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Crow v. Ocwen Loan Servicing, LLC

United States District Court, D. Hawaii

June 24, 2016

COLIN L. CROW, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC; REAL TIME RESOLUTIONS, INC., Defendants.

          ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

          SUSAN OKI MOLLWAY, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION.

         This 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 property.

         Before 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.

         This court grants Real Time’s motion for summary judgment on all counts.

         II. BACKGROUND.

         In 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. See id.

         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.

         Crow 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.

         Real 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 id.

         Crow 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.

         Crow filed this lawsuit on May 4, 2015. See ECF No. 1.[1] 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.

         On March 16, 2016, Real Time moved for summary judgment. See ECF No. 32.

         III. LEGAL STANDARD.

         Summary 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. 56(c).

         Summary 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).

         The 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 omitted).

         The 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.”).

         On a 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.

         IV. ANALYSIS.

         A. Crow Fails To Show Entitlement to Recovery Under RESPA.

         Crow 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.

         RESPA 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).[2]

         RESPA defines a “qualified ...


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