Blackburn et al v. Bank of America Corporation
Filing
74
ORDER granting in part and denying in part 61 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 12/27/2012.(aaf)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
TODD BLACKBURN
BLACKBURN,
and
SAMANTHA *
*
Plaintiffs,
*
vs.
CASE NO. 4:11-CV-39 (CDL)
*
BAC HOME LOANS SERVICING, LP,
*
Defendant.
*
O R D E R
Defendant BAC Home Loans Servicing, LP (“BAC”) admits that
it
made
a
mistake
which
it
eventually
corrected.
For
its
confession and atonement, it seeks absolution.
Plaintiffs Todd
and Samantha Blackburn (“Blackburns”), having
allegedly
“gone
through hell” for what they argue was more than just a simple
mistake, are in no mood for mercy.
They seek compensation and
retribution.
BAC
mortgage
failed
through
to
recognize
automatic
that
the
deduction
Blackburns
and
paid
allotment
from
their
Todd
Blackburn’s military paycheck, and consequently, did not give
the
Blackburns
credit
mortgage payments.
for
their
August
and
September
2009
Eventually acknowledging its mistake, BAC
credited the payments by April 2011 before the Blackburns filed
this
action.
completely
By
corrected
May
with
2012,
all
the
Blackburns’
unauthorized
fees
account
and
was
charges
having
been
credited
Blackburns
assert
Settlement
Procedures
to
claims
the
for
Act
account.
Nevertheless,
violations
(“RESPA”),
of
12
Real
U.S.C.
trespass, conversion, and breach of contract.
judgment as to these claims.
the
§
the
Estate
2605(e),
BAC seeks summary
For the following reasons, the
Court denies BAC’s Motion for Summary Judgment (ECF No. 61) as
to the Blackburns’ RESPA claim, trespass claim, and conversion
claim.
Because emotional distress and punitive damages are not
recoverable for a breach of contract, the Court grants BAC’s
Motion for Summary Judgment as to those claims.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “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.”
Civ. P. 56(a).
In determining whether a
genuine
Fed. R.
dispute of
material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant
or necessary to the outcome of the suit.
Id. at 248.
A factual
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
2
Id.
FACTUAL BACKGROUND
Viewed in the light most favorable to the Blackburns, the
evidence is as follows.
Unless otherwise noted, the facts are
undisputed for purposes of summary judgment.
I.
The Blackburns’ Mortgage
In March 2006, the Blackburns obtained a loan to purchase a
home by executing a promissory note in the amount of $162,418.00
in
favor
of
Taylor,
Bean
and
Whitaker
Mortgage
Corporation
(“TB&W”) and conveying a security interest in their home to
TB&W.
T. Blackburn Dep. Ex. A-1, Mortgage, ECF No. 58-2; T.
Blackburn Dep. Ex. A-2, Note, ECF No. 58-3.
Mr. Blackburn, an
active duty member of the United States Army, paid the mortgage
to TB&W through military allotment payments.
21:5-6, ECF No. 58.
T. Blackburn Dep.
The Blackburns had no payment issues while
TB&W held the mortgage.
II.
Loan Assigned to BAC
In August 2009, because of TB&W’s default and bankruptcy,
BAC was ultimately assigned the Blackburns’ loan as part of a
servicing contract covering approximately 180,000 loans.
Aff. ¶¶ 6-7, ECF No. 61-2.1
Wagner
The Blackburns were informed by a
1
The Blackburns assert that Caren Wagner’s affidavit constitutes
hearsay and as such cannot be considered in support of BAC’s motion
for summary judgment.
Wagner avers under oath that she has personal
knowledge of the facts and the business records she details in her
affidavit.
Wagner Aff. ¶ 4.
The Court finds that the information
relied on by the Court from Wagner’s affidavit should not be excluded
as hearsay for purposes of deciding BAC’s summary judgment motion.
3
letter dated August 23, 2009 that effective September 1, 2009
their loan was assigned to BAC.
T. Blackburn Dep. Ex. A-5,
Letter from BAC to T. Blackburn (Aug. 23, 2009), ECF No. 58-6.
By the time they received this transfer letter, the Blackburns’
August 2009 military allotment had previously been sent to TB&W.
S. Blackburn Dep. 23:24-24:2, ECF No. 59.
Although they tried
to change their September 2009 allotment, the Blackburns did not
have sufficient time to redirect that allotment from TB&W to
BAC.
As a result, it was erroneously sent to TB&W instead of
BAC.
Id. at 23:4-24:7; see also T. Blackburn Dep. 51:20-53:2
(explaining
that
the
21st
of
each
month
is
the
cut-off
for
changing an allotment and that the letter was received after
that cut-off).
The allotment was finally changed so that it was
paid to BAC effective October 2009.
S. Blackburn Dep. 24:8-24.
Because of actions taken by TB&W before BAC assumed its
loans,
certain
customer
payments
Deposit Insurance Corporation.
were
frozen
Wagner Aff. ¶ 9.
by
the
Federal
Therefore, the
Blackburns’ payments for August and September 2009, which had
been sent to TB&W before the change in the allotment was made to
BAC, were not credited to their loan account.
As a result,
“when [BAC] began servicing [the Blackburns’] loan, its records
indicated
payments.”
that
[the
Id. ¶ 10.
Blackburns]
were
delinquent
on
their
Operating under the belief that the
4
Blackburns were delinquent on their August and September 2009
payments, BAC engaged in the following actions.
On September 9, 2009,
BAC
Id. ¶¶ 8, 10.
began sending notices to Mr.
Blackburn that he was delinquent on his loan.
Pls.’ Resp. in
Opp’n to Def.’s Mot. for Summ. J. Ex. A, S. Blackburn Aff. ¶ 3,
ECF No. 64-1; Pls.’ Resp. in Opp’n to Def.’s Mot. for Summ. J.
Ex. B,
T. Blackburn Aff.
¶
4, ECF No. 64-2;
see, e.g., T.
Blackburn Dep. Ex. A-6, Letter from BAC to T. Blackburn (Sept.
9, 2009) 1, ECF No. 58-7 (stating total amount due to bring the
loan
current
is
$2,057.80,
September 2009 payments).
the
amount
of
the
August
and
A few days later on September 16,
2009, BAC began sending “Notice[s] of Intent to Accelerate” and
threatening foreclosure.
