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Bomar v. Pacific Union Financial, LLC

United States District Court, N.D. Illinois, Eastern Division

April 25, 2017

TONY O. BOMAR, Plaintiff,


          SHARON JOHNSON COLEMAN United States District Court Judge.

         Tony Bomar, the plaintiff, brought this action against defendant Pacific Union Financial, LLC (“Pacific Union”). Pacific Union has now moved for summary judgment on Bomar's remaining claims. For the following reasons, Pacific Union's motion for summary judgment [52] is granted.


         As an initial matter, this Court notes that although Bomar challenges many of Pacific Union's statements of undisputed material fact, Bomar has not supported any of these denials with specific references to the record as is required by Local Rule 56.1(b)(3)(B). Those responses are accordingly disregarded and the factual allegations to which they are directed are deemed to be admitted. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).

         Pacific Union is a mortgage lender providing mortgage origination and loan servicing. On May 24, 2014, Tony and Gena Bomar (“Gena”) jointly executed a FHA Loan that was secured by a mortgage on their home. Bomar and Gena divorced in 2014. The divorce decree that resulted awarded each party half of the home and instructed the parties to execute a Quit Claim Deed transferring title to both parties as tenants in common. On March 23, 2015, Bomar submitted a “Request for Mortgage Assistance Form” to Pacific Union. Bomar attached the divorce decree to that application, but failed to provide any financial information for Gena, which was required because she was a co-borrower on the loan. On March 28, 2015, Bomar provided Pacific Union with a Quit Claim Deed dated June 14, 2014 in which Gena transferred sole possession of the home to him, contrary to the terms of the divorce decree. On April 13, 2015, Pacific Union informed Bomar that he would need to provide Gena's financial information or submit an amended divorce decree showing that he was awarded sole possession of the property. Pacific Union subsequently sent a letter restating that request. Bomar's application was denied when he failed to submit the requested information.

         On August 10, 2015, Freelance Paralegal Services, Inc. submitted a second “Request for Mortgage Assistance Form” on Bomar's behalf. That submission contained the divorce decree and a June 18, 2015 Quit Claim Deed from Gena transferring ownership of the home to Bomar. On September 9, 2015, Pacific Union informed Bomar that his second Loss Mitigation Application was denied because ownership of the property had not been executed in accordance with the divorce decree. Pacific Union subsequently received correspondence from Bomar through the Consumer Financial Protection Bureau (CFPB) complaint portal complaining about the denial of his second loss mitigation application. Pacific Union treated this submission both as a CFPB complaint and as an appeal of the denial of Bomar's second Loss Mitigation Application. The substance of Bomar's complaint was that he had been denied mortgage assistance because he did not have his ex-wife's cooperation and because the Quit Claim deed did not vest ownership of the property in compliance with the divorce decree. Bomar's appeal was reviewed, and was denied based on Pacific Union's determination that it had acted properly under the relevant FHA-HAMP and HUD guidelines. Bomar was sent a written response to his appeal, which was uploaded to the CFPB web portal. On September 30, 2015, Pacific Union received a letter from Bomar appealing the denial of his Second Loss Mitigation Application. A Pacific Union representative called Bomar and explained that Pacific Union could not provide a modification without Gena's cooperation or consent because she was still financially responsible for the loan and had been awarded partial ownership of the home pursuant to the divorce decree. Bomar was again informed that his loan modification request would be reconsidered if he submitted Gena's financial information or an amended divorce decree awarding him sole ownership of the home. Bomar was additionally informed of options that would not require Gena's involvement, such as assumption of the loan and refinancing. Bomar's last mortgage payment occurred in November 2, 2015, and Bomar was not delinquent at the time his Second Loss Mitigation Application was denied, although Bomar subsequently defaulted on the mortgage. Following Pacific Union's denial of his appeal, Bomar initiated the present suit.

         Legal Standard

         Summary judgment is proper when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether a genuine issue of material fact exists, this Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, “[m]erely alleging a factual dispute cannot defeat the summary judgment motion.” Samuels v. Wilder, 871 F.2d 1346, 1349 (7th Cir. 1989). “The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252.


         Bomar's complaint first alleges that Pacific Union violated the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et. seq.. RESPA provides, in pertinent part, that loan servicers must take timely action to respond to borrowers requests. That provision is implemented through federal regulations which set forth specific guidelines governing appeals from the denial of loss mitigation applications. The relevant regulation provides, in pertinent part, that:

Within 30 days of a borrower making an appeal, the servicer shall provide a notice to the borrower stating the servicer's determination of whether the servicer will offer the borrower a loss mitigation option based upon the appeal and, if applicable, how long the borrower has to accept or reject such an offer or a prior offer of a loss mitigation option. A servicer may require that a borrower accept or reject an offer of a loss mitigation option after an appeal no earlier than 14 days after the servicer provides the notice to a borrower. A servicer's determination under this paragraph is not subject to any further appeal.

12 C.F.R. § 1024.41(h)(4).

         Bomar contends that Pacific Union violated this resolution when it failed to respond to his written appeal, which Pacific Union received on September 30, 2015. Here, however, it is undisputed that Bomar filed a CFPB complaint on September 15, 2015, and that Pacific Union treated that complaint as an appeal of its prior decision. By the time Bomar subsequently sent the September 30, 2015 letter, Pacific Union had already uploaded its response to Bomar's complaint to the CFPB web portal in accordance with CFPB requirements.[1] Pursuant to the regulations, that determination was not subject to further appeal. 12 C.F.R. § 1024.41(h)(4).

         Bomar further argues that a genuine issue of material fact remains as to whether Bomar's appeal was subject to independent evaluation. 12 C.F.R. § 1024.41(h)(1)(3) provides that “[a]n appeal shall be reviewed by different personnel than those responsible for evaluating the borrower's complete loss mitigation application.” Bomar argues that Pacific Union violated RESPA by having members of its loss mitigation team conduct the independent review of Bomar's appeal. This argument, however, is not contained in Bomar's complaint and therefore cannot be raised here. Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996) (“A plaintiff may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment.”). Even if this Court was to consider this newly raised argument, moreover, Bomar has offered no legal authority to support his conclusory assertion that section 1024.41(h)(1)(3) requires review by a different ...

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