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Sims v. New Penn Financial LLC

United States District Court, N.D. Indiana, South Bend Division

March 28, 2018

MARIO L. SIMS, et al., Plaintiffs,


          Michael G. Gotsch, Sr. United States Magistrate Judge.

         Through this case, Plaintiffs, Mario and Tiffiny Sims (“the Simses”), proceeding pro se, allege violations of the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691 et seq., against Defendant, New Penn Financial, LLC d/b/a Shellpoint Mortgage Servicing (“Shellpoint”).[1] The undersigned retains jurisdiction over this case based on the parties' consent and 28 U.S.C. § 636(c). [DE 40].

         The Simses' ECOA claim arises from the fallout following a mortgage default. The Simses, who are both African-American, entered a land sale contract with John Tiffany in the fall of 2008 to purchase a home. While under contract with the Simses, Tiffany remained obligated under a mortgage loan governed by the terms of an Adjustable Rate Note. After the Simses moved into the home and made payments to Tiffany under the terms of the land sale contract, Tiffany stopped making his mortgage payments around May 2009 leading to foreclosure and bankruptcy proceedings. The Simses began efforts to assume Tiffany's mortgage but never succeeded. In this action, the Simses allege that Shellpoint, the company that serviced Tiffany's loan beginning in March 2014, [2] violated the ECOA by discriminating against them in the assumption process based on their race. Specifically, the Simses allege that Shellpoint delayed for four years in providing them with the necessary assumption paperwork; discouraged their assumption application by requiring them to produce the same information multiple times; and treated them differently than non-minority applicants by requiring them to reinstate Tiffany's delinquent loan, allegedly contrary to the terms of Tiffany's promissory note and Shellpoint's assumption policy.

         After the discovery period closed, Shellpoint timely filed the instant motion for summary judgment on November 30, 2017. Now ripe, Shellpoint's motion for summary judgment hinges partially on whether the Simses' assumption efforts even trigger the ECOA. Should the ECOA apply, the critical question becomes whether the Simses have presented evidence of discriminatory intent sufficient to create a triable issue of fact. Before reaching the merits of the Simses' claim, however, the Court must address Shellpoint's challenge to the admissibility of evidence attached to the Simses' response brief.

         I. Admissibility of the Simses' Exhibits

         Before considering the merits of Shellpoint's motion for summary judgment, the Court must address Shellpoint's allegations[3] that the Simses' exhibits 1, 2, 3, 6, 7, and 9, attached to their original response brief, were not authenticated by affidavit or otherwise and therefore should not be considered in determining whether a genuine dispute of material fact exists to overcome the instant motion for summary judgment. [DE 86 at 5]. Alternatively, Shellpoint asks the Court to strike the Simses' exhibits 1, 2, 3, 6, 7, and 9 for lack of proper authentication citing Fed.R.Civ.P. 56(e). [Id. at 5, n.10].

         As allowed by the Court, the Simses filed a Declaration along with its supplementary evidentiary brief on March 9, 2018. [DE 101 at 6-7]. In their Declaration, the Simses describe their personal knowledge of the challenged exhibits; report that the challenged exhibits were all included in their Verified Third Amended Complaint; and explain that they testified under oath about all the challenged exhibits at their depositions. [Id. at 6]. Moreover, the Simses indicate that the authors of the exhibits are all included on their witness list and can testify at trial as to the authenticity of the exhibits. [Id. at 7].

         In so doing, the Simses have overcome some of Shellpoint's authentication challenges. First, the Simses' have now provided the equivalent of an affidavit-in the form of their Declaration and their Verified Third Amended Complaint-reflecting their alleged personal knowledge of all the exhibits. SeeFed. R. Civ. P. 56(c)(1)(A) (identifying affidavits or declarations as one type evidence that can be used to support an assertion of a genuine dispute of material fact); Ford v. Wilson, 90 F.3d 245, 246 (7th Cir. 1996) (explaining that a verified complaint is the equivalent of an affidavit for summary judgment purposes because it “contains factual allegations that if included in an affidavit or deposition would be considered evidence, and not merely assertions.” Shellpoint then filed a second reply on March 19, 2018, responding to both the Simses' amended response and their supplemental evidentiary brief. [DE 104].