T. Blackburn Dep. Ex. A-7, Notices
from BAC to T. Blackburn, ECF No. 58-8.
multiple
notices,
often
Blackburn Dep. 41:6-24.
notices
and
the
several
in
The Blackburns received
the
same
day.
Id.;
S.
Starting in September 2009, each of the
Blackburns’
monthly
mortgage
statements
reflected BAC’s contention at the time that the Blackburns had
not paid their August and September 2009 mortgage payments.
T.
Blackburn Dep. 47:9-48:17.
In addition to the typical stress associated with having a
home
loan
erroneously
declared
delinquent,
Mr.
Blackburn
contends that the stress was heightened for him because it could
threaten
his
military
career.
As
5
an
Army
Ranger,
he
was
required
to
avoid
any
financial
jeopardize his security clearance.
difficulties
that
could
S. Blackburn Dep. 51:3-11.
The Blackburns therefore vigorously attempted to convince BAC
that they were not delinquent on their loan and had in fact paid
the
August
and
September
2009
mortgage
payments—albeit
Colonial Bank, the acting servicer when TB&W held the loan.
to
The
Blackburns repeatedly called BAC’s 1-800 numbers hoping for a
resolution.
Mrs.
Blackburn
obtained
a
statement
from
Army
Finance showing the trace numbers for the August and September
2009 military allotments, the allotments, and the recipient of
the allotments.
S. Blackburn Dep. 34:1-25, 54:23-57:23.
In
September 2009, Mrs. Blackburn took the information to the local
BAC
branch
office
in
29:24-30:10, 31:2-5.
Columbus,
Georgia.
S.
Blackburn
Dep.
At the office, BAC employee Autry Gray
instructed the Blackburns to disregard the notices and stated
that a payment request would be submitted to TB&W and could take
sixty to ninety days.
Id. at 34:7-13, 40:17-41:2.
It appeared
that the BAC employee at the Columbus office fully understood
the problem and proceeded to fix it.
Unfortunately,
something
got
lost
in
the
between Columbus and BAC’s processing center.
translation
In response to
the documents that Mrs. Blackburn took to the BAC office, BAC
sent
a
letter
stating,
“We
have
received
the
missing payment which was remitted to [TB&W].
6
proof
of
your
However, the
documents you have provided us with is [sic] not sufficient.”
T. Blackburn Dep. Ex. A-9, Letter from BAC to T. Blackburn (Nov.
19,
2009),
ECF
No.
58-9.
Failing
to
comprehend
that
the
Blackburns made their payments by military allotment, the BAC
letter requested Mr. Blackburn to send “a copy of the cancelled
check (front and back) or a bank source receipt (you can obtain
from your bank) if payment was made via Home banking along with
a copy of your Bank Statements” as “required back-up” proof of
payment.
Id.
BAC subsequently sent another letter requesting
the same information.
T. Blackburn Dep. Ex. A-10, Letter from
BAC to T. Blackburn (Dec. 28, 2009), ECF No. 58-10.
BAC made
these requests despite being informed that the Blackburns paid
their mortgage by military allotment and thus such documents did
not exist.
S. Blackburn Aff. ¶¶ 11-13; T. Blackburn Aff. ¶¶ 11-
14.
Inexplicably,
the
problem
with
the
Blackburns’
remained unresolved for the next year and a half.
time,
BAC
continued
sending
letters
to
the
account
During that
Blackburns
threatening foreclosure and stating they were in default.
Blackburn Aff. ¶ 3; T. Blackburn Aff. ¶ 4.
S.
Mrs. Blackburn
returned to the local BAC office several times to meet with
employee Fabien Smith (“Smith”) to try to resolve the situation.
S. Blackburn Dep. 49:22-50:10.
7
To compound the problem, BAC began sending inspectors onto
the
Blackburns’
property
in
approximately
February
examine the integrity of the loan collateral.
2010
to
Pls.’ Resp. in
Opp’n to Def.’s Mot. for Summ. J. Ex. C, Inspection Form (Feb.
8, 2010), ECF No. 64-3 at 2.
The
Blackburns
first
saw an
inspector on their property the day before Thanksgiving in 2010.
S.
Blackburn
Inspection
Dep.
Form
76:12-21;
(Nov.
23,
T.
Blackburn
2010),
inspector did not enter the house.
When
Mr.
Blackburn
confronted
ECF
No.
Dep.
134:22-135:7;
64-3
at
22.
The
T. Blackburn Dep. 139:14-25.
the
inspector,
he
gave
Mr.
Blackburn a business card for a Carl Gregory car dealership
salesman named “Rayburn Wilson.”
Id. at 136:8-13, 138:3-11.
The inspector wrote on the back of the card a different name, a
phone number, and “Integrity Field Services.”
Id. at 138:5-25.
Eventually the inspector stated that he was “hired by a company
. . . to take pictures and do inspections.”
136:18, 138:3-7.
Id. at 135:8-
Mr. Blackburn was very concerned about this
man snooping around his home and taking photographs.
139:5-10.
Id. at
Inspectors continued to return to the property and
take pictures, peer in the windows, and place pieces of paper in
the crack of the Blackburns’ front door.
78:1-81:15.
2011.
S. Blackburn Dep.
These inspections continued until at least March
Pls.’ Resp. in Opp’n to Def.’s Mot. for Summ. J. Ex. C,
Inspection Form (Mar. 19, 2011), ECF No. 64-3 at 30.
8
In February 2011, in response to the Blackburns’ persistent
inquiries, BAC sent another letter stating that they could not
“research
the
payment
made
sufficient information.”
to
[TB&W]
as
[they]
do
not
have
T. Blackburn Dep. Ex. A-12, Letter
from BAC to T. Blackburn (Feb. 10, 2011), ECF No. 58-12.
The
letter again requested a cancelled check, a bank source receipt,
or a signed letter of receipt.
Id.
On March 9, 2011, Mrs. Blackburn emailed Smith, restating
her concerns about Mr. Blackburn’s credit report and expressing
her frustration with BAC’s requests for cancelled checks and
information supporting the payments to TB&W that simply did not
exist because the payments were made by military allotment.
T.
