Melcina Blanton v. Roundpoint Mortgage Servicing ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 2, 2020
Decided August 26, 2020
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 19-2781
MELCINA BLANTON, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 15-cv-3156
ROUNDPOINT MORTGAGE
SERVICING CORPORATION and Robert W. Gettleman,
LOCKE LORD LLP, Judge.
Defendants-Appellees.
ORDER
RoundPoint Mortgage Servicing erred in calculating Melcina Blanton’s private
mortgage insurance (“PMI”) for a few months in 2014. As a result, RoundPoint charged
Blanton more for her mortgage than she actually owed; she responded by not paying
RoundPoint for her property taxes and hazard insurance for the rest of the year. Blanton
then sued RoundPoint in state court. Locke Lord LLP, in its representation of
RoundPoint, attempted to settle Blanton’s claims by offering her a loan modification.
She refused and sued both RoundPoint and Locke Lord in federal court. The district
court held that RoundPoint and Locke Lord were entitled to summary judgment on all
Blanton’s claims. We agree.
No. 19-2781 Page 2
I. Background
Melcina Blanton secured a mortgage loan from Community Bank of Oak Park
and River Forest in 2009 to buy a house. Blanton also set up an escrow account, which
collected payments from Blanton to cover her property taxes, hazard insurance, and
PMI. Initially, Franklin American Mortgage Company serviced Blanton’s mortgage and
collected her payments.
In October 2013, Franklin American notified Blanton that RoundPoint would
take over as her mortgage servicer the next month. Blanton promptly sent RoundPoint
her November mortgage payment. Later that month, RoundPoint sent Blanton an
escrow account disclosure statement notifying Blanton that her monthly payment
would increase by $137.52 starting January 2014. Part of this increase, however, was due
to RoundPoint mistakenly counting Blanton’s PMI payment twice. RoundPoint
incorrectly overstated Blanton’s new monthly payment by at least $81. Blanton
contacted RoundPoint and attempted to resolve this error, to no avail.
RoundPoint then sent Blanton her January mortgage statement; Blanton
submitted an incomplete payment that did not cover the property tax and hazard
insurance portion of her escrow payment. Blanton made the same, incomplete payment
in February. RoundPoint treated Blanton’s loan as being in default and started charging
her late fees.
After Blanton submitted her February payment, RoundPoint noticed its PMI
calculation error. It sent Blanton a revised escrow statement correcting the error later
that month. Enclosed with this escrow statement was a letter from RoundPoint
informing Blanton that it had designated an address for customers to send their notices
of error and requests for information. The letter stated: “In order to receive the
applicable protections provided under federal law, you must submit Notices of Error,
Requests for Information, and appeals of loan modification denials in writing to … P.O.
Box 19789.” A few months later, Blanton sent a letter disputing the late fees she had
been charged to a different address, P.O. Box 19409. RoundPoint responded by telling
Blanton that there was no error with her account.
Blanton continued to make incomplete mortgage payments for the rest of 2014.
RoundPoint kept these funds in a “suspense” account. As these funds accumulated,
RoundPoint applied them to Blanton’s loan amount. In August 2016, RoundPoint
applied $3,954.49 from the suspense account to cover Blanton’s principal and interest
payments from July 2014 through February 2015.
No. 19-2781 Page 3
Blanton first sued RoundPoint in state court in July 2014. RoundPoint hired
Locke Lord to represent it. Locke Lord sent Blanton a settlement offer in the form of a
loan modification. This offer would reduce Blanton’s monthly mortgage payments,
bring her account current, and resolve Blanton’s claims against RoundPoint. Blanton
did not accept this offer.
One year after Blanton sued RoundPoint in state court, Blanton, acting pro se,
sued RoundPoint and Locke Lord in federal court. Blanton, now represented by
counsel, later filed a twenty-seven count second amended complaint. RoundPoint and
Locke Lord filed a motion to dismiss the second amended complaint for Blanton’s
failure to state a claim, Fed. R. Civ. P. 12(b)(6). The district court dismissed all but four
of Blanton’s claims. The surviving claims included one for common law conversion and
three for violations of the Illinois Consumer Fraud and Deceptive Practices Act
(“ICFA”), 815 Ill. Comp. Stat. 505/2 et seq.; the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq.; and the Real Estate Settlement Procedures Act
(“RESPA”), 12 U.S.C. § 2605 et seq.
