Richard v. Caliber Home Loans, Inc. et al
OPINION and ORDER granting in part and denying in part 111 Defendants' Renewed Motion for Summary Judgment and the parties' Cross-Motions for Summary Judgment. Signed by Judge George C. Smith on 4/12/18. (sem)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
DENNIS G. RICHARD,
Case No.: 2:15;cv-2647
JUDGE GEORGE C. SMITH
Magistrate Judge Deavers
CALIBER HOME LOANS, INC., et al.,
OPINION AND ORDER
This matter is before the Court upon Defendants Caliber Home Loans, Inc.’s (“Caliber”)
and VOLT RPL XI Asset Holdings Trust’s (the “Trust”) Renewed Motion for Summary
Judgment and Submission of Additional Evidence (Doc. 111), as well as the parties’ crossmotions for summary judgment (Docs. 86 and 102) on certain claims that were not disposed of in
the Court’s previous summary judgment Order (Doc. 110). The motions are fully briefed and
ripe for disposition. For the following reasons, summary judgment in favor of Defendants is
GRANTED IN PART and DENIED IN PART, and summary judgment in favor Plaintiff is
GRANTED IN PART and DENIED IN PART.
This case arises from a mortgage obtained by Plaintiff Dennis Richard for a home
purchased in 2005. (Doc. 3, Compl. at ¶ 23). This lawsuit is Richard’s third lawsuit against
Caliber relating to their servicing of his mortgage. Each of the earlier two lawsuits resulted in
settlements and dismissals of Richard’s claims. Richard brought suit in this case, alleging
violations of the Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., the
Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq., and the Truth in
Lending Act (“TILA”), 15 U.S.C. § 1601, et seq.
The facts underlying all three suits are set forth in detail in the Court’s previous Order
(Doc. 110) disposing of certain portions of the parties’ cross-motions for summary judgment
(Docs. 86 and 102) and will not be repeated here. As part of that Order, the Court found it was
unable to rule on certain claims because the record did not provide sufficient evidence of the
amount owed by Richard on the mortgage at the time he entered into the second settlement
agreement (“SSA”) with Defendants. (Id. at 14–15). The Court therefore directed Defendants
to provide sufficient evidence that the underpayments in 2014 directly led to the
amount due that was sent to Plaintiff in March 2015. This evidence should
include, but should not be limited to, documents evidencing the existence of the
debt, documents evidencing the imposition of any fees or costs, and evidence
which provides the dates of Plaintiff’s changing amount due.
(Id. at 15). The Court also directed Defendants to provide calculations and evidence of their
damages. (Id. at 25).
As requested, Defendants filed the present Motion, attaching an affidavit of Serge Alexis,
a default servicing officer for Caliber, and documentation regarding Richard’s payments,
outstanding balances, and Defendants’ damages. (Doc. 111-1, Alexis Aff. and attached Exhibits
1–9). Defendants’ Motion also invites the Court to reconsider portions of the earlier Order that
were unfavorable to Defendants. The Court turns to this aspect of Defendants’ Motion first.
REQUEST FOR RECONSIDERATION
Defendants ask the Court to exercise its discretion under Federal Rule of Civil Procedure
54(b) to modify the interlocutory Order to the extent it granted summary judgment for Richard
on certain claims. Defendant is correct that the Order is interlocutory and therefore “may be
revised at any time before the entry of a judgment adjudicating all the claims.” Fed. R. Civ. P.
54(b). Typically, however, courts will reconsider previous interlocutory orders only “when there
is (1) an intervening change of controlling law; (2) new evidence available; or (3) a need to
correct a clear error or prevent manifest injustice.” Louisville/Jefferson Cty. Metro Gov't v.
Hotels.com, L.P., 590 F.3d 381, 389 (6th Cir. 2009).
