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Floyd v. U.S. Bank National Association

United States District Court, S.D. Indiana, Indianapolis Division

March 16, 2017

KELLY JEAN FLOYD now known as KELLY JEAN LINDERMAN, Plaintiff,
v.
U.S. BANK NATIONAL ASSOCIATION, and JOHN DOES 1-100, INCLUSIVE, Defendants.

          ORDER ON MOTION FOR SUMMARY JUDGMENT

          LARRY J. McKINNEY, JUDGE

         This matter is before the Court on Defendant U.S. Bank National Association's (“U.S. Bank's”), Motion for Summary Judgment, which seeks to dismiss the Complaint filed by Plaintiff Kelly Jean Floyd, now known as Kelly Jean Linderman (“Linderman”), pursuant to the Real Estate Settlement Procedure Act, 12 U.S.C. § 2601, et seq. (“RESPA”). Dkt. No. 44. U.S. Bank claims that it is entitled to summary judgment because (1) Linderman has not demonstrated that U.S. Bank's failure to comply with RESPA proximately caused her alleged damages; and (2) the evidence does not establish that U.S. Bank participated in a pattern of noncompliance with RESPA. See generally, Dkt. No. 45. In response, Linderman argues that sufficient questions of fact exist as to whether (1) U.S. Bank's failure to respond to her requests for information exacerbated physical damage to her real property and caused her continued mental and emotional distress; and (2) U.S. Bank's failure to respond to her requests for information constituted a pattern of noncompliance with RESPA. See generally, Dkt. No. 50.[1]

         For the reasons stated herein, the Court GRANTS U.S. Bank's Motion for Summary Judgment.

         I. BACKGROUND

         In March 2004, Linderman purchased a home located at 2201-2203 North Irwin Street, Indianapolis, Indiana, 46219 (the “Home”). Dkt. No. 1, Ex. A; Dkt. No. 45, Ex. A (“Linderman Dep.”), 17:20-19:17. Linderman moved into the main portion of the Home with her former husband, the father of her children, and her four children; her parents also moved into the smaller in-law suite connected to the Home. Linderman Dep., 19:2-6. To purchase the Home, Linderman obtained a mortgage from Mortgage Express, Inc., which then assigned the mortgage to U.S. Bank. Dkt. No. 1, Exs. A & C. Linderman's brother, Scott Floyd, co-signed the mortgage with Linderman to help her purchase the Home, but he did not contribute to the cost of the Home. Linderman Dep., 19:18-20:5.

         Linderman lived in the Home from March 2004 until June 2013, when her mother asked her to move out due to family conflict. Id. at 17:20-18:18, 73:7-10. Although Linderman struggled to make mortgage payments between 2006 and 2007 after her father passed away and her mother's retirement, id. at 20:21-21:3, she paid the mortgage for the Home until she moved out in June 2013. Id. at 73:7-10. Linderman's mother and daughter continued to live in the Home after Linderman left in June 2013, and Linderman, believing her mother would take over the payments, stopped paying the Home's mortgage. Id. at 71:19-72:15-18, 73:7-10. Linderman's mother left the Home in July or August 2013, but Linderman's daughter continued to live in the Home, paying rent to Linderman's mother, until May 2014. Id. at 71:12-24. The Home sat vacant after Linderman's daughter moved in May 2014. Id. Upon learning that her daughter was moving out of the Home in May 2014, Linderman also discovered that her mother had stopped paying the mortgage. Id. at 71:25-73:10.

         On March 25, 2014, U.S. Bank initiated a foreclosure action on the Home in Indiana state court. Id. at 70:8-71:11; Complaint, U.S. Bank National Assoc. v. Floyd, No. 49D12-1403-MF-009869 (Ind. Sup. Mar. 25, 2014). Linderman claims her brother received the service of process for the foreclosure action but never informed her of the foreclosure. Linderman Dep., 72:19-74:13. The Indiana state court initially entered a default judgment against Linderman on January 13, 2015, Order Granting Default Judgment, U.S. Bank National Assoc. v. Floyd, No. 49D12-1403-MF-009869 (Ind. Sup. Jan. 13, 2015), but the default judgment was set aside as to Linderman on June 17, 2015. Order to Set Aside Default Judgment, U.S. Bank National Assoc. v. Floyd, No. 49D12-1403-MF-009869 (Ind. Sup. June 17, 2015). Linderman's brother also quitclaimed his interest in the Home to Linderman on May 26, 2015. Dkt. No 1, Ex. B; Linderman Dep., 21:4-18.

