Davis v. Bank of America et al

Filing 134

ORDER granting Motion 125 for Summary Judgment, filed by Defendants Bank of America Corporation and Bank of America, N.A. Plaintiff Joseph Davis Jr.s claims against these Defendants are dismissed with prejudice. Signed by District Judge Halil S. Ozerden on 01/11/2013 (HM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JOSEPH DAVIS, JR.

PLAINTIFF

v.

Civil No. 1:10-cv-23-HSO-JMR

BANK OF AMERICA CORPORATION, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is the Motion for Summary Judgment [125], filed by
Defendants Bank of America Corporation (“BAC”), and Bank of America, N.A.,
successor by merger to BAC Home Loans Servicing, LP (“BANA”). Plaintiff Joseph
Davis Jr., has filed a Response [130], and Defendants a Reply [132]. After
consideration of the parties’ submissions, the record, the relevant legal authorities,
and for the reasons discussed below, the Court finds that Defendants’ Motion for
Summary Judgment [125], should be granted.
I. BACKGROUND
Plaintiff Joseph Davis, Jr., proceeding pro se, filed his Complaint, Amended
Complaint, and Second Amended Complaint in this matter on January 13, 2010,
April 14, 2010, and October 25, 2011, respectively. He asserted claims against
twenty-nine defendants. All defendants have been dismissed with the exception of
BAC, BANA, and Coldata, Inc. Plaintiff has obtained a Clerk’s Entry of Default

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against Coldata, Inc. Clerk’s Entry of Default [61]. In his Complaint, Plaintiff
alleges that he suffered damages due to an allegedly unlawful employment
termination and garnishment. Pl.’s Sec. Am. Compl. [82] at p. 8. He further
asserts that he has been damaged by allegedly illegal practices committed by BAC
and BANA, in connection with the servicing of his home mortgage loan. Id. at p. 7.
Plaintiff acknowledges that his claims against BAC and BANA are limited to those
alleging “fraudulent mortgage loan practices and [] gross negligence in the
servicing of his Home Mortgage Loan.” Pl.’s Resp. [130] at p. 15. Moreover, his
claims alleging unlawful garnishment and employment termination are barred by
all applicable statutes of limitation. Order [35] at p. 13.
On January 17, 2006, Plaintiff and Gilda H. Davis executed a promissory
note in favor of Countrywide Home Loans, Inc. (“Countrywide”), in the amount of
$103,995.00, to purchase a single family home in Biloxi, Mississippi (the
“Property). Deed of Trust [125-2] at p. 2, Ex. A to Defs.’ Mot. for Summ. J. [125].
The Note was secured by a Deed of Trust, executed the same day, pledging the
Property as security for the loan. Id. In 2008, BANA acquired Countrywide, and
BANA is the current servicer of Plaintiff’s home loan. Decl. of Ronald Odeyemi,
Ex. 1 [125-1] to Defs.’ Mot. for Summ. J. [125]. Plaintiff alleges that BAC and
BANA illegally paid for insurance on the Property from his escrow account,
wrongfully “force placed” hazard insurance on the Property, unlawfully reported
his loan as delinquent to credit reporting agencies, failed to timely apply payments

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to his loan balance, and failed to provide him with loan history documentation that
he requested. Pl.’s Sec. Am. Compl. [82] at p. 7. BAC and BANA’s Motion for
Summary Judgment [125], which addresses these claims, is now before the Court.
II. DISCUSSION
A.

Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment is

appropriate “[i]f 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.” FED. R.
CIV. P. 56(a). The purpose of summary judgment is to isolate and dispose of
factually unsupported claims or defenses. Melton v. Teachers Ins. & Annuity Ass’n
of America, 114 F.3d 557, 560 (5th Cir. 1997)(citing Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986)).
To rebut a properly supported motion for summary judgment, the opposing
party must show, with “significant probative evidence,” that there exists a genuine
issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th
Cir. 2000). In deciding whether summary judgment is appropriate, the Court
views facts and inferences in the light most favorable to the nonmoving party.
RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 858 (5th Cir. 2010). However, if the
evidence is merely colorable, or is not significantly probative, summary judgment
is appropriate. Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co,
671 F.3d 512, 516 (5th Cir. 2012)(citing Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 249 (1986)). “[M]ere conclusory allegations are not competent summary
judgment evidence, and such allegations are insufficient, therefore, to defeat a
motion for summary judgment.” Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.
1996).
“There is no material fact issue unless the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” RSR Corp., 612 F.3d at 858.
“A fact is ‘material’ if its resolution in favor of one party might affect the outcome
of the lawsuit under governing law. An issue is ‘genuine’ if the evidence is
sufficient for a reasonable jury to return a verdict for the nonmoving party.”
Hamilton, 232 F.3d at 477 (citing Anderson, 477 U.S. at 248). “The court has no
duty to search the record for material fact issues.” RSR Corp., 612 F.3d at 858.
“Rather, the party opposing summary judgment is required to identify specific
evidence in the record and to articulate precisely how this evidence supports his
claim.” Id.
B.

