United States District Court, D. Hawaii
COLIN L. CROW, Plaintiff,
OCWEN LOAN SERVICING, LLC; REAL TIME RESOLUTIONS, INC., Defendants.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
OKI MOLLWAY, UNITED STATES DISTRICT JUDGE
lawsuit stems from a dispute about the validity and proper
servicing of a mortgage loan taken out by pro se
Plaintiff Colin Crow and serviced by Defendant Real Time
Resolutions, Inc. Crow is suing Real Time for alleged
violations of the Real Estate Settlement Procedures Act
(“RESPA”), 12 U.S.C. § 2605, et
seq., and the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, et
seq. Crow asserts that Real Time violated RESPA by
failing to timely respond to his “qualified written
requests” (“QWRs”). Crow also asserts that
Real Time violated the FDCPA by failing to include certain
statements in its first written notice, harassing Crow, and
providing false or misleading representations. Crow
additionally seeks an order quieting title to the subject
this court is Real Time’s motion for summary judgment.
Real Time argues that Crow’s RESPA claim is barred by
his failure to show actual damages, that Crow’s FDCPA
claim is barred by the FDCPA’s one-year statute of
limitations, and that Crow is not entitled to an order
quieting title against Real Time.
court grants Real Time’s motion for summary judgment on
August 2005, Crow obtained a $200, 000 loan from Homeward
Residential to purchase real property. See ECF No.
1, PageIDs #s 2-3. The loan was secured by a mortgage on the
property. See id., PageID # 3. Homeward originally
serviced the loan itself. See ECF No. 32, PageID #
190. At some point, Crow stopped making payments to Homeward.
subsequently transferred the servicing rights on the loan to
Real Time. See ECF No. 1-4. On or about February 4,
2010, Real Time wrote to Crow to tell him that Real Time was
the new loan servicer. See id. Crow’s
nonpayment continued. See ECF No. 33-1.
hired Fresh Start Legal Network, LLC, a credit counseling
agency, to send two letters to Real Time, which he says were
QWRs, requesting various documents and information.
See ECF Nos. 1-4, 1-5. Crow alleges that the first
letter (“First Letter”) to Real Time was sent on
or about December 13, 2012. See ECF No. 1, PageID #
4. Real Time alleges that it never received the First Letter
by post. See ECF No. 33, PageID # 216. The letter
itself does not list the address to which it was sent, noting
only “Attention: Real Time Resolutions-Disputes/Account
Resolution Department” with no street address, post
office box, city, state, or zip code. See ECF No.
1-4. Real Time states that it only received the First Letter
on March 5, 2013, as an attachment to an email regarding a
settlement offer made by Crow’s agent. See ECF
No. 33, PageID # 216. Real Time responded to the First Letter
on March 13, 2013. See ECF No. 1-6.
Time’s response to the First Letter provided documents
requested by the First Letter, including the Notice of
Assignment, Sale or Transfer of Servicing Rights, the
Collection Agreement between Homeward and Real Time, the
original Balloon Note, the signed Mortgage, and the Loan
History Summary and Temporary Billing Statement. See
alleges that the second letter (“Second Letter”)
was sent to Real Time on or about January 13, 2013.
See ECF No. 1, PageID # 5. The parties do not
dispute that Real Time had a designated address for receiving
QWRs. See ECF No. 32, PageID # 196; ECF No.38, Page
ID # 5. That address was “P.O. Box 36655, Dallas, TX
75235.” See ECF No. 33-1, PageID # 216.
However, the Second Letter is addressed to Real Time at
“1349 Empire Central #150, Dallas, TX 75247.”
See ECF No. 1-5. This is an address shown on Real
Time’s website, on the letterhead Real Time used when
it responded to the First Letter on a date after the Second
Letter was allegedly sent, and in a settlement offer sent by
Real Time to Crow on or about January 23, 2015, more than two
years after Crow says the Second Letter was sent.
See ECF Nos. 1-6, 1-9; see also ECF No. 39,
PageID # 253. Real Time alleges that it never received the
Second Letter. See ECF No. 33, PageID # 216.
filed this lawsuit on May 4, 2015. See ECF No.
