United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
WILLIAM E. SMITH, CHIEF JUDGE.
the Court is a Renewed Motion for Summary Judgment (ECF No.
16) filed by Defendants U.S. Bank Trust, N.A., as Trustee for
LSF9 Master Participation Trust (“U.S. Bank”) and
Caliber Home Loans, Inc. (“Caliber, ” and
collectively, “Defendants”). Defendants'
Renewed Motion for Summary Judgment follows the Court's
September 28, 2017 Order (“Order”) denying
Defendants' Motion for Summary Judgment (ECF No. 5)
without prejudice to refiling. Defendants have timely refiled
their Motion for Summary Judgment, incorporating by reference
their Memorandum in Support of their Motion for Summary
Judgment (ECF No. 6) and supporting affidavit (ECF No. 7).
For the reasons set forth below, the Court GRANTS
February 27, 2009, Plaintiff David Grimaldi executed a
promissory note (“Note”) in favor of Shamrock
Financial Corporation, and a mortgage
(“Mortgage”) in favor of Mortgage Electronic
Systems, Inc., as nominee for Shamrock Financial Corporation,
to repay a loan in the principal amount of $208, 160.00 for
Plaintiff's home located at 19 South Glen Drive in
Coventry, Rhode Island (the “Property”).
(Defs.' Statement of Undisputed Facts (“SUF”)
¶¶ 1, 3, 5, ECF No. 8.) U.S. Bank is the current
assignee of the Mortgage and holder of the Note,
Caliber is the servicer of the loan on behalf of U.S. Bank.
(Defs.' SUF ¶ 9; Nelms Aff. 1, ECF No. 7.)
around November 2012, Plaintiff defaulted on the loan by
failing to make the required payments. (Defs.' SUF ¶
6.) On September 11, 2012, November 14, 2012, and December
11, 2012, JP Morgan Chase Bank (“Chase”), the
holder of the Note and Mortgage at that time, sent letters to
Plaintiff indicating that he had options to pay the past-due
amount on his Mortgage and that a representative would visit
his home within twenty days to discuss a repayment plan.
(Nelms Aff. Ex. H, at 2, 4, 6, ECF No. 7-8; Defs.' SUF
¶ 8.) However, no representative visited Plaintiff at
his home. (Grimaldi Aff. ¶¶ 10, 12, ECF No. 13-2.)
December 17, 2012, a notice of intent to foreclose was sent
to Plaintiff; he was sent a second notice of intent to
foreclose on April 18, 2013. (Nelms Aff. Ex. G, at 5, 13, ECF
No. 7-7; Defs.' SUF ¶ 7). Subsequently, on June 5,
2013, Plaintiff received a notice of default and
acceleration. (Nelms Aff. Ex. G, at 2; Defs.' SUF
¶ 7). Later, on July 8, 2016, Plaintiff received a
letter stating that a foreclosure sale of Plaintiff's
home was scheduled for August 31, 2016. (Compl. 30.)
Accordingly, after receiving the July 8, 2016 letter,
Plaintiff initiated suit, alleging breach of contract and
violation of the covenant of good-faith and fair dealing, and
seeking injunctive relief and declaratory judgment, to stave
off the foreclosure of his home.
claims against Defendants are premised on Defendants'
failure to comply with 24 C.F.R. § 203.604 before
Defendants initiated foreclosure, as required by the
Mortgage.(See generally Compl.) 24 C.F.R.
§ 203.604(b) requires the mortgagee to “have a
face-to-face interview with the mortgagor, or make a
reasonable effort to arrange such a meeting, before three
full monthly installments due on the mortgage are
unpaid.” 24 C.F.R. § 203.604(b). A reasonable
effort to have a face-to-face meeting requires, at a minimum,
“one letter sent to the mortgagor certified by the
Postal Service as having been dispatched” and
“one trip to see the mortgagor at the mortgaged
property.” 24 C.F.R. § 203.604(d). Specifically,
Plaintiff alleges that Defendants failed to comply with
§ 203.604(b) by not providing him with a face-to-face
meeting. (See generally Compl.)
time of Defendants' first motion for summary judgment,
the undisputed record reflected that Defendants had sent
Plaintiff three letters referencing a face-to-face meeting,
but had not made a trip to see the mortgagor (Plaintiff) at
his property. See § 203.604(d); (Nelms Aff. Ex.
