Coleman et al v. Quicken Loans, Inc. et al

Filing 128

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT,GRANTING M&T BANK'S MOTIONS TO JOIN AND DENYING DEFENDANTS' MOTION IN LIMINE AS MOOT: Granting 106 Motion for Summary Judgment; Granting 108 Motion for Joinder; Denying as moot 110 Motion in Limine; Denying as moot 112 Motion for Joinder; Granting 116 Motion for Joinder; and Granting 120 Motion for Joinder. Clerk directed to enter Judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 4/6/15. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
THOMAS H. FLUHARTY, Trustee of the
Bankruptcy Estate of D. Kevin Coleman
and Diane M. Coleman and
D. KEVIN COLEMAN and DIANE M. COLEMAN,
Plaintiffs,
v.

Civil Action No. 5:13CV68
(STAMP)

QUICKEN LOANS, INC., TITLE SOURCE, INC.
and M&T BANK,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT,
GRANTING M&T BANK’S MOTIONS TO JOIN AND
DENYING DEFENDANTS’ MOTION IN LIMINE AS MOOT
I.

Procedural History

The plaintiffs filed this civil action against defendants,
Quicken Loans Inc. (“Quicken”), Title Source Inc. (“Title”), and
Bank of America, N.A. (“B of A”) regarding two loan refinancing
transactions. In their complaint, the plaintiffs allege six claims
based on the West Virginia Residential Mortgage Lender, Broker, and
Servicer Act, W. Va. Code § 31-17-1, et seq. (“RMLBS”) and the West
Virginia Consumer Protection Act, W. Va. Code § 46 A-1-101, et seq.
(“CPA”).

Count

I

alleges

that

Quicken

did

not

provide

the

plaintiffs with copies of the executed loan documents at closing,
in violation of the RMLBS.

Count II asserts that because Quicken

and Title are each owned by the same parent corporation, any
payment made to Title regarding the loan transactions did not

qualify as a payment to an “unrelated third party,” thus violating
the RMLBS.

Count III alleges that actions of Quicken and Title

rendered the transaction with the plaintiffs unconscionable. Count
IV claims that the actions of Quicken and Title created a false
impression that the fees were lawful in violation of the CPA.
Count V asserts that Quicken and Title failed to disclose their
business relationship, thus constituting a deceptive and unlawful
practice under the CPA.

Count VI alleges that B of A took whatever

interest existed in the loan and deed of trust, subject to the
claims of the plaintiffs.

Thus, the plaintiffs seek to have the

claims against Quicken bind B of A as well.
several

items

of

relief,

including

The plaintiffs seek

punitive

and

compensatory

damages, the cancellation of the loan, and attorney’s fees and
costs.
The defendants filed a motion to dismiss, and this Court
granted that motion as to Counts I, II, IV, and V.

ECF No. 28.

Therefore, the remaining counts at this stage are Counts III and
VI, which pertain to the claim of unconscionability.

Later, the

parties stipulated that M&T Bank (“M&T”) substituted for B of A in
this civil action.

ECF No. 72.

At issue now are the defendants’

motion for summary judgment and motion in limine.
A.

Motion for Summary Judgment
Defendants Quicken and Title filed their motion for summary

judgment, to which M&T bank filed a motion to join.

2

ECF Nos. 106

and 108.

The defendants assert four arguments in their motion for

summary

judgment,

noting

that

unconscionability claim remains.

only

the

plaintiffs’

First, the defendants point out

that the plaintiffs admit that the loan transactions are not
unfair.

Therefore, the plaintiffs’ unconscionability claim fails

as a matter of law.

Second, the defendants argue that although

they may have failed to comply with a technical requirement of the
RMLBS, that violation alone does not demonstrate a procedurally
unconscionable transaction.

