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Freeman v. Ocwen Loan Servicing, LLC

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

August 16, 2019

DEMONA FREEMAN, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, MANLEY DEAS KOCHALSKI, LLC, and BANK OF NEW YORK MELLON, Defendants.

          ORDER ON PLAINTIFF'S MOTION FOR JUDICIAL NOTICE

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on a Motion for Judicial Notice filed pursuant to Federal Rule of Evidence 201 by Plaintiff Demona Freeman (“Freeman”) (Filing No. 40). Freeman initiated this action against Defendants Ocwen Loan Servicing, LLC (“Ocwen”), Manley Deas Kochalski, LLC, and Bank of New York Mellon (collectively, “Defendants”) for allegedly violating numerous federal statutes-the Real Estate Settlement Procedures Act, Truth in Lending Act, Fair Debt Collection Practices Act, Telephone Consumer Protection Act, and Fair Credit Reporting Act-as well as for breach of contract and other state law claims. After amending her Complaint, Freeman filed the currently pending Motion, asking the Court to take judicial notice of certain matters. For the following reasons, the Motion for Judicial Notice is granted in part and denied in part.

         I. LEGAL STANDARD

         Federal Rule of Evidence 201 governs judicial notice of adjudicative facts. The Rule provides, “The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). A federal court may take judicial notice on its own, or it “must take judicial notice if a party requests it and the court is supplied with the necessary information.” Fed.R.Evid. 201(c).

         “In order for a fact to be judicially noticed, indisputability is a prerequisite.” Hennessy v. Penril Datacomm Networks, 69 F.3d 1344, 1354 (7th Cir. 1995). Further, “courts generally cannot take notice of findings of fact from other proceedings for the truth asserted therein because these findings are disputable and usually are disputed.” GE Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1082 n.6 (7th Cir. 1997). “Judicial notice [] merits the traditional caution it is given, and courts should strictly adhere to the criteria established by the Federal Rules of Evidence before taking judicial notice of pertinent facts.” Id. at 1081.

         II. DISCUSSION

         Freeman alleges that, through no fault of her own, she was forced to spend the holiday season in fear of losing her home to foreclosure. (Filing No. 59 at 1.) This occurred despite the fact she timely and adequately paid every monthly mortgage installment required of her from the middle of 2012 to the end of 2018 when, without justification, Ocwen (as the loan servicer) began rejecting Freeman's payments on her home loan and mortgage. Id. In this action, she brings claims against the Defendants pursuant to various federal finance protection statutes based on the Defendants' alleged various mortgage servicing related errors and their failure to follow reasonable procedures to correct the errors. Freeman alleges the Defendants also failed to stop committing the errors even after she notified them of their errors. She asserts the Defendants' errors and failure to correct the errors has caused her damage and has resulted in a meritless foreclosure action being filed against her (Filing No. 59 at 1-2; Filing No. 41 at 2).

         In her Motion for Judicial Notice, Freeman asks the Court to take judicial notice of certain filings, including three consent orders, from other litigation involving Ocwen for the purpose of establishing a pattern and practice of noncompliance with the Real Estate Settlement Procedures Act. Freeman asserts that the documents, their purpose, their respective filing dates, and Ocwen's receipt of each are a matter of public record and are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

         Freeman requests judicial notice be taken of the following filings, the date on which each was filed and, where relevant, that Ocwen received notice of each immediately thereafter via CM/ECF, PACER, or a copy provided by its counsel of record therein:

• Objection to Claim, In Re: Allen David Freeman and Demona Ann Freeman, No. 12-04713-JJG-13, filed September 13, 2012, “Filing No. 47.”
• Order on United States Trustee's Objection to Claim Number 8 filed by Ocwen Loan Servicing, LLC., In Re: Allen David Freeman and Demona Ann Freeman, No. 12-04713-JJG-13, entered on October 26, 2012, “Filing No. 53.”
• Order granting Trustee's Motion for Determination, In Re: Allen David Freeman and Demona Ann Freeman, No. 12-04713-JJG-13, entered on April 8, 2013, “Filing No. 85.”
• Notice of Final Cure, In Re: Allen David Freeman and Demona Ann Freeman, No. 12-04713-JJG-13, filed on April 12, 2017, “Filing No. 109.”
• Response to Notice of Final Cure, In Re: Allen David Freeman and Demona Ann Freeman, No. 12-04713-JJG-13, filed on April 24, 2017, ...

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