United States District Court, S.D. Florida
DURHAM COMMERCIAL CAPITAL CORP., a New York corporation, Plaintiff,
OCWEN LOAN SERVICING, LLC, a Delaware limited liability company, Defendant.
OPINION AND ORDER
KENNETH A. MARRA, United States District Judge.
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).
facts, as culled from affidavits, exhibits, depositions,
answers, answers to interrogatories, for the purpose of these
motions, are as follows:
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”). (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.)
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),  whereas Plaintiff
claims Defendant can change this information (Dec. 6, 2012
email, DE 79-5).
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.)
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.)
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.)
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.
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.
Summary Judgment Standard
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