Grimaldi v. U.S. Bank, N.A. et al

Filing 26

MEMORANDUM AND ORDER granting 16 Motion for Summary Judgment. So Ordered by Chief Judge William E. Smith on 4/27/2018. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
_____
)
DAVID GRIMALDI,
)
)
Plaintiff,
)
)
v.
)
C.A. No. 16-519 WES
)
US BANK NATIONAL ASSOCIATION,
)
AS TRUSTEE FOR LSF9 MASTER
)
PARTICIPATION TRUST, ALIAS;
)
CALIBER HOME LOANS, INC.,
)
)
Defendants.
)
)

MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court is a Renewed Motion for Summary Judgment
(ECF No. 16) filed by Defendants U.S. Bank Trust, N.A., as Trustee
for LSF9 Master Participation Trust 1 (“U.S. Bank”) and Caliber Home
Loans,

Inc.

Defendants’

(“Caliber,”
Renewed

Motion

and
for

collectively,
Summary

“Defendants”).

Judgment

follows

the

Court’s September 28, 2017 Order (“Order”) denying Defendants’
Motion for Summary Judgment (ECF No. 5) without prejudice to
refiling.

Defendants have timely refiled their Motion for Summary

Judgment, incorporating by reference their Memorandum in Support
of their Motion for Summary Judgment (ECF No. 6) and supporting

1

Defendant U.S. Bank was incorrectly named “US Bank National
Association, as Trustee for LSF9 Master Participation Trust.”
(Defs.’ Renewed Mot. for Summ. J. 1.)

affidavit (ECF No. 7).

For the reasons set forth below, the Court

GRANTS Defendants’ Motion.
I.

Background 2
On February 27, 2009, Plaintiff David Grimaldi executed a

promissory

note

(“Note”)

in

favor

of

Shamrock

Financial

Corporation, and a mortgage (“Mortgage”) in favor of Mortgage
Electronic

Systems,

Inc.,

as

nominee

for

Shamrock

Financial

Corporation, to repay a loan in the principal amount of $208,160.00
for Plaintiff’s home located at 19 South Glen Drive in Coventry,
Rhode Island (the “Property”).

(Defs.’ Statement of Undisputed

Facts (“SUF”) ¶¶ 1, 3, 5, ECF No. 8.)

U.S. Bank is the current

assignee of the Mortgage and holder of the Note, 3 and Caliber is
the servicer of the loan on behalf of U.S. Bank.

(Defs.’ SUF ¶ 9;

Nelms Aff. 1, ECF No. 7.)

2

The Court recounts the record evidence in the light most
favorable to, and drawing all inferences in favor of, the nonmoving party. See Garcia-Garcia v. Costco Wholesale Corp., 878
F.3d 411, 417 (1st Cir. 2017).
3

Plaintiff alleges that U.S. Bank is not the current
assignee of the Mortgage and holder of the Note. (Pl.’s Statement
of Disputed Facts (“SDF”) ¶ 9, ECF No. 13-5.) This fact dispute,
however, is immaterial to Plaintiff’s claims, all of which turn on
whether Defendants complied with 24 C.F.R. § 203.604. See MirandaRivera v. Toledo-Davila, 813 F.3d 64, 69 (1st Cir. 2016) (stating
that summary judgment is proper where “movant can demonstrate that
‘there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law’” (quoting Fed.
R. Civ. P. 56(a))); (see generally Compl. ¶¶ 12-42, ECF No. 1-1).
Additionally, Plaintiff’s request for additional discovery under
Rule 56(d) of the Federal Rules of Civil Procedure, on this basis,
is discussed in Part III.B, infra.
2

In or around November 2012, Plaintiff defaulted on the loan
by failing to make the required payments.

(Defs.’ SUF ¶ 6.)

