Chambers v. Real Time Resolutions, Inc. et al.

Filing 36

OPINION AND ORDER granting 31 Motion for Summary Judgment. Signed by Judge Thomas W. Thrash, Jr. on 10/19/18. (jkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MARK CHAMBERS,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:17-CV-5256-TWT

REAL TIME RESOLUTIONS, INC.
A Texas corporation
Defendant.
OPINION AND ORDER
This is an action seeking injunctive relief and damages arising out of a
foreclosure proceeding. It is before the Court on the Defendant Real Time
Resolutions, Inc.’s Motion for Summary Judgment [Doc. 31]. For the reasons set
forth below, the Defendant’s Motion for Summary Judgment is GRANTED.
I. Background
This case arises out of a dispute concerning a home equity loan secured
by real property located at 2255 Blackheath Terrace, Alpharetta, Georgia 300056982.1 On or about November 15, 2005, Plaintiff Mark Chambers obtained a
home equity loan from Countrywide Home Loans.2 On November 28, 2005, the
Plaintiff and non-party Jacqueline Chambers executed a deed to secure debt

1

Def.’s Statement of Material Facts ¶¶ 1-2 [Doc. 32].

2

Id. ¶ 2.

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conveying 2255 Blackheath Terrace to a nominee for Countrywide Bank, N.A.3
The deed was duly recorded in the Deed Book of Fulton County, Georgia.4
Countrywide Home Loans serviced the loan until it was assigned to Defendant
Real Time Resolutions on April 27, 2010.5 The Plaintiff alleges that at some
point in 2008 the home equity loan was converted into a “predatory loan.”6 The
Plaintiff further alleges that payments that he made on the loan were not
properly accounted for, resulting in a loan balance far exceeding the amount
originally owed.7 At some point in 2017, Defendant Real Time Resolutions
moved to foreclose on the property.8
The Plaintiff subsequently filed this lawsuit seeking to enjoin the sale and
to secure other equitable and monetary relief. The Plaintiff joined Countrywide
Home Loans, Bank of America Corporation, and Real Time Resolutions as
defendants and alleged that these entities had violated state and federal law.9

3

Id. ¶ 3.

4

Id.

5

Id. ¶ 6; Compl. ¶¶ 18-20 [Doc 1].

6

Compl. ¶ 18. To corroborate this claim, the Plaintiff attached to his
Complaint a copy of a Loan Modification Agreement dated June 13, 2008. [Doc.
1, Ex. 3]. The Agreement is signed by the Plaintiff and Countrywide Home
Loans and appears to have increased the principal balance of the loan.
7

Compl. ¶¶ 18-22.

8

Compl. ¶ 23.

9

Bank of America Corporation was joined as a defendant because,
according to the Plaintiff, Bank of America purchased Countrywide Home Loans
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First, the Plaintiff alleged that the Defendants violated the Real Estate
Settlement Procedures Act and its implementing regulations by providing
incomplete information in response to the Plaintiff’s qualified written requests
regarding the Plaintiff’s loan.10 Second, the Plaintiff alleged that the Defendants
violated the Securities Exchange Act of 1934 by failing to keep accurate records
of the payments that Plaintiff made on his loan.11 Third, the Plaintiff alleged
that the Defendants violated the Fair Debt Collection Practices Act by falsely
representing the amount of the Plaintiff’s debt and by seeking to recover the
debt by improper methods.12 In addition to the federal causes of action, the
Plaintiff brought state law claims for fraud and for equitable accounting.13
The foreclosure sale was canceled prior to a hearing on the Plaintiff’s
request for a temporary restraining order. This Court subsequently granted the
Motion to Dismiss filed by Defendants Countrywide Home Loans and Bank of
America Corporation but denied the Motion to Dismiss filed by Defendant Real

in 2008. Id. ¶ 19.

Id. ¶¶ 24-34, 59-64. The Plaintiff lists the violations of the Real
Estate Settlement Procedures Act and 12 CFR § 1024.36 (which explains the
procedures under the Act for responding to requests for information from
borrowers) as separate causes of action in his Complaint.
10

11

Id. ¶¶ 40-44.

12

Id. ¶¶ 55-58.

13

Id. ¶¶ 35-39, 45-54.

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Time Resolutions.14 Defendant Real Time Resolutions now moves for summary
judgment on all claims against it.
II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions,
and affidavits submitted by the parties show no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law.15 The
court should view the evidence and any inferences that may be drawn in the
light most favorable to the nonmovant.16 The party seeking summary judgment
must first identify grounds that show the absence of a genuine issue of material
fact.17 The burden then shifts to the nonmovant, who must go beyond the
pleadings and present affirmative evidence to show that a genuine issue of
material fact exists.18
For issues on which it does not bear the burden of proof at trial, the
movant may satisfy its burden in one of two ways. First, it can put forward
“affirmative evidence demonstrating that the [non-movant] will be unable to
14

This Court initially dismissed the claims against Bank of America
and Countrywide Loans without prejudice on the condition that the Plaintiff file
an amended complaint within fourteen days of the Dismissal Order [Doc. 23].
This Court subsequently dismissed the claims with prejudice after the Plaintiff
did not file an amended complaint. [Doc. 25].
15

Fed R. Civ. P. 56(c).