Defendants ignore this standard in their briefing and assert only that “[t]hrough the
Summary Judgment Order, the Court narrowed the issues in this matter significantly. The parties
and the Court can now focus in greater detail on the specific communications and [ ] theories at
issue.” (Doc. 111, Defs.’ Mot. at 3). But the Court “narrowed the issues” by already deciding
the claims that Defendants are now attempting to re-argue; reconsidering them at this stage
would undo any of the narrowing accomplished in the previous Order. Defendants also have not
presented any new evidence or new arguments that they could not have included with their
previous summary judgment briefs.
Finding no compelling reason to revisit its previous
decisions, the Court declines to exercise its discretion to modify the Order. The Court now turns
to the remaining claims on summary judgment.
SUMMARY JUDGMENT STANDARD
Both parties move for summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. Summary judgment is appropriate when “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);
Berryman v. SuperValu Holdings, Inc., 669 F.3d 714, 716–17 (6th Cir. 2012). The Court’s
purpose in considering a summary judgment motion is not “to weigh the evidence and determine
the truth of the matter” but to “determine whether there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial exists if the Court finds
a jury could return a verdict, based on “sufficient evidence,” in favor of the nonmoving party;
evidence that is “merely colorable” or “not significantly probative,” however, is not enough to
defeat summary judgment. Id. at 249–50.
The party seeking summary judgment shoulders the initial burden of presenting the court
with law and argument in support of its motion as well as identifying the relevant portions of
“‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If this initial
burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts
showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Cox v.
Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (after burden shifts, nonmovant
must “produce evidence that results in a conflict of material fact to be resolved by a jury”).
In considering the factual allegations and evidence presented in a motion for summary
judgment, the Court “views factual evidence in the light most favorable to the non-moving party
and draws all reasonable inferences in that party’s favor.” Barrett v. Whirlpool Corp., 556 F.3d
502, 511 (6th Cir. 2009). But self-serving affidavits alone are not enough to create an issue of
fact sufficient to survive summary judgment. Johnson v. Washington Cty. Career Ctr., 982 F.
Supp. 2d 779, 788 (S.D. Ohio 2013) (Marbley, J.). “The mere existence of a scintilla of evidence
to support [the non-moving party’s] position will be insufficient; there must be evidence on
which the jury could reasonably find for the [non-moving party].” Copeland v. Machulis, 57
F.3d 476, 479 (6th Cir. 1995); see also Anderson, 477 U.S. at 251.
In its previous Order, the Court disposed of Richard’s FDCPA claims regarding Caliber’s
alleged failure to spread Richard’s escrow shortage (in favor of Defendants), Caliber’s attempt to
collect an amount not authorized by the SSA (in favor of Defendants), Caliber’s providing
conflict due dates to cure the loan default (in favor of Richard), Caliber’s indication that it would
report the loan default to credit agencies before it could legally take such action (in favor of
Richard), and Caliber’s allegedly frivolous counterclaims (in favor of Caliber). (Doc. 110 at 12–
The Court now turns to Richard’s remaining claims under the FDCPA and
Richard’s Remaining FDCPA Claims
Richard’s remaining FDCPA claims involve §§ 1692e(2)(A) and (5). Richard argues that
Caliber violated § 1692e(2)(A) when it “falsely represented that Mr. Richard [was past due in the
amount of] $2,749.16” in its March 16, 2015 mortgage statement, “when in fact Mr. Richard was
current.” (Doc. 102, Richard’s Mot. for Summ. J. at 20–21). Similarly, Richard argues that
Caliber violated § 1692e(5) “by illegally stating it could foreclose on Mr. Richard’s home
despite the fact that he was not in default” in its April 21, 2015 letter. (Id. at 22). For the same
reasons, Richard argues that Caliber’s letters of April 21 and April 24, 2015 seeking $1,626.06
(the $2,749.16 in overdue monthly payments, less the unapplied funds of $1,123.10 in Richard’s
suspense account) to cure his loan default were false and misleading.