         On July 27, 2014, Linderman, who was planning to move back into the Home, went to clean the Home and discovered that it had been vandalized. Linderman Dep., 21:23-22:9, 27:8-9. After discovering the vandalism, Linderman called the police, a preservation company known as Five Brother's Property Management Company (“Five Brother's”), and her relationship manager with U.S. Bank. Id. at 25:20-26:3, 40:24-41:10. Linderman's insurance company also came out to the Home to inspect the damage caused by the vandalism. Id. at 27:2-4. Linderman, who was already behind on payments and was on a limited income, became concerned about the costs associated with repairing the Home after this vandalism. Id. at 25:5-11.

         Approximately one week after the first vandalism, Linderman discovered that the Home had been vandalized a second time. Id. at 27:10-13. Linderman found that the vandals had cut a hole in the floor and had gotten into the Home's crawlspace to take all of the Home's copper piping and wiring. Id. at 28:18-29:11. Linderman called the police, but the police told her that she needed to secure the Home and to stop wasting their time. Id. at 29:21-30:1. She also called U.S. Bank, which informed her that she needed to contact her insurance company to make a claim. Id. at 30:10-12. A few days later, Linderman discovered that the Home was vandalized again after finding graffiti painted on the Home's exterior walls. Id. at 30:5-7.

         Although she had not yet hired anyone to perform the necessary repairs, Linderman drove by the Home in October 2014, and found Five Brother's discarding items from the Home into a large dumpster in the yard. Id. at 40:6-23, 44:13-19. Five Brother's, which Linderman believed were working on behalf of U.S. Bank, had gone to perform repair work on the Home. Id. at 40:20-23, 44:4-6. When Linderman called U.S. Bank to discuss the actions of Five Brother's, U.S. Bank denied authorizing Five Brother's to work on the Home and advised Linderman to file a police report and call her insurance company if she discovered anything had been stolen. Id. at 41:22-25, 45:16-46:2.

         On January 16, 2015, Linderman selected R&S Contracting, Inc. (“R&S”), to repair the Home. Id. at 49:21-50:7, 51:3-18; Dkt. No. 45, Ex. 4. Although other contractors had estimated that the total cost of the Home's repairs would range between $104, 000.00 and $163, 000.00, Linderman Dep., 66:6-16, R&S contracted to complete the repairs for $35, 700.00. Dkt. No. 45, Ex. 4.

         On January 30, 2015, in light of her selection of R&S, Linderman sent a fax to U.S. Bank containing several documents associated with her contractor selection (the “January 30 Fax”), including a Declaration of Intent to Complete Repairs signed by Linderman, a Contractor's Statement signed by R&S, Linderman's contractor agreement with R&S, a W-9 tax form for R&S, R&S's Certificate of Liability Insurance, R&S's Contractor's License, and a list of items that were either damaged or missing from the Home. Dkt. No. 50, Ex. 1 (“Linderman Aff.”), Ex. A. U.S. Bank, which maintained an escrow account containing the insurance proceeds paid as a result of Linderman's insurance claims related to the vandalisms, disbursed $10, 000.00 from Linderman's escrow account to pay to R&S. Linderman Dep., 56:2-24; 62:9-13. On April 13, 2015, R&S informed Linderman that it would not finish the repairs for the Home because it could not verify that Linderman had sufficient funds to pay for its work. Id. at 57:7-20.

         On April 15, 2015, only two days after R&S stopped its work, Linderman discovered the Home had been vandalized yet again. Id. at 62:19-20; Dkt. No. 45, ¶ 19. The Home was vandalized for a fifth time on May 20, 2015. Dkt. No. 45, ¶ 19. In addition to the vandalisms, the Home sustained significant storm damage in June 2015, specifically to the roof. Linderman Dep., 67:19-68:3.

         Moreover, Linderman was cited for several ordinance violations from the City of Indianapolis (the “City”) in July, August, and October 2015, relating to her ownership of a nuisance property and her failure to properly secure the Home. Id. at 68:14-69:7; Dkt. No. 45, ΒΆΒΆ 22-23, 28. The City issued an Order to Board the Home on November 13, 2015. Dkt. No. 1, Ex. G. Linderman estimates that she has approximately $5, 000.00 in outstanding fees due as a result of the ...


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