United States District Court, N.D. Illinois, Eastern Division
JONATHAN J. GRIFFIN, Plaintiff,
v.
U.S. BANK NATIONAL ASSOCIATION, as Trustee for TBW Mortgage-Backed Trust Series 2007-2, TBW Mortgage Pass Through Certificates Series 2006-A35, and OCWEN LOAN SERVICING, LLC, Defendants.
MEMORANDUM OPINION AND ORDER
HON.
JORGE ALONSO, UNITED STATES DISTRICT JUDGE
Plaintiff,
Jonathan J. Griffin, asserts claims of breach of contract and
deceptive and unfair conduct under the Illinois Consumer
Fraud and Deceptive Business Practices Act,
(“ICFA”), 815 ILCS 505/1 et seq, against
defendants Ocwen Loan Servicing, LLC (“Ocwen”)
and U.S. Bank, National Association, as Trustee for TBW
Mortgage-Backed Trust Series 2007-2, TBW Mortgage Pass
Through Certificates Series 2006-A35 (“US Bank”),
arising out of their servicing of his mortgage loan and
attempt to foreclose on the mortgage. This case is before the
Court on defendants’ motion for summary judgment
pursuant to Federal Rule of Civil Procedure 56. For the
following reasons, the Court grants the motion.
BACKGROUND
Local
Rules 56.1 and 56.2
Local
Rule 56.1 requires a party moving for summary judgment to
provide “a statement of material facts as to which [he]
contends there is no genuine issue.” Local R.
56.1(a)(3). It also requires the opposing party to file
“a concise response to the movant’s
statement” that includes, “in the case of any
disagreement, specific references to the affidavits, parts of
the record, and other supporting materials relied
upon.” Local R. 56.1(b)(3)(B). In addition, it states
that “[a]ll material facts set forth in the statement
required of the moving party will be deemed to be admitted
unless controverted by the statement of the opposing
party.” Local R. 56.1(b)(3)(C).
Plaintiff
did not file a response to defendants’ Local Rule 56.1
Statement, nor did he file a timely or pertinent response
brief. Nearly a month after his response was due and ten days
after defendants filed their reply brief, plaintiff filed a
document captioned as an “Objection” to the
motion for summary judgment, but this document did not
address the substance of the motion or of plaintiffs’
claims. Accordingly, the Court deems plaintiff to have
admitted all facts defendants assert in their Local Rule 56.1
Statement to the extent that there is evidentiary support for
those facts in the record. Keeton v. Morningstar,
Inc., 667 F.3d 877, 880 (7th Cir. 2012); see Koszola
v. Bd. of Educ. of City of Chi., 385 F.3d 1104, 1108
(7th Cir. 2004) overruled on other grounds by Ortiz v.
Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016)
(“We have emphasized the importance of local rules and
have consistently and repeatedly upheld a district
court’s discretion to require strict compliance with
its local rules governing summary judgment.”) (internal
alteration and quotation marks omitted).
The
Court recognizes that there was some confusion about whether
plaintiff was represented by counsel around the time of the
filing and briefing of the present motion for summary
judgment. This is significant because, when a party moves for
summary judgment against a pro se opponent, the
moving party is required to serve notice not only of the
filing of the motion but also of what actions are necessary
to properly oppose summary judgment. See Dirig v.
Wilson, 609 Fed.Appx. 857, 859 (7th Cir. 2015)
(“When a defendant moves for summary judgment against
an unrepresented [litigant], the [unrepresented litigant]
must be notified ‘of the consequences of failing to
respond with affidavits’ or other evidence.”),
see Local R. 56.2 (codifying this rule and
prescribing a form of notice under it). “Flawed
notice” of the means of opposing a motion for summary
judgment is fatal to the motion if it “actually results
in prejudice” to a pro se litigant. Morris
v. City of Chi., 545 Fed.Appx. 530, 532 (7th Cir. 2013)
(citing Kincaid v. Vail, 969 F.2d 594, 599 (7th Cir.
1992)); see Dirig, 609 Fed.Appx. at 860.
Prior
to the filing of defendants’ motion for summary
judgment, plaintiff filed a copy of a “Termination
Letter” he had sent to his counsel (ECF No. 126), in
which he had informed counsel that his “services [were]
no longer needed.” Plaintiff’s counsel
subsequently filed a notice of withdrawal. (ECF No. 127.) But
according to the local rules of this district, counsel must
move for leave of court to withdraw his appearance; a mere
notice of withdrawal is insufficient. See Local R.
83.17. Plaintiff’s counsel did not move to withdraw at
that time. Defendants reported in their reply brief that they
had sent an email to plaintiff’s counsel on June 13,
2018, a week after filing their motion for summary judgment,
to ask if he intended to file a motion to withdraw, and they
received no response. (See Defs.’ Reply Br. at
2 n.2; id. Ex. A, Email from Att’y Brunner to
Att’y Hill.) To guard against the possibility that
“attorney-client communications had broken down,
” defendants sent the summary judgment materials
directly to plaintiff personally, but he refused delivery.
(Reply Br. at 2 n.2.) Under these circumstances, the Court
considers plaintiff to have been represented by counsel at
the time of the filing of the motion, so neither defense
counsel nor the Court was required to provide him with notice
under Local Rule 56.2.
Plaintiff’s
counsel ultimately did move to withdraw on March 11, 2019,
long after briefing of the motion for summary judgment was to
have been completed, and the Court granted the motion.
