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Parks v. Roundpoint Mortgage Servicing Corp.

United States District Court, S.D. West Virginia, Beckley Division

April 8, 2019

LACY PARKS, Plaintiff,
v.
ROUNDPOINT MORTGAGE SERVICING CORPORATION and JOHN DOE HOLDER, Defendants.

          MEMORANDUM OPINION AND ORDER

          IRENE C. BERGER, UNITED STATES DISTRICT JUDGE

         The Court has reviewed the Plaintiff's Motion for Partial Summary Judgment on Liability for Eleven (11) Violations of the West Virginia Consumer Credit and Protection Act (Document 20), the Plaintiff's Memorandum in Support of His Motion for Partial Summary Judgment on Liability for Eleven (11) Violations of the West Virginia Consumer Credit and Protection Act (Document 21), RoundPoint Mortgage Servicing Corporation's Memorandum of Law in Opposition to Plaintiff's Motion for Partial Summary Judgment (Document 23), and the Plaintiff's Reply Memorandum in Support of His Motion for Partial Summary Judgment on Liability (Document 28).

         The Court has also reviewed RoundPoint Mortgage Servicing Corporation's Motion for Summary Judgment (Document 24), RoundPoint Mortgage Servicing Corporation's Memorandum of Law in Support of Its Motion for Summary Judgment (Document 25), the Plaintiff's Response in Opposition to Defendant RoundPoint's Motion for Summary Judgment (Document 29), and RoundPoint Mortgage Servicing Corporation's Reply Memorandum of Law in Further Support of its Motion for Summary Judgment (Document 32).

         Finally, the Court has reviewed the Defendant's Consent Motion to Extend Deadline to Respond to Plaintiff's Partial Motion for Summary Judgment (Document 22), the Plaintiff's Consent Motion to Extend Deadline to Respond to Defendant's Partial Motion for Summary Judgment (Document 26), the separately filed proposed order (Document 27), and the Defendant's Consent Motion to Extend Deadline to File a Reply Brief in Response to Plaintiff's Opposition to Defendant's Motion for Summary Judgment (Document 31). In addition, the Court has reviewed all exhibits and attachments. For the reasons stated herein, the Court finds that the Plaintiff's motion for partial summary judgment should be granted and the Defendant's motion for summary judgment should be granted in part and denied in part.

         FACTS

         The Plaintiff, Lacy Parks, initiated this suit with a Complaint (Document 1-1) filed in the Circuit Court of Raleigh County, West Virginia, on January 18, 2018. The five-count complaint alleges illegal debt collection, failure to identify holder, failure to provide statement of account, illegal refusal of payments, and breach of contract. The Plaintiff named RoundPoint Mortgage Servicing Corporation and John Doe Holder (hereinafter “RoundPoint”) as the defendants. The complaint alleges that RoundPoint is attempting to foreclose on Mr. Parks' home while refusing to accept his payments and denying Mr. Parks a loan modification. It further alleges that RoundPoint refused to provide Mr. Parks with copies of his loan file or contact Mr. Parks' attorney, even though RoundPoint knew he was represented by counsel. On February 18, 2018, RoundPoint filed a Notice of Removal (Document 1), citing complete diversity among the parties and federal question jurisdiction, because “RESPA, Regulation Z, and regulations concerning VA loans arise under federal statutory law (although not pleaded as an independent count or counts).” (Notice of Removal at ¶ 15).

         Mr. Parks served 26 years in the West Virginia National Guard, and served one year of active duty in Iraq, before being awarded United States Veteran's Administration Disability Benefits (“VA Benefits”) in 2012 due to respiratory and PTSD issues. On July 21, 2015, Primelending, a Plaincapital Corporation, issued a mortgage loan to Mr. Parks in the original principal amount of $125, 000 (the “Loan”). The Loan is evidenced by a promissory note, and the promissory note is secured by a Deed of Trust, both dated July 21, 2015. The Deed of Trust encumbers the real property commonly known as 306 Crescent Road, Beckley, West Virginia 25801 (the “Property”). On August 25, 2015, the Loan was sold to RoundPoint. On September 1, 2015, RoundPoint began servicing the Loan and is the current servicer of the Loan.

         When Mr. Parks obtained the Loan, his monthly income consisted of money from VA Benefits and $600 a month from an apartment he rented through the HUD-VASH program.[1] In October 2016, the tenant's lease ended, and Mr. Parks did not re-rent the apartment, resulting in a decrease of $600 a month in his income.[2] On December 1, 2016, Mr. Parks defaulted on the Loan by failing to make the monthly payment due on that date and has not made any payments since November 30, 2016.[3] On January 30, 2017, RoundPoint sent a Notice of Default and Right to Cure to Mr. Parks.