After some discovery, the parties filed cross-motions for summary judgment. The
district court denied Blanton’s motion and granted summary judgment to RoundPoint
and Locke Lord on all claims.
II. Analysis
Blanton now appeals the district court’s decisions, arguing that the district court
erred by granting summary judgment to RoundPoint and Locke Lord. We review a
district court’s grant of summary judgment de novo. Skyrise Constr. Grp., LLC v. Annex
Constr., LLC, 956 F.3d 950, 955 (7th Cir. 2020). And on review of cross-motions for
summary judgment, we view all facts and inferences from those facts in the light most
favorable to the nonmoving party on each motion. Lalowski v. City of Des Plaines, 789
F.3d 784, 787 (7th Cir. 2015). Summary judgment is appropriate when “there are no
genuine disputes of material fact and the movant is entitled to judgment as a matter of
law.” Skyrise Constr. Grp., 956 F.3d at 955–56 (citing Fed. R. Civ. P. 56(a)).1
1 Many of Blanton’s arguments fail to recognize this standard. Blanton seems to argue throughout her
brief that the district court should not have granted summary judgment to RoundPoint and Locke Lord
because the district court had already rejected similar arguments in ruling on the defendants’ motion to
dismiss. But when ruling on the defendants’ motion to dismiss, the district court had to accept the
complaint’s well-pled factual allegations as true. See Shawnee Trail Conservancy v. U.S. Dep’t of Agric., 222
F.3d 383, 385 (7th Cir. 2000). In contrast, summary judgment is the “put up or shut up” moment in a
No. 19-2781 Page 4
First, Blanton argues the district court erred by granting summary to Locke Lord
on her FDCPA claim. The FDCPA applies to debt collectors. See, e.g., 15 U.S.C. § 1692d–f;
see also Ruth v. Triumph P’ships, 577 F.3d 790, 796 (7th Cir. 2009). A “debt collector” is
“any person who uses any instrumentality of interstate commerce … in any business
the principal purpose of which is the collection of any debts, or who regularly collects or
attempts to collect … debts owed or due.” 15 U.S.C. § 1692a(6) (emphasis added); cf.
Heintz v. Jenkins, 514 U.S. 291, 299 (1995) (“[T]he [FDCPA] applies to attorneys who
‘regularly’ engage in consumer-debt-collection activity, even when that activity consists
of litigation.”). A “debt” is “any obligation or alleged obligation of a consumer to pay
money arising out of a transaction in which the money, property, insurance, or services
which are the subject of the transaction are primarily for personal, family, or household
purposes.” 15 U.S.C. § 1692a(5) (emphasis added).
The district court held that Blanton failed to make a sufficient showing that
Locke Lord is a debt collector, an essential element of her FDCPA claim. Specifically,
Blanton failed to genuinely dispute an affidavit from a Locke Lord partner stating that
“Locke Lord does not regularly initiate offensive litigation that seeks the collection of
debt owed to others.”
Blanton argues that Locke Lord is a debt collector because it regularly collects on
debts owed. In support of this proposition, Blanton only cites to Locke Lord’s website,
which describes Locke Lord’s “Debt Finance” practice: “We also work closely with our
restructuring and insolvency lawyers in connection with work-outs, collateral
realization and collection matters, bankruptcies and debtor-in-possession and exit
financings.”2 Blanton believes this statement directly contradicts the Locke Lord
partner’s affidavit and provides a genuine dispute of material fact.
But Blanton misreads Locke Lord’s website. True, the website explicitly mentions
“collection matters.” But it describes Locke Lord’s debt finance group, which helps
clients “manage every step of the complex acquisition financings and restructurings.”
