United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
C. MARKS CHIEF UNITED STATES DISTRICT JUDGE.
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.
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”).
Default and Repayment Plan with
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).
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).
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.).
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.).
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).
Defendants Assigned the Loan
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 ...