Plaintiff’s Claims Against BAC
BANA is the servicer of Plaintiff’s home mortgage loan. Plaintiff has

submitted no evidence that BAC had any involvement in the servicing of his home
mortgage loan. His claims against BAC should be dismissed.
C.

Plaintiff’s Claims Against BANA
1.

42 U.S.C. § 1983 Claims

Plaintiff contends that BANA has violated his rights under the First,

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Fourth, Fifth, Sixth, Seventh, Ninth, and Fourteenth Amendments to the
Constitution. Pl.’s Sec. Am. Compl. [82] at p. 3. He seeks relief for these violations
pursuant to 42 U.S.C. § 1983. To obtain relief under § 1983, a plaintiff must prove
that he was deprived of a right under the Constitution or the laws of the United
States, and that the person depriving him of that right acted under color of state
law. Resident Council of Allen Parkway Vill. v. U.S. Dep’t of Hous. and Urban
Dev., 980 F.2d 1043, 1050 (5th Cir.), cert. denied, 510 U.S. 820 (1993). It is beyond
dispute that BANA is not a state actor. See Douglas v. Doe, No. 02-21213, 73 Fed.
App’x 79, *1 (5th Cir. 2003). Plaintiff has submitted no evidence that BANA was
acting “under color of state law,” nor has he alleged that BANA conspired with a
state actor to deprive him of a constitutional right. Id. Plaintiff’s § 1983 claims
should be dismissed.
2.

Claim that BANA Wrongfully Paid for Insurance from Escrow
Account

Plaintiff has submitted a letter dated February 25, 2010, from BANA
addressed to him, wherein BANA represents that it received Plaintiff’s new home
insurance policy on the Property from the carrier, American Western Home
Insurance. Letter [130-5], Ex. E to Pl.’s Resp. [130]. The letter notifies Plaintiff
that prior to receiving the new policy, it received a renewal notice from his
previous carrier, which it paid from his escrow account. Id. The letter states that
in order to prevent the new American Western policy from being cancelled, it also
paid the premium for it from Plaintiff’s escrow account. Id. The letter provides:
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Please contact your previous insurance company to request
that your policy be cancelled and that a refund for the
premium paid be returned to [BANA]. If we do not receive
the premium refund from your previous insurance carrier,
your escrow/impound account may experience a shortage
which will cause your monthly payments to increase.
Id.
Plaintiff contends that he sent a certified letter to BANA requesting that it
not pay his previous home insurance carrier from his escrow account, and that
BANA intentionally and illegally paid his previous carrier in retaliation against
him for filing this lawsuit. Pl.’s Resp. [130] at p. 6. BANA acknowledges that its
payment of both premiums “may have resulted in a prior deficiency in [Plaintiff’s]
escrow account.” Defs.’ Mem. [126] in Supp. of Mot. for Summ. J. at p. 13. In his
Response, Plaintiff raises a new argument that BANA also should not have paid
the State of Mississippi for wind pool insurance covering the Property from his
escrow account, because he sent BANA a certified letter stating that he would
directly pay the State of Mississippi for this insurance. Pl.’s Resp. [130] at p. 10.1
The Deed of Trust executed by Plaintiff provides that the borrower is
required to continuously insure the Property against loss from certain enumerated
hazards. Deed of Trust [125-2] at p. 5. It states that premiums for all required

1

Because Plaintiff’s claim regarding BANA’s payment of wind pool insurance
premiums from his escrow account was not pleaded in his Complaint, it is not
properly before the Court. Nevertheless, this claim would fail for the same reasons
as his claim regarding BANA’s payment of home insurance premiums from his
escrow account.
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insurance are to be paid by the borrower to the lender. Id. at p. 4. The lender, in
turn, pays the insurance premiums from the borrower’s escrow account. Id. The
Deed of Trust’s requirement that the borrower directly pay the lender for required
insurance may be waived by the lender, but a waiver must be in writing. Id.
The terms of the Deed of Trust allowed BANA to pay the premiums for
hazard insurance on the Property from Plaintiff’s escrow account. The Deed of
Trust does not provide that the borrower can alter the terms by sending the lender
a certified letter. BANA did not violate the terms of the Deed of Trust by paying
hazard insurance premiums on the Property from Plaintiff’s escrow account.
BANA is entitled to summary judgment on this claim.
3.