Richard’s belief that he was current on his mortgage stems from his belief that the SSA
eliminated any then-outstanding deficiencies in his mortgage payments. However, the Court
previously determined that this was not the case. (Doc. 110, Order at 14–15). Defendants’
obligations under the SSA were to waive deferred interest and fees and to spread the escrow
deficiency over a period of 60 months. (Doc. 74-1, SSA at § 3, PAGEID #1157). Defendants
did not waive any outstanding principal, interest, or escrow balance, and the SSA’s integration
clause expressly left intact “any applicable notes or mortgages.” (Id. at § 10, PAGEID #1158–
59). Therefore, so long as Caliber accurately quoted the $1,626.06 amount necessary to cure
Richard’s loan default, Richard’s remaining FDCPA claims are not viable. The additional
information provided by Defendants establishes that the quoted amount was accurate.
Richard’s escrow deposit and adjustment increases as of January 1, 2014
It is undisputed that Richard was current on his mortgage payments as of January 1,
2014. On that date, Richard’s monthly charges increased from $1,406.00 to $1,470.12 due to an
increase in Richard’s escrow deposit and adjustment (stemming from increases in his
homeowners’ insurance and property taxes). (Doc. 111-1, Escrow Analysis, PAGEID #3151).
Caliber sent Richard an Annual Escrow Account Disclosure Statement dated November 25,
2013, explaining the increase and stating that, “[b]eginning January 01, 2014, the [escrow]
shortage will be collected by adding an additional $214.41 to your monthly payment.” (Id.)
However, the $214.41 escrow adjustment was “additional” only in the sense that it was applied
in addition to principal, interest, and the escrow deposit; Richard’s overall monthly charges
increased only by $64.12 (from $1,406.00 to $1,470.12). (Id.)
Richard’s payments and Caliber’s application of funds prior to the SSA
Richard made timely payments of $1,470.12 for each of January through May of 2015.
(Doc. 111-1, Payment History, PAGEID #3170). However, having concluded that his monthly
charges should not include the $214.41 escrow adjustment, Richard began making payments of
only $1,255.71 (equal to $1,470.12 less $214.41) each month for June through December of
This meant Richard’s June payment was short by $214.41.
Caliber’s practice, as
provided by the Mortgage, was to place “partial payments [that] are insufficient to bring the
Loan current” in Richard’s “suspense account,” also referred to as “unapplied funds,” “until
Borrower makes payment to bring the Loan current.” (Doc. 74-1, Mortgage § 1, PAGEID
Thus, Richard’s June payment of $1,255.71 was held as unapplied funds until
Richard made his next payment of $1,255.71 for July. At that time, Caliber took the entire
$1,255.71 June payment and $214.41 from the July payment to satisfy Richard’s $1,470.12 June
balance. (Doc. 111-1, Payment History, PAGEID #3170). Richard’s loan was now current as of
June 1, 2014, but only $1,031.30 remained from his July payment. Since this amount was
$428.82 short of the $1,470.12 he owed for July, Caliber placed the $1,031.30 in suspense until
Richard made another payment in August. (Id.). This process continued with each of Richard’s
August, September, and October payments, such that after completing the payment due
September 1, Richard was $1,072.05 behind on his monthly payments. (Id.).
On October 31, 2014, Richard made another payment of $1,255.71. (Id.). Of that
amount, $1,072.05 was applied, along with the $398.07 then remaining in Richard’s suspense
account, to satisfy Richard’s October 1 charge. This brought Richard current with his loan
obligations as of October 1, and because his November 1 payment was not yet due, there
remained an excess payment of $183.66. In accordance with the Mortgage, Caliber applied this
$183.66 to Richard’s principal balance. (Doc. 74-1, Mortgage § 2, PAGEID #1043) (“Any
remaining amounts [after application to interest, principal, and escrow items due under the Note]
shall be applied first to late charges, second to any other amounts due under this Security
Instrument, and then to reduce the principal balance of the Note.”).1 At this point, nothing
remained in Richard’s suspense account.