H, at 2, 4, 6; Grimaldi Aff. ¶¶ 10, 12).
Defendants' failure to make “one trip to see”
Plaintiff at his property resulted in the Court denying
Defendants' first motion for summary judgment without
prejudice to refiling. See § 203.604(d). The
Order stated that Defendants had thirty days to refile their
motion for summary judgment with an updated affidavit
attesting to Defendants' compliance with the contractual
obligations at issue.
timely filed their Renewed Motion for Summary Judgment with
an affidavit averring that a Caliber default servicing
officer made a personal visit to Plaintiff's Property on
October 25, 2017. (Dunham Aff. ¶¶ 1-2, ECF No. 17.)
The affidavit further states that Plaintiff was not home at
the time of the visit and, in his absence, the default
servicing officer left a letter at Plaintiff's property.
(Id. ¶¶ 3-5.) The letter left at
Plaintiff's property offered Plaintiff the opportunity
for a face-to-face meeting if he so desired. (Id.
¶¶ 4-5; Letter Ex. A, ECF No. 17-1.)
judgment is properly granted if the movant can demonstrate
that ‘there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a matter
of law.'” Miranda-Rivera v. Toledo-Davila,
813 F.3d 64, 69 (1st Cir. 2016) (quoting Fed.R.Civ.P. 56(a)).
“A ‘genuine' dispute exists when a jury can
reasonably interpret the evidence in the non-movant's
favor.” Id. “A ‘material' fact
is ‘one that might affect the outcome of the suit under
the governing law.'” Id. (quoting
Vélez-Rivera v. Agosto-Alicea, 437 F.3d 145,
150 (1st Cir. 2006)). In ruling on a motion for summary
judgment, the court examines the record evidence “in
the light most favorable to, and drawing all reasonable
inferences in favor of, the nonmoving party.”
Feliciano de la Cruz v. El Conquistador Resort &
Country Club, 218 F.3d 1, 5 (1st Cir. 2000) (citing
Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 672
(1st Cir. 1996)).
Defendants' Compliance with 24 C.F.R. § 203.604 The
clear language of § 203.604 requires a mortgagee to make
a “reasonable effort” to arrange a
face-to-meeting with the mortgagor, as defined as sending a
letter to the mortgagor and making a personal visit
to the mortgagor's property, “before three full
monthly installments due on the mortgage are unpaid.”
See § 203.604(b), (d); see also Countrywide
Home Loans, Inc. v. Wilkerson, No. 03 C 50391, 2004 WL
539983, at *1 (N.D. Ill. Mar. 12, 2004) (“The court
interprets this straightforward language to require both the
sending of a certified letter and a personal visit to
constitute a reasonable effort at arranging a face-to-face
meeting.”). With their Renewed Motion for Summary
Judgment, Defendants have now proffered as an undisputed fact
that a Caliber representative visited the Property on October
25, 2017 and left a letter upon discovering that Plaintiff
was not home, as part of its reasonable effort to arrange a
face-to-face meeting with Plaintiff pursuant to §
203.604. See § 203.604(d); Hobby v.
Burson, 110 A.3d 796, 802-03 (Md. Ct. Spec. App. 2015)
(holding evidence that a representative visited the mortgaged
property and left a letter upon discovering mortgagor was not
home established a reasonable effort under § 203.604);
(Nelms Aff. Ex. H, at 2, 4, 6; Dunham Aff. ¶¶ 3-5).
Thus, in light of the undisputed facts that Defendants sent
three letters to Plaintiff, on September 11, 2012, November
14, 2012, and December 11, 2012, stating that a face-to-face
meeting was scheduled to occur within the next twenty days,
(Nelms Aff. Ex. H, at 2, 4, 6), and made a personal visit to
Plaintiff's Property (Dunham Aff. ¶¶ 3-5), and
drawing all reasonable inferences in favor of Plaintiff, the
Court is satisfied that Defendants have met their contractual
obligation to comply with 24 C.F.R. § 203.604.
See 24 C.F.R. § 203.604(b), (d);
Miranda-Rivera, 813 F.3d at 69. With no genuine fact
dispute remaining in regards to Defendants' compliance
with § 203.604, and because all of Plaintiff's
claims are premised on Defendants' alleged failure to
comply with § 203.604, Defendants' Renewed Motion
for Summary Judgment is GRANTED with respect to all of
Plaintiff's Request for Further Discovery under Rule
56(d) of the ...