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Rost v. Litton Loan Servicing, LP

United States District Court, D. New Jersey

January 13, 2020



          Hon. Joseph H. Rodriguez Judge

         This 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.

         I. Background[1]

         Plaintiffs 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).

         In 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].

         On 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 application.

         Plaintiffs 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).

         Plaintiffs 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].

         The 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.

         II. Summary Judgment Standard

         “Summary 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 (c)(1)(A).

         An 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 (1986).

         Initially, 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, ...

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