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Grady v. Ocwen Loan Servicing, LLC

United States District Court, Seventh Circuit

January 21, 2014

LAURETTA GRADY, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, ET AL., Defendants.

MEMORANDUM ORDER AND OPINION

ROBERT M. DOW, Jr., District Judge.

In this case, Plaintiff Lauretta Grady contests 80 charges, disbursements, or adjustments on her mortgage loan, which is serviced by Defendant Ocwen Loan Servicing, LLC. This matter is now before the Court on Defendants' partial motion for summary judgment [67] and Plaintiff's cross-motion for summary judgment [75]. For the reasons stated below, the Court grants Defendants' partial motion for summary judgment [67] and denies Plaintiff's cross-motion for summary judgment [75]. The only claim remaining for disposition is Plaintiff's claim that OLS charged for excessive valuations.

I. Background

Sometime in 2002, Plaintiff Lauretta Grady purchased her home located at 2547 West 118th Street in Chicago, IL. To finance the purchase, Grady signed a note, secured by a mortgage, with Ameriquest Mortgage Company ("Ameriquest") for a total amount of $168, 000.000. On January 25, 2005, Defendants Ocwen Loan Servicing, LLC ("OLS"), a company that services residential mortgage loans that are initiated through other lenders, acquired Grady's home loan for servicing.

On March 4, 2011, Plaintiff filed a pro se complaint against OLS and also filed motions for leave to proceed in forma pauperis and appointment of counsel. The Court granted Plaintiff leave to proceed in forma pauperis, appointed her counsel, and directed appointed counsel to confer with Ms. Grady about filing an amended complaint. On June 30, 2011, Grady filed an amended complaint, which named Ocwen Financial Corporation ("OFC") in addition to Ocwen Loan Servicing, LLC.

Defendants filed a motion to dismiss, and the Court dismissed Counts II, IV, and V of Plaintiff's amended complaint, leaving her with Count I, which alleges violations of the Fair Debt Collection Practices Act ("FDCPA"), and Count III, which alleges unjust enrichment. In short, Grady alleged that Defendants violated the FDCPA by charging and seeking to collect improper fees, costs, and charges that are either not legally due under the mortgage contract or applicable law, or that are in excess of the amounts that are legally due. She also alleged that Defendants have reported credit information that they knew or should have known was false.

In July 2012, Plaintiff responded to Defendants' discovery requests and provided a list of all the charges, fees, disbursements and account adjustments that she contested. On February 28, 2013, Plaintiff supplemented that response to add additional items. After elimination of duplicates on Plaintiff's list, there are 80 items Plaintiff attempts to contest: three disbursements from escrow to pay Plaintiff's insurers; 29 charges that pre-date July 27, 2007; 35 charges after July 27, 2007 but before January 20, 2010; the account adjustment in 2010 that capitalized certain past-due amounts as agreed in the HAMP modification; and 12 charges after the 2010 HAMP modification.

On July 27, 2007, Plaintiff signed a release of claims against OLS as part of a forbearance agreement that saved her from foreclosure. In that agreement, Plaintiff admitted that she was in default and admitted the amounts past due. Further, the release of claims in that agreement, under the heading "BORROWER RELEASE OF OCWEN, " states in part:

As consideration, the Borrower hereby releases Ocwen from any and all claims known or unknown that Borrower has against Ocwen, which in any way arise from the Note, the Mortgage, the Loan, or the Default. Borrower also specifically waives any right under any statute providing that a release does not extend to claims that the releaser did not know, did not have reason to know, and did not suspect to exist in his favor at the time of executing the release, which, if known by him, would materially affect his settlement with the release.

In the list of charges fees, disbursements and account adjustments that Plaintiff contests, 29 charges pre-date July 27, 2007.

In 2009, Plaintiff again found herself in default under the terms of her mortgage. On October 23, 2009, she signed a trial agreement under the Home Affordable Modification Program ("HAMP"). After completing the trial period, on January 20, 2010, Plaintiff signed a permanent modification agreement under HAMP. In that HAMP modification agreement, Plaintiff again admitted that she was in default and agreed to a new principal balance on her loan that capitalized past-due amounts. The modification also gave her other benefits such as a lower interest rate. Specifically, the agreement stated: "The modified Principal balance will include all amounts and arrearages * * * * The new Principal balance of my Note will be $165, 319.92." The loan was modified in OLS's system to comply with the HAMP agreement. Although Ms. Grady now disputes the terms of those agreements, she signed and dated both of them.

II. Legal Standard on Cross Motions for Summary Judgment

Summary judgment is proper if "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). On cross motions for summary judgment, the Court construes all facts and inferences "in favor of the party against whom the motion under consideration is made." In re United Air Lines, Inc., 453 F.3d 463, 468 (7th Cir. 2006) (quoting Kort v. Diversified Collection Servs., Inc., 394 F.3d 530, 536 (7th Cir. 2005)); see also Gross v. PPG Indus., Inc., 636 F.3d 884, 888 (7th Cir. 2011); Foley v. City of Lafayette, Ind., 359 F.3d 925, 928 (7th Cir.2004). To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted).

A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is proper 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 will bear the burden of proof at trial." Id. at 322. The party opposing summary judgment "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). "The mere existence of a ...


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