ANASTASIA P. DIEHL, Plaintiff,
PAYMAP, INC., Defendant.
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
matters come before the Court on plaintiff's Motion for
Leave to Amend Complaint and Renewed Motion to Consolidate
(doc. 124) filed in Civil Action 17-0125-WS-B, as well as her
Notice of Filing of Renewed Motion to Consolidate (doc. 27)
filed in Civil Action 18-0017-WS-B. Defendants have filed
responses opposing all or substantial portions of the Motion,
which submissions are found at doc. 127 in Civil Action
17-0125 and at doc. 33 in Civil Action 18-017. Plaintiff
filed a consolidated reply at doc. 129 in Civil Action
17-0125. The Motion is now ripe.
Civil Action 17-0125 against TMS and LoanCare.
litigation arises from servicing and collections activity
relating to a residential mortgage loan. Back on March 20,
2017, plaintiff, Anastasia P. Diehl, filed her Complaint in
Civil Action 17-0125 against various defendants, including
The Money Source, Inc. (“TMS”), LoanCare, LLC
(“LoanCare”), and multiple credit reporting
agencies. She did not name Paymap, Inc., as a defendant.
Pursuant to the Amended Complaint (doc. 58) filed with leave
of court on September 13, 2017, Diehl asserts the following
claims against TMS and/or LoanCare: (i) violation of the Real
Estate Settlement Procedures Act (“RESPA”) by TMS
in failing to conduct a reasonable investigation in response
to Diehl's notice of servicing error relating to a pair
of mortgage payments that were not applied to her loan
balance; (ii) breach of the mortgage agreement by TMS in not
applying or misapplying mortgage payments for the months of
January 2016, March 2016 and August 2016; (iii) fraud by TMS
and LoanCare based on LoanCare's alleged
misrepresentations regarding the benefits and features of the
Equity Accelerator Program (the “EAP”) in which
Diehl voluntarily enrolled; (iv) invasion of privacy by TMS
and LoanCare relating to TMS's purportedly unreasonable,
harassing collection activity directed at Diehl; and (v)
violation of the Fair Credit Reporting Act
(“FCRA”) by TMS in failing to conduct a
reasonable investigation of Diehl's dispute of
information TMS reported to credit bureaus.
Action 17-0125 is governed by a Rule 16(b) Scheduling Order
(doc. 40) entered by Magistrate Judge Bivins on June 14,
2017, as amended on November 15, 2017 (see doc. 76).
Of critical importance to the instant Motion, the Scheduling
Order provides as follows: “Any motion for leave to
amend the pleadings or to join other parties must be filed by
July 31, 2017.” (Doc. 40, ¶
The July 31 deadline came and went with no request by Diehl
or anyone else to extend the allotted period for amending
pleadings and joining additional defendants.
Action 17-0125 has proceeded normally through the discovery
and pretrial phases. Discovery closed on January 17, 2018.
Defendants TMS and LoanCare filed multifaceted Motions for
Summary Judgment (docs. 86 & 91) on February 28, 2018.
Following multiple extensions, briefing finally closed on the
Rule 56 Motions on May 11, 2018, with the filing of a
consolidated reply brief by TMS and LoanCare. (See
doc. 126.) Adjudication of these Motions for Summary Judgment
is being made by separate order entered contemporaneously
with this Order. The effect of the summary judgment order is
to dismiss all of Diehl's claims against LoanCare, but to
allow certain causes of action (i.e., the RESPA
failure-to-investigate claim, the FCRA failure-to-investigate
claim, the claim for breach of contract predicated on
misallocation of the August 2016 mortgage payment to late
fees first, and the invasion of privacy claim relating to
TMS's collection activities) against TMS to proceed to
trial. Civil Action 17-0125 is set for Final Pretrial
Conference on July 10, 2018, with jury trial to follow during
the August 2018 civil term. (See doc. 76.)
Civil Action 18-0017 against Paymap.
January 16, 2018, nearly ten months after commencing Civil
Action 17-0125 against TMS and LoanCare, Diehl initiated
Civil Action 18-0017, a second, related action in this
District Court leveled solely against Paymap, Inc.
Diehl's Complaint in Civil Action 18-0017 alleged that
Paymap managed the EAP (a program marketed by LoanCare) in
which Diehl had enrolled, and that Diehl's mortgage
payments were routed to Paymap, which then failed to direct
such payments to TMS (the servicer of Diehl's mortgage
loan) to be credited to her loan balance. Based on these
allegations, Diehl advances claims against Paymap for fraud
(concerning alleged misrepresentations about the EAP), money
had and received, conversion, wantonness, and negligence.
stark contrast to Civil Action 17-0125, Civil Action 18-0017
remains in its infancy, procedurally speaking. Following an
unsuccessful Rule 12(b)(6) motion directed at Counts Four and
Five of the Complaint, Paymap filed its Answer (doc. 25) on
May 3, 2018. The parties submitted their Rule 26(f) Report
(doc. 30) last month, and a Rule 16(b) Scheduling Order (doc.
35) was entered by Magistrate Judge Bivins earlier this week,
fixing a trial date of May 2019. No discovery appears to have
The March 16 Order.
February 27, 2018, Diehl, LoanCare, and TMS filed a Joint
Motion to Consolidate and Extend Certain Scheduling Order
Deadlines (doc. 84) in Civil Action 17-0125. In that Motion,
Diehl, LoanCare and TMS argued that consolidation of Civil
Actions 17-0125 and 18-0017 was appropriate because they
“both address a common set of facts (the collection and
application (or lack thereof) of the mortgage payments) and
the legal issues regarding liability for the alleged
mismanagement of those payments.” (Doc. 84, ¶ 5.)
At no time in this initial Motion to Consolidate did Diehl
seek leave to amend her Complaint against TMS and LoanCare to
assert further or different causes of action or legal
theories against LoanCare.
part, Paymap opposed consolidation based on (i) the stark
difference in procedural posture of the two actions; and (ii)
the significant differences in factual and legal issues
joined, such that the uncommon issues outweighed the common
ones. Upon careful analysis and application of Rule 42(a),
Fed.R.Civ.P., this Court concluded that Paymap had the better
argument. In an Order (doc. 102) entered on March 16, 2018,
the undersigned denied the Motion to Consolidate, reasoning
“[T]he Rule 42(a) balancing test requires a federal
district court to weigh the benefits and burdens of the
proposed consolidation. … It is true that efficiency
gains could be realized by consolidating the two matters,
given the overlapping factual and legal issues. It is also
true, however, that such efficiency gains would likely be
modest, given the limited commonalities between the two cases
and the significant areas of factual and legal divergence.
Balanced against that consideration are the certainty that
[Civil Action 17-0125] would be substantially delayed if
consolidation were granted, and the risk that Paymap might
incur prejudice as a result of undue pressure to constrict
applicable pretrial deadlines as a means of forcing [Civil
Action 18-0017] to catch up to [Civil Action 17-0125].
… After weighing the ...