Urbon v JP Morgan Chase Bank, N.A.

Filing 33

Judge Rya W. Zobel: Memorandum of Decision entered granting 19 Motion for Summary Judgment. Judgment shall enter accordingly. (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 12-10303-RWZ

ALAN URBON
v.
JPMORGAN CHASE BANK, N.A.

MEMORANDUM OF DECISION
March 18, 2013

ZOBEL, D.J.
Plaintiff Alan Urbon (“Urbon”), proceeding pro se, has sued defendant JPMorgan
Chase Bank, N.A. (“Chase”) over matters related to Urbon’s home mortgage. Chase
now moves for summary judgment.
I. Background
The facts are largely undisputed. In 2004, Urbon took out a $275,000 loan from
Washington Mutual Bank, FA (“WaMu”), secured by a mortgage on his house. WaMu
then sold that loan to a trust, but retained the right to service the loan. The assignment
of the mortgage from WaMu to the trust was never registered.
Urbon became unable to make his mortgage payments and filed a Chapter 7
petition for bankruptcy on July 11, 2008. He claims that he was pressured by WaMu to

convert his Chapter 7 proceeding to a Chapter 13 proceeding. Urbon did subsequently
move to convert his Chapter 7 proceeding to a Chapter 13 proceeding, which the
bankruptcy court allowed on September 19, 2008.
Shortly thereafter, WaMu was placed under federal receivership and its assets
were largely sold by the Federal Deposit Insurance Corporation (“FDIC”) to Chase. The
agreement between the FDIC and Chase specified that the FDIC would retain liability
for any borrower claims against WaMu arising before September 25, 2008.
As successor in interest to WaMu, Chase filed a proof of claim and subsequently
an amended proof of claim in Urbon’s bankruptcy proceeding for the amount in arrears
on Urbon’s mortgage loan. Urbon did not object to those claims. He filed a Chapter 13
plan in October 2008 that provided for full repayment to Chase of the amount in arrears
on his mortgage loan, a total of $10,337.98. That Chapter 13 plan was approved by the
bankruptcy court in April 2009.
After his Chapter 13 plan was approved, Urbon applied to Chase for a
modification of his mortgage loan. Urbon and Chase agreed on a modification in
December 2010. Under that modification, the total outstanding arrears on Urbon’s
loan—which at that point totaled over $33,000—were capitalized and added to the
outstanding principal from the original $275,000 loan. The new principal balance under
the modification was $308,169.07.
Urbon continued to make payments on his Chapter 13 plan even after signing
the modification agreement with Chase. Out of those payments, Urbon’s Chapter 13
trustee forwarded payments of $155.38 to Chase every few months in order to pay off
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Chase’s Chapter 13 claim for amounts in arrears. But Chase had also capitalized those
same amounts in arrears and added them to the new principal amount under Urbon’s
modification agreement. In effect, Urbon was paying off his arrears twice—once
through the Chapter 13 plan, and once through his modified loan agreement. According
to the present record, it appears that both sets of payments were properly applied to
Urbon’s mortgage loan. That is, Urbon was not losing money by making two sets of
payments—he was just paying off his loan faster than he was required to.
Urbon made his first payment under the modified loan on March 28, 2011. He
realized shortly thereafter that he was paying off his arrears through his Chapter 13
plan as well as through his modified loan agreement, and stopped making payments on
his Chapter 13 plan. The bankruptcy court dismissed Urbon’s Chapter 13 proceeding
on July 25, 2011 for failure to make payments.
On the same day that he made his first payment under the modified loan
agreement—March 28, 2011—Urbon sent a letter to Chase requesting certain
information about his loan and its servicing. The letter describes itself as a qualified
written request under the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C.
§§ 2601-2617. It requests, inter alia, “[a] copy of the loan history including all payments
made, all fees incurred, what has been paid out of the escrow account, and how all
payments were applied” for the entire life of the loan. Docket # 5, Ex. A (“Letter”), at 1.
Chase acknowledged receipt of the letter on March 31, 2011, but did not provide any of
the requested information until December 2 of that year.
Urbon originally filed suit in the Land Court department of the Massachusetts
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Trial Court, and Chase then removed the case to this court. The currently active
complaint is Urbon’s first amended complaint, filed March 5, 2012. It is divided into
