Ocwen Loan Servicing, LLC v. HSBC Bank USA, National Association

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
OCWEN LOAN SERVICING, )
LLC, )
Assignee of Taylor, Bean & )
Whittaker Mortgage Corp., ) C.A. No. N10C-09-071 CLS
)
Plaintiff, )
)
v. )
HSBC BANK USA, )
NATIONAL ASSOCIATION )
AS TRUSTEE FOR )
CITIGROP MORTGAGE )
LOAN TRUST INC., ASSET- )
BACKED PASS-THROUGH )
CERTIFICATES, SERIES )
2007-SHL 1, et al., )
)
Defendants. )
ORDER
On this 30th Day of June and upon consideration of Regions Bank’s
(“Regions”), servicer for HSBC Bank USA, National Association, as
Trustee for Citigroup Mortgage Loan Trust, Inc., Asset-Backed Pass-
Through Certificates, Series 2007 SHL 1, Renewed Motion for Summary
Judgment, it appears to the Court that:
1. On November 14, 2001, Anga N. Goodwin (“Goodwin”)1 granted a
mortgage to Wells Fargo Home Mortgage, Inc. (“Wells Fargo”) in
connection with the purchase of a property for $124,642 (the “WF
Mortgage”). The WF Mortgage was then assigned to the Secretary of
Housing & Urban Development, which later assigned the WF Mortgage to
SFJV-2002-1, LLC (“SFJV”). On May 3, 2007, Regions became the
servicer for the WF Mortgage.
2. On July 14, 2008, Goodwin granted a mortgage to CitiFinancial for
176,029.05 (the “Citi Mortgage”). During the application process for the
Citi Mortgage, a CitiFinancial representative forwarded a Request for
Verification of Mortgage to J&K Servicing Company (“JK”). In June 2008,
JK delivered a payoff statement to CitiFinancial. At the settlement, a
settlement sheet was executed indicating payment to JK in the amount of
$138,455. At closing, the proceeds were paid by a check from Citi to “Anga
N Goodwin and JK Servicing C.”
3. On September 18, 2008, Goodwin delivered a mortgage on the property to
Taylor, Bean and Whitaker Mortgage Group (“TBWMG”) in the amount of
$199,750. TBWMG assigned that mortgage to the plaintiff in this case,
Ocwen Loan Servicing, LLC (“Ocwen”).
1
Goodwin has used different variations of her name. Goodwin Dep. at 9:9-13:19 (Mar. 1,
2012).
2
4. On June 8, 2009, SFJV initiated foreclosure proceedings for the WF
Mortgage.2 Ocwen received notice of the foreclosure and initiated an
investigation regarding the grounds for foreclosure. After instituting the
foreclosure action, SFJV assigned the WF Mortgage to HSBC Bank USA,
National Association (“HSBC”) and HSBC became trustee for Citigroup
Mortgage Loan Trust, Inc., Asset-Backed Pass-Through Certificates, Series
2007-SHL 1.
5. On November 7, 2011, Ocwen filed a three-count Amended Complaint
against the defendants. 3 In Count I, Ocwen sought declaratory relief that the
WF Mortgage was paid in full, that the WF Mortgage must be satisfied of
record, and that Ocwen has the first lien on the property. On March 1, 2012,
Goodwin was deposed. 4 In her deposition, she explained that JK was
servicing the WF Mortgage in 2008, that she had previously corresponded
and sent payments to JK for the WF Mortgage, and that she understood that
proceeds from the Citi Mortgage were paid to JK. Goodwin testified that
she provided JK’s name to CitiFinancial because she had received
paperwork from JK.
2
SFJV-2002-I, LLC v. Goodwin, C.A. No. 09L-06-062 CLS (Del. Super.).
3
The Original Complaint was filed on September 10, 2010.
4
Ocwen’s Response to Regions’ Mot. for Summary Judgment, Ex. 2.
3
6. On August 15, 2012, Regions filed its first motion for summary judgment
for Counts I and III of the Amended Complaint. 5 Regions asserted that it
was the servicer of the WF Mortgage and that no proceeds from the Citi
Mortgage were ever paid to Regions or Wells Fargo. Regions also asserted
that there was no evidence showing that JK was a servicer for Wells Fargo
or that JK even existed. On December 21, 2012, the Court denied Regions’
motion because it found that a genuine issue of fact existed as to whether or
not the WF Mortgage was paid when CitiFinancial made a payment to JK.
