Christenson et al v. CitiMortgage, Inc.
MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that defendant's motion to transfer this case [Doc. # 3 ] is granted. IT IS FURTHER ORDERED that the Clerk of Court shall transfer this case to the United States District Court for the District of Colorado.. Signed by District Judge Carol E. Jackson on 12/14/16. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EUGENE CHRISTENSON and
Case No. 4:16-CV-1142 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court on defendant’s motion to transfer this action
to the District of Colorado, pursuant to 28 U.S.C. § 1404(a). Plaintiffs have filed a
response in opposition to the motion and the issues are fully briefed.
This is the second lawsuit that plaintiffs Eugene and Sharon Christenson have
brought against CitMortgage, Inc., alleging that it failed to adequately respond to a
Qualified Written Request (QWR),1 as that term is defined by the Real Estate
Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2601-2617. The first lawsuit was
filed in the United States District Court for the District of Colorado, which entered
final judgment in favor of defendant on June 7, 2016.
On April 20, 2009, plaintiffs executed a promissory note secured by a deed of
trust on their real property located in Grand Junction, Colorado. The note and deed
of trust are held by defendant, which is a mortgage servicer. Christenson v.
Citimortgage, Inc., No. 12-CV-02600-CMA-KLM, 2013 WL 5291947, at *1 (D. Colo.
The Court takes no position as to whether plaintiffs’ communication with defendant meets
the requirements of a QWR.
Sept. 18, 2013).
Plaintiff Eugene Christenson was laid off in 2009 and, by May
2010, plaintiffs were in default under the note and deed of trust. See id. at *3.
Foreclosure and Bankruptcy Proceedings
On Oct. 8, 2010, defendant commenced a foreclosure proceeding. [Doc. # 3
at 3]. On June 28, 2011, plaintiffs filed for Chapter 13 bankruptcy, thereby staying
the foreclosure proceeding. Christenson, 2013 WL 5291947, at *3. On November
4, 2011, the bankruptcy court confirmed a plan which required plaintiffs to make
monthly payments on the past due amounts. In September 2014, defendant
withdrew the foreclosure proceeding. [Doc. # 3 at 3]. On September 9, 2014, the
bankruptcy court granted the trustee’s motion to dismiss the bankruptcy case
because plaintiffs failed to make the payments required under the plan. See In re
Christenson, No. 11-25398-SBB (D. Colo.) [Docs. ##42 and 43].
March 2011 Letter and District of Colorado Lawsuit
On March 31, 2011, plaintiffs sent defendant “a formal written inquiry under
12 U.S.C. § 2605(e),” asking what actions it had taken regarding “loss mitigation”
and “special forbearance.” See Letter [Doc. # 3-2 at 1]. Defendant failed to
respond. Christenson II, 2013 WL 5291947, at *3. On October 1, 2012, plaintiffs
filed suit in the District of Colorado, alleging that defendant violated RESPA by
failing to respond to their March 2011 letter. Id. at *4. On September 18, 2012, the
district court dismissed this claim, finding that the March 2011 letter was not a
qualified written request under RESPA because it did not relate to the servicing of
plaintiffs’ loan.2 Id. at *6; see also Christenson v. Citimortgage, Inc., No. 12-CV-
Plaintiffs also claimed that defendant breached the deed of trust by initiating foreclosure in
violation of HUD regulations. Id. at *7. The District Court dismissed this claim, holding that
02600-CMA-KLM, 2014 WL 4637119, at *3 (D. Colo. Sept. 16, 2014) (denying
motion to reconsider dismissal of RESPA claim). Plaintiffs subsequently amended
their complaint to add claims that (1) defendant’s failure to respond to the March
2011 letter constituted a violation of Colorado Revised Statute § 38–40–103, and
(2) defendant engaged in unfair and deceptive practices in violation of the Colorado
Consumer Protection Act. [See Doc. #4-6 (Third Amended Complaint)]. On June 7,
2016, the Colorado court entered summary judgment in favor of defendant on
these claims. Christenson v. CitiMortgage, Inc., No. 12-cv-2600 CMA-KLM [Doc. #
October 2014 Letter
On October 30, 2014, plaintiffs sent defendant another letter to “dispute your
servicing of our mortgage. Please consider this letter a ‘qualified written request’
under [RESPA], 12 U.S.C. § 2605(e).” Plaintiffs then asked a series of questions
directed to defendant’s loss mitigation activities, substantially similar to those
posed in their 2011 letter. See Letter [Doc. # 3-1] (“We previously sent a request
on March 31, 2011. Our letter is largely a repetition . . .”]. On December 1, 2014,
defendant sent a response, signed by Amanda Friedhoff, Legal Support Specialist.