In particular, the plaintiffs did not

receive copies of the executed loan documents at closing.
the

defendants

provided

the

plaintiffs

with

Rather,

identical

and

unexecuted copies of the loan documents prior to closing. Although
they may have technically violated the RMLBS, the defendants assert
that

such

a

violation

does

unconscionable transaction.
loan

transaction

was

not

not

equate

to

a

procedurally

Third, the defendants claim that the
substantively

unconscionable.

The

plaintiffs claim that their loan transaction was substantively
unfair because they paid a settlement service fee to Title that
allegedly violated the RMLBS. Regarding that payment, however, the
defendants argue that the plaintiffs were aware of not only the
affiliation between Title and Quicken, but also their right to
select another settlement service provider.
argue

that

no

substantively

Thus, the defendants

unconscionable

regarding the loan transaction.

conduct

occurred

Fourth, the defendants contend

3

that the plaintiffs are sophisticated parties.

Here, they point

out that plaintiff D. Kevin Coleman is an attorney, and that
plaintiff

Diane

education.

M.

Coleman

obtained

a

bachelor’s

degree

in

Therefore, because no genuine issues of material fact

exist, the defendants request that this Court grant their motion
for summary judgment.
The plaintiffs then filed a response in opposition.
109.

ECF No.

The plaintiffs first point out that the defendants violated

the RMLBS because they failed to provide copies of the executed
loan

documents

at

closing.

Next,

regarding

the

fees,

the

plaintiffs contend that although this Court dismissed that claim
under

the

RMLBS,

the

conduct

unconscionable under the CPA.
that

this

Court

determined

regarding

the

fees

is

also

In particular, the plaintiffs admit
that

the

applicable

statute

limitations barred any causes of action under the RMLBS.

of

Despite

that, the plaintiffs assert that “the violation of a statute which
defines the public policy of the State of West Virginia is an
unconscionable act within the meaning of” the CPA.

Therefore, the

plaintiffs contend that continued and willful violations of the
RMLBS by the defendants is unconscionable and thus actionable under
the CPA.

With that in mind, the plaintiffs next argue that aside

from the defendants’ procedural violations of the CPA, substantive
violations

also

exist.

Here,

the

plaintiffs

settlement service fees that they paid to Title.

4

point

to

the

Further, the

plaintiffs assert that any willful violation of the RMLBS or CPA,
no matter how technical, results in the voiding of a loan, among
other relief.

For those reasons, the plaintiffs claim that the

defendants’ motion should be denied.
Defendants Quicken and Title then filed a reply, to which M&T
filed a motion to join.

ECF Nos. 117 and 120, respectively.

The

defendants first point out that the plaintiffs continue to assert
violations of the CPA and RMLBS rather than show how they satisfy
the legal standard of unconscionability.

Next, the defendants

argue that the plaintiffs failed to raise any genuine issues of
material fact as to the unconscionability of the loan transaction.
Finally, the defendants reassert their arguments from their initial
motion, which are that (1) receiving unexecuted copies of the loan
documents prior to closing does not satisfy the standard for
procedural unconscionability, (2) no substantively unconscionable
conduct occurred, and (3) the plaintiffs are sophisticated parties.
B.

Defendants’ Motion in Limine
The defendants filed a motion in limine, to which M&T filed a

motion to join.

ECF Nos. 110 and 112, respectively.

In their

motion, the defendants seek to exclude all testimony and evidence
related to the loan closings of certain third party borrowers. The
defendants provide a list of third party borrowers from which the
plaintiffs plan to elicit testimony and evidence.

Here, the

defendants point out that claims under unconscionability are fact

5

specific.

The facts that matter, however, are those of the

plaintiffs rather than the facts of third parties.

Further, the

defendants

insufficient

believe

that

the

plaintiffs

provide

evidence to prove that the plaintiffs and those third party
borrowers

are

circumstances.

similarly

situated

or

experienced

the

same

Finally, the defendants assert that no probative

value exists concerning the evidence of the third party borrowers.
Therefore, they request that such evidence be excluded.
The plaintiffs then filed a response in opposition.
113.