16

Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).

17

Celotex Corp. V. Catrett, 477 U.S. 317, 323-24 (1986).

18

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

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prove its case at trial.”19 Second, it can “point[] out to the district court that
there is an absence of evidence to support the [non-movant’s] case.”20 If the
movant takes the former approach, the nonmovant must respond with “evidence
sufficient to withstand a directed verdict at trial on the material fact sought to
be negated.”21 If the latter, the nonmovant must either identify evidence
“ignored or overlooked” by the movant or must come forward with evidence
“sufficient to withstand a directed verdict motion at trial based on the alleged
evidentiary deficiency.”22
III. Discussion
The Plaintiff has not responded to the Defendant’s Motion for Summary
Judgment. Indeed, the Plaintiff has not submitted a filing in this case since
responding to the Defendants’ Motions to Dismiss on January 29, 2018.23 The
Plaintiff did not respond to the Defendant’s repeated attempts to schedule a

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993)
(citing Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir. 1991) (en
19

banc)).

20

Id.

21

Id.

Id. (citing Celotex, 477 U.S. at 332 (Brennan, J., dissenting);
Melissa L. Nelkin, One Step Forward, Two Steps Back: Summary Judgment
After Celotex, HASTINGS L.J., 53, 82-83 (1988)).
22

23

Pl.’s Resp. to Defs. Bank of America and Countrywide Loans Mot.
to Dismiss [Docs. 18]; Pl.’s Resp. to Def. Real Time Resolutions’ Mot. to Dismiss
[Doc. 19].
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Rule 26(f) conference.24 The Plaintiff has not responded to the Defendant’s
subsequent discovery requests.25 Nor does the Plaintiff appear to have requested
any discovery from the Defendant during the discovery period set by this Court
in its Scheduling Order.26 The Defendant filed its Motion for Summary
Judgment on July 25, 2018.27 The following day, this Court mailed the Plaintiff
a Notice advising him that he had 21 days in which to respond to the motion.28
This Court has thus far received no briefing or communication of any kind from
the Plaintiff. Therefore, the Defendant’s motion stands unopposed before this
Court.
The Defendant is not entitled to summary judgment solely because its
motion is unopposed.29 The Court must reach the merits of the motion to
determine whether the Defendant has met its initial burden of demonstrating

24

Def.’s Notice Regarding Rule 26(f) Discovery Conference [Doc. 27].

25

Def.’s Br. in Supp. of Mot. for Summ. J., at 8 [Doc. 31-1].

26

[Doc. 28]. This Court mailed a copy of the Scheduling Order to the
Plaintiff on the date that it was entered: May 15, 2018. The discovery period
ended on September 24, 2018.
27

Def.’s Mot. for Summ. J. [Doc. 31].

28

Notice to Respond to Summary Judgment Motion [Doc. 34].

United States v. One Piece of Real Prop. Located at 5800 SW 74th
Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004) (“[T]he district court
29

cannot base the entry of summary judgment on the mere fact that the motion
was unopposed, but rather, must consider the merits of the motion.”).
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the absence of any genuine issue of material fact.30 In determining whether the
Defendant has met its burden, the Court must at minimum review the
evidentiary materials submitted in support of the motion.31 The Court is not
obligated, however, to scour the record for contradictory evidence or to “conjure”
up arguments with which the Plaintiff might have responded.32
With these principles in mind, this Court now turns to the merits of the
Defendant’s motion. The Defendant seeks to show by affirmative evidence that
the Plaintiff will be unable to prevail at trial. The evidence submitted in support
of the Defendant’s motion consists almost entirely of an unanswered Request for
Admissions that the Defendant served on the Plaintiff on May 31, 2018.33 The
general rule is that requests for admission are deemed admitted if not answered
within 30 days, and the admitted facts are “conclusively established” barring

Reese v. Herbert, 527 F.3d 1253, 1268–69 (11th Cir. 2008); One
Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d at 110130

1102.