Blackburn Dep. Ex. A-14, Email from S. Blackburn to F. Smith
(Mar. 9, 2011), ECF No. 58-14.
Smith replied to Mrs. Blackburn
stating that the Blackburns’ account would be credited and the
missing
payments
Blackburn’s
credit.
would
not
get
reported
S. Blackburn Dep.
or
affect
Mr.
68:17-69:25 & Ex. I,
Email from F. Smith to S. Blackburn (Mar. 14, 2011), ECF No. 5910.
Throughout this ordeal, the Blackburns made sure that BAC
was aware of the seriousness of any negative entries on Mr.
Blackburn’s
credit
report
because
of
his
government
security
clearance.
T. Blackburn Dep. 106:15-24, 109:12-111:1 & Ex. A-
14, Email from S. Blackburn to F. Smith (Mar. 9, 2011), ECF No.
9
58-14.
BAC
negative
repeatedly
regarding
assured
their
the
Blackburns
mortgage
Blackburn’s credit report.
would
that
appear
nothing
on
Mr.
T. Blackburn Dep. 66:6-15, 97:7-
98:11; see also Email from F. Smith to S. Blackburn (Mar. 14,
2011)
(“I
explained
to
[the
BAC
researchers]
about
Mr.
B’s
clearance and how this could affect it, he assured me that this
will not be reported and affect his credit.”).
Nonetheless,
when Mr. Blackburn ordered his credit reports on March 31, 2011,
he learned that BAC had reported that he had been two months
delinquent on his mortgage since April 2010.
T. Blackburn Dep.
152:23-153:11 & Ex. A-22, Equifax Credit Report (Mar. 31, 2011),
ECF
No.
58-19
at
2-3
(stating
the
past
due
balance
on
BAC
mortgage as $2,124, the date reported as February 2011, and the
“Date of First Delinquency” as April 2010).
III. BAC’s Actions to Remedy the Blackburns’ Account
Once it took over the TB&W loans, BAC engaged in a process
to
determine
Wagner
Aff.
which
¶¶
TB&W
12-13.2
borrowers
BAC
were
admits
actually
that
the
in
default.
documentation
available for military allotments was different, and that it
should have had a different process in place for identifying
2
In attempts to “deny” many of the facts put forth by BAC, the
Blackburns challenge the efficacy of BAC’s process for examining the
approximately 180,000 loans it took over from TB&W. These statements
do not dispute the facts asserted by BAC, and the Blackburns point to
no evidence disputing the facts about BAC’s process. Thus, the facts
as to BAC’s process to resolve the issues of TB&W loan defaults are
undisputed.
10
those accounts.
Def.’s Resp. to Pls.’ Mot. to Compel Ex. A,
Wagner Dep. 55:7-17, ECF No. 46-1.3
On July 30, 2010, BAC
finally
that
received
reconciliation
data
it
began
through to confirm the accurate status of the accounts.
parsing
Wagner
Aff. ¶ 14.
On March 15, 2011, although BAC never received the funds
for the Blackburns’ missing August and September 2009 payments,
it was finally able to confirm that the payments had been made
to TB&W.
Id. ¶¶ 15-16.
BAC advanced its own funds and credited
the payments to the Blackburns’ account on April 4, 2011.
Id.
That same day, BAC also refunded all late fees paid by the
Blackburns in the amount of $342.00, issued retractions of the
negative
credit
inspections.
reporting,
Id. ¶ 17.
their first Complaint.
and
stopped
further
property
On April 15, 2011, the Blackburns filed
Compl., ECF No. 1.
As of November 11, 2011, the report of default no longer
appeared on Mr. Blackburn’s credit report.
T. Blackburn Dep.
112:22-24,
the
160:13-161:15
(agreeing
that
at
time
of
his
deposition on May 14, 2012 his credit and payments have been
fixed).
“Due to a ministerial oversight, however, $75.00 in
inspection fees remained on Plaintiffs[’] account (this amount
3
Caren Wagner’s 30(b)(6) deposition is also filed at ECF No. 53, but
that filing contains only the odd numbered pages, so the Court cites
to the full copy of the deposition filed at ECF No. 46-1.
11
later appeared as $82.38 in inspections fees due to an internal
accounting error).”
Wagner Aff. ¶ 17.
To address certain remaining “fees due,” on November 29,
2011,
Mr.
Blackburn
sent
a
letter
to
BAC
at
the
address
designated by BAC for receipt of “qualified written requests.”
T. Blackburn Aff. Ex. A, Letter from T. Blackburn to BAC (Nov.
29, 2011), ECF No. 64-2 at 10.
The letter included his name and
identifying account information and stated the following:
I have repeatedly requested that all fees and
charges collected by you on my account be credited
back to me.
Again, I request that you do so immediately and
inform me, in writing, what amounts have been credited
to my account, what they were collected for in the
first place, and why they were collected by you.
Id.
BAC acknowledged receipt of this letter by a letter dated
December 8, 2011 and promised a complete response within twenty
business days.
T. Blackburn Aff. Ex. B, Letter from BAC to T.
Blackburn (Dec. 8, 2011), ECF No. 64-2 at 11.
BAC then sent a
letter stating that it had finished researching the issue of
fees due on the account and that it was “unable to waive the
fees in the amount of $15.66.”
T. Blackburn Aff. Ex. C, Letter
from BAC to T. Blackburn (Dec. 14, 2011), ECF No. 64-2 at 12.
By this letter, BAC did not fully respond to the November 29,
2011 letter’s requests, sent no further letters on the matter,
and took no responsive action.
T. Blackburn Aff. ¶¶ 28-29.
12
Even after the November 2011 letter, BAC “collected late
fees” from the Blackburns’ mortgage payments through March 2012.
Wagner Dep. 101:1-14.
BAC sent statements to the Blackburns,
stating they owed various amounts in “fees due,” but did not
explain what that meant or the basis for the fees.
See Pls.’
Resp. in Opp’n to Def.’s Mot. for Summ. J. Ex. E, 12/01/2011
Statement 2, ECF No. 64-5 at 18-19 ($15.66 “Fees due”); Pls.’
