Hancock v. Ocwen Loan Servicing LLC et al

Filing 114

ORDER denying 65 Motion for Partial Summary Judgment; granting 73 Motion for Summary Judgment; granting 90 Motion for Summary Judgment; denying as moot 108 Motion to Compel. Signed by Honorable Timothy D. DeGiusti on 8/18/2016. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
BRUCE A. HANCOCK, JR.,
Plaintiff,
vs.
OCWEN LOAN SERVICING,
LLC, et al.,
Defendants.

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Case No. CIV-14-1380-D

ORDER
Before the Court is Plaintiff’s Motion for Partial Summary Judgment [Doc. No. 65],
along with a Supplement [Doc. No. 76]; Defendant Ocwen Loan Servicing, LLC’s
(“Ocwen”) Motion for Summary Judgment [Doc. No. 73]; and Defendant Experian
Information Solutions, Inc.’s (“Experian”) Motion for Summary Judgment [Doc. No. 90].
Both Ocwen and Experian have responded [Doc. Nos. 72 and 81, respectively] to Plaintiff’s
Motion, and Plaintiff has filed a “Combined Response” [Doc. No. 83], which the court
construes as Plaintiff’s reply. Plaintiff has failed to respond to Ocwen’s Motion, but has
responded [Doc. No. 91] to Experian’s Motion. Experian has not replied.
Additionally before the Court is Plaintiff’s Motion to Compel [Doc. No. 108],
requesting the Court to order Ocwen to answer certain interrogatories and requests for
production of documents. Ocwen has timely responded in opposition [Doc. No. 111], and
Plaintiff has replied [Doc. No. 112].

Background
Plaintiff brings this suit under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §
1681-1681x and, as to Ocwen, the Real Estate Settlement Procedures Act (“RESPA”), 12
U.S.C. § 2601 et seq.1 Plaintiff alleges that he had two real estate mortgages that were
discharged in a 2012 Chapter 7 bankruptcy case,2 but that Ocwen, the servicer on the loan,
subsequently and wrongly began foreclosure proceedings regarding a mortgage lien on his
home. Plaintiff further claims that Ocwen has furnished inaccurate information to credit
reporting agencies (“CRAs”), specifically Experian,3 and that such agencies have
inaccurately reported information regarding the loan and other accounts, and failed to follow
reasonable procedures or properly investigate. In connection therewith, Plaintiff alleges
economic damages due to being “denied credit by several creditors.” Second Am. Compl.
[Doc. No. 43] at 12. Plaintiff further alleges emotional damages arising from “depression,
panic attacks, insomnia,” strain on his relationships, a significant drop in his academic grades
“while trying to get this information corrected,” and “extreme fright due to the foreclosure

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In his Motion and its Supplement, Plaintiff raises new claims including Experian’s alleged
inaccurate reporting on a number of additional accounts. However, the deadline to amend pleadings was
June 18, 2015. See Scheduling Order [Doc. No. 62]. Accordingly, new claims can only be added with leave
of court, which Plaintiff did not seek. Therefore, the Court will address only claims present in Plaintiff’s
Second Amended Complaint.
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Plaintiff only raises an issue as to one account (Account No. 713127) “not reflecting Plaintiff’s
discharge [in his] Chapter 7 Bankruptcy.” Pl.’s Suppl. [Doc. No. 76] at 1.
3

According to a November 3, 2015 Order of the Court [Doc. No. 75], Defendant Trans Union LLC
was dismissed with prejudice. Therefore, the Court will address Plaintiff’s allegations of inaccurate
reporting as to Experian only.

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proceedings.” Id. Plaintiff seeks to recover statutory penalties and damages, to obtain a
permanent injunction requiring the correction of his credit report, and requests by the instant
motion partial summary judgment on his claims.4
Ocwen contends summary judgment in its favor is proper because “the Discharge
Order of February 8, 2012, relied upon by [Plaintiff] was ineffective as to Ocwen[’s] claims
and Ocwen was justified in continuing to report on [Plaintiff’s] credit.” Ocwen Mot. [Doc.
No. 73] at 4. Experian contends summary judgment in its favor is proper because Plaintiff’s
claims are an impermissible collateral attack on a purely legal dispute between a consumer
and a creditor; Plaintiff failed to demonstrate that Experian’s reporting is inaccurate or its
procedures unreasonable; Plaintiff failed to provide evidence that Experian caused any of his
alleged damages; and Plaintiff has failed to provide evidence of willfulness on the part of
Experian. For the reasons stated below, the Court finds summary judgment in favor of
Ocwen and Experian is proper.
Standard of Review
Summary judgment is proper “if the movant shows there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

