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Kensington Research & Recovery v. United States of America Dep't of Housing and Urban Development

May 8, 2009

KENSINGTON RESEARCH & RECOVERY, PLAINTIFF,
v.
UNITED STATES OF AMERICA DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, DEFENDANT.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

This matter is before the court on cross-motions for summary judgment. For the reasons stated below, the plaintiff's motion is denied and the defendant's motion is granted.

I. BACKGROUND*fn1

The Federal Housing Administration ("FHA"), which is part of the Department of Housing and Urban Development ("HUD"), provides FHA-insured mortgages to homeowners. When the mortgage insurance is terminated early via loan payoff or refinancing, some of the mortgage insurance premiums ("MIPs") may be refunded to the homeowner.*fn2 HUD issues the refund automatically when the data it receives from the homeowner's lending institution matches HUD's records. However, if there is a discrepancy between the lender's and HUD's data, HUD attempts to confirm the data with the homeowner by mailing an Application for Premium Refund or Distributive Share Payment form, also known as a HUD-27050-B form. The HUD-27050-B form is partially completed by HUD with personal, mortgage, and MIP refund information from HUD records merged into the form template along with several agency administrative codes. The homeowner completes the form, including his or her social security number, telephone number, and a current address to which the refund should be mailed. The completed form must be signed, notarized and returned to HUD with proof of ownership of the mortgaged property.

Eileen Trentz ("Trentz") owned 600 W. 43rd Street in Chicago, Illinois. She obtained an FHA-insured mortgage on the property and paid MIPs to HUD. Trentz was due a MIP refund. HUD mailed Trentz an individualized HUD-27050-B form but received no response. On December 22, 2006, Kensington Research & Recovery ("Kensington") attempted to obtain Trentz's HUD-27050-B. It made a request for information from the Department of Housing and Urban Development ("HUD") pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (the "FOIA"). It included with its request a copy of a form titled "Limited Power of Attorney," signed by Trentz who now lives in Hammond, Indiana.*fn3 The Limited Power of Attorney provided that Kensington was authorized to obtain records from HUD, including the HUD-27050-B form, on Trentz's behalf.

On April 30, 2007, HUD's FOIA Division denied the FOIA request for Trentz's HUD-27050-B form. It based its decision on Exemption 2 of the FOIA, 5 U.S.C. § 552(b)(2), which exempts from disclosure material "related solely to the internal personnel rules and practices of the agency." It stated that HUD sends HUD-27050-B forms only to homeowners to avoid the possibility of misuse by third-parties. Kensington appealed the denial of its FOIA request on May 29, 2007. On October 11, 2007, HUD found the record insufficient to determine that Exemption 2 applied and remanded the request to its FOIA Division "to either provide [Kensington] with the requested document or with a valid legal basis for withholding it." Pl.'s Compendium of Exs., Ex. 7.

On October 31, 2007, the FOIA request was again denied. HUD stated that "the National Housing Act and implementing regulations required that unearned mortgage insurance premium charges paid by the mortgagor be refunded to the borrower" and that "[r]elease of the [HUD-27050-B form] to third parties . . . creates a significant risk that HUD regulations requiring refund of unearned premium will be circumvented." Id. Ex. 8. Kensington appealed for the second time on November 30, 2007. HUD denied the appeal on January 8, 2008.

On February 28, 2008, Kensington filed this lawsuit. It alleges that the court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B) because the action is to enforce a request under the FOIA. Compl. ¶ 3. In its prayer for relief, Kensington seeks an order enjoining HUD from withholding the HUD-27050-B form pursuant to the FOIA, requiring production of Trentz's HUD-27050-B form, and also seeks a mandatory injunction requiring HUD to interact with Kensington as it would for homeowner principals when the Plaintiff submits a power of attorney. See Compl. at 4-5.

II. ANALYSIS

Each party asserts that there is an absence of material fact and that it is entitled to summary judgment.

A. Legal Standard

Summary judgment is appropriate when the record reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Five Points Rd. Joint Venture v. Johanns, 542 F.3d 1121, 1124 (7th Cir. 2008). It is not appropriate if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When considering a motion for summary judgment, the court must view the facts and any inferences to be drawn from them in the light most favorable to the non-moving party. See Wis. Cent., Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir. 2008). "On cross-motions for summary judgment, [a court] construe[s] all facts and inferences therefrom in favor of the party against whom the motion under consideration was made." Five Points Rd. Joint Venture, 542 F.3d at 1124.

In seeking a grant of summary judgment, the moving party must identify "those portions of 'the pleadings, depositions, answers to the interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. In response, the non-moving party cannot rest on the pleadings, but must designate specific material facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324. "Summary judgment is appropriately entered 'against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party ...


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