three counts: the first alleges that Chase violated RESPA by failing to respond in a
timely fashion to Urbon’s qualified written request, the second alleges that Chase filed
a false claim in Urbon’s Chapter 13 bankruptcy, and the third charges WaMu with
failing to register the assignment of Urbon’s mortgage. Chase now moves for summary
judgment on all three counts.
II. Legal Standard
Summary judgment will be granted if 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). The court must view the record in the light most favorable to the nonmovant and
draw all justifiable inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). To defeat summary judgment, the nonmovant must produce
admissible evidence sufficient to show the existence of all essential elements on which
he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23.
If the evidence presented would allow a reasonable jury to return a verdict for the
nonmovant, summary judgment must be denied. Anderson, 477 U.S. at 248.
III. Analysis
The court will consider each count of Urbon’s complaint in turn.
A. Count 1
Under RESPA, a loan servicer must respond to any “qualified written request . . .
for information relating to the servicing of [a] loan.” 12 U.S.C. § 2605 (e)(1)(A). Chase
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argues first that Urbon’s letter was not a “qualified written request” because it did not
seek information about servicing of his loan. That is plainly incorrect. RESPA defines
the term “servicing” to mean “receiving any scheduled periodic payments from a
borrower pursuant to the terms of any loan . . . and making the payments of principal
and interest and such other payments with respect to the amounts received from the
borrower as may be required pursuant to the terms of the loan.” Id. § 2605(i)(3).
Urbon’s letter requested, inter alia, “[a] copy of the loan history including all payments
made, all fees incurred, what has been paid out of the escrow account, and how all
payments were applied” for “the entire life of the loan.” Letter at 1. At a bare minimum,
then, Urbon requested information relating to the servicing of his loan by asking for a
payment history showing the payments he had made and how they were applied. See
Kassner v. Chase Home Finance, LLC, Civil Action No. 11-10643-RWZ, 2012 WL
260392, at *6 (D. Mass. Jan. 27, 2012) (“[P]laintiff’s request for a copy of the loan’s
payment history clearly does relate to the servicing of the loan.”). Urbon’s letter was
therefore a qualified written request to which Chase was required to respond. Because
Chase did not respond until well after the sixty days allowed by the statute, see 12
U.S.C. § 2605(e)(2), Urbon has presented sufficient evidence to show that Chase
violated RESPA.
However, Urbon cannot recover on this count because he has not presented any
evidence showing damages. RESPA allows two types of damages: actual damages, or
statutory damages “in the case of a pattern or practice of noncompliance.” 12 U.S.C.
§ 2605(f)(1)(A)-(B). Urbon has not provided evidence of a pattern or practice of
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noncompliance, so statutory damages are not available. As for actual damages, Urbon
lists five concerns in his opposition:
(1) other parties may seek to enforce debt obligations against him;
(2) the title to his home has been clouded;
(3) he has been paying the wrong party;
(4) he is unable to determine whether he sent his monthly mortgage payments to
the right party;
(5) the mortgage was sold before he signed the mortgage agreement.
But Urbon has not presented admissible evidence of damages on any of these
grounds. As to the first concern Urbon lists, he has presented no evidence that any
other party sought to enforce a debt obligation against him. His second and fifth
concerns, regarding his mortgage and its securitization, are apparently unrelated to his
qualified written request and Chase’s delay in responding. Finally, the third and fourth
concerns listed show no damages because it appears that all of Urbon’s payments
were properly applied to his mortgage loan.
Urbon’s allegations also separately invoke pecuniary damages of $2,500 for an
independent audit of his loan status and emotional damages. But he has not presented
evidence showing that either type of damages was caused by Chase’s RESPA violation
rather than by his other mortgage-related difficulties. His claim cannot succeed without
evidence of causation. See Okoye v. Bank of N.Y. Mellon, Civil Action No. 10-11563DPW, 2011 WL 3269686, at *17-18 (D. Mass. July 28, 2011).1