Resp. in Opp’n to Def.’s Mot. for Summ. J. Ex. E, 01/03/2012
Statement 2, ECF No. 64-5 at 20-21 ($8.28 “Fees due”).
though
the
allotment,
Blackburns
BAC
pay
reflected
$1,070.00
on
various
received less than that amount.
per
month
statements
per
that
Even
military
it
had
S. Blackburn Aff. ¶ 7; T.
Blackburn Aff. ¶ 8; 12/01/2011 Statement 2 (stating last payment
as $1,062.62); 01/03/2012 Statement 2 (stating last payment as
$1,062.62.).
The Blackburns never voluntarily paid any late
fees or fees due.
S. Blackburn Aff. ¶ 8.
At the time it collected fees, BAC alleges that it relied
on TB&W’s data showing missing payments.
But, BAC “know[s] now
that Mr. Blackburn wasn’t late on his account.”
101:2-10.
Wagner Dep.
BAC admits that “it was an oversight, that those fees
should have been credited . . . waived and credited or credited
back for any amounts that had been previously paid for out of
Mr. and Mrs. Blackburn’s [monthly payments].”
13
Id. at 131:1-5.
BAC corrected all fees, including the inspection fees, on
May 23, 2012.
Mosesson Aff. ¶¶ 26-27, ECF No. 61-7.4
DISCUSSION
At this time, the Blackburns do not appear to have any out
of pocket monetary damages.
Their account has finally been
corrected, and they have been credited with all fees and charges
that
were
complaint
erroneously
is
that
as
made.
a
The
result
thrust
of
of
BAC’s
their
RESPA
present
violations,
trespass, conversion, and breach of contract, they have suffered
severe emotional distress.
BAC seeks summary judgment as to
each of these claims.
I.
RESPA § 2605(e)
If
written
a
borrower
request”
information,
the
sends
her
seeking
servicer
mortgage
account
must
servicer
corrections
acknowledge
a
“qualified
or
receipt
account
of
the
request and respond to the request by correcting the account or
conducting an investigation and providing the borrower with a
written explanation of why the servicer believes the account is
correct.
12 U.S.C. § 2605(e)(1)-(2).
The Blackburns allege
that BAC violated this provision of RESPA when it failed to
adequately
respond
to
their
letter
4
dated
November
29,
2011.
The Blackburns “deny” that all fees have been credited to their
account, but fail to point the Court to any evidence that there are
outstanding fees due to be credited. The Court thus accepts it as an
undisputed fact that all payments and fees have been credited to the
Blackburns’ account as of May 23, 2012. Id.
14
Letter from T. Blackburn to BAC (Nov. 29, 2011), ECF No. 64-2 at
10.
BAC does not deny that this letter was a qualified written
request under RESPA or argue that its response to it satisfied
its RESPA obligations as a matter of law.
Instead, BAC argues
that it is entitled to summary judgment on this claim because
the Blackburns have failed to point to any evidence of damages
suffered as a result of the alleged RESPA violation that are
recoverable under RESPA.5
Def.’s Reply in Supp. of Mot. for
Summ. J. 13-14, ECF No. 70.
It is undisputed that, as of May
2012, the fees inquired about in the November 29, 2011 letter
have
been
credited,
and
evidence of pecuniary harm.
the
Blackburns
have
pointed
to
no
Their RESPA claim for damages rests
entirely upon their contention that the RESPA violation caused
them severe emotional distress.
If a servicer fails to comply with RESPA, the borrower may
recover “any actual damages to the borrower as a result of the
failure.”
12 U.S.C. § 2605(f)(1)(A).
Although RESPA does not
define “actual damages,” the Eleventh Circuit has explained that
as “in other consumer-protection statutes that are remedial in
nature,
plaintiffs
arguably
may
5
recover
for
non-pecuniary
BAC also requests summary judgment on any RESPA claims based on
letters other than the November 29, 2011 letter.
Def.’s Mem. of Law
in Supp. of Def.’s Mot. for Summ. J. 31, ECF No. 61-1 [hereinafter
Def.’s Mem.].
The Court, however, finds that the Blackburns have
asserted no other bases for their RESPA claims.
15
damages,
such
as
under RESPA.”
emotional
distress
and
pain
and
suffering,
McLean v. GMAC Mortg. Corp., 398 F. App’x 467,
471 (11th Cir. 2010) (per curiam); accord James v. Litton Loan
Servicing, L.P., No. 4:09-CV-147 (CDL), 2011 WL 59737, at *8,
*10 (M.D. Ga. Jan. 4, 2011).
evidence
that
unease,
BAC’s
great
The Blackburns present unrebutted
actions
frustration,
Blackburn]
family”
and
108:10-25,
151:23-152:17,
caused
and
their
them
“a
fear,
lot
of
marriage.
158:17-159:1,
embarrassment,
stress
[the
Blackburn
T.
on
Dep.
160:21-161:21,
171:5-
173:10; S. Blackburn Dep. 41:6-42:8, 64:18-65:16, 91:18-92:6.
Mr.
Blackburn
nights.”
suffered
T.
“frustration
Blackburn
Dep.
and
anger
176:6-16.
and
Mrs.
sleepless
Blackburn
experienced “[h]eadaches, sleepless nights, . . . weight gain
from the depression[,] weight loss from not having much of an
appetite[, and t]he stress of fighting with [her] husband.”
Blackburn Dep. 104:1-10.
Blackburns,
adequately
response
was
to
violation.
genuine
suffered
fact
their
From
their
this
to
which
evidence,
exists
damages
BAC’s
problem,
letter
dispute
actual
Some of this stress, according to the
attributable
address
S.
as
a
as
including
is
the
the
to
result
16
continued
BAC’s
basis
Court
BAC’s
the
to
inadequate
the
concludes
whether
of
for
failure
RESPA
that
a
Blackburns
alleged
RESPA
violation.6
The Court, therefore, denies BAC’s summary judgment
motion as to the RESPA § 2605(e) claim.7
It
appears
that
in
their
response
to
BAC’s
motion
for
summary judgment, the Blackburns seek to add a new claim under
RESPA, 12 U.S.C. § 2605(d).
for Summ. J. 28.
Pls.’ Resp. in Opp’n to Def.’s Mot.
BAC seeks summary judgment on this claim.
Def.’s Reply in Supp. of Mot. for Summ. J. 14, ECF No. 70.