(See Mar. 19, 2019 Minute Entry, ECF No. 148.) At a
subsequent hearing, the Court granted plaintiff leave either
to file a pro se appearance form or for substitute
counsel to appear by May 10, 2019, and it set a deadline for
plaintiff to file a motion for leave to respond to
defendants’ summary judgment motion by the same date.
(See Apr. 10, 2019 Minute Entry, ECF No. 151.) But
plaintiff did not timely file anything meeting that
description, instead filing a “series of somewhat
incomprehensible documents” (see Jun. 18, 2019
Order at 1, ECF No. 158), none of which addressed the merits
of the motion, the claims in the operative complaint (Am.
Compl., ECF No. 99), or the underlying facts, nor did they
explain why plaintiff had never made any pertinent response
to the pending motion for summary judgment. The Court struck
these documents as “incomprehensible” and
impertinent to plaintiff’s case (Jun. 18, 2019 Order,
ECF No. 158), and it denied plaintiff’s subsequent
motion for reconsideration on similar grounds (Jul. 1, 2019
Order, ECF No. 164).
Had
plaintiff seriously attempted in these filings to present and
argue the claims he asserted in his complaint, the Court
might warn him of his obligations in responding to a motion
for summary judgment and give him another opportunity to meet
them, but any such efforts would only delay the inevitable.
“Plaintiff took absolutely no discovery of any kind to
support his case” (Defs.’ Jun. 14, 2019 Mot. to
Strike, ECF No. 156), so the Court cannot imagine what
evidence he could properly marshal in opposition to summary
judgment, nor has he made any attempt in his numerous recent
filings to assert facts in support of his claims; indeed, he
has not addressed the substance of his claims at all. Cf.
Morris, 545 Fed.Appx. at 532 (pro se plaintiff
cannot complain of flawed notice of obligations in opposition
to summary judgment where he does not point to any evidence
he has not had opportunity to raise).
Plaintiff
might at least swear the allegations of his complaint in an
affidavit, given the chance, see Dirig, 609
Fed.Appx. at 860 (“Dirig was prejudiced [by inadequate
notice of a summary judgment motion] because he alleged facts
that, if sworn, would have created disputed issues of
material fact.”), but that would bring him no closer to
demonstrating a genuine issue of material fact for trial. As
the Court will explain below, even assuming the truth of all
the factual allegations of the complaint and of
plaintiff’s statements in his deposition testimony,
defendants are still entitled to judgment as a matter of law.
Factual
Background
On
February 13, 2007, plaintiff took out a $114, 750 loan
secured by a mortgage on his house at 9955 South May Street
in Chicago. (Defs.’ LR 56.1 Stmt. ¶¶ 6-7, ECF
No. 133.) Plaintiff also executed a rider to the mortgage
deleting the condition that he occupy the property, and he
executed an “Affidavit of Occupancy” specifying
that the property was an “investment property, ”
i.e., it was “not owner-occupied.”
(Id. ¶¶ 8-9.) Plaintiff, a real estate
investor, is the owner of Griffin & Associates
Investments, LLC, to which he deeded the property in 2010.
(Id. ¶¶ 10-11.)
Plaintiff
rented out the May Street property and used the monthly rent
payments to repay his mortgage loan, but in November 2012,
when he had trouble with his tenant, he defaulted on the
loan. (Id. ¶ 14.) Plaintiff’s loan
servicer at the time, Homeward Residential Inc.
(“Homeward”), sent him a notice of default in
December 2012. (Id. ¶ 16.) In January 2013,
Homeward sent plaintiff a letter enclosing an application for
a loan modification under the Home Affordable Modification
Program (“HAMP”), a federal program implemented
to help homeowners avoid foreclosure, see Wigod v. Wells
Fargo Bank, N.A., 673 F.3d 547, 556-57 (7th Cir. 2012)
(explaining HAMP). (Id. ¶ 17.) Homeward sent
plaintiff another such letter and application in February
2013. (Id. ¶ 18.)
Defendant
Ocwen took over servicing of plaintiff’s mortgage loan
in March 2013. (Id. ¶ 12.) Ocwen promptly
mailed plaintiff a letter, dated March 5, 2013, enclosing
information regarding alternatives to foreclosure.
(Id. ¶ 19.) In April 2013, Ocwen mailed
plaintiff a letter enclosing information regarding loan
modifications and financial counseling. (Id. ¶
20.) The following month, Ocwen sent plaintiff letters, dated
May 2 and May 8, 2013, providing notice of default and
enclosing information regarding loan modifications and
financial counseling. (Id. ¶ 21.) On July 11,
2013, Ocwen mailed plaintiff a letter enclosing a notice
about how to apply for a HAMP modification or inquire about
other relief. (Id. ¶ 22.) Plaintiff did not
submit an application for a loan modification or cure his
default, nor did he inquire about a loan modification at that
time. (Id. ¶ 23.)
On or
about August 27, 2013, approximately nine months after
plaintiff defaulted on his mortgage loan, U.S. Bank, acting
as trustee for the holder of the note and mortgage, filed a
complaint for foreclosure in the Circuit Court of Cook
County. (Id. ¶ 24; see Id . ¶ 3.)
Pursuant to the terms of the mortgage, which permits the
lender to charge the borrower “fees for services
performed in connection with Borrower’s default,
” including “property inspection and valuation
fees, ” Ocwen assessed plaintiff fees for property
inspections and valuations. (Id. ΒΆΒΆ
26-27.) Specifically, after the loan went into ...