United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISCUSSING CROSS-MOTIONS FOR SUMMARY JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT
SARAH EVANS BARKER, District Judge.
This matter is before the Court on the parties' cross-motions for summary judgment. Plaintiff Deborah Walton sued defendants Bank of America Corporation ("BOA") and Bank of America, N.A., as successor by merger to Bank of America Home Loans Servicing, LP ("BANA") (collectively, the "BAC defendants") under the Fair Credit Reporting Act, 15 U.S.C. 1681, et seq. ("FCRA") and the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601, et seq. ("RESPA"). Certain claims were dismissed in the Entries of February 17, 2012, and September 6, 2012 (dkts. 26 and 70).
The remaining claims in this action include the FCRA claim in Count IV and the RESPA claims in Counts V and VI. Specifically, Count IV of the Complaint alleges that the BAC defendants violated 15 U.S.C. § 1681s-2(b) of the FCRA by (1) reporting Walton's mortgages as late to credit reporting agencies without noting disputes, (2) failing to properly investigate Walton's dispute after receiving notice from credit reporting agencies of Walton's dispute, (3) failing to accurately respond to credit reporting agencies, and (4) failing to correctly report results of an investigation to credit reporting agencies. See Compl., dkt. 1, ¶¶ 44-51. Count V of Walton's Complaint alleges that the BAC defendants violated 12 U.S.C. § 2605(e) of RESPA by failing to timely respond to Walton's November 4, 2010, written request. Count VI seeks an accounting under RESPA.
The BAC defendants move for summary judgment in their favor and against Walton on all of the remaining claims. Walton seeks summary judgment in her favor only as to her RESPA claims in Counts V and VI. For the reasons explained below the BAC defendants' motion for summary judgment [dkt. 102] is granted and plaintiff Walton's cross-motion for summary judgment [dkt. 152] is denied.
I. Standard of Review
"Summary judgment is appropriate where 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 judgment as a matter of law.'" Westra v. Credit Control of Pinellas, 409 F.3d 825, 827 (7th Cir. 2005) ( quoting Rule 56(c) of the Federal Rules of Civil Procedure ). A "material fact" is one that "might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To survive a motion for summary judgment, the non-moving party must set forth specific, admissible evidence showing that there is a material issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The key inquiry, then, is whether admissible evidence exists to support a plaintiff's claims, not the weight or credibility of that evidence, both of which are assessments reserved for the trier of fact. See Schacht v. Wis. Dep't of Corrections, 175 F.3d 497, 504 (7th Cir. 1999). Indeed, the existence of cross-motions for summary judgment does not necessarily mean that there are no genuine issues of material fact. R.J. Codman Derailment Serv., Inc. v. Int'l Union of Operating Eng.'s., 335 F.3d 643, 647 (7th Cir. 2003). Rather, the process of taking the facts in the light most favorable to the nonmoving party, first for one side and then for the other, may reveal that neither side has enough to prevail without a trial. Id. at 648. "With cross-motions, [the Court's] review of the record requires that [the Court] construe all inferences in favor of the party against whom the motion under consideration is made." Oregon v. Arbitration Forums, Ins., 246 F.3d 975, 983 (7th Cir. 2001) ( quoting Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir. 1998)).
II. Walton's Motion for Summary Judgment
As previously stated, Walton seeks summary judgment on Counts V and VI of the Complaint. Count V of Walton's Complaint alleges that the BAC defendants violated 12 U.S.C. § 2605(e) of RESPA by failing to timely respond to Walton's November 4, 2010, qualified written request. Count VI seeks an accounting under RESPA.
RESPA was enacted in 1974 with the goal of ensuring that consumers "are provided with greater and more timely information on the nature and costs of the settlement process and are protected from unnecessarily high settlement charges caused by certain abusive practices that have developed in some areas of the country." Howland v. First American Title Ins. Co., 672 F.3d 525, 528 (7th Cir. 2012) (quoting 12 U.S.C. § 2601(a)). The statute imposes a number of duties on lenders and loan servicers. Most relevant here is the requirement that loan servicers respond promptly to borrowers' written requests for information, § 2605(e).
First, it takes a "qualified written request" to trigger the loan servicer's duties under RESPA to acknowledge and respond. As the Seventh Circuit explained in Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 680-681 (7th Cir. 2011):
The statute defines a qualified written request as written correspondence (other than notices on a payment coupon or similar documents) from the borrower or her agent that requests information or states reasons for the borrower's belief that the account is in error. 12 U.S.C. § 2605(e)(1)(B). To qualify, the written request must also include the name and account of the borrower or must enable the servicer to identify them. Id.
Within 60 days after receiving a qualified written request, the servicer must take one of three actions: either (1) make appropriate corrections to the borrower's account and notify the borrower in writing of the corrections; (2) investigate the borrower's account and provide the borrower with a written clarification as to why the servicer believes the borrower's account to be correct; or (3) investigate the borrower's account and either provide the requested information or provide an explanation as to why the requested information is unavailable. See 12 U.S.C. § 2605(e)(2)(A), (B), and (C) [effective September 30, 1996 to July 20, 2011]. No matter which action the servicer takes, the servicer must provide a name and telephone number of a representative of the servicer who can assist the borrower. See id. During the 60-day period after a servicer receives 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 consumer reporting agency." 12 U.S.C. § 2605(e)(3).
B. Count V
In Count V, Walton alleges that the BAC defendants failed to provide an adequate response to her November 4, 2010, qualified written request. In Walton's cross motion for summary judgment, however, Walton argues that the BAC defendants are liable because they failed to respond to her May 2, 2010, qualified written request.
In response, the BAC defendants argue that Walton's cross-motion fails because Walton seeks relief based solely on an alleged written request that was not pled anywhere in the Complaint. The BAC defendants are correct. Walton is not entitled to relief based on the May 2, 2010, qualified written request because the alleged violation flowing from that request was not pled in the Complaint. Nor was the May 2, 2010, qualified written request attached to the Complaint along with the November 4, 2010, qualified written request. Walton shall not be permitted to amend her Complaint to add claims related to an alleged May 2, 2010, qualified written request through summary judgment briefing. Conner v. Ill. Dept. of Nat. Res., 413 F.3d 675, 679 (7th Cir. 2005) ("[A] plaintiff may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment.").
Under these circumstances, Walton's cross-motion for summary judgment [dkt. 152] as to Count V is denied.
C. Count VI
Walton's cross-motion for summary judgment also seeks summary judgment as to Count VI. Count VI seeks an accounting under RESPA. Walton's briefing of her cross-motion does not provide any basis upon which the Court could conclude that she is entitled to an accounting under RESPA. Accordingly, Walton's cross-motion for summary judgment [dkt. 152] as to Count VI is denied.
III. BAC Defendants' Motion for ...