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It is unclear why Plaintiff’s Motion is for partial, as opposed to full, summary judgment, since he
requests judgment in his favor as to all “the claims against all . . . Defendants.” Pl.’s Mot. [Doc. No. 65] at
6. Additionally, Plaintiff’s Motion fails to articulate reasons why he is entitled to summary judgment other
than conclusory statements such as “the only material fact dispute raised by Ocwen is shown to be nongenuine” (Pl.’s Mot. [Doc. No. 65] at 3), and “there is no genuine material dispute” regarding Experian’s
violation of “subsection 1681n” (Id. at 4). However, because Plaintiff is seeking judgment on all remaining
claims, the Court will treat his Motion as one for full summary judgment.

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56(a). A material fact is one that “might affect the outcome of the suit under governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is genuine if the
evidence is such that a reasonable jury could return a verdict for either party. Id. at 255. All
facts and reasonable inferences must be viewed in the light most favorable to the nonmoving
party. Id. If a party who would bear the burden of proof at trial lacks evidence on an
essential element of a claim, then all other factual issues concerning the claim become
immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The movant bears the initial burden of demonstrating the absence of a dispute of
material fact warranting summary judgment. Id. at 322-23. If the movant carries this burden,
the nonmovant must then go beyond the pleadings and “set forth specific facts” that would
be admissible in evidence and that show a genuine issue for trial. See Anderson, 477 U.S.
at 248; Celotex, 477 U.S. at 324; Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.
1998). “To accomplish this, the facts must be identified by reference to affidavits, deposition
transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at 672. The Court’s
inquiry is whether the facts and evidence identified by the parties present “a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson, 477 U.S. at 251-52.
Statement of Undisputed Facts
Pursuant to Fed. R. Evid. 201, the Court, sua sponte, takes judicial notice of the
records (including petitions, schedules, related documents, and orders) of In re Bruce A.

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Hancock, Jr., 10-17238 (Bankr. W.D. Okla.) and In re Bruce A. Hancock, Jr. 11-15686
(Bankr. W.D. Okla.), as well as the court file of related case Hancock v. Homeward
Residential Holdings, Inc., et. al., 15-CIV-1310-D (W.D. Okla.), and the present case file.
In St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169 (10th Cir. 1979),
the Tenth Circuit discussed the appropriateness of taking judicial notice in a case such as the
present:
[A] district court may utilize the doctrines underlying judicial
notice in hearing a motion for summary judgment substantially
as they would be utilized at trial. Thus, a court may . . . take
judicial notice, whether requested or not . . . of its own records
and files, and facts which are part of . . . public records. . . . The
proposition that a court may take judicial notice of its records
and files has frequently proved useful in summary judgment
proceedings. The scope and reach of the doctrine of judicial
notice has been enlarged over the years until today it includes
those matters that are verifiable with certainty. Thus, this court
has held that a court may, [s]ua sponte, take judicial notice of its
own records and preceding records if called to the court’s
attention by the parties. Further, it has been held that federal
courts, in appropriate circumstances, may take notice of
proceedings in other courts, both within and without the federal
judicial system, if those proceedings have a direct relation to
matters at issue.
Id. at 1171-72 (citations omitted); see also U.S. v. Pursley, 577 F.3d 1204, 1214 n.6 (10th
Cir. 2009) (exercising the court’s discretion “to take judicial notice of publicly-filed records
in our court and certain other courts concerning matters that bear directly upon the
disposition of the case at hand”) (citation omitted). Where necessary, the Court has used the

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above-described records and case file to supplement the summary judgment record of
undisputed facts.5
On July 5, 2005, Plaintiff purchased a property located at 13408 Prairie View Lane,
Oklahoma City, OK 73142. See Ocwen Brief [Doc. No. 15] at 2. In connection with this
purchase, Plaintiff executed a note secured by a mortgage with GreenPoint Mortgage
Funding, Inc. (“GreenPoint”), Account No. 87040200, in the amount of $112,400.00. See
Note [Doc. No 1-10, CIV-15-1310 (W.D. Okla.)] at 1. Plaintiff subsequently defaulted on
the loan, and GreenPoint filed for foreclosure on March 6, 2008 (“Foreclosure Action”).6
See Ocwen’s Brief [Doc. No. 15] at 2. In December of that same year, GreenPoint “assigned,
sold, or transferred” its servicing rights to Countrywide Home Loans Servicing LP
(“Countrywide”), which represented the account on its books as Account No. 22154350. See
Letter [Doc. No. 1-21, CIV-15-1310 (W.D. Okla.)] at 1. A final judgment was entered in the
Foreclosure Action on August 7, 2009. See Ocwen’s Brief [Doc. No. 15] at 2.
On December 1, 2010, Plaintiff filed for bankruptcy in the Western District of
Oklahoma, In re Bruce A. Hancock, Jr., 10-17238 (“Chapter 13 Bankruptcy”). Plaintiff
listed the GreenPoint loan, Account No. 87040200, as a secured debt. See Schedule D [Doc.
No. 15, 10-17238 (Bankr. W.D. Okla.)] at 9. On January 12, 2011, the Bankruptcy Court