         Second, the Simses have demonstrated that they are prepared to authenticate the exhibits and establish their admissibility at trial. Under Fed.R.Civ.P. 56(c)(2), Shellpoint may object to the Simses' exhibits based on an argument that they “cannot be presented in a form that would be admissible in evidence.” “In other words, the Court must determine whether the material can be presented in a form that would be admissible at trial, not whether the material is admissible in its present form.” Rodgers v. Gary Cmty. Sch. Corp., 167 F.Supp.3d 940, 947-48 (N.D. Ind. 2016) (quoting Stevens v. Interactive Fin. Advisors, Inc., No. 11 C 2223, 2015 WL 791384, at *2 (N.D. Ill. Feb. 24, 2015)). Moreover, “the Federal Rules of Civil Procedure allow parties to oppose summary judgment with materials that would be inadmissible at trial so long as facts therein could later be presented in an admissible form.” Olson v. Morgan, 750 F.3d 708, 714 (7th Cir. 2014) (emphasis in original).

         Here, the Simses are not only prepared to testify at trial as to their own personal knowledge of the facts included in the challenged exhibits, but are also prepared to solicit testimony about the exhibits from their authors, who have already been included on the Simses' witness list. With such testimony, the Simses could overcome any authentication issues. SeeFed. R. Evid. 901(b)(1). Indeed, “Rule 901 requires only a prima facie showing of genuineness and leaves it to the jury to decide the true authenticity and probative value of the evidence.” United States v. Harvey, 117 F.3d 1044, 1049 (7th Cir. 1997). Similarly, the testimony of witnesses with personal knowledge of the exhibits could overcome any alleged hearsay issues. Accordingly, the Sims should be given the opportunity present their evidence in an admissible form at trial, especially with regard to their exhibits 1, 2, 3, 6, and 7. See Rodgers, 167 F.Supp.3d at 947.

         Yet in its second reply, Shellpoint further challenges the Simses' exhibits 8 and 9 as inadmissible. Exhibits 8 and 9 are exhibits and discovery responses from proceedings in other courts related to the Tiffany loan that Shellpoint argues must be certified under Fed. R. Civ. 902(4) in order to be authenticated. Once again, however, nothing precludes the Simses from providing such certification at trial. Accordingly, exhibits 8 and 9 should not be stricken.

         Lastly, “[m]otions to strike are heavily disfavored, and usually only granted in circumstances where the contested evidence causes prejudice to the moving party.” Rodgers, 167 F.Supp.3d at 948. Nothing in the record suggests that Shellpoint will be prejudiced by inclusion of all of the Simses' exhibits as part of the Court's summary judgment analysis.

         Therefore, the Simses may oppose Shellpoint's motion for summary judgment with the support of all their exhibits, even if ultimately determined to be inadmissible, because they have either been authenticated through the Simses' Declaration and Verified Third Amended Complaint or can be presented at trial in an admissible form. Shellpoint's request to strike the Simses' exhibits 1, 2, 3, 6, 7, and 9 is denied.

         II. Relevant Background

         The following facts are primarily not in dispute. Where the facts are in dispute, this Court has determined that the disputes are either not material or has chosen to address such disputes in the Court's substantive analysis of the issues.

         As noted above, the Simses entered a land contract with John Tiffany for a home upon which Tiffany held a mortgage loan serviced originally by Resurgent Mortgage Servicing (“Resurgent”). Under the terms of Tiffany's Adjustable Rate Note on the mortgage loan, the lender retained the option to “require immediate payment in full of all sums secured by this Security Instrument” in the event that any part or all of the property were sold or transferred without the Lender's prior written consent. [DE 73-1 at 9]. However, the Lender would be prohibited from exercise of this option if:

(a) Borrower causes to be submitted to Lender information required by Lender to evaluate the intended transferee as if a new loan were being made to the transferee; and (b) Lender reasonably determines that Lender's security will not be impaired by the loan assumption and that the risk of a breach of any covenant or agreement in this Security Instrument is acceptable to the Lender.

[Id. at 9]. Tiffany's Note included additional terms related to any assumption of the loan. Specifically, the Note stated that the “Lender may charge a reasonable fee as a condition to Lender's consent to the loan assumption” and that “Lender also may require the transferee to sign an assumption agreement that is acceptable to Lender and that obligates the transferee to keep all the promises and agreements made in the Note and in this Security Instrument.” [Id. at 9].