ECF No.

In that response, the plaintiffs first discuss the specific

evidence they seek to present.

In particular, the plaintiffs seek

to use the loan closing documents and testimony from those third
party borrowers about what documents were received at closing. The
plaintiffs indicate that the third party borrowers all received the
same unsigned loan documents. Based on those repeated occurrences,
the plaintiffs argue that those documents and the related evidence
should be admitted under Rule 406 of the Federal Rules of Evidence
because they establish a routine practice of the defendants.
Second, the plaintiffs believe that such evidence is relevant for
proving their unconscionability claim.

For those reasons, the

plaintiffs request that this Court deny the defendants’ motion in
limine.
For the reasons set forth below, the defendants’ motion for
summary judgment must be granted, as well as M&T’s motions to join.

6

Accordingly, the defendants’ motion in limine and M&T’s motion to
join that motion in limine are denied as moot.
II.
The

claims

in

this

Facts

civil

action

pertain

to

two

loan

transactions among the plaintiffs, one of whom is an attorney,
Quicken, and Title.

The transactions occurred in 2008 and 2009

involving the plaintiffs’ refinancing of their loan.
Exs. 1 and 4, respectively.

ECF No. 106

As a result of those refinancing

transactions, the plaintiffs ultimately executed a note in favor of
Quicken, worth approximately $215,000.00.

At the closing of those

refinancing transactions, Quicken did not provide the plaintiffs
with copies of the executed documents.

Quicken did, however,

provided the plaintiffs with two then unexecuted copies of the loan
documents prior to the closing of each refinancing transaction.
ECF No. 106 Exs. 3 and 7.

The plaintiffs admit that as to each

refinancing transaction, their terms and closing costs were not
unfair.

ECF Nos. 106 Exs. 3 *45, 47 and 57, 6 *26.

Further, the

plaintiffs reviewed the documents that they would sign at closing.
ECF No. 106 Exs. 3 *60 and 6 *17.
In addition to receiving two copies of the loan documents, the
plaintiffs

also

Disclosure.”
plaintiffs

received

an

“Affiliated

ECF No. 106 Ex. 9.
that

relationship.

Title

and

Business

Arrangement

That disclosure notified the

Quicken

maintained

a

business

In particular, that disclosure stated that Title

7

performs “title insurance, title search, settlement, and appraisal
management services” for Quicken.

Id.

In addition to disclosing

that relationship and those services, the disclosure also set forth
the settlement services and charges that the plaintiffs would incur
if they chose to use Title as a settlement service provider.

Id.

More importantly, the disclosure stated the following in all
capital letters:
There are frequently other settlement service providers
available with similar services. You [the plaintiffs]
are free to shop around and determine that you are
receiving the best services and the best rate for these
services (with exception of appraisal services).
Id. at 2. The plaintiffs received the disclosure prior to closing.
Moreover, they were notified of the right “to shop around,” and did
not choose to do so.

ECF No. 106 Exs. 3 *115 and 6 *29-30.

The

fees that Title did receive for its settlement services were
charged for work actually performed regarding the loan closing.
ECF No. 106 Ex. 7.

The plaintiffs did not raise questions or

concerns regarding those fees.

ECF No. 106 Ex. 3 *109 and Ex. 6

*30.
III.
Summary

judgment

is

Applicable Law
appropriate

if

“the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.”

8

Fed. R. Civ. P. 56(c).

The

party seeking summary judgment bears the initial burden of showing
the absence of any genuine issues of material fact.
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

See Celotex

“The burden then

shifts to the nonmoving party to come forward with facts sufficient
to create a triable issue of fact.”

Temkin v. Frederick County

Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
However, as the Supreme Court of the United States noted in
Anderson, “Rule 56(e) itself provides that a party opposing a
properly supported motion for summary judgment may not rest upon
the mere allegations or denials of his pleading, but . . . must set
forth specific facts showing that there is a genuine issue for
trial .” Anderson, 477 U.S. at 256.

