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Gordon v. Bank of New York Mellon Corp.

United States District Court, N.D. Indiana, LaFayette Division

February 17, 2017




         This matter is before the court on defendant Safeguard Properties, LLC's, (“Safeguard”) motion for summary judgment. (DE # 87.) For the following reasons, the motion is granted in part and denied in part.

         I. BACKGROUND

         On November 22, 2010, plaintiffs, Gerald Gordon and Tahara Brown, purchased a single-family residence located in Lake Village, Indiana (“the Property”). (DE # 88 at 6; DE # 91 at 1.) The Property was situated among several parcels of land with complicated title issues. (DE # 88 at 5; DE # 88-3, Gordon Dep. at 7-8.) Some of the adjacent parcels were previously owned by Steven Ashcraft. (DE # 88 at 5.) Through foreclosure proceedings in 2009, two of Ashcraft's parcels adjacent to the Property were conveyed from CIT Group to defendant Bank of New York Mellon (“BONY”). (Id.) Situated directly to the north of the Property, and the residence thereupon, BONY's parcels did not feature any structures or improvements. (Id.)

         Shortly after acquiring the parcels, BONY's mortgage servicer, Vericrest Financial n/k/a Caliber Home Loans (“Vericrest”), hired two real estate brokers to perform an occupancy check on the BONY parcels. (DE # 88 at 5.) BONY mistakenly believed that its parcels included the land on which the residence was situated. (Id.) When one of the brokers, Greg Whaley, arrived to perform the check, he was greeted by Ashcraft, who apprised him of the complicated title issues with the Property and the adjoining parcels. (Id.) Whaley confirmed the title complications with the Newton County Building Commissioner and reported these concerns back to Vericrest. (Id.) In response, Vericrest referred the matter to its foreclosure department to file a title claim. (DE # 88 at 5; DE # 88-4, Grimes Dep. at 48.)

         It is in this interim period, while Vericrest was clearing up the title issues with the BONY parcels, that plaintiffs bought the Property along with the residence and other structures upon it. (DE # 88 at 6; DE # 91 at 1-2.) However, within a month, they were obliged to leave the state for work purposes. (DE # 88 at 6; DE # 91 at 1.) Thus on December 16, 2010, plaintiffs secured and winterized the Property and left for Arizona. (Id.)

         From the facts that follow, it is clear that BONY and Vericrest had not realized their mistake and still believed that their parcels included part of the Property and the residence. On February 17, 2011, Vericrest notified Whaley that it was “ready to move” on the BONY parcels and instructed him to perform another occupancy check, photograph the premises, and change the locks. (DE # 88 at 6.) Whaley arrived at the Property between February 15, 2011, and February 19, 2011, and found the north door to the property standing wide open and the secondary structures unlocked as well. (DE # 88 at 7; DE # 88-5, Whaley Dep. at 23-24.) Whaley hired a locksmith to change the locks and put a lockbox on the residence. (Id.) Customarily, Whaley would not be present while the locksmith changed the locks, but rather he would simply instruct the locksmith as to what code to use on the lockbox. (DE # 88-5, Whaley Dep. at 46.)

         Meanwhile, Vericrest hired defendant Safeguard to perform property preservation services with the following instructions: “Safeguard- Please do not do this trash out yet, our agent will rekey but not sure about personal property yet but it is vacant. Please have all other services done.”[1] (DE # 88 at 6; DE # 91 at 2.) Safeguard in turn assigned its own vendors to perform various services on the Property including inspections, winterizing and landscaping. (DE # 88 at 7; DE # 91 at 2.) As part of that assignment, Safeguard instructed its initial vendors, Stan and Judy Kush to not perform a trash out at that time. (DE # 88 at 7.)

         The Kushes arrived at the Property on February 19th and accessed the residence by using the lockbox code. (DE # 88-7, J. Kush Affidavit at ¶ 11; DE # 88-8, S. Kush Affidavit at ¶ 11.) They winterized the pipes in the residence and took pictures for purposes of generating a bid for further services including a trashout. (Id.; DE # 88-2, Cogan Dep. at 42.) The Kushes did not perform a trashout that day, nor did they remove any personal belongings from the Property. (DE # 88-7, J. Kush Affidavit at ¶ 14; DE # 88-8, S. Kush Affidavit at ¶ 14.) They left the residence secured with the lockbox and did not return to the Property. (DE # 88-7, J. Kush Affidavit at ¶ 17, 19-20; DE # 88-8, S. Kush Affidavit at ¶ 17, 19-20.)

