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Collins v. Bsi Financial Services

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

December 19, 2019

MARIANN COLLINS and RICK COLLINS Plaintiffs,
v.
BSI FINANCIAL SERVICES; SERVIS ONE INC.; MCM CAPITAL PARTNERS LLC; and VENTURES TRUST 2013-I-H-R, Defendants.

          MEMORANDUM OPINION AND ORDER

          EMILY C. MARKS CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Pending before the Court is Defendants BSI Financial Services; Servis One Inc.; MCM Capital Partners; and Ventures Trust 2013-I-H-R's Motion for Summary Judgment. For the reasons stated below, this motion is due to be granted.

         II. PROCEDURAL FACTS

         The Plaintiffs filed their initial mortgage foreclosure Complaint against the various servicers and holders of their mortgage. The Court gave the Plaintiffs two opportunities to amend their deficient complaint. (Docs. 12, 35). The Court then granted the Defendants' Partial Motion to Dismiss Plaintiffs' Second Amended Complaint and denied the Plaintiffs' request to further amend their complaint. (Doc. 59). This left only a breach of contract claim against the various defendants. The Plaintiffs and Defendant CitiMortgage filed a stipulation of dismissal (doc. 103), leaving only a breach of contract claim against BSI Financial Services; Servis One Inc.; MCM Capital Partners LLC; and Ventures Trust 2013-I-H-R (“the Defendants”).

         III. SUBSTANTIVE FACTS

         A. Default and Repayment Plan with CitiMortgage[1]

         In 2000, the Plaintiffs and Ronnie Miskelly, Jr., an individual who is not part of the present dispute, entered into a real estate mortgage agreement. Plaintiff Mariann Collins signed a promissory note in favor of Miskelly. The substantive portion of the mortgage agreement is only 3-pages long. At some point, CitiMortgage assumed the Plaintiffs' mortgage, and in 2012, CitiMortgage and the Plaintiffs entered into a forbearance agreement, apparently due to the Plaintiffs falling behind on their mortgage. (Doc. 97-2 at 49-50). Throughout 2013, the Plaintiffs were to pay a higher monthly mortgage payment-approximately $920, instead of the normal $783-in order to bring their account current. (Id. at 50-51). Based on various representations from CitiMortgage, Ms. Collins was under the impression that their monthly payment amount would return to the lower monthly payment amount in January 2014, after they successfully made the twelve monthly payments. (Id. at 50).

         In March of 2013, the Plaintiffs' bank did not honor the check they wrote to pay the mortgage, presumably due to insufficient funds. (Id. at 121). Thus, while the Plaintiffs attempted to make a timely payment, they did not pay CitiMortgage until April 1, 2013. (Id. at 62). According to the terms of their repayment agreement, this payment was one day late. (Doc. 97-4 at 4).

         Plaintiffs continued making timely payments of $920 under the forbearance agreement, May through December, under the impression that the agreement was not modified or cancelled. (Doc. 97-2 at 63-64, 124). In December of 2013, Ms. Collins called CitiMortgage to confirm that the December payment would be the last payment under the repayment plan and that the regular payment amount would start again in January 2014. (Id. at 64). Ms. Collins represents that CitiMortgage confirmed that was accurate. (Id.).

         In January and February 2014, Plaintiffs made timely payments of $783 of their mortgage. Around that time, CitiMortgage informed Ms. Collins that the account was short $180 and that the January and February payments were not applied to the loan but were being held in a separate account. (Id. at 63-64). When, on February 26, 2014, Plaintiffs received a defaulted mortgage letter, Ms. Collins again called CitiMortgage. (Id. at 65). CitiMortgage informed her that the account was short $177.60. (Id.).

         Plaintiffs tried to make payments until March 2014 when they retained an attorney. (Id. at 67). At first, Ms. Collins made the payment to her attorney, who tried to ensure that CitiMortgage received and appropriately applied the payment. (Id. at 70). Since CitiMortgage stopped accepting her payments, Ms. Collins believes the last time the she personally tried to make a payment was March 2014. (Id. at 70-72).

         B. Defendants Assigned the Loan

         According to Ms. Collins, she began communicating with a representative from Defendant BSI Financial Services in August 2015. (Id. at 127). Supporting documents indicate that CitiMortgage assigned the mortgage to Ventures Trust 2013-I-H-R in October 2015 (Doc. 97-5), and that BSI Financial Services, Inc. began servicing the loan on September 22, 2015. (Doc. 97-1). In their Second Amended Complaint the Plaintiffs assert that BSI assumed the loan in November 2015. While the specific dates the ...


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