Daniel Sellers v. GMAC Mortgage Group, Inc. ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 3, 2008
No. 08-10782 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-14105-CV-FJL
DANIEL SELLERS,
Plaintiff-Appellant,
versus
GMAC MORTGAGE GROUP, INC.,
A Foreign Corporation,
Defendant-Appellee,
GMAC MORTGAGE GROUP, INC.,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 3, 2008)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Plaintiff Daniel Sellers appeals the district court’s grant of summary
judgment in favor of Defendant GMAC Mortgage Group, Inc. (“GMAC”). In
2006, GMAC began servicing Sellers’ home mortgage loan. At around the same
time, the escrow portion of Sellers’ monthly payments increased due to heightened
taxes and insurance costs. For approximately one year, Sellers and GMAC
communicated in an attempt to resolve the balance on his account. In October of
2006, Sellers made two supplemental payments to settle the escrow deficiency.
However, a misunderstanding arose between the parties over the proper
apportionment of one of the supplemental payments between the escrow balance
and the loan payments and principal. On January 25, 2007, after receiving a notice
of default from GMAC and after repeated calls to customer service proved
unhelpful, Sellers wrote to GMAC. Sellers contends that the letter was both a
request to rescind a negative credit report and an attempt to place the defendant on
notice that it had misapplied his supplemental payment. GMAC contends that the
letter was merely a request to rescind the negative credit report. GMAC
responded on February 7, 2007, stating that it was unable to rescind the negative
report. Later in February, Sellers’ attorney sent GMAC a letter raising certain
issues over the servicing of the loan. On March 7, 2007, GMAC responded with
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an analysis of the escrow account. Sellers filed the instant lawsuit against GMAC
on April 3, 2007 for failing to correct misapplied payments, provide appropriate
statements, and correct erroneous credit reports. Shortly thereafter, GMAC filed a
state court foreclosure complaint. GMAC subsequently voluntarily dismissed the
foreclosure action, citing business reasons. Sellers asserted claims under the Real
Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605(e), and the
Florida Consumer Collection Practices Act. He also brought claims for
defamation, abuse of process and malicious prosecution for wrongfully
commencing the foreclosure proceeding.
We review a district court’s grant of summary judgment de novo. Holloman
v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). Summary judgment is
appropriate when the evidence, viewed in the light most favorable to the non-
moving party, presents no genuine issue of fact and compels judgment as a matter
of law. Fed. R. Civ. P. 56(c); Holloman, 443 F.3d at 836. For an issue on which
the non-moving party bears the burden of proof, the moving party need only show
“that there is an absence of evidence to support the non-moving party’s case.”
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-16 (11th Cir. 1993) (quotation
omitted). Once the moving party has properly supported its motion for summary
judgment, the burden shifts to the non-moving party to come forward with specific
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facts showing that there is a genuine issue for trial. Id. at 1116; Fed. R. Civ. P.
56(e). “[M]ere conclusions and unsupported factual allegations are legally
insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d
1321, 1326 (11th Cir. 2005).
Section 6(e) of RESPA requires a loan servicer, upon receipt of a qualified
written request, to take certain actions with respect to borrower inquiries. See 12
U.S.C. § 2605(e). This includes providing information requested by the borrower,
conducting an investigation of the borrower’s concerns, providing an explanation
or clarification of the reasons the servicer believes the account is correct and, if
necessary, making appropriate corrections to the borrower’s account. Id. A
borrower may recover “actual damages” if the loan servicer fails to comply with
these provisions. Id. § 2605(f)(1)(A).
The district court assumed that GMAC did not properly address Sellers’
inquiries about the apportionment of his supplemental October payment.
However, the court determined that he did not incur any harm as a result of this
oversight. Thus, there could be no RESPA violation. The district court reasoned
that Sellers ultimately complained of only two injuries: a negative credit report,
which was subsequently rescinded, and the initiation of foreclosure proceedings.
The court found that GMAC adequately responded to Sellers’ inquiries on these
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two issues. Alternatively, the district court found that regardless of how the
supplemental payments were credited the loan was “technically” in default in early
2007. Since the foreclosure action was not improper and the negative credit report
was rescinded, Sellers did not demonstrate that he sustained any harm.
On appeal, Sellers argues that there is a genuine issue of material fact as to
whether the loan was in default. However, in his response to GMAC’s motion for
summary judgment and his motion for reconsideration, Sellers merely asserts that
he paid an amount sufficient to resolve the escrow deficiency reflected in the
March escrow statement. As the district court and even Sellers himself noted,
plaintiff’s September escrow statement shows that the deficiency increased again
in late 2006. Thus, Sellers has not shown that there is a material issue of fact as to
whether his loan was in default when the foreclosure complaint was filed in early
2007. In his brief to this Court, Sellers simply states that, if properly applied, the
October supplemental payment would have kept his account in a current status and
asserts that no evidence in the record refutes his position. Such a conclusory
argument is not sufficient to create a genuine issue of material fact. See Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005). The district court determined that
even if the supplemental payments temporarily resolved the escrow shortfall, the
plaintiff never increased his monthly payments in order to stay current on the
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escrow account in the future. We agree. Thus, the district court did not err in
finding that the loan “technically lapsed into default.”
Next, Sellers argues that the district court erred in considering the issue of
harm sua sponte without notifying him of its intent to do so. In Imaging Business
Machines, LLC v. Banctec, Inc. we held that the grant of summary judgment on
the issue of injury was procedurally improper under Federal Rule of Civil
Procedure 56(c) where the defendant failed to raise the issue of injury in its motion
for summary judgment and the district court failed to notify the plaintiff it would
be considering the issue of injury. 459 F.3d 1186, 1191 (11th Cir. 2006). On
appeal, Sellers argues that he can offer evidence of harm arising from emotional
distress, fees improperly assessed to his mortgage account and attorney’s fees
arising from the erroneous apportionment of his mortgage payment.
After the entry of summary judgment, Sellers filed a motion for
reconsideration asserting, among other grounds, that he “has not had occasion to
itemize his damages.” Yet, the entry of summary judgment certainly provided
Sellers with sufficient notice to present evidence of harm. See Flood v. Young
Woman Christian Ass’n, 398 F.3d 1261, 1267 (11th Cir. 2005) (noting that the
plaintiff did not present any new evidence in his motion for reconsideration of the
district court’s entry of summary judgment on an issue raised sua sponte). Still,
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in his motion for reconsideration and his brief to this Court, Sellers has failed to
do anything more than state that if given the chance he will itemize his damages.
Accordingly, we find that the district court did not err in granting summary
judgment on plaintiff’s RESPA claims.
Sellers challenges the entry of summary judgment on his state law claims
only on the grounds that a material issue of fact exists as to whether his loan ever
technically lapsed into default. We have determined that plaintiff did not raise a
material issue of fact. Thus, the district court did not err in granting summary
judgment on Sellers’ state law claims. Accordingly, we affirm.
AFFIRMED.
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