Griffin v. U.S. Bank National Association

          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. ¶¶ 26-27.) Specifically, after the loan went into ...