Radford et al v. JPMorgan Chase Bank, N.A. et al

Filing 33

ORDER adopting Magistrate Judge's 29 Report and Recommendation; granting defendants' 20 Motion for Summary Judgment (Written Opinion). Signed by Judge John R. Tunheim on September 4, 2012. (DML) (cc: Deron J. Parker) Modified on 9/4/2012 (jz).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
AMY S. RADFORD and
DERON J. PARKER,

Civil No. 10-2942 (JRT/JSM)
Plaintiffs,

v.
JPMORGAN CHASE BANK, N.A., and
CHASE HOME FINANCE, LLC,

ORDER ADOPTING REPORT
AND RECOMMENDATION
OF MAGISTRATE JUDGE
GRANTING DEFENDANTS’
MOTION FOR
SUMMARY JUDGMENT

Defendants.

Amy S. Radford and Deron J. Parker, 3537 Lyndale Avenue North.
Minneapolis, MN 55412, plaintiffs pro se.
Benjamin P. Freedland, Aleava Rael Sayre, Calvin P. Hoffman, and
Marc D. Simpson, LEONARD STREET AND DEINARD, PA, 150
South Fifth Street, Suite 2300, Minneapolis, MN 55402, for defendants.

This action revolves around an alleged violation of the Real Estate Settlement
Procedures Act (“RESPA”) and the claim that a prospective foreclosure violates the
Constitution. Before the Court are plaintiffs Amy S. Radford and Deron J. Parker’s
objections to a Report and Recommendation (“R&R”) of the Magistrate Judge, which
recommended granting summary judgment on all claims for defendants JPMorgan Chase
Bank, N.A. and Chase Home Finance, LLC (collectively “Chase”). (R&R, June 7, 2012,
Docket No. 29.) The Court has construed plaintiffs’ pro se filings liberally, and reviewed
de novo those portions of the R&R to which they object. See 28 U.S.C. § 636(b)(1)(C);
D. Minn. L.R. 72.2. Because plaintiffs have raised no genuine issue of material fact as to

25&HB

any of their claims, the Court will adopt the R&R and grant Chase’s motion for summary
judgment.
BACKGROUND1
Plaintiffs executed a note on July 8, 2005 secured by a mortgage on a property at
3537 Lyndale Avenue North, Minneapolis, MN. (Aff. of Stacey Smith, Sept. 1, 2011,
Exs. A, B, Docket No. 23.) Chase has since acquired the Note and Mortgage (id., Ex. E),
and plaintiffs have been in default on the Note obligation since September 2007 (id., ¶ 4
& Ex. C). In September 2009, Chase informed plaintiffs of a foreclosure sale scheduled
for December 1, 2009. (Id., Ex. K.)
Before the scheduled foreclosure, on October 14, 2009, plaintiffs sent Chase a
Qualified Written Request (“QWR”), as authorized by the Real Estate Settlement
Procedures Act (“RESPA”). (Id., Ex. F.) Chase responded, first sending Radford and
Parker an acknowledgment. (Id., Ex. G.) Chase also sent copies of the note, security
instrument, HUD–1 settlement statement, truth-in-lending statement, loan application,
appraisal, and loan transaction histories to Radford and Parker. (Id., Ex. I.) Chase did
not include information about the “owner or actual lender” of the mortgage, or identify
the amount actually owing on the loan. (Id.; Mem. in Supp. of Mot. for Summ. J. at 10,
Sept. 1, 2011, Docket No. 22.)
Chase delayed the foreclosure sale until February 2, 2010, in order to respond to
plaintiffs’ QWR. (Smith Aff., Ex. L.) After several more delays of the foreclosure
1

For a complete recitation of the facts, see R&R at 1-6.

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proceedings, Chase cancelled the foreclosure sale in April 2010. (Id., ¶ 17, Ex. N.)
Several months after Chase cancelled the foreclosure, plaintiffs brought this action,
alleging RESPA violations stemming from Chase’s allegedly deficient response to the
QWR, Fourth and Fifth amendment violations, and state law breach of contract and tort
claims. (Compl. ¶¶ 7, 11, 12, 13, July 7, 2010, Docket No. 1.)

ANALYSIS
I.

STANDARD OF REVIEW
Summary judgment should be granted only when the defendant has shown that

“there is no genuine dispute as to any material fact” and the defendant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material if it might affect
the outcome of the suit, and a dispute is genuine if the evidence is such that it could
“reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A court considering a motion for summary judgment must view
the facts in the light most favorable to the non-moving party and must give that party the
benefit of all reasonable inferences that can be drawn from those facts. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II.

CHASE’S SUMMARY JUDGMENT MOTION
The Magistrate Judge recommended granting Chase’s motion for summary

judgment.

Having carefully considered plaintiffs’ objections, and reviewed de novo

those portions of the R&R to which they object, the Court concludes that summary
judgment is proper as to all claims.
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A.

