United States District Court, D. New Jersey
Joseph H. Rodriguez Judge
matter is before the Court on a Motion for Summary Judgment
filed by Defendants Litton Loan Servicing LP and Ocwen
Financial Corporation (collectively “Defendants”)
[Dkt. No. 75]. Having considered the parties'
submissions, the Court decides this matter without oral
argument pursuant to Federal Rule of Civil Procedure 78(b).
For the reasons stated below, the Court will grant
Defendants' Motion for Summary Judgment.
Stephen and Susan Rost own their residence at 133 Sunnyside
Lane, Bellmawr, New Jersey. Defendants are the
Plaintiffs' mortgage servicers. On February 12, 2008,
Plaintiffs took out a loan in the amount of $201, 985, and
executed a promissory note to secure that debt in favor of
Mortgage Electronic Registration Systems, Inc., as nominee
for Avelo Mortgage, LLC d/b/a Senderra Funding, its
successors and assigns. (Def. SMF ¶ 2). The promissory
note was secured by a mortgage signed by Plaintiffs, which
was secured by the Sunnyside Lane property; both the mortgage
and note were ultimately assigned to Defendant Litton.
(Id. at ¶¶ 3-4).
January 2011, Plaintiffs became unable to make their monthly
mortgage payments. (Id. at ¶ 6). In an effort
to keep their home, Plaintiffs contacted Litton in August
2011 regarding ways to bring their mortgage current.
(Id. at ¶ 7). Litton offered Plaintiffs a
“Repayment Plan Agreement” (“RPA”).
According to the RPA, to make the agreement effective
Plaintiffs were required to (1) wire $4, 000.oo to Defendant
Litton by August 4, 2011; and (2) immediately sign and return
the RPA to Litton. [Dkt. No. 77-3, Ex. C]. Thereafter,
Plaintiffs were to make monthly payments of $2, 674.39 for
one year to bring their mortgage current. (Id.) If
Litton did not receive both items, the RPA would be deemed
null and void (Id.) “Plaintiffs wired the $4,
000.00 via Western Union on August 2, 2011 . . . . The money
was sent using Western Union's ‘Urgernt'
services.” (Amend. Compl. ¶18; Def. SMF ¶
17). The parties dispute what happened to Plaintiffs $4, 000
payment. Plaintiffs allege that Litton has failed to
acknowledge the $4, 000 payment, wired to it via Western
Union to comply with the Repayment Plan Agreement. [Dkt. No.
41 p. 12 ¶ 6]. According to Defendants', the payment
was received on August 8, 2011 and applied to their account.
(Def. SMF ¶ 20). The parties also dispute the execution
and receipt of the signed RPA. Plaintiffs claim that they
faxed the signed agreement to Litton on or about August 9,
2011, while Defendants allege that they never received an
executed copy of the RPA. (Def. SMF ¶ 24 and Pl. Resp.
¶ 24). According to Plaintiffs, they
“constantly” inquired about their $4, 000 payment
and never received a second RPA, as suggested by Defendants.
[Dkt. No. 85-1 ¶ 28].
August 15, 2011, Litton notified Plaintiffs that their
mortgage and note was being transferred to Ocwen Loan
Servicing, LLC (“OLS”), the subsidiary of
Defendant Ocwen. (Def. SMF ¶ 26). Due to a series of
unfortune events, Plaintiffs sent OLS a hardship letter on
September 19, 2011 detailing the reasons for their default
and requesting loan modification of their monthly payment
amount. (Def. SMF ¶ 37). Thereafter, Plaintiffs were
given the option to modify their loan. On or about October 4,
2011, Plaintiffs received acknowledgement of receipt and
processing of their application for modification (the
“first modification application”). [Dkt. No. 41,
p. 8, ¶¶ 27]. They also received notice naming
their “relationship manager” as Jason Bravada,
who allegedly instructed Plaintiffs via telephone conference
to refrain from making mortgage payments while their loan
modification was being processed. (Id. at
¶¶ 28). OLS notified Plaintiffs that their first
modification application was missing certain required
documents, and instructed Plaintiffs to submit those
documents by November 1, 2011. = Plaintiff supplied the
documents on November 22, 2011. [Dkt. No. 77-11, Ex. K].