On

September 11, 2012, November 14, 2012, and December 11, 2012, JP
Morgan Chase Bank (“Chase”), the holder of the Note and Mortgage
at that time, sent letters to Plaintiff indicating that he had
options to pay the past-due amount on his Mortgage and that a
representative would visit his home within twenty days to discuss
a repayment plan.
Defs.’ SUF ¶ 8.)
his home.

(Nelms Aff. Ex. H, at 2, 4, 6, ECF No. 7-8;
However, no representative visited Plaintiff at

(Grimaldi Aff. ¶¶ 10, 12, ECF No. 13-2.)

On December 17, 2012, a notice of intent to foreclose was
sent to Plaintiff; he was sent a second notice of intent to
foreclose on April 18, 2013.
7-7; Defs.’ SUF ¶ 7).

(Nelms Aff. Ex. G, at 5, 13, ECF No.

Subsequently, on June 5, 2013, Plaintiff

received a notice of default and acceleration. 4
G, at 2; Defs.’ SUF ¶ 7).

(Nelms Aff. Ex.

Later, on July 8, 2016, Plaintiff

received a letter stating that a foreclosure sale of Plaintiff’s
home was scheduled for August 31, 2016. (Compl. 30.) Accordingly,
after receiving the July 8, 2016 letter, Plaintiff initiated suit,

4

Plaintiff disputes that the notices were default and
acceleration because the Mortgage does not authorize acceleration
and foreclosure unless permitted by the applicable regulations.
(Pl.’s SDF ¶ 7.)
The characterization of these notices is
immaterial to Defendants’ compliance with 24 C.F.R. § 203.604, and
thus is not a fact dispute that needs to be resolved. See MirandaRivera, 813 F.3d at 69.
3

alleging breach of contract and violation of the covenant of goodfaith

and

fair

dealing,

and

seeking

injunctive

relief

and

declaratory judgment, to stave off the foreclosure of his home.
Plaintiff’s

claims

against

Defendants

are

premised

on

Defendants’ failure to comply with 24 C.F.R. § 203.604 before
Defendants initiated foreclosure, as required by the Mortgage. 5
(See

generally

Compl.)

24

C.F.R.

§

203.604(b)

requires

the

mortgagee to “have a face-to-face interview with the mortgagor, or
make a reasonable effort to arrange such a meeting, before three
full monthly installments due on the mortgage are unpaid.”
C.F.R. § 203.604(b).

24

A reasonable effort to have a face-to-face

meeting requires, at a minimum, “one letter sent to the mortgagor
certified by the Postal Service as having been dispatched” and
“one trip to see the mortgagor at the mortgaged property.” 6
C.F.R.

§

203.604(d).

Specifically,

Plaintiff

alleges

24
that

Defendants failed to comply with § 203.604(b) by not providing him
with a face-to-face meeting.

(See generally Compl.)

5

Paragraph 9 of the Mortgage states that “[t]his Security
Instrument does not authorize acceleration or foreclosure if not
permitted by regulations of the Secretary [of Housing and Urban
Development (HUD)].” (Nelms Aff. Ex. C, at 5–6, ECF No. 7-3.) 24
C.F.R. § 203.604 is one such HUD regulation.
6

The trip to see the mortgagor at the mortgaged property
does not need to be made if the mortgaged property is more than
200 miles away from a branch office of the mortgagee or its
servicer. § 203.604(d). Defendants do not dispute that they lack
a branch office within 200 miles of the Property.
4

At the time of Defendants’ first motion for summary judgment,
the undisputed record reflected that Defendants had sent Plaintiff
three letters referencing a face-to-face meeting, but had not made
a trip to see the mortgagor (Plaintiff) at his property.

See §

203.604(d); (Nelms Aff. Ex. H, at 2, 4, 6; Grimaldi Aff. ¶¶ 10,
12).

Defendants’ failure to make “one trip to see” Plaintiff at

his property resulted in the Court denying Defendants’ first motion
for

summary

203.604(d).

judgment

without

prejudice

to

refiling.