1

Likewise, his filing fee for bringing suit in land court is not a cognizable damage. Cf. Kassner,
2012 WL 260392, at *7 (“[A]ttorney’s fees for bringing a RESPA suit are not actual damages under the

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Urbon cites several other statutes in relation to Count 1, but none of them are
applicable. First, he cites 15 U.S.C. § 1640(a) and 15 U.S.C. § 1641(f)(2). The former
creates a private right of action to enforce the latter, which states (as relevant here):
“Upon written request by the obligor, the servicer shall provide the obligor, to the best
knowledge of the servicer, with the name, address, and telephone number of the owner
of the obligation or the master servicer of the obligation.” 15 U.S.C. § 1641(f)(2). These
provisions obviously do not relate to Urbon’s claim that Chase responded late to his
qualified written request. Moreover, Urbon has not submitted any evidence showing
that these provisions were violated. There is no evidence in the record that Urbon
requested from Chase the name, address, and telephone number of the owner of his
obligation. He does not specifically seek that information in his qualified written
request. In his opposition, he refers instead to a different letter that he sent to Chase on
February 13, 2012 requesting the relevant information. But that letter is not mentioned
in the amended complaint, and it does not appear in the record.
Urbon has submitted a response from Chase to his February 13, 2012 letter in
which Chase states: “The investor for this loan is JPMorgan Chase Bank, N.A. 3415
Vision Drive, Columbus, OH 43219 [phone].” Docket # 26, Ex. 4. Urbon argues
that if Chase is not in fact the owner of his obligation, then Chase violated 15 U.S.C.
§ 1641(f)(2) by providing this information. But the record evidence shows that Chase is
in fact in possession of Urbon’s note, even if a separate trust holds legal title to it.
See Docket # 22, Ex. 2. Without evidence showing what information Urbon requested

statute.”).

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from Chase, there is no basis for concluding that Chase failed to respond to the best of
its knowledge as required by 15 U.S.C. § 1641(f)(2).
Finally, Urbon cites Mass. Gen. Laws ch. 266, § 35A(b). That is a criminal
provision, and does not create an express or implied private right of action. See
Loffredo v. Ctr. for Addictive Behaviors, 689 N.E.2d 799, 802 (Mass. 1998) (“[W]e have
generally been reluctant to infer a private cause of action from a statute in the absence
of some indication from the Legislature supporting such an inference.”). Therefore,
even if Urbon could show that the statute he cites had been violated, he still cannot sue
under that statute.
B. Count 2
In Count 2, Urbon alleges that Chase filed a false claim in his Chapter 13
proceeding because the claim it filed stated that Chase was filing as servicer for
Federal Home Loan Mortgage Corp. (“Freddie Mac”), rather than as servicer for the
trust that actually owned the mortgage. This count must fail because Urbon did not
object to Chase’s claim in bankruptcy court, and the claim was allowed by the
bankruptcy court’s order. Urbon therefore cannot challenge Chase’s claim in this
collateral proceeding. See Adair v. Sherman, 230 F.3d 890, 894-95 (7th Cir. 2000);
Siegel v. Fed. Home Loan Mortg. Corp., 143 F.3d 525, 528-31 (9th Cir. 1998). Urbon
responds that he did not realize Chase’s claim was false at the time; but it is simply too
late to raise that challenge now.2
Urbon also discusses in Count 2 the fact that for a time he was paying off his

2

The court notes that Urbon was represented by counsel during his bankruptcy proceeding.