Id. It’s in this context that Locke Lord’s debt finance group might work on “collection
lawsuit: the party “must show what evidence it has that would convince a trier of fact to accept its
version of events.” Beardsall v. CVS Pharmacy, Inc., 953 F.3d 969, 973 (7th Cir. 2020) (internal quotation
marks omitted) (quoting Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003)). Blanton can no
longer depend on the allegations in her complaint. So, her arguments relying heavily on the district
court’s reasoning at the motion to dismiss stage of this case miss the mark.
2 Debt Finance, Locke Lord LLP, https://www.lockelord.com/services/practices/banking--finance/debt-
finance--capital-markets (last visited Aug. 25, 2020).
No. 19-2781 Page 5
matters.” As the district court noted, “[t]hose ‘collection matters’ plainly refer to the
collection of commercial debt.” And even if the website did refer to consumer collection
matters, it does not mention how often Locke Lord lawyers participate in those
collection matters. Blanton therefore fails to genuinely dispute the Locke Lord partner’s
affidavit denying that Locke Lord participates regularly in debt collection. Locke Lord
is entitled to summary judgment on this claim.
Second, Blanton argues that the district court erred by granting summary
judgment to the defendants on her ICFA claim. For an ICFA claim to survive summary
judgment, a plaintiff must show: “(1) a deceptive or unfair act or practice by the
defendant; (2) the defendant’s intent that the plaintiff rely on the deceptive or unfair
practice; and (3) the unfair or deceptive practice occurred during a course of conduct
involving trade or commerce.” Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir. 2010).
Importantly, a plaintiff must also “demonstrate that the defendant’s conduct is the
proximate cause of the injury.” Id. at 935.
The district court noted that Blanton “does not deny that she needs expert
testimony to show that [her] alleged injuries were proximately caused by RoundPoint
and Locke Lord.” Blanton also did not dispute that Dr. Michael Bice—Blanton’s treating
physician whom she “designated as her causation expert”—did not submit a report
opining about the cause of her declining physical health and rising blood pressure. And
since Dr. Bice did not consider the cause of her injuries during the course of treatment,
the district court determined that an expert report was required. See Fed. R. Civ. P.
26(a)(2)(B). The district court granted summary judgment to the defendants on this
claim because Blanton failed to present any admissible evidence proving causation and
damages.
Blanton’s only argument that even acknowledges the district court’s reasoning is
that treating physicians are not required to submit expert reports. In support of this
argument, she cites the commentary to Rule 26(a)(2):
The requirement of a written report in paragraph (2)(B), however, applies only to
those experts who are retained or specially employed to provide such testimony
in the case or whose duties as an employee of a party regularly involve the giving
of such testimony. A treating physician, for example, can be deposed or called to
testify at trial without any requirement for a written report.
Blanton, however, fails to acknowledge our opinion in Meyers v. National Railroad
Passenger Corp. (Amtrak), 619 F.3d 729 (7th Cir. 2010). There, we held that “a treating
No. 19-2781 Page 6
physician who is offered to provide expert testimony as to the cause of the plaintiff’s
injury, but who did not make that determination in the course of providing treatment,”
is “required to submit an expert report in accordance with Rule 26(a)(2).” Id. at 734–35.
Blanton never mentioned RoundPoint or her mortgage payments to Dr. Bice during the
course of treatment. And because Dr. Bice did not make a determination about the
causation of Blanton’s injury at the time he treated Blanton, he was required to submit
an expert report. Blanton presents no admissible evidence as to causation, a necessary
element of her ICFA claim. Summary judgment was appropriate.3
Blanton next argues that the defendants’ motion for summary judgment should
have been denied regarding her conversion claim. Under Illinois law, conversion is the
unauthorized deprivation of property from a person entitled to possess that property.
In re Estate of Yanni, 48 N.E.3d 1161, 1166 (Ill. App. Ct. 2015). Blanton acknowledges
that, for money to be the subject of conversion, it must have “at all times belonged to
the plaintiff” and the defendant must have “converted [the money] to [the defendant’s]
own use.” In re Thebus, 483 N.E.2d 1258, 1261 (Ill. 1985).
