United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTION FOR SUMMARY JUDGMENT
J. McKINNEY, JUDGE
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.
reasons stated herein, the Court GRANTS U.S. Bank's
Motion for Summary Judgment.
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.
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
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.
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.
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.
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
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.
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.
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.
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, ¶¶
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 ...