31

One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla.,

363 F.3d at 1101-1102.

Phillips v. Washington Grp. Int'l, Inc., No. 1:09-CV-00431-HGD,
2010 WL 11561237, at *2 (N.D. Ala. Sept. 29, 2010) (quoting Pinto v.
Universidad De Puerto Rico, 895 F.2d 18, 19 (1st Cir. 1990)); Reese v. Herbert,
32

527 F.3d at 1267 (holding that the “proper course” when presented with an
unopposed motion for summary judgment is to disregard contradictory evidence
that should have been included in the movant’s statement of material facts);
One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d at
1101 (“The district court need not sua sponte review all of the evidentiary
materials on file at the time the motion is granted, but must ensure that the
motion itself is supported by evidentiary materials.”).
33

Def.’s First Requests for Admissions [Doc. 33].

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some action of the court.34 Perhaps sensing an opportunity in the Plaintiff’s
unresponsiveness, the Defendant requested that the Plaintiff admit to a series
of damaging “facts” that directly contradict the allegations made in the
Complaint. For example, the Defendant requested that the Plaintiff admit that
the “Defendant has not violated any provision of” the Federal Debt Collection
Practices Act or the Real Estate Settlement Procedures Act; that the “Defendant
has fully and properly accounted for any and all payments made by” the
Plaintiff; that the Plaintiff “has suffered no damages arising out of or resulting
from any actions or inactions of” the Defendant; and that the Plaintiff “can
produce no evidence to support any of [the Plaintiff’s] claims asserted against
Defendant in the Complaint and/or the Lawsuit.”35 The Plaintiff has failed to
respond to any of these requests. Aside from a few documents establishing
background facts about the security deed, these admissions serve as the sole
evidentiary support for the Defendant’s Statement of Material Facts and, by
extension, the Motion for Summary Judgment as a whole.
Relying principally on these admissions, the Defendant argues that
summary judgment is warranted with regard to each of the Plaintiff’s claims
because the Plaintiff has constructively admitted that he has no case. But the
Defendant’s reliance on these admissions is misplaced. The majority of the

34

United States v. 2204 Barbara Lane, 960 F.2d 126, 129 (11th Cir.

1992) (citing Federal Rule of Civil Procedure 36).
35

Id., at 11, 12, 13, 14, 32.

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Defendant’s requests either call for legal conclusions or seek admissions
regarding “central facts in dispute.”36 Such requests are beyond the scope of
Federal Rule of Civil Procedure 36 and the Plaintiff is not deemed to have
admitted to them.37 These improper admissions serve as the foundation of the
Defendant’s motion.
Nevertheless, the Defendant is entitled to summary judgment. A movant
that fails to present affirmative evidence negating the non-movant’s case can
still prevail by “point[ing] out” to the Court that there is an absence of evidence
to support the non-movant’s case.38 It is debatable whether the Defendant’s
briefing in fact “points out” the absence of evidence to this Court. But it is an
inescapable fact that the Plaintiff has not participated in the discovery phase of
this litigation whatsoever. The Plaintiff has not put forward any evidence to
support a prima facie case for any of his state or federal claims, and the
allegations in the Plaintiff’s Complaint will not suffice as evidence contradicting

36

Pickens v. Equitable Life Assur. Soc. of U. S., 413 F.2d 1390, 1393

(5th Cir. 1969).

In re Kemper Ins. Companies, No. CIV.A.1:02CV1198-GET, 2003
WL 25672797, at *2 (N.D. Ga. June 17, 2003) (“Rule 36 is not intended to
establish facts which are obviously in dispute or to answer questions of law.”);
Border Collie Rescue, Inc. v. Ryan, 418 F. Supp. 2d 1339 n.6 (M.D. Fla. 2006)
(requests for admissions that call for legal conclusions or “capture the essence
of an entire claim” are improper) (citing Perez v. Miami-Dade County, 297 F.3d
1255, 1261 n.12 (11th Cir. 2002)).
37

Fitzpatrick, 2 F.3d at 1116 (citations omitted); see also Jones v.
Wells Fargo Principal Lending, LLC, No. CV 616-129, 2018 WL 1913527, at *2
38

(S.D. Ga. Apr. 23, 2018).
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the Defendant’s motion.39 In short, there is nothing in the record to establish a
genuine issue of fact to be tried. Therefore, this Court finds that summary
judgment is warranted with respect to all claims against the Defendant.40
IV. Conclusion
For the foregoing reasons, the Defendant Real Time Resolutions, Inc.’s
Motion for Summary Judgment [Doc. 31] is GRANTED.
SO ORDERED, this 19 day of October, 2018.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

See Williams v. Aircraft Workers Worldwide, Inc., 832 F. Supp. 2d
1347, 1354 (S.D. Ala. 2011); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257
39

(1986) (holding that non-moving parties must go beyond the pleadings to prove
that a genuine issue of material fact exists).
40

Because this Court finds that summary judgment is warranted
based on the absence of any evidence to support the Plaintiff’s claims, this Court
does not reach the question of whether the reporting provisions of the Securities
Exchange Commission Act of 1934, codified at 15 U.S.C. § 78m, give rise to a
private cause of action.
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