Blackburns
failed
to
properly
amend
their
Complaint, ECF No. 30, to add this claim.
claim
is
not
properly
before
the
judgment
on
Court
Third
The
Amended
Accordingly, this
and
will
not
be
considered in this action.
II.
Trespass
BAC
claim,
claim.
seeks
summary
contending
the
parties’
the
mortgage
Blackburns’
agreement
trespass
bars
the
BAC further argues that even if the mortgage does not
bar the trespass claim, the claim is one for breach of contract
rather
than
the
tort
of
trespass,
and
therefore,
emotional
distress damages are not recoverable.
6
Of course, at trial, Plaintiffs may only recover emotional distress
damages on their RESPA claim that were proximately caused by the
alleged RESPA violation and not for emotional distress preceding or
unrelated to the RESPA violation.
7
In its motion, BAC primarily argues that the Court should disregard
the Blackburns’ November 29, 2011 letter “because it was an improper
attempt by Plaintiffs’ counsel to contact [BAC] directly . . . in
violation of Georgia Rule of Professional Conduct 4.2.”
Def.’s Mem.
29. BAC does not point to, nor is the Court aware of, any authority
standing for the proposition that a potential professional conduct
issue excuses compliance with RESPA.
17
Consent
trespass.
by
contract
may
be
a
complete
defense
to
a
Tacon v. Equity One, Inc., 280 Ga. App. 183, 188, 633
S.E.2d 599, 604 (2006).
However, the Blackburns never consented
to any trespass on their property.
They did agree to reasonable
inspection of their property, but nothing in their agreement
suggests that BAC would be allowed carte blanche authority to
surreptitiously
enter
payments were current.
onto
their
property
when
their
loan
T. Blackburn Dep. Ex. A-1, Mortgage ¶ 7,
ECF No. 58-2.
The Blackburns point to evidence that BAC’s agents entered
onto
their
property
repeatedly,
excessively,
deception, and without justification.
intrusively,
by
See, e.g., T. Blackburn
Dep. 135:8-136:18, 138:3-25 (discussing the inspectors’ entries
on the property and one inspector’s use of a false identity); S.
Blackburn
returned
Dep.
to
the
78:1-81:15
property,
(stating
peered
pieces of paper in the front door).
the
in
inspectors
the
windows,
repeatedly
and
stuck
Accordingly, the Blackburns
have pointed to sufficient evidence to create a genuine dispute
of material fact as to whether BAC’s entries on the property
were “reasonable” and thus consented to under the mortgage.
Moreover, the existence of a contract between the parties
does not foreclose the Blackburns’
trespass claim.
Where a
defendant breaches an independent “duty imposed by law and not
merely . . . a duty imposed by the [parties’] contract itself,”
18
“the breach of that duty gives rise to a cause of action in
tort.”
Waldrip v. Voyles, 201 Ga. App. 592-94, 411 S.E.2d 765,
767-68 (1991).
from
the
Here, the duty not to trespass did not arise
contract
itself,
notwithstanding
the
fact
that
the
contract could be used to establish a defense of consent to the
tortious intrusion.
604.
Tacon, 280 Ga. App. at 188, 633 S.E.2d at
The duty here arises from case law which is also codified
by statute—O.C.G.A. § 51-9-1.
Cf. J.M.I.C. Life Ins. Co. v.
Toole, 280 Ga. App. 372, 375, 634 S.E.2d 123, 127 (2006).
For
these reasons, the Court denies BAC’s summary judgment motion as
to the trespass claim.
See Sheppard v. Yara Eng’g Corp., 248
Ga. 147, 148-150, 281 S.E.2d 586, 587-88 (1981) (denying summary
judgment
where
trespass
or
the
parties’
conversion
contract
alleged
and
did
the
not
authorize
defendant
had
the
duties
independent of the parties’ contract not to commit those torts).
III. Conversion
The
Blackburns
claim
that
BAC
converted
their
money
by
taking unexplained fees from their mortgage payments and
not
applying
and
interest.
their
entire
payments
to
their
loan
principal
BAC seeks summary judgment on this claim, arguing
that the Blackburns have no basis for a conversion claim because
BAC corrected the account as “if no fees had ever been charged.”
Def.’s Mem. 34-35.
19
To state a conversion claim under Georgia law, the party
alleging
conversion
must
show
that
the
defendant
refused
to
return the property or actually converted the property by “[a]ny
distinct act of dominion and control wrongfully asserted over
another’s personal property, in denial of . . . or inconsistent
with” its right of ownership.
Williams v. Nat’l Auto Sales,
Inc., 287 Ga. App. 283, 285-86, 651 S.E.2d 194, 196-97 (2007)
(alteration
in
original)
(internal
quotation
marks
omitted).
The Blackburns maintain that when BAC failed to properly credit
their payments, BAC wrongfully took control and dominion over
their
money
in
a
manner
ownership of those funds.
that
was
inconsistent
with
their
Genuine issues of material fact exist
to be tried as to whether such conduct by BAC constitutes the
intentional tort of conversion.
See, e.g., Rourk v. Bank of Am.
Nat'l Ass'n, No. 4:12–CV–42 (CDL), 2012 WL 3745953, at *6 (Aug.
28, 2012) (holding that plaintiff stated a viable claim for
conversion
under
Georgia
law
based
on
the
bank’s
alleged
unlawful collection of fees and expenses from plaintiff); James
v. Litton Loan Servicing, L.P., No. 4:09–CV–147 (CDL), 2011 WL
59737, at *12 (Jan. 4, 2011) (finding that plaintiffs stated a
viable
claim
for
conversion
under
Georgia
law
based
on
the
bank’s alleged misapplication of plaintiffs’ loan payments).
BAC argues that even if the Blackburns can establish the
essential
elements
for
a
conversion
20
claim,
the
undisputed
evidence
shows
properly,
and
suffered
their
therefore,
any
conversion.
that
damages
Since
payments
they
cannot
proximately
the
were
Blackburns’
eventually
show
caused
that
by
payments
credited
they
the
were
have
alleged
eventually
credited properly and they were reimbursed for any erroneous
charges, the Blackburns do not have a claim for these damages.
Instead,
they
seek
damages
for
the
suffered because of the conversion.
emotional
distress
they
BAC argues that emotional
distress damages are not recoverable under Georgia law for the
intentional tort of conversion.