RESPA Claim

Plaintiffs allege that Chase violated RESPA by failing to provide certain
documents in response to their QWR.2 RESPA requires loan servicers to provide written
responses to a QWR seeking “information relating to the servicing of [a] loan.” See 12
U.S.C. § 2605(e)(1)(A). The Magistrate Judge recommended dismissal of the RESPA
claim because the documents plaintiffs claim they didn’t receive do not relate to the
servicing of a loan, and therefore Chase did not violate RESPA in failing to produce
them. (See R&R at 9-13.) Summary judgment is also appropriate, the Magistrate Judge
recommended, because plaintiffs have offered no evidence of actual damage caused by
the alleged RESPA violation. (Id. at 13.)
Plaintiffs appear to raise three objections. First, plaintiffs reiterate that Chase did
not identify the holder of the note in its response to their QWR. Yet, as the Magistrate
Judge explained, such requests do not relate to servicing the loan, and therefore need not
be produced under RESPA. See, e.g., Kelly v. Fairon & Assocs., 842 F. Supp. 2d 1157,
1157 (D. Minn. 2012). Second, pointing to the alleged decrease in value of the Lyndale
Avenue property, plaintiffs object to the suggestion that the claim fails for lack of
evidence of actual damage. Any loss in the value of the Lyndale Avenue property,
however, does not stem from the allegedly defective response to the QWR, and is
therefore irrelevant. See Hintz v. JPMorgan Chase Bank, N.A., Civ. No. 10-2825, 2011
2

Specifically, plaintiffs allege that Chase’s response was deficient because it failed to:
(1) identify the owner and actual lender of the mortgage note, (2) provide plaintiffs with
sufficient documents to audit the loan or validate the loan, and (3) identify the amount owing on
the loan.
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WL 579339, at *9 (D. Minn. Feb. 9, 2011) (“A RESPA plaintiff must plead and prove, as
an element of the claim, that he or she suffered some actual damage as a result of the
alleged RESPA violation.”) (emphasis added). Plaintiffs’ final objection that they have
never entered into a contract with Chase is overruled because the record is plain that
Chase holds the Note and is thus entitled to enforce it.
The Court finds that summary judgment on plaintiffs’ RESPA claims is warranted
because Chase produced the documentation that RESPA requires, namely documentation
relating to the servicing of a loan, see, e.g., Kelly, 842 F. Supp. 2d at 1157, and because
plaintiffs have proffered no evidence of actual damages stemming from the alleged
RESPA violation, see id.; Hintz, 2011 WL 579339, at *9. The RESPA claim will be
dismissed with prejudice.

B.

Fourth and Fifth Amendment Claims

The Magistrate Judge recommended that plaintiffs’ Fourth and Fifth Amendment
claims be dismissed because the complaint does not allege that defendants were state
actors or that a state actor was involved in the foreclosure process. (R&R at 16.) Private
parties acting on their own behalf do not violate the Constitution. See, e.g., Pub. Utils.
Comm’n v. Pollak, 343 U.S. 451, 461 (1952); United States v. Miller, 152 F.3d 813, 815
(8th Cir. 1998). The Court finds no indication – in plaintiffs’ objection or elsewhere in
the record – of a state actor’s involvement in the foreclosure process. Nor is there any
indication that Chase’s conduct may be considered state action because plaintiffs have
offered no evidence suggestive of a close nexus between the state and the challenged

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action. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295
(2001).3 Therefore, the constitutional claims must be dismissed.

C.

Breach of Contract and Intentional Infliction of Emotional Distress
Claims

Having dismissed the claims conferring federal question jurisdiction, the Court
declines to exercise supplemental jurisdiction over plaintiffs’ remaining state law breach
of contract and emotional distress claims. See 28 U.S.C. § 1367(c)(3); Johnson v. City of
Shorewood, 360 F.3d 810, 819 (8th Cir. 2004). Those claims will be dismissed without
prejudice.

ORDER
Based on the foregoing, and the records, files, and proceedings herein, the Court
OVERRULES the objections of Radford and Parker [Docket No. 30] and ADOPTS the
Report and Recommendation of the Magistrate Judge dated June 7, 2012 [Docket
No. 29]. IT IS HEREBY ORDERED that:
1.

Defendants’ Motion for Summary Judgment [Docket No. 20] is

GRANTED.
2.

The RESPA and Fourth and Fifth Amendment claims in Plaintiffs’

Complaint [Docket No. 1] are DISMISSED WITH PREJUDICE.

3

As the Magistrate Judge observed, that the Hennepin County Sheriff’s office served the
notices of foreclosure does not transform Chase into a state actor. See Scanlon v. Nw. Mortg.,
Inc., 2012 WL 2885131 at *5 (D. Minn. July 13, 2012) (holding that Wells Fargo and a sheriff
are not “engaged in joint action” merely because the sheriff administered a foreclosure sale.)
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3.

The breach of contract and emotional distress claims in Plaintiff’s

Complaint [Docket No. 1] are DISMISSED WITHOUT PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: September 4, 2012
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
United States District Judge

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