Yuszczak et al v. DLJ Mortgage Capital, Inc.

Filing 18

MEMORANDUM AND ORDER denying 8 Motion for Summary Judgment. So Ordered by Chief Judge William E. Smith on 1/4/2017. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
STEPHEN YUSZCZAK and
)
RITA YUSZCZAK,
)
)
Plaintiffs,
)
)
v.
)
C.A. No. 16-101 S
)
DLJ MORTGAGE CAPITAL, INC.,
)
ALIAS and JOHN DOE, ALIAS
)
)
Defendants.
)
___________________________________)

MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before
Judgment.

the
(ECF

Court
No.

8.)

is

Defendant’s

For

the

Motion

reasons

set

for

Summary

forth

below,

Defendant’s Motion is DENIED.
I.

Facts and Procedural History

Stephen and Rita Yuszczak (“Plaintiffs”) are residents of
Burrillville, Rhode Island. On May 14, 2008, Plaintiffs acquired
a

mortgage

loan

for

their

home

from

Seacoast

Mortgage

Corporation. That mortgage was subsequently transferred to DLJ
Mortgage Capital (“Defendant”), a Delaware Corporation, sometime
between July of 2014 and February of 2015. 1 On February 3, 2016,

1

There is a dispute between the parties as to when the
mortgage was officially acquired by Defendant. Defendant claims
to have acquired the mortgage on or about July 28, 2014. (Def.’s
Mot. for Summ. J. 1, ECF No. 8-1.) Plaintiffs claim that the

Plaintiffs
alleging

filed

that

a

Complaint

Defendant

in

failed

Rhode
to

Island

notify

Superior

Plaintiffs

Court

of

the

mortgage transfer as required under the Truth in Lending Act
(“TILA”). (ECF No. 1-1.) Specifically, Plaintiff alleges that
Defendant failed to comply with the following TILA requirement:
not later than 30 days after the date on which a
mortgage loan is sold or otherwise transferred or
assigned to a third party, the creditor that is the
new owner or assignee of the debt shall notify the
borrower in writing of such transfer, including—
(A) the identity, address, telephone number of the new
creditor;
(B) the date of transfer;
(C) how to reach an agent or party having authority to
act on behalf of the new creditor;
(D) the location of the place where transfer of
ownership of the debt is recorded; and
(E) any other relevant information regarding the new
creditor.
15 U.S.C. § 1641(g)(1) (emphasis in original).
Defendant removed this lawsuit to federal court. Discovery
closed on August 26, 2016 (Pretrial Scheduling Order, ECF No. 6)
and

Defendant

subsequently

submitted

a

Motion

for

Summary

Judgment (ECF No. 8). After several extensions, Plaintiffs filed
their Objection (ECF No. 16), and Defendant submitted a Reply
(ECF No. 17).

transfer did not occur until on or about February 3, 2015.
(Compl. ¶ 9, ECF No. 1-1; Pls.’ Obj. 10, ECF No. 16-1.) The
Court need not resolve this dispute in order to rule on
Defendant’s Motion.
2

II.

Standard of Review

On a summary judgment motion, the parties are required to
supply facts by “citing to particular parts of materials in the
record . . . .” Fed. R. Civ. P. 56(c)(1)(A). The Court then
views the facts in the light most favorable to the non-moving
party and grants summary judgment only if “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).
III. Discussion
Defendant

provided

evidence

that

it

procured

Plaintiffs’

mortgage on July 28, 2014, and subsequently sent a notice of
transfer to Plaintiffs. (Weinberger Aff. ¶ 8, ECF No. 8-3; Def.’s
Mot. Summ. J. Ex. 6, ECF No. 8-3.) Plaintiffs argue that – even
assuming

those

facts

are

true

-

summary

judgment

is

not

appropriate because Defendant has failed to establish when the
notice

of

Defendant

transfer
sent

the

was

sent

notice

of

to

Plaintiffs

transfer

within

(i.e.,
thirty

whether
days

as

required by TILA). Plaintiffs’ argument must prevail.
Defendant submitted an Undisputed Statement of Facts that
describes how, “[f]ollowing the transfer of ownership of the
Mortgage Loan, DLJ sent Plaintiffs . . . notice of the transfer
dated August 29, 2014.” (Def.’s Statement of Undisputed Facts ¶
6, ECF No. 8-2 (citing Weinberger Aff. ¶ 8, ECF No. 8-3; Def.’s
Mot. Summ. J. Ex. 6, ECF No. 8-3).) As this statement has gone
3

uncontroverted by Plaintiff, it is deemed admitted for summary
judgment purposes. See LR Cv 56(a)(3). However, as Plaintiffs
point out, while this statement establishes that a notice of
transfer was sent to Plaintiffs and that the notice was dated
August 29, 2014, these two facts do not establish the date on
which Defendant actually sent the notice to Plaintiffs. (Pls.’
Obj. 5-6, ECF No. 6-1.) Viewing the facts and drawing inferences
in the Plaintiffs’ favor, as the Court must for the purposes of
summary judgment, the Court cannot conclude that the notice of
transfer was sent the same day it was dated. Absent additional
evidence on this topic, the timeliness of the notice of transfer
is a genuine issue of material fact precluding summary judgment.
Defendant

brings

several

other

issues

to

the

Court’s

attention for the first time in its Reply brief. These arguments
are

untimely.

reasons

why

In
it

its

Reply,

believes

Defendant

this

Court

provides

should

additional

grant

summary

judgment. These include a statute of limitations defense as well
as

an

argument

bankruptcy

in

that

2010,

the

Plaintiffs,

cannot

assert

a

having
claim

gone

under

through
TILA

for

a
a

mortgage transferred in 2014. (Def.’s Reply 3-4, ECF No. 17.)
Regardless
because

of

they

merit,
were

these

argued

arguments

for

the

are

first

procedurally
time

in

barred

Defendant’s

Reply. See W. Reserve Life Assur. Co. of Ohio v. Conreal LLC,
715 F. Supp. 2d 270, 288–89 (D.R.I. 2010) (“Arguments ‘raised
4

for the first time in reply briefs are procedurally barred.’”)
(quoting Weaver’s Cove Energy, LLC v. R.I. Coastal Res. Mgmt.
Council, 589 F.3d 458, 474 n.14 (1st Cir. 2009)); see also Wills
v. Brown Univ., 184 F.3d 20, 27 (1st Cir. 1999). The Court will
not consider these arguments in deciding Defendant’s Motion.
VI.

Conclusion

For

the

foregoing

reasons,

the

Summary Judgment (ECF No. 8) is DENIED.

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: January 4, 2017

5

Defendant’s

Motion

for