“The inquiry performed is the

threshold inquiry of determining whether there is the need for a
trial—whether, in other words, there are any genuine factual issues
that properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party.”

Id. at 250;

see also Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th
Cir. 1979) (Summary judgment “should be granted only in those cases
where it is perfectly clear that no issue of fact is involved and
inquiry into the facts is not desirable to clarify the application
of the law.” (citing Stevens v. Howard D. Johnson Co., 181 F.2d
390, 394 (4th Cir. 1950))).

9

In Celotex, the Court stated that “the plain language of Rule
56(c) mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a
showing

sufficient

to

establish

the

existence

of

an

element

essential to that party’s case, and on which that party will bear
the burden of proof at trial.”

Celotex, 477 U.S. at 322.

Summary

judgment is not appropriate until after the non-moving party has
had sufficient opportunity for discovery.

See Oksanen v. Page

Mem’l Hosp., 912 F.2d 73, 78 (4th Cir. 1990), cert. denied, 502
U.S. 1074, 112 S. Ct. 973, 117 L.Ed.2d 137 (1992).

In reviewing

the supported underlying facts, all inferences must be viewed in
the light most favorable to the party opposing the motion.

See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986).
IV.

Discussion

As provided earlier, at issue are the defendants’ motion for
summary judgment and motion in limine. Those motions are discussed
below in the order presented.
A.

Motion for Summary Judgment
As the defendants correctly point out, the remaining claims in

this civil action are Counts III and VI.

Regarding Count III, the

plaintiffs alleged that Quicken and Title violated the RMLBS,
thereby rendering the refinancing transactions unconscionable. ECF
No. 1.

Concerning Count VI, that count asserts that B of A, which

10

has since been substituted by M&T, maintained a sufficient interest
in the loan so as to bind any judgment against Quicken and Title to
M&T.

In their motion for summary judgment, the defendants argue

that the refinancing transactions are neither procedurally nor
substantively unconscionable.

The plaintiffs contend that the

defendants arguments are misguided, pointing to (1) the defendants’
violation of the RMLBS by failing to provide copies of the executed
documents at the closing, and (2) the payment of settlement service
fees to Title.

As discussed below, however, the plaintiffs’

arguments and the record provided do not satisfy the applicable
legal standard.
West

Virginia

law

provides

that

“[t]he

doctrine

of

unconscionability means that, because of an overall and gross
imbalance, one-sidedness or lop-sidedness in a contract, a court
may be justified in refusing to enforce the contract as written.”
Brown v. Genesis Healthcare Corp. (“Brown II”), 729 S.E.2d 217, 226
(W. Va. 2012).

Analyzing a claim under that doctrine requires an

“inquiry into the circumstances surrounding the execution of the
contract and the fairness of the contract as a whole.”

Syl. Pt. 3,

Troy Min. Corp. v. Itmann Coal Co., 346 S.E.2d 749 (W. Va. 1986).
When assessing a claim of unconscionability, a court “must focus on
the

relative

positions

of

the

parties,

the

adequacy

of

the

bargaining positions, the meaningful alternatives available to the
plaintiff, and the existence of unfair terms in the contract.”

11

Syl. Pt. 4, Art’s Flower Shop, Inc. v. Chesapeake and Potomac
Telephone Co. of West Virginia, Inc., 413 S.E.2d 670 (W. Va. 1991)
(internal quotations omitted).
More specifically, however, West Virginia law separates a
claim of unconscionability into two components: procedural and
substantive.

Brown II, 729 S.E.2d at 227 (internal citations

omitted). A contract term becomes unenforceable if both procedural
and substantive unconscionability exist. Id. In assessing whether
those two components have been proven, courts “apply a ‘sliding
scale’

in

oppressive

making
a

this

contract

determination:
term,

the

less

the

more

evidence

unconscionability is required” to prove that claim.
citations and quotations omitted).

substantively
of

procedural

Id. (internal

Those two components are

separately analyzed below.
1.