See

§

The Order stated that Defendants had thirty days to

refile their motion for summary judgment with an updated affidavit
attesting

to

Defendants’

compliance

with

the

contractual

obligations at issue.
Defendants timely filed their Renewed Motion for Summary
Judgment

with

an

affidavit

averring

that

a

Caliber

default

servicing officer made a personal visit to Plaintiff’s Property on
October 25, 2017.

(Dunham Aff. ¶¶ 1–2, ECF No. 17.)

The affidavit

further states that Plaintiff was not home at the time of the visit
and, in his absence, the default servicing officer left a letter
at Plaintiff’s property.

(Id. ¶¶ 3–5.)

The letter left at

Plaintiff’s property offered Plaintiff the opportunity for a faceto-face meeting if he so desired.
No. 17-1.)

5

(Id. ¶¶ 4–5; Letter Ex. A, ECF

II.

Legal Standard
“Summary judgment is properly granted if the movant can

demonstrate that ‘there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a matter of
law.’”

Miranda-Rivera v. Toledo-Davila, 813 F.3d 64, 69 (1st Cir.

2016) (quoting Fed. R. Civ. P. 56(a)). “A ‘genuine’ dispute exists
when a jury can reasonably interpret the evidence in the nonmovant's favor.”

Id.

“A ‘material’ fact is ‘one that might affect

the outcome of the suit under the governing law.’”

Id.

(quoting

Vélez–Rivera v. Agosto–Alicea, 437 F.3d 145, 150 (1st Cir. 2006)).
In ruling on a motion for summary judgment, the court examines the
record evidence “in the light most favorable to, and drawing all
reasonable inferences in favor of, the nonmoving party.” Feliciano
de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1,
5 (1st Cir. 2000) (citing Mulero–Rodriguez v. Ponte, Inc., 98 F.3d
670, 672 (1st Cir. 1996)).
III. Discussion
A.

Defendants’ Compliance with 24 C.F.R. § 203.604

The clear language of § 203.604 requires a mortgagee to make
a

“reasonable

effort”

to

arrange

a

face-to-meeting

with

the

mortgagor, as defined as sending a letter to the mortgagor and
making a personal visit to the mortgagor’s property, “before three
full monthly installments due on the mortgage are unpaid.”
203.604(b), (d);

see

also

Countrywide
6

Home

Loans,

See §

Inc.

v.

Wilkerson, No. 03 C 50391, 2004 WL 539983, at *1 (N.D. Ill. Mar.
12, 2004) (“The court interprets this straightforward language to
require both the sending of a certified letter and a personal visit
to constitute a reasonable effort at arranging a face-to-face
meeting.”).

With their Renewed Motion for Summary Judgment,

Defendants have now proffered as an undisputed fact that a Caliber
representative visited the Property on October 25, 2017 and left
a letter upon discovering that Plaintiff was not home, as part of
its reasonable effort to arrange a face-to-face meeting with
Plaintiff pursuant to § 203.604.

See § 203.604(d); Hobby v.

Burson, 110 A.3d 796, 802-03 (Md. Ct. Spec. App. 2015) (holding
evidence that a representative visited the mortgaged property and
left a letter upon discovering mortgagor was not home established
a reasonable effort under § 203.604); (Nelms Aff. Ex. H, at 2, 4,
6; Dunham Aff. ¶¶ 3–5).

Thus, in light of the undisputed facts

that Defendants sent three letters to Plaintiff, on September 11,
2012, November 14, 2012, and December 11, 2012, stating that a
face-to-face meeting was scheduled to occur within the next twenty
days, (Nelms Aff. Ex. H, at 2, 4, 6), and made a personal visit to
Plaintiff’s

Property

(Dunham

Aff.

¶¶

3–5),

and

drawing

all

reasonable inferences in favor of Plaintiff, the Court is satisfied
that Defendants have met their contractual obligation to comply
with 24 C.F.R. § 203.604.