Ms. Friedhoff advised plaintiffs that, prior to initiating foreclosure, CMI “explored a
variety of loss mitigation options,” citing eight letters defendant sent to plaintiffs
between November 23, 2009, and November 27, 2010. Ms. Friedhoff also stated
that the foreclosure had been withdrawn and that CMI was “renewing our loss
mitigation review.” Finally, she asked the plaintiffs to complete and return the
the failure to comply with HUD regulations provided an affirmative defense to foreclosure
but did not create a cause of action for breach of contract. Id.
“CitiMortgage Customer Hardship Assistance Package” that was included with the
letter.3 Letter [Doc. # 3-3].
The Current Lawsuit
Final judgment was entered in the first lawsuit on June 7, 2016. Plaintiffs
filed this action on July 14, 2016. In Count I, they assert a claim pursuant to
RESPA, alleging that defendant’s response to the October 2014 letter was false and
evasive in violation of 12 U.S.C. § 2605. They seek damages for severe emotional
distress plus attorneys’ fees and costs. In Count II, they seek a declaratory
judgment that any claim defendant has against them for breach of the note and
acceleration of the debt was a compulsory counterclaim in the Colorado action and
that the entry of final judgment in that case “determined that claim against
The transfer-of-venue statute, 28 U.S.C. § 1404(a), provides: “For the
convenience of parties and witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division where it might have been
brought.” There is no dispute that the instant action could have been brought in the
District of Colorado, as demonstrated by plaintiffs’ first lawsuit. There is also no
dispute that venue is proper in the Eastern District of Missouri under 28 U.S.C. §
1391(b)(1) because defendant has its principal place of business within this district.
[Doc. #1 at ¶3]. See Alan Wright, et al. 14D Fed. Prac. & Proc. § 3829 (4th ed.)
(transfer under § 1404 requires a determination that the forum in which the case
was initially filed was proper). When considering a request to transfer venue under
Plaintiffs did not complete and return the package. Elina Alsiweadi Declaration [Doc. # 112 at ¶33].
§ 1404(a), the court may consider undisputed facts presented through affidavits,
depositions, stipulations, and other relevant documents. Bae Sys. Land &
Armaments L.P. v. Ibis Tek, LLC, 124 F. Supp. 3d 878, 883 (D. Minn. 2015)
When determining the propriety of transfer, the court considers “(1) the
convenience of the parties, (2) the convenience of the witnesses, and (3) the
interests of justice,” along with undertaking a case-specific evaluation of the
circumstances surrounding the requested transfer to determine whether transfer is
warranted. Terra Int’l, Inc. v. Mississippi Chem. Corp., 119 F.3d 688, 691 (8th Cir.
1997). The Eighth Circuit has declined to offer an “exhaustive list of specific factors
to consider” in making the transfer decision and has directed the courts to weigh
any “case-specific factors” relevant to convenience and fairness to determine
whether transfer is warranted. In re Apple, Inc., 602 F.3d 909, 912 (8th Cir. 2010)
(internal citation omitted). The party requesting transfer has the burden to show
that the balance of these factors favors it. Dube v. Wyeth LLC, 943 F. Supp. 2d
1004, 1007 (E.D. Mo. 2013) (citing Moretti v. Wyeth, No. 07-CV-3920 DWF-SRN,
2008 WL 732497 at *1 (D. Minn. March 17, 2008)).
A. Convenience Factors
The Court first considers the balance of convenience factors, including:
(1) the convenience of the parties, (2) the convenience of the witnesses—
including the willingness of witnesses to appear, the ability to subpoena
witnesses, and the adequacy of deposition testimony, (3) the accessibility to
records and documents, (4) the location where the conduct complained of
occurred, and (5) the applicability of each forum state's substantive law.
Terra Int’l, 119 F.3d at 696.
“[S]ection 1404(a) provides for transfer to a more convenient forum, not to a
forum likely to prove equally convenient or inconvenient, and a transfer should not
be granted if the effect is simply to shift the inconvenience to the party resisting
the transfer.” Graff v. Qwest Commc’ns Corp., 33 F. Supp. 2d 1117, 1121 (D. Minn.
1999). Although there is a presumption in favor of plaintiff’s choice of forum, that
choice is afforded significantly less deference when the plaintiff does not reside, and
the underlying events did not occur, in the chosen forum. See In re Apple, 602 F.3d
at 913; Boss v. Travelers Home & Marine Ins. Co., No. 2:16-CV-04065-NKL, 2016
WL 3200289, at 4 (W.D. Mo. June 8, 2016); Dube, 943 F. Supp. 2d at 1008.