Richard’s monthly charges are adjusted pursuant to the SSA
As part of the parties’ SSA negotiations at the end of 2014, Caliber agreed to spread
Richard’s escrow deficiency over a period of 60 months. This had the effect of decreasing
Richard’s monthly charges from $1,470.12 to $1,374.58 as of November 1, 2014. Caliber sent
In his opposition brief, Richard argues that Caliber was not permitted to apply the excess $183.66 to his principal
and was instead required to place it in suspense. The Court does not find this argument consistent with the language
of the mortgage quoted above.
Richard’s counsel an Annual Escrow Account Disclosure Statement dated December 16, 2014
explaining the adjustment. (Doc. 74-1, Disclosure Statement, PAGEID #3174–75).
Richard had made a payment, still in the amount of $1,255.71, on November 29, 2014.
(Doc. 111-1, Payment History, PAGEID #3170). Because it was short of the $1,470.12 owing as
of November 1, and because Richard did not have any unapplied funds at the time to complete
the payment, Caliber placed the full $1,255.71 in suspense. (Id.). Although the amount owing as
of November 1 was later adjusted via the SSA to $1,374.58, Richard’s $1,255.71 payment was
still short of that amount and therefore the full $1,255.71 remained in suspense. On December
17, 2014, the day the Richard executed the SSA, Richard owed the $1,374.58 for his November
1 charge and the $1,374.58 for his December 1 charge, and had the $1,255.71 from his
November 29 payment in his suspense account.
Thus, he owed $1,374.58 + $1,374.58 –
$1,255.71 = $1,493.45 as of December 17, 2014.
Richard’s payments and Caliber’s application of funds following the SSA
Richard made his next payment on December 31, 2014 in the amount of $1,255.71.
(Doc. 111-1, Payment History, PAGEID #3171). Caliber applied the $1,255.71 in Richard’s
suspense account along with $118.87 of the December 31 payment to satisfy Richard’s still
outstanding November 1, 2014 charge, and placed the remaining $1,136.84 from the December
31 payment in suspense. (Id.).
Richard’s next payment was for $1,370.00 on January 29, 2015. (Id.). Caliber applied
the $1,136.84 in Richard’s suspense account along with $237.74 of the January 29 payment to
satisfy Richard’s still outstanding December 1, 2014 charge, and placed the remaining $1,132.26
in suspense. (Id.).
On February 26, 2015, Richard made another payment of $1,370.00. (Id.). Caliber
applied the $1,132.26 in Richard’s suspense account along with $242.32 of the February 26
payment to satisfy Richard’s still outstanding January 1, 2015 charge, and placed the remaining
$1,127.68 in suspense. (Id.).
Caliber’s March 16, 2015 mortgage statement and April 21 and 24, 2015
The February 26, 2015 payment was the last payment Richard made before Caliber sent
the March 16, 2015 mortgage statement. Thus, at that time, Richard owed his February 1, 2015
payment of $1,374.58 and his March 1, 2015 payment of $1,374.58, for a total past due amount
of $2,749.16. This is the past due amount reflected on the March 16, 2015 mortgage statement
(Doc. 102, PAGEID #2877) and the Court concludes that it is accurate. Defendants therefore did
not violate the FDCPA by “falsely represent[ing] that Mr. Richard [was past due in the amount
of] $2,749.16” in its March 16, 2015 mortgage statement, “when in fact Mr. Richard was
current,” as contended by Richard.
Similarly, the Court finds no inaccuracies in the amounts needed to cure the loan default
set forth in Caliber’s April 21 and April 24, 2015 letters. After the March 16, 2015 mortgage
statement, Richard made another payment of $1,370.00 on March 30, 2015. Caliber applied
$246.90 of this payment, along with the $1,127.68 then in Richard’s suspense account, to satisfy
the still outstanding February 1, 2015 charge, and placed the remaining $1,123.10 in suspense.