See 24 C.F.R. § 203.604(b), (d);

Miranda-Rivera, 813 F.3d at 69.
7

With no genuine fact dispute

remaining in regards to Defendants’ compliance with § 203.604, and
because all of Plaintiff’s claims are premised on Defendants’
alleged failure to comply with § 203.604, Defendants’ Renewed
Motion for Summary Judgment is GRANTED with respect to all of
Plaintiff’s claims.
B.

Plaintiff’s Request for Further Discovery under Rule
56(d) of the Federal Rules of Civil Procedure

Plaintiff, in his opposition, 7 requests discovery pursuant to
Rule 56(d) on several issues stemming from Defendants’ affidavits.
(See generally Mot. for Extension of Time, ECF No. 18.)
issues include:

These

an allegation that the Note was never endorsed to

U.S. Bank; the reference to a second face-to-face meeting in the
letter left at Plaintiff’s home, despite having no original faceto-face meeting; Defendants’ alleged failure to reference loss
mitigation options that must be presented to Plaintiff prior to a
face-to-face meeting; Defendants’ alleged failure to respond to
two requests for information pursuant to 12 C.F.R. § 1024.41 in
loss

mitigation

packages

sent

by

Plaintiff

to

Defendants;

Plaintiff’s allegation that he has been charged unreasonable fees
and expenses by Defendants’ attempt to exercise the statutory power
of sale without having a face-to-face meeting; and Plaintiff’s

7

As previously stated, the Court construes Plaintiff’s
Motion for an Extension of Time (ECF No. 18) as an opposition.
(See Mem. & Order, ECF No. 25.)
Plaintiff’s opposition does not
present developed, substantive arguments against summary judgment,
but instead only requests further discovery under Rule 56(d).
8

allegation

that

the

loan

had

not

been

accelerated,

which

Defendants’ deny and the mortgage statements do not support.

(Id.

at 1–4.)
“Rule

56(d)

allows,

in

certain

circumstances,

for

supplemental discovery after a motion for summary judgment has
been filed.”

Hicks v. Johnson, 755 F.3d 738, 743 (1st Cir. 2014)

(citing Fed. R. Civ. P. 56(d)).

“We have previously cautioned

that Rule 56(d) relief is not to be granted as a matter of course.”
Id. (citing Ayala–Gerena v. Bristol Meyers–Squibb Co., 95 F.3d 86,
92 (1st Cir. 1996)).
As we have explained: To benefit from the protections
of Rule 56[(d)], a litigant ordinarily must furnish the
nisi prius court with a timely statement — if not by
affidavit, then in some other authoritative manner —
that (i) explains his or her current inability to adduce
the facts essential to filing an opposition, (ii)
provides a plausible basis for believing that the
sought-after facts can be assembled within a reasonable
time, and (iii) indicates how those facts would
influence the outcome of the pending summary judgment
motion.
Id. (quoting Velez v. Awning Windows, Inc., 375 F.3d 35, 40 (1st
Cir. 2004)).

“Even upon submission of the required materials, the

district court is entitled to refuse a Rule 56(d) motion if it
concludes that the party opposing summary judgment is unlikely to
garner

useful

evidence

from

supplemental

discovery.”

Id.

(citations omitted).
In short, Plaintiff does not explain his inability to adduce
facts essential to his opposition, fails to provide a plausible
9

basis for believing that the sought-after facts can be assembled
within a reasonable time, and does not explain how these facts
would influence the outcome of the summary-judgment motion for any
of the issues on which he requests additional discovery.

See

Hicks, 755 F.3d at 743.

Moreover, it is difficult to see how

Plaintiff

“garner

is

likely

to

useful

evidence”

from

this

additional discovery because all of Plaintiff’s claims are based
on Defendants’ compliance with 24 C.F.R. § 203.604.
generally Compl. ¶¶ 12-42).

See id.; (see

Therefore, Plaintiff’s request for

additional discovery is denied.
IV.

Conclusion
For the reasons discussed above, Defendants’ Renewed Motion

for Summary Judgment (ECF No. 16) is GRANTED.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: April 27, 2018

10