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arrears through both the Chapter 13 plan and the modification agreement. But Urbon
has not shown evidence of any misconduct by Chase in that respect. If Urbon believed
that his Chapter 13 plan needed to be modified, he should have requested that relief
from the bankruptcy court. See 11 U.S.C. § 1329. In any case, Urbon has not
presented any evidence of damages from the alleged error, since it appears that all of
his payments were properly applied to his loan.3
Finally, Urbon cites 18 U.S.C. § 152 and Mass. Gen. Laws ch. 266, § 35A(b) as
his grounds for relief on Count 2. As discussed above, Mass. Gen. Laws ch. 266,
§ 35A(b) is a criminal statute and does not provide a private right of action. The same
is true of 18 U.S.C. § 152. Clayton v. Raleigh Fed. Sav. Bank, 107 F.3d 865 (4th Cir.
1997) (unpublished). Urbon therefore has not presented a cognizable claim under
either statute, or under any other statute of which the court is aware.
C. Count 3
Count 3 is based on WaMu’s failure to register its assignment of the mortgage to
the trust (or to any subsequent takers).4 To the extent Urbon seeks damages from
Chase for WaMu’s failure to record the assignment, the claim fails because Chase did
not assume from the FDIC any of WaMu’s liability for claims by borrowers. See Docket
# 22, Ex. 7, § 2.5; Yeomalakis v. FDIC, 562 F.3d 56, 60 (1st Cir. 2009). Urbon’s claim

3

Likewise, Urbon has not presented any evidence of the damages he claims from negative
credit reporting and from mental anguish due to daily demands by unsecured creditors.
4

Urbon insists in the amended complaint that his mortgage was subsequently assigned by the
trust to Freddie Mac. His evidence supporting that assertion is tenuous at best; most of the exhibits he
has filed show only that Freddie Mac was a guarantor on the certificates issued by the trust. Because
Urbon’s claims must fail in any case, the dispute is immaterial, and the court need not determine whether
Urbon has presented enough evidence supporting his position to raise a triable issue of fact.

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also fails because the statute requiring mortgage assignments to be registered, Mass.
Gen. Laws ch. 185, § 67, does not create a private right of action. See Loffredo, 689
N.E.2d at 802.
Urbon cites a variety of other causes of action in Count 3, but none can provide
relief. First, he seeks to void the mortgage by an action to quiet title or remove the
cloud from his title. These causes of action fail because Urbon has not presented any
evidence to show that the mortgage is void. At best, his evidence shows that the
mortgage was assigned without the assignment being registered; but a mortgage can
remain valid and enforceable even if its assignment is not registered. See U.S. Nat’l
Bank Ass’n v. Ibanez, 941 N.E.2d 40, 52-53 (Mass. 2011). Second, Urbon alleges a
violation of 12 C.F.R. § 226.39, which requires mortgage holders to disclose any
transfer of the mortgage. But that regulation was not promulgated until November 20,
2009, well after the transfers at issue here, and it is not retroactive. Third, Urbon cites
15 U.S.C. § 1641(d)(2)(B), which allows a plaintiff to recover the total remaining
indebtedness on a loan that violates the predatory lending terms of 15 U.S.C.
§ 1602(bb). Urbon has not presented evidence showing his loan violated the terms of
15 U.S.C. § 1602(bb), however, meaning that 15 U.S.C. § 1641(d)(2)(B) does not
apply. Finally, as previously noted, Mass. Gen. Laws ch. 266, § 35A(b) is a criminal
statute and does not provide a private right of action. See Loffredo, 689 N.E.2d at 802.
IV. Conclusion
For the reasons discussed above, Urbon has not presented evidence from which
a reasonable jury could find in his favor on any of his claims. Chase’s motion for
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summary judgment (Docket # 19) is therefore ALLOWED. Judgment shall enter
accordingly.

March 18, 2013

/s/Rya W. Zobel

DATE

RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE

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