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The Court will reference every document’s source case in its subsequent citation, unless the
document derives from the present case file.
6

The Foreclosure Action was filed in the District Court of Oklahoma County, State of Oklahoma,
under case number CJ-2008-2068.

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entered an Order regarding Plaintiff “permanently disqualif[ing] from discharge in any future
bankruptcy” all of Plaintiff’s current debts pursuant to 11 U.S.C. § 349(a).7 Order [Doc. No.
30, 10-17238 (Bankr. W.D. Okla.)] at 1-2.
In 2011, Plaintiff filed a subsequent bankruptcy petition in the Western District of
Oklahoma, In re Bruce A. Hancock, Jr. 11-15686 (“Chapter 7 Bankruptcy”). Plaintiff listed
the GreenPoint loan, “Bank of America Account No. 22154350,”8 as a secured debt. See
Schedule D [Doc. No. 13, 11-15686 (Bankr. W.D. Okla.)] at 8. On February 8, 2012, the
Bankruptcy Court entered an Order granting Plaintiff a discharge. Discharge of Debtor [Doc.
No. 1-1, CIV-15-1310 (W.D. Okla.)] at 1. In December of that same year, U.S. Bank, N.A.,
became the new owner of the GreenPoint loan. See Assignment of Mortgage [Doc. No. 1-11,
CIV-15-1310 (W.D. Okla.)] at 1. In November, 2013, Bank of America, then-servicer for
U.S. Bank, N.A., transferred its servicing rights to Ocwen. See Notice of Servicing Transfer
[Doc. No. 1-20, CIV-15-1310 (W.D. Okla.)] at 1. At that point, Bank of America Account
No. 22154350 became Ocwen Account No. 7131270675. See id.

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There are two options for dismissal under 11 U.S.C. § 349(a) that differ from the general rule that
a dismissal is without prejudice to a future petition or ability to obtain a discharge: (1) a 180-day lockout
from the bankruptcy court provided by § 109(g), or (2) a denial of discharge in any future case of debts that
were dischargeable in the present case. In re Norton, 319 B.R. 671, 674 (Bankr. D. Utah 2005). The second
option should only be used if the debtor’s conduct is egregious. Id. The court in Norton phrased it this way:
“[a]ll debtor’s debts incurred prior to the current filing date . . . are nondischargeable in any subsequent case
this debtor may file.” Id. at 685.
8

There is no documentation in the bankruptcy records, related case file, or this case file confirming
the exact date the servicer changed from Country Wide to Bank of America.

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In March 2014, Plaintiff disputed Experian’s reporting of Ocwen, Account No.
7131270675, and American Education Services (“AES”), Account No. 4475080879PA0.
See Second Am. Compl. [Doc. No. 43] at 7. Plaintiff claimed the reporting of these accounts
should have reflected “included in bankruptcy.” See Dispute Log [Doc. No. 76-2]. In
response, Experian investigated the disputed debts and sent notice to both Ocwen and AES;
Ocwen and AES each verified the respective accounts as accurately reported. See Experian’s
Mot. [Doc. No. 90] at 2. Accordingly, Experian did not change the report regarding the
disputed debts to reflect the 2012 discharge.
Analysis
I. Fair Credit Reporting Act
A. Ocwen
Plaintiff alleges Ocwen violated §§ 1681s–2(a) and 2(b), 1681o, and 1681n of FCRA.
See Pl.’s Mot. [Doc. No. 65] at 3. Under 2(a), a furnisher of information shall not “furnish
any information relating to a consumer to any [CRA] if the person knows or has reasonable
cause to believe that the information is inaccurate.” 28 U.S.C. § 1681s–2(a). Under 2(b),
once a furnisher has received notice of a dispute from a credit reporting agency (“CRA”), the
furnisher is required to:

