Searching over 5,500,000 cases.


searching
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.

Feinschreiber v. Ocwen Loan Servicing, LLC

United States District Court, S.D. Florida, Miami Division

October 16, 2019

ROBERT A. FEINSCHREIBER, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          JAMES LAWRENCE KING UNITED STATES DISTRICT JUDGE.

         'THIS MATTER comes before the Court on Defendant Ocwen Loan Servicing, LLC's ("Ocwen") Motion for Summary Judgment filed September 2, 2019 (DE 29) (the "Motion").[1] .

         I. BACKGROUND

         Plaintiff brings this action against his mortgage loan servicer, Ocwen, asserting violations of the Real Estate Settlement Procedures Act ("RESPA") and the Fair Debt Collection Practices Act ("FDCPA"). See Compl., DE 1-2. Plaintiffs claims arise out of a loan modification that Ocwen offered him in 2013, which required certain "trial period" payments in order for the loan modification to become effective. In Count I, Plaintiff claims Ocwen violated RESPA by failing to correct its alleged error in denying the loan modification after Plaintiff sent a written "Notice of Error" explaining that he made all required trial period payments. In Count II, Plaintiff claims Ocwen violated the FDCPA by charging certain fees and expenses arising out of the denial of the . loan modification. Ocwen now moves for summary judgment on each of Plaintiff s claims.

         The following facts are undisputed.[2] On November 12, 2013, Ocwen sent Plaintiff a letter offering him a loan modification with a new monthly payment of $2, 874.56, consisting of $2, 132.22 for principal and interest along with a $742.34 "escrow" payment for property taxes and insurance. See Mot. at 3 ¶ 2; Childs Dec. ¶ 5 & Ex. A, DE 29-1 at 7. Enclosed with Ocwen's letter was a copy of the proposed Loan Modification Agreement. See Childs. Dec. Ex. A, DE 29-1 at 8. According to paragraph 1 of the proposed Agreement, "for the terms of this modification to become effective," Plaintiff was required to make "two (2) equal monthly payments of principal and interest in the amount of $2, 132.22" starting on February 1, 2014, which the Agreement defined as the "Trial Period." Id.¶1. Paragraph 3 further specified that "[a]ny payments due for taxes and insurance will be your responsibility in addition to the payments of principal and interest required under the terms of this modification." Id. ¶ 3. Finally, paragraph 4 stated that "if you fail to send any full payment on or before the respective due date during the Trial Period, the Trial Period will immediately terminate and the Modification offer will be null and void." Id. ¶ 4.

         Although Plaintiff made two payments of $2, 132.22 in February and March 2014, it is undisputed that Plaintiff did not make the $742.34 escrow payments and therefore did not pay the total amount of $2, 874.56 during either of these months. See Mot. at 4 ¶¶ 9-10; Childs Dec. Ex. B, DE 29-1 at 13; Resp. at 3 ¶¶ 9-10. On March 11, 2014, Ocwen sent Plaintiff a letter informing him that the loan modification was denied. See Mot. at 5 ¶ 11.

         Over three years later, on May 22, 2017, Plaintiff sent Ocwen a "Notice of Error" under RESPA claiming that he had "timely made the payments required" and "demand[ing] that [Ocwen] comply with the terms of the Permanent Loan Modification." Mot. at 5 ¶ 13; Compl. ¶ 35 & Ex. B. On June 9, 2017, Ocwen responded to the Notice of Error stating that the loan modification was denied because Ocwen had "not received the required Trial Period Plan payments by the end of the trial period." Childs Dec. Ex. B, DE 29-1 at 27.

         In the same letter, Ocwen also informed Plaintiff that his two $2, 132.22 payments had initially been "applied to the related loan number []3427 in error," but Ocwen explained that it "processed necessary corrections and reversed the above funds and applied to the loan." Id. at 28. Regardless, the loan modification was denied because both payments were still short by $742.34 based on Ocwen's interpretation of the proposed Loan Modification Agreement. Mot. . at 9; Childs Dec. ¶ 6. Plaintiff contests Ocwen's interpretation, which he says is "contrary to the plain meaning of Paragraph 1 of the Loan Modification Agreement." Resp. at 3 ¶ 10.

         II. LEGAL STANDARD

         Summary judgment is appropriate where "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). A "genuine dispute" means "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A "material fact" means a fact "that might affect the outcome of the suit under the governing law." Id. "Factual disputes that are irrelevant or unnecessary will not be counted." Id. In opposing summary judgment, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Id. at 250.

         III. DISCUSSION

         A. Ocwen Is Entitled to Summary Judgment on Plaintiffs RESPA Claim

         The Court first addresses Plaintiffs RESPA claim. Under RESPA and its implementing regulation (Regulation X), mortgage servicers must "investigate and respond to written notice from a borrower asserting that there was an error related to the servicing of his mortgage loan." Lage v. Ocwen Loan Servicing LLC, 839 F.3d 1003, 1007 (11th Cir. 2016) (citing 12 C.F.R. § 1024.35(a), (e)). Specifically, the servicer "must either correct the errors . . . and notify the borrower in writing or, after a reasonable investigation, notify the borrower in writing that it has determined no error occurred and explain the basis for its decision." Id. (citing 12 C.F.R. § 1024.35(e)(1)(i)). Here, Ocwen argues that "there was no error to correct concerning the Loan Modification Agreement. . . because the payments received in February 2014 and March 2014 were short by $742.34." Mot. at 2. Plaintiff admits that he failed to make these payments, but argues that, based on his interpretation of the proposed Loan Modification Agreement, "said amounts were not the amounts required." Resp. ¶ 16.

         The Court is not persuaded by Plaintiffs interpretation, which the Court may decide as a matter of law on summary judgment. See Univ. Housing by Dayco Corp. v. Foch, 221 So.3d 701, 704 (Fla. Dist. Ct. App. 2017) ("Where the resolution of the issues in the lawsuit depends on the construction and legal effect of a contract, the question at issue is essentially one of law only and determinable by entry of summary judgment.") (internal quotation marks omitted).[3]Under Florida law, a condition precedent "may be either a condition precedent to the formation of a contract or a condition precedent to the performance of an existing contract." Mitchell v. DiMare, 936 So.2d 1178, 1180 ...


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.