Plaintiffs’ choice of forum is not entitled to much deference in this case. They
do not reside in this district and the events giving rise to the parties’ dispute are
centered in Colorado: the loan at issue originated in Colorado and is secured by
property located there. Until this lawsuit was filed, all of the litigation arising from
the parties’ relationship — the foreclosure action, the bankruptcy proceedings, and
the Colorado action — was based in Colorado. In addition, plaintiffs seek a
declaration that defendant is precluded from bringing a claim for breach of the note
and acceleration of the debt which is secured by the Colorado property.
On balance, the convenience factors favor transfer. Plaintiffs reside in Grand
Junction, approximately two miles from the federal courthouse.4 In addition, the
witnesses with information relevant to plaintiffs’ claim for emotional distress
damages are located in Colorado and are within the subpoena power of the Grand
Plaintiffs note that, in the prior action, defendant insisted on and was granted a trial
setting in Denver, over plaintiffs’ request for setting in Grand Junction. [Doc. # 17 at 1].
Having requested transfer to the District of Colorado based on its representation that Grand
Junction was a more convenient venue, it would border on bad faith for defendant to oppose
any request plaintiffs might make for a trial setting in Grand Junction.
Junction Court. See Dube, 943 F. Supp. 2d at 1008 (giving significant weight to the
fact that key nonparty witnesses would not be subject to subpoena power and that
costs of travel would be expensive). Similarly, the author of the October 2014 QWR
resides in Colorado. In addition, counsel for both parties are located in Colorado.
Thus, travel costs for parties. witnesses, and counsel will be much reduced if this
case proceeds in Colorado.
Plaintiffs counter that the subject matter of this dispute is defendant’s “false
and evasive” response to their QWR, which was written by an employee located at
defendant’s headquarters in Missouri.5 Plaintiffs identify other employees of
defendant who are likely witnesses. However, inconvenience caused to partyemployees is not of paramount concern because it is generally assumed that
witnesses within the control of the party calling them, such as employees, will
appear voluntarily in a foreign forum. Moretti, 2008 WL 732497, at *1 (internal
quotations and citations omitted). Finally, the Court takes into consideration the
fact that plaintiffs initially filed suit in Colorado, which the Court deems to be a
concession that Colorado is not an inconvenient forum.
B. Interests of Justice Factors
The Court also considers factors influencing the wider interests of justice in
this case, including:
(1) judicial economy, (2) the plaintiff’s choice of forum, (3) the
comparative costs to the parties of litigating in each forum, (4) each
party’s ability to enforce a judgment, (5) obstacles to a fair trial, (6)
conflict of law issues, and (7) the advantages of having a local court
determine questions of local law.
Plaintiffs further argue that any witnesses to defendant’s alleged failure to comply with the
terms of the deed of trust are located in Missouri. Plaintiffs’ breach of contract claim was
decided adversely to them in the Colorado action. See supra n.2. Plaintiffs cannot relitigate
the claim in a second lawsuit.
Terra Int’l, 119 F.3d at 696.
As noted above, plaintiffs’ choice of forum in this case is not entitled to much
weight. Turning to the other factors, judicial economy favors transfer in this case.
The Colorado court has already completed an extensive analysis of plaintiffs’ 2011
QWR, which plaintiffs concede is substantially similar to the QWR that is the subject
of this action. In addition, plaintiffs’ declaratory judgment claim requires a
determination of the preclusive effect of the Colorado action on any future claim
defendant may have for breach of the deed of trust. Again, the Colorado district
court has significant experience with the background of this claim. The parties have
not addressed the remaining factors and they are of little import to the analysis.
Plaintiffs rely on Cole v. JPMorgan Chase N.A., No. 2:15-CV-2634-EAS-EPD
(S.D. Ohio Aug. 25, 2016) [Doc. # 40], in which the district court denied the
defendant’s § 1404 motion to transfer the case to the plaintiff’s home forum. Cole
is distinguishable, however, because the plaintiff had not previously filed an action
against the defendant in his home forum, a factor which has significant weight in
the §1404 analysis in this case.
For the reasons set forth above, the Court concludes that, for the
convenience of the parties and witnesses, and in the interest of justice, this case
should be transferred to the District of Colorado, where plaintiffs reside, the subject
property is located, and issues relevant to plaintiffs’ claims under RESPA and for
declaratory relief were previously decided.
IT IS HEREBY ORDERED that defendant’s motion to transfer this case
[Doc. # 3] is granted.
IT IS FURTHER ORDERED that the Clerk of Court shall transfer this case to
the United States District Court for the District of Colorado.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 14th day of December, 2016.
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