Claim that BANA Wrongfully “Force Plac[ed]” Hazard Insurance on
the Property

Plaintiff claims that BANA unlawfully “force plac[ed]” hazard insurance on
the Property. Pl.’s Sec. Am. Compl. [82] at p. 7. The Deed of Trust provides that if
the borrower fails to maintain hazard insurance, “Lender may obtain insurance
coverage, at the Lender’s option and Borrower’s expense . . . .” Deed of Trust [1252] at p. 5. Plaintiff has submitted documentation that Lexington Insurance
Company, his chosen hazard insurance carrier, cancelled his hazard insurance
coverage effective April 10, 2011. Cancellation Endorsement [130-1], Ex. A to Pl.’s
Resp. [130]. Plaintiff testified in his deposition that BANA subsequently sent him
a threatening letter indicating that it intended to obtain hazard insurance on the
Property if Plaintiff did not provide proof of new insurance coverage. Dep. of
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Joseph Davis, Jr. [125-6] at pp. 29-31, Ex. 2 to Defs.’ Mot. for Summ. J. [125].
Plaintiff has provided no evidence that BANA subsequently obtained hazard
insurance on the Property. His deposition testimony instead indicates that he
eventually supplied BANA with proof of new insurance. Id. at p. 31. BANA has
submitted the Declaration of Ronald Odeyemi, AVP of the Operations Team Lead
of BANA. Decl. of Ronald Odeyemi [125-1]. Mr. Odeyemi avers that he reviewed
the escrow and insurance records associated with Plaintiff’s mortgage loan and
found no evidence that BANA obtained or purchased any lender placed insurance.
Id. at p. 3. Even if BANA had, however, it appears that it had the legal right to do
so, pursuant to the terms of the Deed of Trust. Plaintiff’s claim that BANA
unlawfully “force plac[ed]” hazard insurance on the Property should be dismissed.
4.

Claim that BANA Unlawfully Reported Mortgage Loan Account as
Delinquent

Plaintiff contends that he never paid his mortgage late, and that BANA
nevertheless unlawfully reported his mortgage loan account as delinquent to credit
agencies, causing him significant damages. Pl.’s Sec. Am. Compl. [82] at p. 7. Both
parties agree that military allotments from Plaintiff’s military retirement are paid
directly to BANA towards Plaintiff’s mortgage loan on a monthly basis. Pl.’s Resp.
[130] at p. 6; Defs.’ Mem. [126] in Supp. of Mot. for Summ. J. at p. 13. Plaintiff
contends that the military allotment payments “were in the right amount [and]
received on the 3rd (third of the month).” Pl.’s Resp. [130].
The loan history for Plaintiff’s mortgage account, submitted by BANA,
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indicates that Plaintiff’s military allotment became insufficient to cover all sums
due under the Note and Deed of Trust. BANA’s Account Records [125-4] at p. 5,
Ex. C to Defs.’ Mem. [126] in Supp. of Mot. for Summ. J.; Loan History Docs., Exs.
F, L to Pl.’s Resp. [130]. BANA represents that Plaintiff’s allotment became
insufficient “due to the increases in amounts due for wind insurance coverage,
hazard insurance coverage and local taxes.” Defs.’ Mem. [126] in Supp. of Mot. for
Summ. J. at p. 13. A letter in BANA’s records regarding Plaintiff’s loan account
indicates that BANA notified Plaintiff as early as October 2008, that his military
allotment was less than his required monthly payment, and that failure to timely
pay his mortgage loan in full would result in late fees and might affect his credit
history. BANA’s Account Records [125-4] at p. 5. These records further indicate
that, throughout 2010, BANA informed Plaintiff, by numerous letters, that his
account was past due. Id. Plaintiff does not deny that he received these letters.
Plaintiff has provided a copy of his credit report, which he contends supports
his claim of wrongful credit reporting by BANA. Pl.’s Credit Report, Ex. B to Pl.’s
Resp. [130]. Comparing the report with Plaintiff’s loan history, the report appears
to accurately reflect that Plaintiff’s mortgage loan account was thirty days past due
on five different occasions in 2010. Id. There is no evidence in the record to
support Plaintiff’s argument that BANA wrongfully or illegally reported his
mortgage loan account as delinquent to credit reporting agencies. Any claims
stemming from this allegation should be dismissed.

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5.

