Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Durham Commercial Capital Corp. v. Ocwen Loan Servicing, LLC

United States District Court, S.D. Florida

March 30, 2017

DURHAM COMMERCIAL CAPITAL CORP., a New York corporation, Plaintiff,
OCWEN LOAN SERVICING, LLC, a Delaware limited liability company, Defendant.


          KENNETH A. MARRA, United States District Judge.

         This cause is before the Court upon Defendant's Motion for Summary Judgment (DE 77); Plaintiff's Amended Motion for Summary Judgment (DE 93); Plaintiff's Objection to and Motion to Exclude Portions of Defendant's Summary Judgment Evidence from the Summary Judgment Record (DE 99); Plaintiff's Motion to Exclude Portions of the Summary Judgment Evidence Proffered by Defendant in Connection with Defendant's Memorandum in Opposition to Plaintiff's Motion for Final Summary Judgment (DE 107); Defendant's Renewed Motion to Dismiss or, in the alternative, to Transfer or Stay as to Durham's Alternative Theory of Liability (DE 124); Defendant's Motion to Strike (DE 141) and Plaintiff's Motion to Strike (DE 148).

         I. Background

         The facts, as culled from affidavits, exhibits, depositions, answers, answers to interrogatories, for the purpose of these motions, are as follows:

         Plaintiff Durham Commercial Capital Corporation (“Plaintiff”) is in the factoring business, which entails the contractual purchasing of accounts from a client. In this case, Plaintiff purchased the accounts of the law firm, Connolly, Geaney, Ablitt and Willard, P.C. (“CGAW”).[1] (DE 100-1 at ¶ 1.) On November 7, 2012, CGAW (through its predecessor name Ablitt Scofield, P.C.) and Plaintiff entered into a non-recourse receivables purchase contract and security agreement (the “factoring agreement”). (DE 100-1 at ¶ 2.) Defendant Ocwen Loan Servicing, LLC (“Defendant”) is a mortgage servicing company that services mortgage loans, often on behalf of residential mortgage backed securities trusts. (DE 100-1 at ¶ 4.)

         On or about June 12, 2012, CGAW and Defendant entered into a local counsel agreement pursuant to which CGAW performed legal services for Defendant including evictions, bankruptcies and mortgage foreclosure actions. (DE 100-1 ¶ 8.) CGAW issued invoices to Defendant for legal services and costs that CGAW incurred in connection with professional legal services performed for Defendant. (DE 100-1 ¶ 9.) CGAW was required to submit invoices on loans being serviced by Defendant via Defendant's REALRemit processing system. (DE 100-1 ¶ 10.) Defendant claims it cannot unilaterally change vendor payment remittance information on its system (Bryon Gay Decl. ¶ ¶ 32-36, DE 79), [2] whereas Plaintiff claims Defendant can change this information (Dec. 6, 2012 email, DE 79-5).

         In or about late 2012, Defendant acquired another mortgage servicer named Homeward Residential, Inc. f/k/a American Home Mortgage Servicing, Inc. (“American Mortgage”). In or about early 2013, Defendant acquired from GMAC, Inc. (“GMAC”), GMAC's mortgage servicing rights to various mortgage loans. (DE 100-1 ¶ 11.)

         On December 6, 2012, Plaintiff sent Defendant correspondence that stated the following:

I am pleased to inform you that [CGAW] has attained [Plaintiff] as a source of capital and accounts receivable processor. This will enable [CGAW] to accommodate the growth and development of their business while maintaining a high level of customer service.
As part of the program the accounts receivable of [CGAW] have been assigned to [Plaintiff] and are processed through [Plaintiff]. Therefore payments of invoices should be made payable to and mailed directly to:
Durham Commercial Capital Corp. for the account of: [CGAW] 101 Sully's Trial, Bldg 20 Pittsford, NY 14534
This assignment has been duly recorded under the Uniform Commercial Code. Please make the proper notations on your ledger and acknowledge receipt of this assignment by signing at the place provided and fax a copy to [Plaintiff] . . . Payment to any other party will not constitute payment. . . This notice and instructions herein will remain in full force and effect until you are notified to the contrary in a writing signed by [Plaintiff] . . .

(Craig McGrain Decl. ¶ 9, DE 93-3.)

         Plaintiff filed UCC-1 Form on November 14, 2012. (Ex. 3, DE 93-3.) Plaintiff filed UCC-3 Form - Amendment on October 10, 2013. (Ex. 4, DE 93-3.) Plaintiff sent follow-ups to the December 6, 2012 letter to Defendant, dated December 21, 2012, September 10, 2013, January 7, 2014 and May 22, 2014. (Ex. 4-7, DE 93-3.)

         Plaintiff's motion for summary judgment argues that (1) Defendant breached its statutory duty under Florida Statute § 679.4061(1) to pay the accounts to Plaintiff; (2) Defendant waived all of its defenses by paying Plaintiff more than $400, 000.00 without dispute and (3) Defendant's defenses are legally insufficient and/or factually unsupportable.

         Defendant's motion for summary judgment makes the following arguments: (1) Plaintiff has failed to adduce evidence sufficient to establish what accounts receivable it factored and retained; (2) Plaintiff has waived its rights to collect payment from Defendant because Defendant told Plaintiff it considered Plaintiff to be a vendor, Plaintiff did not change the payment remittance information even though it had access to do so, Plaintiff knew Defendant was continuing to direct payments to CGAW, and Plaintiff had an arrangement with CGAW to hold payments in trust and remit to Plaintiff; (3) Plaintiff's notices of assignment were invalid and vague; (4) Defendant has a defense and offset by virtue of CGAW's misappropriation and (5) the factoring agreement is void as a matter of public policy.

         II. Summary Judgment Standard

         The Court may grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.