To recover such damages, BAC
maintains that the Blackburns’ only remedy is to pursue a claim
for the intentional infliction of emotional distress (“IIED”), a
claim that the Blackburns do not assert and could not prove
given the stringent requirements for succeeding on such a claim.
The Court has located no decision by the Georgia appellate
courts squarely addressing whether emotional distress damages
proximately caused by an intentional conversion of property are
recoverable.
allowing
The Georgia Reports are replete with decisions
for
the
recovery
of
emotional
distress
damages
proximately caused by other types of intentional torts.
The
Blackburns rely on these cases, arguing that no rational basis
exists
for
conversion
distinguishing
and
recoverability
other
of
between
intentional
emotional
the
torts
distress
21
intentional
on
the
damages.
tort
of
of
the
issue
See,
e.g.,
Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149,
149, 311 S.E.2d 818, 819 (1984) (explaining in dicta that mental
distress damages may be recovered in a legal malpractice case
without proof of physical injury if conduct rises to the level
of intentional tort); Stewart v. Williams, 243 Ga. 580, 582, 255
S.E.2d
699,
suffering
are
imprisonment
701
(1979)
(concluding
recoverable
even
absent
for
the
that
mental
intentional
physical
injury);
pain
tort
Montega
of
and
false
Corp.
v.
Hazelrigs, 229 Ga. 126, 126-27, 189 S.E.2d 421, 422-23 (1972)
(affirming an award of damages for mental illness and mental
pain and suffering caused by an intentional trespass); Zieve v.
Hairston, 266 Ga. App. 753, 759-60, 598 S.E.2d 25, 32 (2004)
(concluding that emotional damages, including embarrassment and
ridicule
flowing
from
alleged
fraudulent
representations,
constitute actual damages sufficient to support a fraud claim);
Wright v. Wilcox, 262 Ga. App. 659, 662, 586 S.E.2d 364, 366-67
(2003) (same as Montega Corp.); St. Paul Fire & Marine Ins. Co.
v. Clark, 255 Ga. App. 14, 21-22, 566 S.E.2d 2, 9-10 (2002)
(same as Zieve); Chamberlin Co. of Am. v. Mays, 92 Ga. App. 173,
174-75, 88 S.E. 2d 176, 177-78 (1955) (finding that damages for
injury to health, humiliation, and distress are recoverable for
the
intentional
tortious
conduct
of
unlawfully
levying
on
plaintiff’s personal property and removing it from her home and
noting
that
such
recovery
may
22
be
made
for
a
willful
and
intentional tort even if the tort is directed to plaintiff’s
property rights).8
other
The Blackburns also observe that courts from
jurisdictions
have
held
that
emotional
distress
type
damages proximately caused by the intentional tort of conversion
are recoverable.
See, e.g., Ford v. St. Louis Metro. Towing,
L.C., No. 4:09cv0512 TCM, 2010 WL 618491, at *15 (E.D. Mo. Feb.
18,
2010)
distress
(stating
damages
that
“arising
Missouri
courts
out
the
of”
permit
emotional
intentional
tort
of
conversion); Cruthis v. Firstar Bank, N.A., 822 N.E.2d 454, 467
(Ill. App. Ct.
defendant
2004) (“[P]laintiffs did not allege that the
committed
the
independent
tort
of
intentional
infliction of emotional distress, and they need not have done
so.
Instead,
the
plaintiffs
sought
damages
for
emotional
distress, which may be recovered from a defendant who committed
the
intentional
tort
of
conversion.”)
(citation
omitted);
Fredeen v. Stride, 525 P.2d 166, 168 (Or. 1974) (“[I]f mental
suffering is the direct and natural result of the conversion,
the jury may properly consider mental distress as an element of
damages.”); Sexton v. Brown, No. 6136-4-I, 2008 WL 4616705, at
*7 (Wash. Ct. App. Oct. 20, 2008) (“Because conversion is an
intentional tort, if [plaintiff] proves [defendant’s] actions
8
Cited cases hereinafter referred to as “Pls.’ Georgia Intentional
Tort Cases.”
23
were not justified, [plaintiff] may be entitled to emotional
damages.”).
BAC does not effectively distinguish the authority cited by
the Blackburns.
Instead, BAC
cites to
conversion
and other
intentional tort cases in which some Georgia courts, without
much
discussion
claims
as
arising
to
from
why,
have
intentional
analyzed
torts
emotional
under
the
distress
heightened
standard for the tort of intentional infliction of emotional
distress (“IIED”).
See, e.g., Williams, 287 Ga. App. at 285-88,
651 S.E.2d at 196-98 (analyzing plaintiff’s separate claims for
conversion and IIED); Hardin v. City Wide Wrecker Serv., Inc.,
232 Ga. App. 617, 619, 501 S.E.2d 548, 550-51 (1998) (same);
Evans v. Willis, 212 Ga. App. 335, 336-37, 441 S.E.2d 770, 77273 (1994) (reviewing trial court’s decision on plaintiff’s IIED
claim in a case that also involved a conversion claim); see also
DeGolyer v. Green Tree Servicing, L.L.C., 291 Ga. App. 444, 449,
662
S.E.2d
141,
147-48
(2008)
(analyzing
emotional
damages claim for tort of wrongful foreclosure
distress
as claim for
IIED); McCarter v. Bankers Trust Co., 247 Ga. App. 129, 133, 543
S.E.2d 755, 758 (2000) (same).
Since no Georgia appellate decision has been located that
is directly on point, the Court must try to predict based on
existing precedent how the Supreme Court of Georgia would answer
the
following
question:
can
a
24
plaintiff
recover
emotional
distress damages from a defendant if the plaintiff proves that
the defendant intentionally converted plaintiff’s property and
that
the
conversion
proximately
caused
plaintiff
emotional
distress, or must a plaintiff prove the elements for the tort of
IIED to recover such emotional distress damages?
Although the
answer to this question should be readily apparent, the case law
surrounding the tort of IIED creates confusion.
An examination
of the origin of the IIED claim in Georgia and its evolution
provides some clarity.