         When Tiffany's default on the mortgage loan led to a foreclosure action that could have resulted in the Simses' eviction from the property, the Simses sent a letter entitled “RULE 408 Settlement Letter” to Resurgent's attorney, David Bengs, and Tiffany's attorney, Peter Agostino, on January 28, 2010. [SeeDE 102 at 31]. In that letter, the Simses proposed resolving their counter and cross claims in Tiffany's foreclosure action by “assuming Mr. Tiffany's obligation with the bank . . . .”[4] [Id.]. In an email dated February 22, 2010, Attorney Bengs responded to the Simses stating that “[t]he language in [Mr. Tiffany's] Note does not preclude an assumption, ” but recommended that the Simses “complete a standard purchase from Mr. Tiffany and pay [Resurgent's] lien.” [Id. at 33]. Mr. Bengs also noted that an assumption “would have to be initiated Mr. Tiffany” to be approved. [Id.]. On March 17, 2010, Tiffany's attorney, Mr. Agostino, sent a brief two-sentence letter to Mr. Sims and Attorney Bengs formally reporting Mr. Tiffany's approval of the Simses' efforts to initiate an assumption of his loan and asking Mr. Bengs advise what paperwork would be needed to proceed with the assumption application. [Id. at 35].

         After Mr. Agostino sent his letter to Mr. Bengs, the Simses met Mr. Bengs face-to-face for the first time at hearings in 2010 related to the foreclosure proceedings. Among the subsequent events were a settlement agreement between Tiffany and the Simses and the 2012 execution of a Quit Claim Deed for the property at issue to the Simses. However, the Simses never received the assumption paperwork requested in Mr. Agostino's March 2010 letter. On May 31, 2013, an in rem judgment was issued against Tiffany foreclosing his mortgage and ordering sale of the property. [DE 73-1 at 41-42].

         In March 2014, Shellpoint succeeded Resurgent at the servicer of Tiffany's mortgage loan. Shellpoint appears to have become aware of the Simses' interest in applying to assume Tiffany's mortgage loan shortly thereafter upon requests from the Simses to postpone the foreclosure sale that had been scheduled. In response, Shellpoint's Escalations Department sent Mr. Sims a letter on December 10, 2014 (“the December 2014 Letter”), “confirm[ing] that Shellpoint [had] made contact with the mortgagor and [was beginning] the process of a mortgage assumption.” [Id. at 45]. The December 2014 Letter also included a list of all the documentation that Shellpoint required from the Simses as part of the assumption process. [Id.]. The Simses submitted 75 documents in response. [DE 29 at 5, ¶ 16].

         On January 6, 2015, the Simses filed their first complaint regarding Shellpoint with the Consumer Financial Protection Bureau (“CFPB”) seeking postponement of the foreclosure sale pending resolution of the assumption application. Shellpoint sent Mr. Sims a second letter dated January 30, 2015 (“The January 2015 Letter”), confirming that the foreclosure sale had been postponed to allow the Simses time to submit the documentation requested in the December 2014 Letter. [DE 73-1 at 48]. On March 6, 2015, Shellpoint sent Mr. Sims a third letter (“the March 2015 Letter”) explicitly responding to the Simses' first CFPB complaint. The March 2015 Letter explicitly stated that “Shellpoint require[d] a signed, dated letter from John Tiffany authorizing [the Simses] to obtain details regarding the mortgage obligation” consistent with a phone call between Mr. Sims and Shellpoint's loss mitigation representatives on March 5, 2015, regarding the need for this documentation. [Id. at 51].

         The March 2015 Letter also confirmed that Shellpoint would evaluate the Simses' eligibility for the assumption, but outlined specific documentation that had yet to be received and advised that “approval [would] also be contingent upon [the Simses'] ability to reinstate the loan.” [Id.]. In conclusion, the Letter stated:

At this time, Shellpoint's foreclosure proceedings remain on hold. However, we respectfully request that you send the required documentation to Shellpoint's Loss Mitigation Department . . . . Upon the receipt of all of the required documentation, Shellpoint will evaluate your eligibility for an assumption and notify you of the outcome.
If Shellpoint does not receive all of the requested documentation within thirty (30) days of the date of this response, it may resume servicing the loan pursuant to the original agreement and applicable law. This may include the scheduling and subsequent completion of a foreclosure sale if warranted.

[Id. at 52]. Afterward, the Simses re-submitted the same 75 pages of documents for what appears to have been the third time. Yet, the Simses never brought Tiffany's loan current. In June 2015, based on the Simses' allegedly incomplete assumption ...

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