Although the Court acknowledged there was evidence demonstrating that
Regions was the servicer for the WF Mortgage, the Court also found that
“Ocwen ha[d] presented evidence, mainly through Goodwin’s testimony,
that [] JK servicing was paid with proceeds from the CitiFinancial refinance
in order to pay the WF mortgage.”6
7. On September 3, 2013, Goodwin executed an affidavit in a related
foreclosure proceeding. 7 In it, Goodwin conceded that her assertions in her
Answer in this action, that the WF Mortgage was sold and transferred to JK,
were false. 8 On October 7, 2013, Goodwin was deposed for a second time
5
In the instant motion, Regions seeks summary judgment for only Count I of the
Complaint.
6
Order at 8 (Dec. 12, 2012).
7
Trans. ID. 54214531; Regions’ Renewed Mot. at ¶ 7.
8
Id. at ¶¶ 3-4.
4
for the instant matter. 9 Goodwin admitted that “large part of her testimony
[on March 1, 2012] was not accurate.”10 She also admitted that her
testimony that JK was the servicer for the WF Mortgage and that she had
received communications from and sent checks to JK was untrue. 11 During
the deposition, Goodwin’s attorney provided details concerning Goodwin’s
involvement with a man named Thomas Robertson (“Robertson”). Goodwin
confirmed that her attorney’s statements were true. 12 According to her
attorney, Robertson was engaged in the business of “cleaning up credit
reports with false information…” 13 Goodwin and Robertson worked together
to refinance the property at issue through CitiFinancial. 14 The two were
aware that it was not clear to CitiFinancial whether there was a mortgage on
the property. Thereafter, they created documentation showing that JK was
servicing a mortgage against the property. Goodwin testified that JK “was
not a real company” and that it did not receive the payment from
CitiFinancial. 15 Instead, East Coast Remodeling, a company that Robertson
9
Id. at App’x 6.
10
Id.
11
Id. at App’x 9-10 and 13-14.
12
Id. at App’x 20.
13
Id at App’x 16.
14
Id. at App’x 17.
15
Id at App’x 21 and 24.
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owned, and received the proceeds from the Citi Mortgage and Goodwin also
received a portion. 16
8. Regions has renewed its motion for summary judgment on Count I, arguing
that there is no longer any issue of fact in dispute as to whether the WF
Mortgage was paid through JK servicing due to Goodwin’s admissions in
her affidavit and second deposition. In opposition to Regions’ motion,
Ocwen argues that the inconsistent testimony concerns the weight of the
evidence and demonstrates an issue of fact that should be considered by the
trier of fact.17 Ocwen also argues that the second deposition should not be
given weight over the first because cross-examination was not completed at
the second deposition and Goodwin’s counsel’s objections prevented full
disclosure of the facts. The Court has great concern over counsel’s
objections, instructions to Goodwin not to answer questions, and his
statements directing opposing counsel to file motions.18
9. A motion for summary judgment may not be granted unless “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving part is entitled to summary judgment as a matter of
16
Id at App’x 21-22.
17
Ocwen compares the inconsistencies between the depositions in this case to other
inconsistent statements which courts have considered, such as recantations in criminal
cases, sham affidavits, and inconsistent testimony in depositions and trials
18
E.g., Pl. Ex. 2, Goodwin Dep. at 54:9-10 (Oct. 7, 2013)(“If you want to question any
further, you’ll have to go file a motion”).
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law.” 19 When considering a motion for summary judgment, the Court must
view the evidence in the light most favorable to the nonmoving party. 20
Where there is a material fact in dispute or if it seems desirable to inquire
more thoroughly into the facts in order to clarify the application of the law,
summary judgment is inappropriate. 21 Similarly, where issues of fact are
based on the credibility of a witness, the Court will not grant summary
judgment. 22
10. The Court finds that an issue of fact still remains as to whether the WF
Mortgage was paid. To find otherwise would require the Court to find
Goodwin’s testimony from her second deposition and any statements in her
affidavit to be more credible than her testimony from the first deposition. In
this case, that finding is more properly reserved for the fact-finder and
should not be determined by the Court at the summary judgment stage.
Therefore, Regions’ Renewed Motion is DENIED.
IT IS SO ORDERED.
/s/Calvin L. Scott
Judge Calvin L. Scott, Jr.
19
Super. Ct. Civ. R. 56; Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
20
Bailey v. City of Wilmington, 766 A.2d 477, 479 (Del. 2001).
21
Tew v. Sun Oil Co., 407 A.2d 240, 242 (Del. Super. 1979).
22
Block Fin. Corp. v. Inisoft Corp., 2006 WL 3240010, at *3 (Del. Super. Oct. 30, 2006); Lynch
v. Athey Products Corp., 505 A.2d 42, 43 (Del. Super. 1985); Young v. Delaware Auth. for Reg'l
Transit, 1983 WL 412267, at *1 (Del. Super. Aug. 2, 1983) aff'd, 494 A.2d 169 (Del. 1984).
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