Blanton’s conversion claim is simple. She argues that $3,954.49 of her money that
RoundPoint was holding in a suspense account “simply disappeared.” And because she
had “the absolute right” to have this money applied to her loan, summary judgment
should not have been awarded.
But Blanton ignores evidence that shows exactly where this money went. Jared
Fink, a RoundPoint employee familiar with RoundPoint’s loan record system,
submitted an affidavit stating that the “$3,954.49 that was in [Blanton’s] suspense
account was applied to the principal and interest amounts of her monthly mortgage
payments due for July 1, 2014 through February 1, 2015.” Fink also submitted a copy of
Blanton’s payment history supporting his statement.
RoundPoint did exactly what Blanton is asking it to do: apply the $3,954.49 in her
suspense account to her loan payments. RoundPoint never deprived Blanton of this
3 At oral argument, Blanton argued that—as a result of RoundPoint’s and Locke Lord’s deceptive acts—
she suffered monetary injury in addition to suffering from high blood pressure and deteriorating physical
health. But Blanton failed to raise this issue in her appellate brief. Any argument about these additional
injuries, then, is waived. See Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 824 (7th Cir. 2012)
(failing to develop an argument in appellate briefs results in waiver); Holman v. Indiana, 211 F.3d 399, 406
(7th Cir. 2000) (argument made at oral argument but not raised in appellate brief is waived).
No. 19-2781 Page 7
money and did not convert this money for its own use. The district court therefore
correctly granted summary judgment to RoundPoint on Blanton’s conversion claim.
Finally, Blanton argues that RoundPoint was not entitled to summary judgment
on her RESPA claim. She contends that RoundPoint failed to adequately respond to her
April 12 notice of error letter. She also points out that “[t]he Court has already
determined that the Plaintiff has satisfied her claim for RESPA” in its order denying in
part the defendants’ motion to dismiss and that “the Defendants have not submitted
any new evidence to deviate from this ruling.”
RESPA requires loan servicers to respond to certain borrower inquiries. 12 U.S.C.
§ 2605(e)(1). RESPA also allows loan servicers, like RoundPoint, to establish “an address
that a borrower must use to request information in accordance with the procedures in
this section.” 12 C.F.R. § 1024.36(b). As the district court pointed out, our circuit has not
yet interpreted 12 C.F.R. § 1024.36(b). But other circuits have concluded that borrower
inquiries sent to an address other than the one established by the loan servicer do not
trigger RESPA duties, even if the loan servicer responds. See, e.g., Wease v. Ocwen Loan
Servicing, LLC, 915 F.3d 987, 995 (5th Cir. 2019); Bivens v. Bank of Am., N.A., 868 F.3d 915,
921 (11th Cir. 2017).
Following other circuits’ lead, the district court held that RoundPoint was
entitled to summary judgment because Blanton sent her letter to an address other than
the one RoundPoint established for receiving notices of error. It turns out that
RoundPoint told Blanton in her February 2014 mortgage statement that she “must
submit Notices of Error[ or] Requests for Information … in writing to: RoundPoint
Mortgage Servicing Corporation[,] PO Box 19789[,] Charlotte, NC 28219-9409.” But
Blanton did not send her April notice of error letter to this address.
This case could present an issue of first impression for our court: the
interpretation of 12 C.F.R. § 1024.36(b). But Blanton does not engage with the district
court’s reason for granting summary judgment to RoundPoint on her RESPA claim.
Blanton instead chose to copy—almost word-for-word—her brief to the district court in
opposition to the defendants’ motion for summary judgment, which does not address
12 C.F.R. § 1024.36(b). “An appellant who does not address the rulings and reasoning of
the district court forfeits any arguments [she] might have that those rulings were
wrong.” Hackett v. City of South Bend, 956 F.3d 504, 510 (7th Cir. 2020). Blanton has thus
forfeited any argument that the district court erred in granting summary judgment to
RoundPoint on this claim. The judgment of the district court is AFFIRMED.