(Doc. 111-1, Payment History, PAGEID #3171). This meant, as of April 21 and April 24, 2015,
Richard owed his March 1, 2015 payment of $1,374.58 and his April 1, 2015 payment of
$1,374.58, for a total past due amount of $2,749.16. After subtracting the $1,123.10 in suspense,
Caliber accurately reported in the two April letters that Richard must pay $1,626.06 to bring the
loan current. (Doc. 74-1, April 21, 2015 letter, PAGEID #1261–63; April 24, 2015 letter,
PAGEID #1265–70). Accordingly, Caliber did not violate the FDCPA “by illegally stating it
could foreclose on Mr. Richard’s home despite the fact that he was not in default” in its April 21,
2015 letter, as contended by Richard. Nor was the demand for $1,626.06 to bring the loan
current in the two letters false or misleading.
Although Richard does not dispute the amounts he paid or the breakdown in how Caliber
actually applied the funds, Richard still maintains that Caliber improperly calculated the amounts
he owed beginning on January 1, 2014, when his monthly charges increased from $1,406.00 to
$1,470.12. In so doing, he asks the Court to “go back to the first settlement agreement and the
accompanying loan modification.” (Doc. 112, Richard’s Mem. in Opp. at 8). The Court
declines this invitation, however, because in the SSA, Richard released any claims against
Defendants “from the beginning of time until the Effective Date, whether known or unknown,
whether arising out of or related to the Property, the Mortgage or otherwise, including those that
were or which could have been brought in the [Second Litigation].” (Doc. 74-1, SSA § 6,
PAGEID #1158). The second litigation was commenced on April 24, 2014 and the SSA was
effective January 8, 2015.
Accordingly, Richard could have brought any claims for
miscalculation of his mortgage charges as of January 1, 2014 in the second litigation, and, in any
case, he released all claims against Defendants existing as of January 8, 2015. The Court
therefore holds that Defendants cannot be liable for any miscalculation of Richard’s mortgage
charges that occurred prior to January 8, 2015. As a result, Defendants are entitled to summary
judgment on Richard’s remaining FDCPA claims under § 1692e(2)(A) and (5).
Defendants’ Claim for Breach of the Second Settlement Agreement
Under Ohio law, the elements of a breach of contract claim are: (1) the existence of a
contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) damage or loss to
the plaintiff as a result of the breach. V & M Star Steel v. Centimark Corp., 678 F.3d 459, 465
(6th Cir. 2012). As to the first two elements, the parties agree that the SSA is a valid contract,
and Richard has not demonstrated any failure to perform by Defendants.2 As to the third and
fourth elements, Defendants argue that Richard breached the SSA, specifically its release
provisions, by sending a letter to Caliber on April 15, 2015 seeking information regarding his
loan balance and disputing his delinquency under RESPA and TILA, and by commencing this
action, when Richard had already released any claims regarding his loan balance.
breaches, Defendants contend, resulted in damages in the form of attorney’s fees accrued in
defense of this action and entitle Defendants to rescind the SSA.
The Court is unable to locate a provision of the SSA that Richard has breached. Section
6 of the SSA provides in pertinent part:
Except for the obligations under this Agreement, Mr. Richard . . . releases and
forever discharges Caliber [and the Trust] . . . from any and all claims, causes of
action, damages, liabilities, fees, and expenses from the beginning of time until
the Effective Date, whether known or unknown, whether arising out of or related
to the Property, the Mortgage or otherwise, including those that were or which
could have been brought in the Suit. . . . Notwithstanding the foregoing, nothing
in this release relates to any future obligations or duties that may arise in the
future between the Parties. Mr. Richard releases the right to assert any claims
raised in this Lawsuit as a defense or affirmative defense in a future lawsuit;
however, this release shall not constitute a waiver of Mr. Richard’s right to assert
any other defense and affirmative defense in future lawsuits between the parties.
(Doc. 74-1, PAGEID #1158). Caliber argues this provision “clearly prevents Plaintiff from
continuing to challenge, after the Second Settlement Agreement, whether Plaintiff was
delinquent as of the Second Settlement Agreement” (Doc. 86, Caliber’s Motion at 5–6) and that
“Plaintiff gave up his right to attempt to use any means to challenge Caliber’s actions before the
Second Settlement Agreement” (Doc. 113, Caliber’s Reply at 4).