The
recovery
intentional
Georgia.
of
tortious
emotional
conduct
distress
has
long
damages
been
caused
by
recognized
in
Over a century ago, the Court of Appeals of Georgia,
in what may be the first detailed discussion of the issue by the
Georgia appellate courts, laid down the general principle that
has been cited in many subsequent decisions:
While mental suffering, unaccompanied by injury to
purse or person, affords no basis for an action
predicated upon wrongful acts, merely negligent, yet
such damages may be recovered in those cases where the
plaintiff has suffered at the hands of the defendant a
wanton, voluntary, or intentional wrong the natural
result of which is the causation of mental suffering
and wounded feelings.
Dunn v. W. Union Tel. Co., 2 Ga. App. 845, 59 S.E. 189, 189
(1907).
out
of
In Dunn, a customer of a telegraph company was ordered
the
office
abusive language.
while
Id.
being
insulted
and
humiliated
with
Since the customer suffered no injury to
25
“his purse or person,” the question arose as to whether he could
recover
compensatory
feelings.
damages
for
Id., 59 S.E. at 190.
found that he could.
his
humiliation
and
wounded
The Court of Appeals of Georgia
Id., 59 S.E. at 191-92.
The Court noted
that it is undisputed that damages for mental suffering are
compensatory in character, explaining that “‘[w]ounding a man’s
feelings is as much actual damage as breaking his limbs.’”
Id.,
59 S.E. at 191 (quoting Head v. Ga. Pac. Ry. Co., 79 Ga. 358,
360, 7 S.E. 217, 218 (1887)).
The court viewed proximate cause
as the limiting condition on the recovery of such damages:
Such damages may in the very nature of things be just
as proximately and naturally the consequence of the
defendant’s wrong as any other damage . . . Of course,
there may be cases where mental suffering is not a
proximate and natural result of an injury; but this is
true as to any other form of damage.
Nor can it be
justly said that an allowance for mental suffering is
any more speculative or conjectural than damages for
physical pain and suffering.
Id.
The court rejected the cases which precluded recovery of
damages for mental suffering
when no other injury is shown,
finding that any such rule is “arbitrary.”
however,
did
recognize
the
general
rule,
Id.
The court,
albeit
“arbitrary,”
that recovery for mental suffering alone was not permitted if
the
mental
injury
Notwithstanding
this
is
the
general
result
of
principle,
mere
the
neglect.
court
Id.
emphasized
that even the courts which had followed it did not extend it “to
26
those
intentional
injuries
of
which
insult,
humiliation,
mental suffering are the natural consequences.”
Id.
and
Thus, the
court made it clear that damages for emotional distress
are
recoverable if proximately caused by an “intentional tort,” even
though they may not be recoverable if caused by mere negligence.
Id.
Subsequent to Dunn, many cases were decided based on the
general principle that emotional distress damages proximately
caused by an intentional tort were recoverable under Georgia
law.
See, e.g., Pls.’ Georgia Intentional Tort Cases.
During
this time, the Georgia courts began addressing more specifically
the
circumstances
where
a
person
could
recover
emotional
distress damages caused by intentionally wrongful conduct that
may
not
have
previously
intentional tort.
been
as
a
well-recognized
In Georgia Power Co. v. Johnson, the Court of
Appeals gave this tort a name.
(1980).
labeled
155 Ga. App. 862, 274 S.E.2d 17
The court explained, “[w]hile we are not familiar with
the tort of ‘outrage,’ Georgia does recognize a cause of action
for intentional infliction of emotional distress.”
Id. at 863,
274 S.E.2d at 18 (citing Dunn, 2 Ga. App. 845, 59 S.2d 189).
Rejecting the plaintiff’s claim, the court observed that the
precedent that had recognized such claims involved actions that
were
“so
terrifying
or
insulting
as
embarrass or frighten the plaintiff.”
27
naturally
Id.
to
humiliate,
It was still not
clear from this decision whether the Court of Appeals of Georgia
intended for all claims asserting mental distress damages to be
treated as claims for the separate IIED tort, or whether an IIED
claim existed to fill in the gap where the conduct was clearly
wrongful but was not covered by any other well-established tort.
Simply
put,
the
question
remained:
does
the
tort
for
IIED
supplement existing tort law, allowing for a claim to address
wrongful conduct not covered by other traditional torts, or does
it supplant all torts seeking emotional distress type damages
for intentionally tortious conduct?
Following
Georgia
Power
Co.
v.
Johnson,
the
Court
of
Appeals of Georgia decided to put more meat on the bones of the
tort
of
court,
IIED.
In
Bridges
relying
on
cases
v.
Winn-Dixie
from
other
Atlanta,
jurisdictions
Inc.,
the
and
the
Restatement (Second) of Torts (1965), specifically articulated
the four elements for IIED, which are well recognized by Georgia
courts today: (1) the conduct must be intentional or reckless;
(2) the conduct must be extreme and outrageous; (3) there must
be a causal connection between the wrongful conduct and the
emotional
severe.
distress;
and
(4)
the
emotional
distress
must
be
176 Ga. App. 227, 230, 335 S.E.2d 445, 447 (1965)
(citing Womack v. Eldridge, 215 Va. 338, 341-42, 210 S.E.2d 145,
147-48 (1974)).
This refinement of the tort of IIED, however,
still did not address the issue of whether these elements must
28
be present any time a plaintiff seeks emotional distress damages
without proof of a physical injury even if the plaintiff can
establish the elements of another well-established intentional
tort.
The
existing
question.
case
law
does
not
clearly
answer
this
As previously described, some decisions find that if
an intentional tort has been committed, then the victim of that
tort
can
recover
emotional
distress
type
damages
caused by the intentionally wrongful conduct.
proximately
Other courts,
however, seem to brush over the existence of a well-established
intentional tort and suggest that the tort for IIED supplants
all other intentional torts when emotional distress damages are
sought.
The Court concludes that the better-reasoned cases are
those that treat the tort of IIED as a separate cause of action,
and thus allow emotional distress damages for well-recognized
intentional
torts
when
the
plaintiff
proves
the
essential
elements of the well-established tort and that the intentionally
tortious
conduct
proximately
caused
the
emotional
distress
damages.
The Court finds the Supreme Court of Georgia’s decision in
Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149, 311
S.E.2d 818 (1984) instructive.
In Hamilton, the Supreme Court
of Georgia confirmed, albeit in dicta, that damages for mental
distress
may
be
recovered
for
29
intentional
misconduct
without
proof
of
physical
injury.
