United States District Court, S.D. Florida, Miami Division
ROBERT A. FEINSCHREIBER, Plaintiff,
OCWEN LOAN SERVICING, LLC, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
LAWRENCE KING UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant Ocwen Loan
Servicing, LLC's ("Ocwen") Motion for Summary
Judgment filed September 2, 2019 (DE 29) (the
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.
following facts are undisputed. 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.
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 ¶
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.
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.
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.
Ocwen Is Entitled to Summary Judgment on Plaintiffs RESPA
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.
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).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 ...