Procedural Unconscionability

Procedural
improprieties,

unconscionability
or

unfairness

formation of the contract.”

in

refers
the

to

any

bargaining

“inequities,
process

and

Brown II, 729 S.E.2d at 227; see

Pingley v. Perfection Plus Turbo-Dry, L.L.C., 746 S.E.2d 544, 551
(W. Va. 2013).

It requires an examination of certain inadequacies

that, when viewed together, “result in a lack of a real and
voluntary meeting of the minds of the parties.”

Pingley, 746

S.E.2d at 551 (quoting Syl. Pt. 17, Brown v. Genesis Healthcare
Corp. (“Brown I”), 724 S.E.2d 250 (W. Va. 2011)).

12

Those certain

inadequacies include “the age, literacy, or lack of sophistication
of a party; hidden or unduly complex contract terms; the adhesive
nature of the contract; and the manner and setting in which the
contract was formed, including whether each party had a reasonable
opportunity to understand the terms of the contract.” Pingley, 746
S.E.2d at 551 (quoting Brown I, 724 S.E.2d at syl. pt. 17).
After analyzing the record, it is clear that no procedural
unconscionability

exists

as

to

the

refinancing

transactions.

Regarding the relative positions of the parties, no great disparity
exists.

Although the defendants are large corporate parties, the

facts do not indicate that the plaintiffs were forced to use
Quicken as their loan servicer, or to use Title as their settlement
services provider.

Rather, the plaintiffs received notice that

they had a right to select a different settlement service provider,
as seen in the Affiliated Business Disclosure.

ECF No. 106 Ex. 9.

As to the sophistication of the parties, that does not appear to be
a serious concern.

Plaintiff D. Kevin Coleman is an attorney

specializing in medical malpractice defense.

ECF No. 106 Ex. 3.

Plaintiff Diane M. Coleman has a bachelor’s degree and participated
in classes towards a master’s degree.

Id. at Ex. 6.

Further, Mr.

Coleman indicated a familiarity with the loan closing process. Id.
at Ex. 3 *27.

The point is that the record shows that the

plaintiffs are not unsophisticated with respect to the refinancing
transactions.

13

As to the complexity and length of the documents, although the
loan documents could be considered lengthy, the plaintiffs reviewed
the documents that they would sign at closing.
*17.

ECF No. 106 Ex. 6

Even more telling than that are the plaintiffs’ admissions

that as to each refinancing transaction between them and Quicken,
their terms and costs were not unfair.
47, 6 *26.

ECF No. 106 Exs. 3 *45 and

Regarding the settlement services provided by Title,

the plaintiffs received a disclosure that not only disclosed the
relationship between Quicken and Title, but also notified them of
their right to seek a different provider.

That right “to shop

around” was printed in large capital letters, and the plaintiffs
received that disclosure before closing.

The plaintiffs neither

raised objections to the fees that Title charged nor attempted to
seek a different settlement service provider. See ECF No. 106 Exs.
3 and 6.

In further support of their argument, the defendants’

expert witness stated that the settlement service provider fees
that Title charged “are within industry standards,” and that
“nothing unfair” exists “about [those] fees, which were charged by
[Title] for actual work performed in connection with the closing.”
ECF No. 106 Ex. 8. Further, the plaintiffs stipulated that no outof-pocket damages, pain and suffering damages, or specific losses
on fees occurred.

ECF No. 106 Ex. 3 *56.

Under the above facts,

the record simply does not show that the refinancing transactions
contained inadequacies such that a “lack of real and voluntary

14

meeting of the minds of the parties” exists.

Pingley, 746 S.E.2d

at 551 (internal quotations and citations omitted).
The

plaintiffs

contend

that

the

loan

transactions

were

procedurally unconscionable because the defendants violated the
RMLBS.