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(1) investigate the disputed information; (2) review all relevant
information provided by the CRA; (3) report the results of the
investigation to the CRA; (4) report the results of the
investigation to all other CRAs if the investigation reveals that
the information is incomplete or inaccurate; and (5) modify,
delete, or permanently block the reporting of the disputed
information if it is determined to be inaccurate, incomplete, or
unverifiable.
Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173, 1178-79 (10th Cir. 2013) (quoting
Pinson v. Equifax Credit Info. Servs., Inc., 316 Fed. Appx. 744, 750 (10th Cir. 2009)). “A
consumer is entitled to actual damages for a negligent violation of . . . FCRA.” Id. at 1179
(citing 15 U.S.C. § 1681o(a)). “‘Under § 1681n(a), however, the consumer need not prove
actual damages if the violation is willful, but may recover punitive damages and statutory
damages.” Id. (quoting Birmingham v. Experian Info. Sol., Inc., 633 F.3d 1006, 1009 (10th
Cir. 2011)).
In order to establish a prima facie case under FCRA, Plaintiff must show that the
challenged credit report contained inaccuracies. See Schueller v. Wells Fargo & Co., 559 F.
App'x 733, 737 (10th Cir.), cert. denied, 135 S. Ct. 275, 190 L. Ed. 2d 203 (2014) (citing
Chiang v. Verizon New England Inc., 595 F.3d 26, 37 (1st Cir. 2010)). Plaintiff has failed
to show the information Ocwen furnished to the CRAs was inaccurate.
Prior to his Chapter 7 Bankruptcy discharge, Plaintiff’s indebtedness was determined
to be non-dischargeable in the Chapter 13 Bankruptcy Order. Specifically, the Court held
that “the debtor shall remain liable for any and all of his debts which were potentially subject
to discharge as a result of the filing of his bankruptcy petition on December 1, 2010.” Order
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[Doc. No. 30, 10-17238 (Bankr. W.D. Okla.)] at 1. This included the Ocwen loan in question
as demonstrated on Plaintiff’s Chapter 13 Bankruptcy Schedule D. Accordingly, Ocwen was
entitled to furnish related information to Experian and other CRAs because it believed,
correctly, that the information it provided regarding Plaintiff’s debt was accurate.
Additionally, Ocwen’s subsequent investigation showed no change in the information.
Because Plaintiff has failed to establish a prima facie case against Ocwen on his
FCRA claims, there exists no genuine issue of material fact as to whether Ocwen furnished
inaccurate information to any CRAs, or failed to take proper investigative measures.
Accordingly, Ocwen is entitled to judgment as a matter of law.
B. Experian
Plaintiff alleges Experian failed to follow reasonable procedures in its reporting and
failed to investigate certain accounts upon Plaintiff’s dispute, thereby violating §§ 1681e and
1681n of FCRA. See Second Am. Compl. [Doc. No. 43] at 2-3. However, Plaintiff again
fails to establish a prima facie case on either FCRA claim, and Experian is entitled to
summary judgment as a matter of law.
Subsection (b) provides: “Whenever a [CRA] prepares a consumer report it shall
follow reasonable procedures to assure maximum possible accuracy of the information
concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b). “If a
consumer reasonably disputes the . . . accuracy of the information in his . . . file, [he] may
communicate his disagreement to the [CRA] and thereby trigger the agency’s duty to

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reinvestigate . . . . A negligent violation . . . subjects the credit reporting agency to liability
for actual damages . . . . A wilful violation further subjects the agency to punitive damages
[under § 1681n].” Jones v. Credit Bureau of Garden City, Inc., 703 F.Supp. 897, 901 (D.
Kansas 1988).
“[A] showing of inaccuracy is an essential element of a § 1681e(b) claim.”
DeAndrade v. Trans Union LLC, 523 F.3d 61, 67 (1st Cir. 2008) (quoting Dickens v. Trans.
Union Corp., 18 Fed. Appx. 315, 319 (6th Cir. 2001) (unpublished); see also Eller v. Trans
Union, LLC, 739 F.3d 467, 473 (10th Cir. 2013); Washington v. CSC Credit Servs., Inc., 199
F.3d 263, 267 n.3 (5th Cir. 2000). This is because “FCRA is intended to protect consumers
against the compilation and dissemination of inaccurate credit information.” DeAndrade,
523 F.3d at 67 (citing Equifax v. Fed. Trade Comm'n, 678 F.2d 1047, 1048 (11th Cir.1982)
(noting the stated purpose of FCRA is “to prevent consumers from being unjustly damaged
because of inaccurate or arbitrary information in a credit report”) (citations omitted); S.Rep.
No. 108–166, 108th Cong., 1st Sess. 5–6 (2003) (“The driving force behind the [1996
amendments to . . . FCRA] was the significant amount of inaccurate information that was
being reported by consumer reporting agencies and the difficulties that consumers faced
getting such errors corrected.”).
Plaintiff has failed to present evidence raising a triable issue concerning the presence
of any inaccuracy regarding the information supplied to Experian by Ocwen. Plaintiff has
also failed to demonstrate an inaccuracy regarding the AES account in question. It reflects