According to Plaintiffs, they did not receive any further
communications regarding their first modification
state that they were ultimately instructed to file for a
second loan modification by April 6, 2012, and did so on
March 13, 2012 with a new relationship manager, Grayson
Johnson. [Dkt. No. 85-1 ¶ 44]. In October 2013,
Plaintiffs received another request to submit a loan
modification application. In February 2013, Plaintiffs sent
this third modification application for consideration.
Plaintiff received no response concerning either of their
previous loan modification applications (Id. at
¶ 64; Dkt. No. 41, p. 9 ¶ 32). Plaintiffs again
were reassigned to a different relationship manager, Kayla
Frost. [Dkt. No. 41, p. 9, ¶34]. When Plaintiffs
continued to reach out to Ocwen regarding the status of their
applications, they claim Ocwen ignored them, and eventually
told to file another application for modification.
Ultimately, Plaintiffs' third modification package was
denied. (Id. at p. 10 ¶ 37).
filed the Complaint in this matter on April 13, 2015 with the
Superior Court of New Jersey, Law Division, Camden County.
Defendants removed the case here based on diversity of
citizenship jurisdiction. On June 30, 2015, Defendants filed
a Motion to Dismiss Plaintiffs initial Complaint. In an
Opinion dated November 3, 2015, this Court dismissed
Plaintiffs' complaint and a number of named Defendants
affording the Plaintiffs right to amend. [Dkt. No. 25, 25].
Plaintiffs' first motion to amend their complaint was
granted in part and denied in part by the Honorable
Magistrate Judge Joel Schneider. [Dkt. No. 28]. Judge
Schneider later granted Plaintiffs' second motion to
amend their complaint. [Dkt. No. 37]. Plaintiffs' filed
their Amended Complaint against Litton and Ocwen with the
Court in September 2016. [Dkt. No. 41].
Amended complaint alleges breach of contract/good faith and
fair dealing against Defendant Litton (Count I) in the
alternative, Promissory Estoppel against Defendant Litton
(Count II); and violation of the New Jersey Consumer Fraud
Act (“NJCFA”) against Defendants Litton and Ocwen
(Count III). After conducting Discovery, Defendants filed a
Motion for Summary Judgment seeking dismissal of all Counts
alleged in Plaintiffs' Amended Complaint. [Dkt. No. 75].
The motion has been fully briefed and is ripe for decision.
Summary Judgment Standard
judgment is proper if there is no genuine issue of material
fact and if, viewing the facts in the light most favorable to
the non-moving party, the moving party is entitled to
judgment as a matter of law.” Pearson v. Component
Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)); accord Fed.R.Civ.P. 56 (a). Thus, the Court
will enter summary judgment in favor of a movant who shows
that it is entitled to judgment as a matter of law, and
supports the showing that there is no genuine dispute as to
any material fact by “citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations . . . admissions, interrogatory
answers, or other materials.” Fed.R.Civ.P. 56
issue is “genuine” if supported by evidence such
that a reasonable jury could return a verdict in the
nonmoving party's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is
“material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the
suit. Id. In determining whether a genuine issue of
material fact exists, the court must view the facts and all
reasonable inferences drawn from those facts in the light
most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
the moving party has the burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the moving party
has met this burden, the nonmoving party must identify, by
affidavits or otherwise, specific facts showing that there is
a genuine issue for trial. Id.; Maidenbaum v.
Bally's Park Place, Inc., 870 F.Supp. 1254, 1258
(D.N.J. 1994). Thus, to withstand a properly supported motion
for summary judgment, the nonmoving party must identify
specific facts and affirmative evidence that contradict those
offered by the moving party. Andersen, 477 U.S. at
256-57. “A nonmoving party may not ‘rest upon
mere allegations, general denials or . . . vague statements .
. . .'” Trap Rock Indus., Inc. v. Local 825,
Int'l Union of Operating Eng'rs, 982 F.2d 884,
890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc.,
934 F.2d 497, 500 (3d Cir. 1991)). Indeed,
the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, ...