         In April 2017, Mr. Parks contacted RoundPoint to inquire about loss mitigation options and getting the loan re-instated. On April 27, 2017, he submitted an incomplete loss mitigation application, and RoundPoint sent him a notice of deficiencies and requested supplemental information. On May 18, September 7, and September 27, of 2017, Mr. Parks submitted incomplete applications and RoundPoint sent him a notice of deficiencies and requested supplemental information. On October 16, 2017, Mr. Parks submitted a completed application. On November 1, 2017, RoundPoint sent Mr. Parks a notice of denial due to his income. After sending the notice of denial, RoundPoint directed its attorneys to schedule a foreclosure sale for January 2018.

         Mr. Parks sent a request for information to RoundPoint, dated November 20, 2018.[4] In it, Mr. Parks expressed concern that RoundPoint breached the contract with him and requested a complete copy of the loan servicing file. In the letter, he also alleged that RoundPoint refused to accept his payments and failed to follow loss mitigation guidelines with respect to the Loan. He further stated that if RoundPoint or its attorneys did not respond to the letter within forty-five days, he would assume they did not want to discuss a resolution. Finally, Mr. Parks requested that RoundPoint direct its response to the letter to his attorney. RoundPoint responded to the letter on January 16, 2018. In December 2017 and January 2018, RoundPoint made telephone calls to Mr. Parks.[5]

         After this case was filed, RoundPoint cancelled the foreclosure sale. Mr. Parks applied for a loan modification in May 2018, but the application was incomplete and RoundPoint sent Mr. Parks a notice of deficiencies and requested supplemental information. RoundPoint received the complete loan modification application in early July 2018 and began processing it on July 9, 2018. The application was denied due to Mr. Parks' income. Mr. Parks indicated his income had changed and filed additional financial information in November 2018 to qualify for a loan modification. On January 10, 2019, RoundPoint determined that the application was incomplete and sent Mr. Parks a notice of deficiency. As of January 10, 2019, RoundPoint was waiting for Mr. Parks to submit additional documents so it could process the latest attempt to modify the loan.

         STANDARD OF REVIEW

         The well-established standard in consideration of a motion for summary judgment is that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a)-(c); see also Hunt v. Cromartie, 526 U.S. 541, 549 (1999); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Hoschar v. Appalachian Power Co., 739 F.3d 163, 169 (4th Cir. 2014). A “material fact” is a fact that could affect the outcome of the case. Anderson, 477 U.S. at 248; News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). A “genuine issue” concerning a material fact exists when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party's favor. FDIC v. Cashion, 720 F.3d 169, 180 (4th Cir. 2013); News & Observer, 597 F.3d at 576.

         The moving party bears the burden of showing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp., 477 U.S. at 322-23. When determining whether summary judgment is appropriate, a court must view all of the factual evidence, and any reasonable inferences to be drawn therefrom, in the light most favorable to the nonmoving party. Hoschar, 739 F.3d at 169. However, the non-moving party must offer some “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256. “At the summary judgment stage, the non-moving party must come forward with more than ‘mere speculation or the building of one inference upon another' to resist dismissal of the action.” Perry v. Kappos, No.11-1476, 2012 WL 2130908, at *3 (4th Cir. June 13, 2012) (unpublished decision) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)).

         In considering a motion for summary judgment, the court will not “weigh the evidence and determine the truth of the matter, ” Anderson, 477 U.S. at 249, nor will it make determinations of credibility. N. Am. Precast, Inc. v. Gen. Cas. Co. of Wis., 2008 WL 906334, *3 (S.D. W.Va. Mar. 31, 2008) (Copenhaver, J.) (citing Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986). If disputes over a material fact exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party, ” summary judgment is inappropriate. Anderson, 477 U.S. at 250. If, however, the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, ” then summary judgment should be granted because “a complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23.

         When presented with motions for summary judgment from both parties, courts apply the same standard of review. Tastee Treats, Inc. v. U.S. Fid. & Guar. Co., 2008 WL 2836701 (S.D. W.Va. July 21, 2008) (Johnston, J.) aff'd, 474 Fed.Appx. 101 (4th Cir. 2012). Courts “must review each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law, ” resolving factual disputes and drawing inferences for the non-moving party as to each motion. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (internal quotation marks and citations omitted); see also Monumental Paving & Excavating, Inc. v. Pennsylvania Manufacturers' Ass'n Ins. Co., 176 F.3d 794, 797 (4th Cir. 1999).

         DISCUSSION[6]

         There are cross motions for summary judgment as to Count I, for illegal debt collection. Mr. Parks moves for partial summary judgment as to Count I and argues that RoundPoint violated the West Virginia Consumer Credit and Protection Act (WVCCPA) by directly communicating with him after it knew he was represented by counsel, and by threatening to collect attorney's fees and cost when such fees are not ...


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