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“Paid, Closed” as of August 2008. See Experian Report [Doc. No. 65-3] at 6. Because it
was no longer a debt at the time of Plaintiff’s discharge, it would be inaccurate to report it
as “included in bankruptcy” as requested by Plaintiff.
Because Plaintiff lacks evidence on an essential element – that the challenged credit
report contained inaccurate information, the Court need not inquire further as to the
reasonableness of Experian’s procedures. Therefore, the Court finds summary judgement in
favor of Experian is proper on Plaintiff’s FCRA claims.
II. Real Estate Settlement Procedures Act
Plaintiff claims Ocwen violated RESPA, 12 U.S.C. § 2605(e)(3),9 by continuing to
report information to CRAs that Ocwen knew was disputed by Plaintiff. See Second Am.
Compl. [Doc. No. 43] at 2. Specifically, Plaintiff argues that “[w]hen [he] made his dispute
[to Experian on] March 21, 2014, the [Ocwen loan] should have stopped being reported by
[Ocwen] for 60 days.” Second Am. Compl. [Doc. No. 43] at 11.
Plaintiff’s RESPA claim fails for two reasons. First, Plaintiff failed to show that
Ocwen’s duty under § 2605(e)(3) was triggered by Plaintiff’s March 2014 dispute with
Experian. Section (e)(3) of RESPA is predicated on a borrower’s “qualified written

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“During the 60-day period beginning on the date of the servicer’s receipt from any borrower of a
qualified written request relating to a dispute regarding the borrower’s payments, a servicer may not provide
information regarding any overdue payment, owed by such borrower and relating to such period or qualified
written request, to any [CRA] (as such term is defined under section 603 of the Fair Credit Reporting Act
[15 USCS § 1681a]).” 12 U.S.C. § 2605(e)(3).

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request”10 made to the servicer. See 12 U.S.C. § 2605(e)(1)(A) (requiring the “servicer of
a federally related mortgage loan [to] receive[] a qualified written request from the borrower
(or an agent of the borrower) . . .” before the servicer’s duty is triggered). Plaintiff does not
claim that he personally made a qualified written request to Ocwen, but seems to suggest that
Experian’s notification to Ocwen of disputed reporting was in fact a “qualified written
request.” To be so, the Court would have to treat Experian as Plaintiff’s agent for the
purposes of RESPA. 12 U.S.C. § 2605(e)(1)(A). Plaintiff has failed to make this argument,
and the Court declines to do so for him.
Second, even if Plaintiff could establish that he made a qualified written request to
Ocwen in March 2014, the statute does not require that Ocwen make sure the account is no
longer reported for 60 days. Rather, it prevents a servicer from “provid[ing] [any]
information regarding any overdue payment, owed by such borrower and relating to such
period or qualified written request.” 12 U.S.C. § 2605(e)(3). The information Plaintiff
disputes had already been reported by Ocwen to Experian prior to March 2014. Plaintiff has
failed to show that Ocwen provided additional information to Experian in the 60-day period
that followed Experian’s notice to Ocwen of Plaintiff’s dispute.
For the above-stated reasons, the Court finds summary judgement in favor of Ocwen
is proper on Plaintiff’s RESPA claim.
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A “qualified written request” is defined as a “written correspondence, other than notice on a
payment coupon or other payment medium supplied by the servicer, that . . . enables the servicer to identify
. . . the name and account of the borrower; and . . . includes a statement of the reasons for the belief of the
borrower . . . that the account is in error . . . .” 12 U.S.C. § 2605(e)(1)(B).

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Conclusion
Accordingly, the Court hereby GRANTS Ocwen’s and Experian’s Motions for
Summary Judgment [Doc. Nos. 73 and 90, respectively], and DENIES Plaintiff’s Motion for
Partial Summary Judgment [Doc. No. 65]. In light of the foregoing, the Court further
DENIES Plaintiff’s Motion to Compel [Doc. No. 108] as moot. A separate judgment in
favor of Defendants will be entered accordingly.
IT IS SO ORDERED this 18th day of August, 2016.

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