Crow asserts that Real Time violated federal consumer
protection laws, namely RESPA (Count I) and the FDCPA (Count
II). See id., PageID #s 7-9. Crow also seeks to
quiet title to the subject property (Count III). See
id., PageID #s 10-11. Crow claims that he suffered
damages in the form of substantial costs in order to
vindicate his lawful rights, slander of his reputation, and
illegitimate reporting to credit bureaus. See id.,
PageID #s 7-11.
March 16, 2016, Real Time moved for summary judgment.
See ECF No. 32.
judgment shall be granted when “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) (2010). One of the principal purposes of
summary judgment is to identify and dispose of factually
unsupported claims and defenses. Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986). The movants must
support their position that a material fact is or is not
genuinely disputed by either “citing to particular
parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations (including those made for the
purposes of the motion only), admissions, interrogatory
answers, or other materials”; or “showing that
the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
judgment must be granted against a party that fails to
demonstrate facts to establish what will be an essential
element at trial. See id. at 323. A moving party
without the ultimate burden of persuasion at trial--usually,
but not always, the defendant--has both the initial burden of
production and the ultimate burden of persuasion on a motion
for summary judgment. Nissan Fire & Marine Ins. Co.,
Ltd. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).
burden initially falls upon the moving party to identify for
the court those “portions of the materials on file that
it believes demonstrate the absence of any genuine issue of
material fact.” T.W. Elec. Serv., Inc. v. Pac.
Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th
Cir. 1987) (citing Celotex Corp., 477 U.S. at 323).
“When the moving party has carried its burden under
Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986) (footnote
nonmoving party must set forth specific facts showing that
there is a genuine issue for trial. T.W. Elec. Serv.,
Inc., 809 F.2d at 630. At least some
“‘significant probative evidence tending to
support the complaint’” must be produced.
Id. (quoting First Nat’l Bank of Ariz. v.
Cities Serv. Co., 391 U.S. 253, 290 (1968)). See
Addisu, 198 F.3d at 1134 (“A scintilla of evidence
or evidence that is merely colorable or not significantly
probative does not present a genuine issue of material
fact.”). “[I]f the factual context makes the
non-moving party’s claim implausible, that party must
come forward with more persuasive evidence than would
otherwise be necessary to show that there is a genuine issue
for trial.” Cal. Arch’l Bldg. Prods., Inc. v.
Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.
1987) (citing Matsushita Elec. Indus. Co., 475 U.S.
at 587). Accord Addisu, 198 F.3d at 1134
(“There must be enough doubt for a ‘reasonable
trier of fact’ to find for plaintiffs in order to
defeat the summary judgment motion.”).
summary judgment motion, all evidence and inferences must be
construed in the light most favorable to the nonmoving party.
T.W. Elec. Serv., Inc., 809 F.2d at 631. Inferences
may be drawn from underlying facts not in dispute, as well as
from disputed facts that the judge is required to resolve in
favor of the nonmoving party. Id. When “direct
evidence” produced by the moving party conflicts with
“direct evidence” produced by the party opposing
summary judgment, “the judge must assume the truth of
the evidence set forth by the nonmoving party with respect to
that fact.” Id.
Fails To Show Entitlement to Recovery Under RESPA.
argues that Real Time violated RESPA by failing to respond in
a timely manner to the First Letter and Second Letter, which
Crow says were QWRs. See ECF No. 1, PageID # 7.
is a consumer protection statute pursuant to which, among
other things, a loan servicer must provide servicing
information requested by a borrower and verify how payments
have been applied. Under the provision in effect at the time
of Real Time’s alleged violations, RESPA provided:
If any servicer of a federally related mortgage loan receives
a qualified written request from the borrower (or an agent of
the borrower) for information relating to the servicing of
such loan, the servicer shall provide a written response
acknowledging receipt of the correspondence within 20 days .
. . unless the action requested is taken within such period.
12 U.S.C. § 2605(e)(1)(A).
defines a “qualified ...