         Shortly thereafter, a Vericrest employee notified Safeguard that further title issues had arisen, and instructed Safeguard: “Please hold off on services for right now . . . Do not do trashout or do anything at this time. I will pause your task.” (DE # 88 at 8; DE # 91 at 2.) However, Vericrest did not issue a “hard cancel” for Safeguard's services, nor did Safeguard “flag” the account to prevent future services. (DE # 88 at 8; DE # 88-2, Cogan Dep. at 75-76, 90-92.) As a result, the property was still listed as “active” in Safeguard's computer system. (Id.) Thus, when grass cutting season arrived in April, Safeguard's computer system automatically ordered a vendor to cut the grass at the Property. (Id.) In the months of April and May, Safeguard's vendor, Lawn and Snow Pros Plus (“Snow Pros”), cut the grass at the Property a total of four times. (DE # 88-2, Cogan Dep. at 30, 95.) Snow Pros did not have the code for the lockbox to access the residence. (Id. at 38.)

         On May 3, 2011, Safeguard sent a third vendor, Mike Eby, to perform a quality control check on the Property. (DE # 88 at 9; DE # 91 at 2.) Eby found the residence secure, accessed it with the lockbox code, and took pictures of the Property. (DE # 88-6 at ¶¶ 11-13.) Eby states that he did not remove any property, that he secured the residence as he left, and did not return to the Property thereafter. (Id. at ¶¶ 15-17.)

         On May 12, 2011, Vericrest finally issued a “hard cancel” on the account and thus ended Safeguard's involvement with the property. (DE # 88 at 9.) Plaintiffs allege that on June 2, 2011, Ashcraft's son checked on the Property and found the front door of the residence unsecured and noticed that a substantial amount of plaintiffs' personal property was missing. (Id.; DE # 8 at ¶ 21-22.) On June 7, 2011, plaintiffs paid to have their locks replaced. (DE # 88 at 9; DE # 8 at ¶ 25.)

         Plaintiffs finally returned to the Property on August 11, 2011. (DE # 88 at 9; DE # 91 at 3.) Upon arrival they observed that the back door had been broken down and that all of the doors showed signs of damage. (Id.; DE # 8 at 26.) The house had been ransacked and most of their personal property was gone. (Id.)

         On March 22, 2012, plaintiffs filed the current action against defendants BONY and Safeguard. In their complaint, plaintiffs bring the following claims against both defendants: civil conspiracy (Count A), violations of the Indiana Crime Victim's Relief Act (Count B), trespass (Count C), intentional infliction of emotional distress (Count D), invasion of privacy (Count E), violations of the Fair Debt Collection Practices Act (Count F), and negligent hiring and supervision (Count H). Additionally, plaintiffs have brought a negligence claim against BONY, alone (Count G).

         Safeguard (DE # 18) and BONY (DE # 27) moved to dismiss Counts A, B, D, E, and F of the amended complaint. Those motions were granted in part and denied in part. (DE # 42.) The remaining claims are A, B (in part), [2] C, D, G (only as to BONY) and H.

         Safeguard now moves for summary judgment on all remaining claims. (DE # 87.) BONY, for its part, has not moved for summary judgment. Thus, plaintiffs' negligence claim (Count G), which was brought only against BONY, will not feature in the court's analysis. However, where Safeguard's arguments would apply equally to BONY, the court will address the claim as to both defendants. Malak v. Associated Physicians, Inc., 784 F.2d 277, 280 (7th Cir. 1986) (“Where one defendant files a motion for summary judgment which the court grants, the district court may sua sponte enter summary judgment in favor of additional non-moving defendants if the motion raised by the first defendant is equally effective in barring the claim against the other defendants and the plaintiffs had an adequate opportunity to argue in opposition to the motion.”).


         Defendants have moved for summary judgment. Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after adequate time for discovery, 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 Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[S]ummary judgment is appropriate-in fact, is mandated-where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotation marks omitted).

         The moving party bears the initial burden of demonstrating that these requirements have been met. Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 460 (7th Cir. 2010). “[T]he burden on the moving party may be discharged by ‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325. Once the moving party has met his burden, the non-moving party must identify specific facts establishing that there is a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (citing Celotex, 477 U.S. at 324). In doing so, the non-moving party cannot rest on the pleadings alone, but must present fresh proof in support of its position. Anderson, 477 U.S. at 248; Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). In viewing the facts presented on a motion for summary judgment, the court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966 (7th Cir. 1998).

         III. ...

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