Lieber et al v. Everbank Mortgage Company et al

Filing 33

ORDER Overruling 31 Objections, Adopting 30 Report and Recommendation, Granting 26 Motion for Summary Judgment, and Dismissing 12 Complaint. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
GREGORY LIEBER, et al,
Plaintiffs,
v.

Case No. 15-cv-14157
Honorable Thomas L. Ludington

EVERBANK MORTGAGE COMPANY,
Defendant.
_______________________________________/

ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, GRANTING MOTION FOR SUMMARY JUDGMENT, AND
DISMISSING COMPLAINT
On November 25, 2015, Defendants Everbank Mortgage Company and Ditech Financial
LLC removed this suit from the Saginaw County Circuit Count. ECF No. 1. In the underlying
complaint, Plaintiffs Gregory and Lorena Lieber alleged that Defendants charged excessive
payments for a mortgage and failed to provide “proper legal notifications or billing from the
purported servicer of the mortgage.” Compl. at 4, ECF No. 1, Ex. 1. All pretrial matters were
referred to Magistrate Judge Patricia T. Morris. ECF No. 9. An amended complaint was filed on
January 8, 2016, which advanced two claims: breach of contract and violation of the Real Estate
Settlement Procedures Act (RESPA), 12 U.S.C. §2601, et seq. ECF No. 12. Defendant Ditech
was dismissed via stipulation on January 22, 2016. ECF No. 13. On February 8, 2016, Defendant
Everbank filed a motion to dismiss. ECF No. 16. Judge Morris issued a report recommending
that the motion be granted as regards the breach of contract claim, but not the RESPA claim.
ECF No. 20. That report and recommendation was adopted without objections on July 28, 2016.
ECF No. 21.

Defendant Everbank then filed a motion for summary judgment. ECF No. 26. On March
28, 2017, Judge Morris issued a report recommending that the motion be granted and the
amended complaint dismissed. Plaintiffs have objected. For the reasons stated below, the
objections will be overruled, the report and recommendation will be adopted, and the amended
complaint will be dismissed.
I.
Plaintiffs do not specifically object to Judge Morris’s articulation of the underlying facts.
Accordingly, that summary will be adopted. For clarity, a brief summation of Plaintiffs’
allegations will be included here. In the amended complaint, Plaintiffs allege that Everbank
“charged excessive amount[s] against the escrow account” arising out of a mortgage owed by
Plaintiffs. Am. Compl. at 3, ECF No. 12. Previously, Plaintiffs had negotiated a loan
modification, but they allege that, upon transfer of the mortgage to Everbank, the modification
was unilaterally rescinded. Id. Plaintiffs’ efforts to resolve the issue and reach another
modification were rebuffed. In Plaintiffs’ claim under RESPA, they allege that “Plaintiffs made
reasonable requests upon Defendants, and Defendants failed to investigate irregularities or
Plaintiff’s [sic] dispute of the amount of the debt and failed to properly credit Plaintiffs’
payments.” Id. at 8.
II.
Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of
a magistrate judge’s report and recommendation. See Fed. R. Civ. P. 72(b)(2). Objections must
be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). If
objections are made, “[t]he district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). De novo review

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requires at least a review of the evidence before the magistrate judge; the Court may not act
solely on the basis of a magistrate judge’s report and recommendation. See Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept,
reject, or modify the findings or recommendations of the magistrate judge. See Lardie v. Birkett,
221 F. Supp. 2d 806, 807 (E.D. Mich. 2002).
Only those objections that are specific are entitled to a de novo review under the statute.
Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to pinpoint those
portions of the magistrate’s report that the district court must specially consider.” Id. (internal
quotation marks and citation omitted). A general objection, or one that merely restates the
arguments previously presented, does not sufficiently identify alleged errors on the part of the
magistrate judge. See VanDiver v. Martin, 304 F. Supp. 2d 934, 937 (E.D. Mich. 2004). An
“objection” that does nothing more than disagree with a magistrate judge’s determination,
“without explaining the source of the error,” is not considered a valid objection. Howard v. Sec’y
of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Without specific objections,
“[t]he functions of the district court are effectively duplicated as both the magistrate and the
district court perform identical tasks. This duplication of time and effort wastes judicial resources
rather than saving them, and runs contrary to the purposes of the Magistrate’s Act.” Id.
III.
RESPA imposes a duty on loan servicers to respond to borrower inquiries. See 12 U.S.C.
§ 2605(e)(1)(A). But servicers need only respond to a “qualified written request,” which is a
“written correspondence . . . that (i) includes or otherwise enables the services to identify, the
name and account of the borrower; and (ii) includes a statement of the reasons for the belief of
the borrower, to the extent applicable, that the account is in error or provides sufficient detail to