But Defendants’ reading confuses a release of liability for a restraining order. Richard
released Defendants from liability for any claims existing at the SSA’s effective date (January 8,
Although Richard asserted that Caliber failed to spread his escrow deficiency over a 60-month period as required
by the SSA, the Court previously determined that Caliber did, in fact, properly spread the escrow deficiency. (Doc.
110, Order at 12–13).
2015), but Richard did not agree that he would not contact Caliber ever again regarding his loan
balance—even regarding balances or deficiencies existing prior to January 8, 2015. Similarly,
while the SSA’s release provision may serve as a defense to liability for certain claims in the
current action, it does not enjoin Richard from commencing a lawsuit. Ohio law observes a
distinction between liability releases and covenants not to sue, and the SSA does not contain the
latter. See Riley v. City of Cincinnati, 46 Ohio St. 2d 287, 295, 348 N.E.2d 135, 141 (1976).
Moreover, the Court has determined that several of Richard’s claims in the current action are
meritorious and arose out of conduct that occurred after the effective date of the SSA. Thus,
even if the SSA barred Richard from asserting certain claims, the SSA would not bar the
commencement of this action.
Both parties made assumptions about the effect of the SSA that were not explicitly
provided for: Richard assumed the SSA would make his loan account current; Defendants
assumed they would hear no more about inaccuracies in Richard’s loan balance. Even though
these appear to be the primary outcomes the parties sought when entering into the SSA, they
failed to make these requirements explicit. Because the SSA simply does not speak to the
actions that Defendants construe as a breach, Richard is entitled to summary judgment on
Defendants’ claim for breach of contract. Accordingly, Richard is not liable for Defendants’
attorney’s fees and Defendants are not entitled to rescission of the SSA.
Defendants’ Claim for Unjust Enrichment
Unjust enrichment occurs “when a benefit is conferred and it would be inequitable to
permit the benefiting party to retain the benefit without compensating the conferring party.”
Kline v. Mortg. Elec. Sec. Sys., 154 F. Supp. 3d 567, 586 (S.D. Ohio 2015) (quoting Meyer v.
Chieffo, 193 Ohio App.3d 51, 950 N.E.2d 1027, 1034 (2011)). A claim of unjust enrichment
requires proof of three elements: “(1) a benefit conferred by a plaintiff upon a defendant;
(2) knowledge by the defendant of the benefit; and (3) retention of the benefit by the defendant
under circumstances where it would be unjust to do so without payment.” Johnson v. Microsoft
Corp., 106 Ohio St.3d 278, 834 N.E.2d 791, 799 (2005) (quoting Hambleton v. R.G. Barry
Corp., 12 Ohio St.3d 179, 465 N.E.2d 1298 (1984)).
Defendants claim that Richard was unjustly enriched when he retained the benefits of the
SSA (the lump sum payment from Caliber; Caliber’s waiver of deferred interest balance and
deferred fees balance; and spreading the escrow deficiency repayment over 60 months), while at
the same time “not abid[ing] by his broad obligation to release Defendants from then-existing
claims, causes of action, damages, and liabilities” by “challenging his deficiency as of the
Second Settlement Agreement.” (Doc. 86, Defs.’ Mot. for Summ. J. at 9).
Defendants’ unjust enrichment claim is based on the same conduct complained of in
Defendants’ breach of contract claim. Indeed, the alleged unjust conduct is Richard’s failure to
fulfill his contractual obligations under the SSA. To prevent duplicative claims in these types of
contexts, Ohio has adopted a rule that a plaintiff generally cannot maintain an unjust enrichment
claim where the relationship between the parties is governed by an express contract. Aultman
Hosp. Ass’n v. Cmty. Mut. Ins. Co., 46 Ohio St. 3d 51, 55, 544 N.E.2d 920, 924 (1989) (in the
absence of fraud, illegality, or bad faith, plaintiffs may not recover in unjust enrichment and their
only recourse is compensation in accordance with the terms of the written agreement).