Id.
at
149,
311
S.E.2d
at
819.
Moreover, the Court clearly indicated that damages for mental
pain and anguish caused by an intentional tort were recoverable
under Georgia law.
Id.
Therefore, it appears clear from this
persuasive dicta from the Georgia Supreme Court that a plaintiff
may recover emotional distress damages proximately caused by an
intentional tort and is not required to carry the extra burden
of establishing the elements for the separate tort for IIED.
The Court does find it appropriate to address two cases
cited by BAC’s counsel at the hearing on the pending motion.
Those
cases
involved
wrongful
foreclosure
claims
seeking
emotional distress damages which the Georgia Court of Appeals
treated as IIED claims.
See DeGolyer, 291 Ga. App. 444, 662
S.E.2d 141; McCarter, 247 Ga. App. 129, 543 S.E.2d 755.
It is
not clear whether the court treated those claims as IIED claims
(1) because it did not view wrongful foreclosure as a wellestablished intentional tort, and therefore, to provide a remedy
for such intentional wrongful conduct, the court resorted to the
tort of IIED, or (2) because it was of the view that for all
intentional
torts
seeking
emotional
distress
damages,
the
plaintiff must also satisfy the elements for the tort of IIED.
Interestingly, McCarter, which is relied on in DeGolyer, cites
to Clark v. West, 196 Ga. App. 456, 395 S.E.2d 884 (1990), for
the proposition that for a claim for emotional distress damages,
30
the plaintiff must meet all of the elements for the tort of
IIED.
McCarter,
247
Ga.
App.
at
133,
543
However, that is not the holding in Clark.
S.E.2d
at
758.
Although the dissent
in Clark did argue that the plaintiff should lose because he
could not make out the elements for a claim for IIED, Clark, 196
Ga. App. at 461, 395 S.E.2d at 889 (Carley, C.J., dissenting),
at least three of the judges in the majority expressly rejected
this position, id. at 457-58, 395 S.E.2d at 886, explaining that
the wrongful foreclosure claim should be treated as a claim for
the intentional tort of wrongful foreclosure, not as an IIED
claim.
Consequently, they observed that the plaintiff did not
need to meet the more stringent requirements of an IIED claim.
Id.
The Court recognizes that was not the holding, but it
demonstrates
continued
confusion
by
the
Court
of
Appeals
of
Georgia as they have grappled with this issue.
These conflicting opinions in cases decided by the Court of
Appeals
certainly
muddy
the
water
Appeals stands on the issue.
the Supreme Court
as
to
where
the
Court
of
But, the limited precedent from
of Georgia, which this
Court must follow,
seems to be clear.
As noted previously, the Supreme Court of
Georgia
that
has
stated
a
plaintiff
may
recover
emotional
distress damages by proving that the damages were proximately
caused by an intentional tort.
Hamilton, 252 Ga. at 149, 311
S.E.2d at 819; see also Stewart, 243 Ga. at 582, 255 S.E.2d at
31
701 (concluding, without mentioning any requirement of proving
elements
of
IIED,
that
emotional
distress
damages
are
recoverable on claim for intentional tort of false imprisonment
even
if
plaintiff
alleged
understands
that
in
established
intentional
no
those
physical
cases
tort
injury).
where
alleged
to
This
Court
no
other
there
is
cover
the
wrongful
conduct, the available remedy for the wrongful conduct may be
the tort of IIED.
a
But, in those cases where a plaintiff alleges
well-established
intentional
tort,
such
as
conversion,
no
persuasive reason exists to require that a plaintiff’s claim be
supplanted by one which that plaintiff did not choose to pursue.
Accordingly,
Blackburns
the
Court
concludes
that
under
Georgia
law
the
may recover emotional distress damages proximately
caused by BAC’s intentional conversion of their money, and BAC’s
motion for summary judgment as to this claim is denied.9
IV.
Breach of Contract
BAC argues that it is entitled to summary judgment on the
Blackburns’ claims for emotional distress and punitive damages
related to its alleged breach of contract.
It is clear that a
plaintiff cannot recover punitive damages or emotional distress
damages for a breach of contract under Georgia law.
Hardwick v.
Williams, 265 Ga. App. 752, 752 & nn. 1-2, 595 S.E.2d 596, 597 &
9
The Court also observes that the Blackburns, alternatively, may
recover nominal damages as part of their conversion claim.
See
Dierkes v. Crawford Orthodontic Care, P.C., 284 Ga. App. 96, 99-100,
643 S.E.2d 364, 368-69 (2007).
32
nn. 1-2 (2004).
damages
for
To the extent that the Blackburns seek such
breach
of
contract,
BAC’s
motion
for
summary
judgment is granted as to those claims.
V.
Punitive Damages
Having
found
that
genuine
factual
disputes
exist
as
to
whether BAC may be liable for compensatory damages proximately
caused by its alleged intentionally tortious conduct, the Court
finds that genuine factual disputes also exist as to whether
such
conduct
would
subject
BAC
to
punitive
damages.
See
O.C.G.A. § 51-12-5.1(b) (Georgia law authorizes the imposition
of punitive damages “only in such tort actions in which it is
proven by clear and convincing evidence that the defendant's
actions showed willful misconduct, malice, fraud, wantonness,
oppression, or that entire want of care which would raise the
presumption
Although
of
BAC
conscious
argues
that
indifference
it
made
a
to
consequences.”).
simple
mistake,
the
Blackburns have pointed to evidence from which a jury could
conclude that after the mistake was brought to BAC’s attention
BAC
callously
demonstrated
a
conscious
indifference
to
consequences of failing to adequately address the problem.
jury
question
punitive
exists
damages.
as
to
whether
Accordingly,
this
BAC’s
conduct
motion
judgment as to the punitive damages claim is denied.
33
for
the
A
warrants
summary
CONCLUSION
For the reasons set forth above, the Court denies BAC’s
Motion for Summary Judgment (ECF No. 61) as to the Blackburns’
RESPA
claim,
trespass
claim,
conversion
claim,
and
punitive
damages claim connected to the trespass and conversion claims.
BAC’s motion is granted as to the Blackburns’ emotional distress
and punitive damages claims arising from breach of contract.
IT IS SO ORDERED, this 27th day of December, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
34
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