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the servicer regarding other information sought by the borrower.” Id. at § 2605(e)(1)(B). In her
report and recommendation, Judge Morris concludes that Plaintiffs have not provided any
evidence which suggests that they sent Everbank a qualified written request. Judge Morris
further finds that, even if a qualified written request was sent, Everbank’s response was
sufficiently responsive to satisfy its obligations under RESPA. Accordingly, Judge Morris
recommends dismissal of the complaint because there was no RESPA violation.
In response, Plaintiffs argue that a letter sent to Everbank on January 16, 2014,
constituted a qualified written request. They further argue that Everbank’s response to that letter
was incomplete. Neither assertion has merit.
On January 16, 2014, Plaintiffs did send Everbank a handwritten letter. See Jan. 2014
Letter, ECF No. 18, Ex. 2. Because the document is almost illegible, it is unclear that it “enables
the servicer to identify . . . the reasons for the belief of the borrower . . . that the account is in
error.” § 2605(e)(1)(B). It appears that, within the letter, Plaintiffs requested a number of
documents from Everbank. Plaintiffs now argue that “[o]ne or more of the documents requested
in the January 16, 2015 letter could be considered documents that relate to not only the
origination of a loan, but also servicing of a loan.” Objs. at 2, ECF No. 31. Specifically, Plaintiffs
identify the request for “Affiliated Business Arrangement Disclosures, Mortgage [sic] Insurance
Certificate and/or Evidence of Insurance.” Id. Plaintiffs argue that these documents “could be
documents within the servicer’s file and form a basis for a servicer’s charges to a customer.” Id.
Even if that is true, Plaintiffs have not shown, in the January 2014 letter or now in their
objections, that those documents actually were the basis for certain charges or explain how those
documents formed the basis for Plaintiff’s allegation that the account was in error. As Judge
Morris explained, “‘simply request[ing] a list of documents relating to [one’s] loan’ would not be

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a” qualified written request. Rep. & Rec. at 9, ECF No. 30 (quoting Houston v. U.S. Bank Home
Mortg. Wisconsin Servicing, No. 10-13780, 2011 WL 1641898, at *4 (E.D. Mich. May 2, 2011)).
Importantly, “[l]oan modification requests do not qualify as [qualified written requests] because
they do not relate to the loan’s servicing.” Martini v. JPMorgan Chase Bank, N.A., 634 F. App’x
159, 164 (6th Cir. 2015). Here, considering the allegations in the amended complaint as a whole,
Plaintiffs alleged issue with Everbank revolves around a loan modification which Plaintiffs
believe Everbank did not honor. The January 2014 letter, understood in context, thus seeks
information related to a loan modification request, not an inquiry regarding servicing.1
Even if the January 2014 letter was meant to advance an inquiry regarding servicing, the
language of the letter provides no basis for Everbank to identify what, exactly, Plaintiffs were
challenging. As such, the letter was not a qualified written request that triggered RESPA
obligations. Plaintiffs do not argue in their objections that any of the other correspondence sent
to Everbank constituted qualified written requests, and so Judge Morris’s analysis of those letters
is adopted in full. Additionally, Plaintiffs make only conclusory arguments that Everbank’s
response to the January 2014 letter was inadequate under RESPA. There is no dispute that
Everbank provided some of the requested documents. Plaintiffs have provided no support for the
proposition that Everbank’s response was legally insufficient under RESPA, especially
considering the vague and largely illegible nature of the original request. Thus, even if the
January 2014 letter was a qualified written request, RESPA was not violated.
IV.
Accordingly, it is ORDERED that Plaintiffs’ objections, ECF No. 31, are
OVERRULED.

1

Alternatively, the request also appears to be seeking documents related to the origination of the loan. Plaintiffs do
not dispute that a request related to loan origination does not constitute a qualified written request.

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It is further ORDERED that Judge Morris’s report and recommendation, ECF No. 30, is
ADOPTED.
It is further ORDERED that Defendant’s motion for summary judgment, ECF No. 26, is
GRANTED.
It is further ORDERED that Plaintiffs’ amended complaint, ECF No. 12, is
DISMISSED.

Dated: July 25, 2017

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on July 25, 2017.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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