United States District Court, C.D. Illinois, Peoria Division
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY DEAN WITTER CAPITAL I INC. TRUST 2002-NC5, POOLING AND SERVICING AGREEMENT DATED AS OF Plaintiff,
CHAD D HOPKINS, ASSET ACCEPTANCE LLC, SCOTT SIERON, PHYLLIS NUGENT, Defendants.
ORDER & OPINION
JOE BILLY McDADE, Senior District Judge.
This foreclosure matter is before the Court on Plaintiff's Motion for Summary Judgment. (Doc. 21). This matter has been stayed by request of the parties for several weeks while they attempted to settle the matter. The deadline for the stay has passed and the parties have not apprised the Court of the status of the settlement proceedings. Thus, because the stay has elapsed and the motion has been fully briefed and is ready for disposition, the Court is ready to issue a ruling. For the reasons stated below, the Motion for Summary Judgment (Doc. 21) is DENIED. Plaintiff's Motion To Appoint A Special Commissioner (Doc. 22) is also DENIED.
Plaintiff, Deutsche Bank National Trust Company, commenced this civil action by filing its Complaint (Doc. 1) on June 4, 2012 seeking to foreclose the mortgage and the mortgaged property of the Defendants, Chad D. Hopkins and Phyllis Nugent. On July 29, 2002, New Century Mortgage Corporation (hereinafter "New Century") lent Defendant Hopkins $98, 550.00. Hopkins executed a Note,  and along with Defendant Nugent, executed a Mortgage in favor of New Century in exchange for receiving this money. The mortgaged Property is
Lot Five (5) in Lakeview Subdivision of Part of the Northwest Quarter of Section 26, Township Five (5) North, Range Three (3) East of the Fourth Principal Meridian, according to the plat thereof recorded in Plat Book 7, page 51, as Document Number 77-56139, situated in Fulton County, Illinois.
Permanent Index No. 18-19-26-103-005.
It is commonly known as 13687 North Lakeview Drive, Lewistown, IL 61542.
Defendant Hopkins agreed to pay interest at a yearly rate of 9.75% at the time he executed the original Note and Mortgage with New Century. Defendant Hopkins also agreed to make monthly payments on the first of every month, starting September 1, 2002. According to the Note, the monthly payment was to be $846.70. The Mortgage provides that the Note is fully secured, stating that:
"This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to Lender and Lender's successors and assigns, the following described property..."
"If [after notice] the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys' fees and costs of title evidence."
According to the Mortgage, Defendants also agreed to pay taxes, insurance, and any other escrow items that may apply.
On October 12, 2005, Defendant Hopkins entered into a Loan Modification Agreement ("LMA") with Plaintiff pursuant to which Defendant Hopkins agreed to pay interest at a yearly rate of 8.00% and to make monthly payments of $809.09 on the first of every month, starting December 1, 2005. The LMA stated that it was amending and supplementing the Note and Mortgage. However, the LMA also specifically states: "The Borrower also will comply with all other covenants, agreements and requirements of the [Mortgage], including without limitation, the Borrower's covenants and agreements to make all payments of taxes, insurance premiums, assessments, escrow items, impounds and all other payments that the Borrower is obligated to make under the [Mortgage]...." Sometime thereafter, the monthly payment was set at $843.26.
On September 1, 2011, Ocwen Loan Servicing, LLC ("Ocwen") took over servicing the Mortgage and Note from Litton Loan Servicing, LP ("Litton"). According to an affidavit provided by an Ocwen employee, Defendants failed to pay the monthly installments of principal, interest, taxes, insurance, and any other escrow items applied since June, 2011 through the present. Defendants have provided evidence that Litton informed them on June 1, 2011 Defendants owed $3, 219.81 and on June 16, 2011 that the loan was in default and that Defendant Hopkins needed to pay $4, 905.10 to bring the loan current. Defendants dispute these amounts and claim they are incorrect. Additionally, Defendants have provided evidence that they made June, July, August and September 2011 payments of $900.00 each and that Litton accepted all of these payments except the September 2011 payment for a total of $2700. In short, Defendants contend they were not in default on June 16, 2011.
On May 3, 2012 New Century assigned its interest in the Mortgage to the Plaintiff. (Doc. 21-3 at 36-37). Plaintiff then received all of New Century's interests in the Property pursuant to the Mortgage. (Doc. 21-4, 21-2). Plaintiff is a national association chartered under the laws of New York, and having its principal place of business and headquarters in the State of New York. Defendants Hopkins and Nugent are ...