Under West Virginia Code § 31-17-8(j)(6), it states that

“No instrument evidencing or securing a primary or subordinate
mortgage loan shall contain . . . [b]lank or blanks to be filled in
after the consummation of the loan.

A borrower must be given a

copy of every signed document executed by the borrower at the time
of closing.”

The plaintiffs originally asserted a violation of

that above provision in Count I of the complaint.

This Court

dismissed that claim under the applicable statute of limitations.
ECF No. 28.

Notwithstanding the dismissal of that claim, the

plaintiffs appear to argue that failing to comply with the terms of
that statute, or violating a statute that defines the public policy
of the State of West Virginia, is an unconscionable act.

As the

defendants point out, however, that is not the standard for
satisfying a claim of unconscionability.

Rather, the conduct of

the defendants must be analyzed under the applicable standard
provided under West Virginia law.

Further, the plaintiffs provide

no additional evidence to refute that finding, or to at least raise
genuine issues of material fact.

Because of that, the defendants’

motion must be granted.

15

2.

Substantive Unconscionability

Notwithstanding the lack of procedural unconscionability, this
Court

will

address

unconscionability.

the

second

component

for

a

claim

of

Substantive unconscionability relates to the

“unfairness in the contract itself and whether a contract term is
one-sided and will have an overly harsh effect on the disadvantaged
party.” Pingley, 746 S.E.2d at 551 (quoting Brown I, 724 S.E.2d at
syl. pt. 19).

When assessing substantive unconscionability, the

factors that a Court must analyze “vary with the content of the
agreement.”
omitted).

Pingley,

746

S.E.2d

at

551

(internal

citations

Therefore, courts should “assess whether a contract

provision is substantively unconscionable on a case-by-case basis.”
Brown I, 724 S.E.2d at 262.

Nonetheless, relevant factors to

consider include “the commercial reasonableness of the contract
terms, the purpose and effect of the terms, the allocation of the
risks between the parties, and public policy concerns.”

Pingley,

746 S.E.2d at 551; see also Dan Ryan Builders, Inc. v. Nelson, 737
S.E.2d 550 (W. Va. 2012); Johnson Controls, Inc. v. Tucker, 729
S.E.2d 808 (W. Va. 2012).
Applying the above legal standard, the plaintiffs have not
sufficiently demonstrated that the transactions were substantively
unconscionable.

Regarding commercial reasonableness, the facts do

not show any commercially unreasonable terms.
received a loan from Quicken.

The plaintiffs

In exchange, the plaintiffs would

16

pay the principal sum plus interest to Quicken.

ECF No. 106 Ex. 1.

As indicated earlier, the plaintiffs admitted that the loan terms
were

not

The

here

plaintiffs,

parties,

unfair.
the

circumstances

agreements for their loan.

show

entered

that

into

sophisticated

two

refinancing

The facts regarding those transactions

display nothing unfair about the transaction and fail to raise
concerns as to commercial unreasonableness or a public policy
violation.

Further, nothing about such an exchange and agreement

demonstrates an unfair allocation of risk as to either party.
Although the plaintiffs may not have received copies of the
executed loan documents at signing, that alleged violation of the
RMLBS does not by itself satisfy the above legal standard.

The

record shows that the plaintiffs received, prior to the closing
date, unexecuted copies of the documents that were identical to
what

would

be

signed

at

closing.

They

also

reviewed

those

documents and raised no concerns. Therefore, as to the refinancing
transactions between the plaintiffs and Quicken, the record does
not show that the refinancing agreements’ terms were substantively
unconscionable.
As to the use of Title for settlement services, this Court
also finds for the defendants.

In their complaint, the plaintiffs

alleged that the fee arrangement between Title and Quicken violated
the RMLBS.