Claim that BANA Did Not Timely Credit Payments

Plaintiff next contends that BANA did not timely apply his mortgage
payments to his loan balance, and instead held his payments in a “side” account, in
order to convert them for its own use, and for the purpose of imposing additional
fees upon him. Pl.’s Sec. Am. Compl. [82] at p. 7; Pl.’s Resp. [130] at pp. 6, 10.
According to the Deed of Trust:
1.
Payment of Principal, Interest, Escrow Items,
Prepayment Charges, and Late Charges. Borrower shall
pay when due the principal of, and interest on, the debt
evidenced by the Note and any prepayment charges and
late charges due under the Note. Borrower shall also pay
funds for Escrow Items pursuant to Section 3. . . . Lender
may accept any payment or partial payment insufficient to
bring the Loan current, without waiver of any rights
hereunder or prejudice to its rights to refuse such payment
or partial payments in the future, but Lender is not
obligated to apply such payments at the time such
payments are accepted. If each Periodic Payment is
applied as of its scheduled due date, then Lender
need not pay interest on unapplied funds. Lender
may hold such unapplied funds until Borrower
makes payment to bring the Loan current.
Deed of Trust [125-2] at p. 3 (emphasis added).
BANA acknowledges that it “retained the military allotment payments until
[Plaintiff] supplied the remaining sums due for his payments . . . .” Defs.’ Mem. in
Supp. of Mot. for Summ. J. [126] at p. 15. Pursuant to the terms of the Deed of Trust,
BANA was within its rights to do so. Plaintiff’s claim that BANA did not timely apply
his payments and unlawfully held partial payments, should be dismissed.

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6.

Claim that BANA Did Not Provide Requested Account History
Information

Plaintiff alleges in his Complaint that BANA violated the Real Estate
Settlement Procedures Act, 12 U.S.C. §§ 2601, et seq. (“RESPA”), by “[n]ot providing
requested ledger and escrow account information . . . .” Pl.’s Sec. Am. Compl. [82] at
p. 7. BANA’s records indicate that BANA mailed Plaintiff detailed loan histories on
January 13, 2009, August 11, 2009, February 9, 2010, March 4, 2010, July 14, 2010,
November 15, 2010, June 29, 2011, September 8, 2011, and September 27, 2011.
BANA’s Account Records [125-4]. In his Response, Plaintiff admits that BANA
supplied him with loan history documentation.

Pl.’s Resp. [130] at p. 12.

He

maintains, however, that BANA “was negligen[t] and fraudulent . . . and [in] violation
of RESPA,” in doing so, because he requested his account history on October 29, 2010,
and February 4, 2011, and BANA did not provide him the requested loan history until
September 8, 2011. Id. at pp. 12-13. BANA’s records, however, indicate that BANA
mailed Plaintiff his loan history documentation on November 15, 2010, and June 29,
2011, as well as on September 8, 2011.
Plaintiff’s admission that BANA provided him the loan history documentation
that he requested belies his claim in the Complaint. Plaintiff made no allegation in
his Complaint that BANA acted unlawfully by responding to his requests for loan
history documentation in an untimely manner. This claim, raised for the first time
in Plaintiff’s Response, is not properly before the Court. Even if it were properly
pleaded, there is no evidence in the record that BANA was untimely in providing
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Plaintiff with loan history documentation. To the contrary, the evidence reflects that
Plaintiff requested his loan history documentation from BANA on numerous
occasions, and that BANA provided Plaintiff with this documentation on at least nine
occasions in a period of less than three years.
7.

Allegations Regarding Solicitation for Home Loan Modification

With his Response, Plaintiff has submitted letters from BANA dated November
5, 2010, and December 27, 2010, wherein BANA informs Plaintiff that he may qualify
for the federal government’s Home Loan Modification Program. Letters [130-10], Ex.
J to Pl.’s Resp. [130]. The December 27, 2010, letter indicates that Plaintiff expressed
interest in this Program, but Plaintiff adamantly denies that he did. Pl.’s Resp. [130]
at pp. 8-9. A letter in BANA’s records dated January 24, 2011, reflects that it
reviewed Plaintiff’s loan and determined that he was not eligible for a modification
under the Program, because he did not supply the documents requested in the earlier
letters. BANA’s Account Records [125-4] at p. 114.
Plaintiff did not allege in his Complaint that BANA unlawfully solicited him
for participation in the Home Loan Modification Program. In his Response, he
contends that BANA “wrongfully and fraudulently” solicited him, because he never
requested information on this Program, and because his home mortgage loan was
never past due. Pl.’s Resp. [130] at p. 9. He alleges that the Program is “a fraud and
a scheme.”

Id. at p. 11.

Because Plaintiff’s allegations regarding the Home

Modification Program were not raised in his Complaint, they are not properly before

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the Court. Moreover, Plaintiff has offered no authority supporting his contention that
his receipt of unsolicited letters regarding the Program is unlawful, nor has he
provided evidence that he suffered damages as a result of receiving such letters.
III. CONCLUSION
For the foregoing reasons, there is no genuine issue as to any material fact
on Plaintiff’s claims. BAC and BANA are entitled to summary judgment.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Motion for
Summary Judgment [125], filed by Defendants Bank of America Corporation
(“BAC”) and Bank of America, N.A., successor by merger to BAC Home Loans
Servicing, LP (“BANA”), is GRANTED. Plaintiff Joseph Davis Jr.’s claims against
these Defendants are dismissed with prejudice.
SO ORDERED AND ADJUDGED, this the 11th day of January, 2013.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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