Even if this were not the case, the Court has already determined that Richard had no
contractual obligation to refrain from requesting clarifying information from Caliber or from
commencing this action. There was therefore nothing unjust about Richard’s seeking clarifying
information from Caliber in his April 15, 2015 letter or in Richard’s commencing this action to
recover what he believed owed to him. Indeed, the Court has already determined that several of
Richard’s claims under the FDCPA and TILA are meritorious. Accordingly, Richard is entitled
to summary judgment on Defendants’ claim for unjust enrichment.
Defendants’ Request to Enjoin Richard from Commencing Future Litigation
Finally, Defendants have requested a “narrow injunction preventing Plaintiff from filing
future lawsuits against Caliber in this Court until this Court determines that Plaintiff’s proposed
lawsuit is not barred by either the First Settlement Agreement or the Second Settlement
Agreement.” (Doc. 79-2, Caliber’s Am. Countercl. ¶ 174). In support, Defendant cites Feathers
v. Chevron U.S.A., Inc., 141 F.3d 264, 269 (6th Cir. 1998) and Marbly v. Kay, 2000 WL
1827783, at *2 (6th Cir. Dec. 8, 2000) for the proposition that there is “nothing unusual about
imposing pre-filing restrictions in matters with a history of repetitive or vexatious litigation.”
Feathers, 141 F.3d at 269.
The Court does not find Richard’s litigation practice to rise to the level of the plaintiffs in
Feathers and Marbly. The injunction in Feathers was an attempt to stem a multiplicity of suits
regarding the same property that had been ongoing for 90 years, and the plaintiff in Marbly had
filed eight separate, duplicative lawsuits against the same defendants and involving the same
facts. In contrast, although each of Richard’s three lawsuits involve the same note and mortgage
and the same defendants, each of his suits involve actions by Defendants that occurred
subsequent to each previous suit.
His lawsuits are therefore not duplicative, and while
Defendants may find it inconvenient to defend them, the suits are not themselves vexatious.
Defendants also recognize that an injunction would be appropriate only if the Court
determined that Richard had commenced this action in contravention of the SSA’s release. (Doc.
91, Defs.’ Reply at 12) (“[F]ollowing an adjudication on the merits in favor of Defendants on
Defendants’ counterclaims, an injunction on future lawsuits by Plaintiff against Defendants
would be warranted.”). Having adjudicated Defendants’ counterclaims on the merits in favor of
Richard, the Court finds no grounds for requiring a pre-filing screening of any future lawsuits by
Richard against Defendants. Accordingly, Richard is entitled to summary judgment on this
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED IN
PART and DENIED IN PART, and Richard’s motion for summary judgment is GRANTED
IN PART and DENIED IN PART. The Clerk shall remove Document 111 from the Court’s
pending motions list.
At this stage, the Court has granted summary judgment in favor of Richard as to liability
for his claims for (1) violation of TILA as to the Trust’s failure to provide required information
upon request, (2) violation of the FDCPA as to Caliber’s provision of conflicting due dates to
bring his loan current, and (3) violation of the FDCPA as to Caliber’s threat to report Richard’s
late payments to credit reporting agencies. All other claims by Richard and Defendants have
been denied. All that remains is to determine the amount of damages owed to Richard as a result
of Defendants’ violations of TILA and the FDCPA.
Richard shall file a brief containing
evidence and calculations of any damages sought under these claims no later than May 9, 2018.
Defendants shall file an opposition brief providing any opposing evidence and calculations
regarding Richard’s damages by June 1, 2018. Richard will then have until June 15, 2018 to
file a reply brief.
In the interim, the Court also encourages the parties to consider mediation to resolve the
outstanding damages issues. If the parties wish to do so, they may contact Judge Smith’s
chambers to arrange for a mediation through the Court.
IT IS SO ORDERED.
/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT
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