In particular, West Virginia Code § 31-17-8(g) states

the following:

17

Except for fees for services provided by unrelated third
parties for appraisals, inspections, title searches and
credit reports, no application fee may be allowed whether
or not the mortgage loan is consummated; however, the
borrower may be required to reimburse the licensee for
actual expenses incurred by the licensee in a purchase
money transaction after acceptance and approval of a
mortgage loan proposal made in accordance with the
provisions of this article which is not consummated
because of (1) The borrower’s willful failure to close
the loan; or (2) The borrower’s false or fraudulent
representation of a material fact which prevents closing
of the loan as proposed.
Because the plaintiffs paid a fee to Title, which maintains an
affiliation

with

Quicken,

the

plaintiffs

believe

that

defendants violated the above provision of the RMLBS.

the
That

situation allegedly demonstrates substantive unconscionability.
The plaintiffs’ argument, however, is without merit.
The standard for whether terms of a contract are substantively
unconscionable is not proven simply by alleged violations of a
statute.

Rather, the plaintiffs need to demonstrate that the fee

arrangement between the plaintiffs and Title is overly “one-sided”
or unfair, as provided above.
standard.

As

indicated

The plaintiffs do not satisfy that

earlier,

the

plaintiffs

received

a

disclosure from the defendants, stating that Title and Quicken
maintained a business relationship. In particular, that disclosure
described the services that Title performs.

The disclosure also

provided the costs that the plaintiffs would incur if they chose to
use Title as a settlement service provider.

18

Id.

As stated

earlier, however, the disclosure stated the following in all
capital letters:
There are frequently other settlement service providers
available with similar services. You [the plaintiffs]
are free to shop around and determine that you are
receiving the best services and the best rate for these
services (with exception of appraisal services).
Id. at 2. The plaintiffs received the disclosure prior to closing.
They were notified of the right “to shop around,” and did not
choose to do so.

ECF No. 106 Exs. 3 *115 and 6 *29-30.

With those

facts in mind, this Court fails to see how the transactions and
their terms were unconscionable.

Mrs. Coleman, when asked about

whether the closing documents appeared unfair in any way, even
stated that “[n]othing jumped out at me.”

ECF No. 106 Ex. 6 *20.

Further, the plaintiffs received sufficient information of not only
the relationship between Quicken and Title, but also of their right
to seek settlement services from a different provider.

As stated

earlier, the defendants’ expert witness stated that the settlement
service provider fees that Title charged “are within industry
standards,” and that “nothing unfair” exists “about [those] fees,
which

were

charged

by

[Title]

connection with the closing.”

for

actual

work

ECF No. 106 Ex. 8.

performed

in

This Court finds

insufficient evidence in the refinancing terms and record that
demonstrates a level of unfairness that satisfies the substantive
unconscionability standard.

Further, the plaintiffs provide no

additional evidence to refute that finding, or to at least raise

19

genuine issues of material fact.

Because of that, the defendants’

motion must be granted.
B.

Motion in Limine
As discussed earlier, the defendants filed a motion in limine

relating to evidence of third party borrowers, which M&T filed a
motion to join in.

ECF Nos. 110 and 112.

This Court, however, has

granted the defendants’ motion for summary judgment. Therefore, it
is

unnecessary

for

this

Court

defendants’ motion in limine.

to

discuss

the

merits

of

the

Thus, the defendants’ motion in

limine, as well as M&T’s motion to join, are denied as moot.
V.

Conclusion

For the reasons set forth above, motion for summary judgment
of Quicken Loans, Inc. and Title Source, Inc. (ECF No. 106), as
well as M&T Bank’s related motions to join (ECF Nos. 108 and 120)
are GRANTED. The motion in limine of Quicken Loans, Inc. and Title
Source, Inc. (ECF No. 110) and M&T Bank’s motion to join their
motion in limine (ECF No. 112) are both DENIED AS MOOT.

It is

further ORDERED that this civil action be DISMISSED and STRICKEN
from the active docket of this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.

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DATED:

April 6, 2015

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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