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Gorham-Dimaggio v. Countrywide Home Loans

March 8, 2010




Presently before the Court are a Motion for summary judgment filed by Plaintiff Kim Gorham-DiMaggio ("Plaintiff") and a cross-Motion for summary judgment filed by Defendants Countrywide Financial Corp. and its affiliates Countrywide Home Loans, Inc., Countrywide Home Loans, Inc., LP, and Countrywide Home Loans Servicing, LP, (collectively, "Defendants"). Investor Number 1688597323 is named as a Defendant, however, information regarding the named investor has not been presented. References to Defendants are solely to the combined Countrywide entities, as Plaintiff does not distinguish among them.


On June 13, 2003, Plaintiff, a resident of New York, obtained a mortgage loan on her home from the Defendants in the amount of $145,350. Mortgage Contract (Dkt. No. 17, Attach. 9). Under the terms of the mortgage contract ("the Note"), Plaintiff became responsible for making all monthly payments in principle and escrow to the Defendants, including Defendants' projections of escrow. Note §3(a). The Note further specifies, "[i]f [Plaintiff] do[es] not pay the full amount of each monthly payment on the date it is due, [Plaintiff] will be in default." Am. Compl. ¶ 19. A previous default was settled by the parties in September 29, 2005, and a subsequent dispute was settled in October 2006. Aff. of David L. Permut at ¶5 (Dkt. No. 17, Attach. 3); Am. Compl. ¶ 29. The current interest owed under the mortgage is a fixed rate reached as a result of the settlement in that dispute. Id.

In March 2007, Plaintiff received a bill from the Defendants for $1,506. Am. Compl. ¶ 53. The amount of the March bill was an unexpected increase for the Plaintiff, as her combined monthly principal and escrow payment had been $1,411 since November 2006. Id. ¶ 52. Plaintiff paid the full amount of the March bill. Id. ¶ 53. In April 2007, Plaintiff received a bill in the amount of $1,528, but paid only $1,411. Id. ¶ 59. The check was not cashed, but was returned to the Plaintiff on May 5, 2007 because it was $117 dollars less than the amount owed under the April bill. Id. ¶ 8, 13. Plaintiff claims the Defendants then prevented her from accessing her online account on May 5, and defaulted her on the mortgage loan at some time thereafter. Id. ¶ 8.

Subsequently, Plaintiff's attorney contacted Defendants' attorney from the first dispute, David L. Permut, via email on June 13, 2007 requesting an explanation for the escrow increase.

Am. Compl. ¶¶ 67, 68. An email response from Permut explained that the increased amount was established following an escrow re-analysis that was performed by the Defendants on February 16, 2007. Id. ¶ 68. The email further stated that notice of the increase was included in Plaintiff's February 2007 billing statement. Id. ¶ 68. Plaintiff maintains she never received a statement of the escrow increase in February, and that her billing statements represented that the escrow re-analysis would not be performed until April 2007. Id. ¶¶ 70, 71. Plaintiff does not allege that she attempted to call Countrywide for an explanation, but instead claims that several Countrywide representatives called her around this time in an unrelated attempt to convince her to refinance her home, during which calls they assured her that the escrow amount had not increased, and would not increase until September 2007. Am. Compl. ¶¶ 71, 75, 97. These representatives sent Plaintiff screen shots of her account information on February 28, 2007 and July 18, 2007 to verify this information. Id. ¶ 84. On both occasions, the screen shot showed that the total monthly payment was still $1,411, and that the escrow amount had not changed. Id. ¶ 84. Even after the March and April increase, Plaintiff claims her monthly billing statements contained information that an escrow re-analysis would not be performed until April 2007. Based on this, she believed that the amount she was being charged was incorrect. Id. ¶ 71.

Unsatisfied with the earlier response from Mr. Permut, Plaintiff sent Defendants a written request for information regarding the escrow increase "on or about June 15, 2007." Am. Compl. ¶ 86. Plaintiff claims she never received a response to her request. Id. ¶ 86. Without stating when it happened, Plaintiff claims that the Defendants sent her account to a foreclosure attorney. Am. Compl. ¶ 94. Plaintiff further argues that Defendant's numerous call-centers or help-lines established to assist defaulted borrowers were never specifically offered to assist her. Id. ¶ 95-96. Plaintiff proceeded to file the present action on January 7, 2008.

On December 17, 2008, this Court dismissed all but one of Plaintiff's assorted claims brought on the basis of the foregoing factual allegations. See generally Mem. Dec. & Order (Dkt. No. 21) (dismissing Fair Housing Act discrimination claims under 42 U.S.C. §§ 3604, 3605; Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq., discrimination claims; a Real Estate Settlement Procedure Act, 12 U.S.C. §2601 et seq., claim based on the email exchange between Plaintiff's attorney and Mr. Permut; breach of fiduciary duty claim; breach of contract claim; breach of settlement agreement claim; NY General Business Law § 349 claim; fraud claim; negligence and gross negligence claims; conspiracy to defraud claim; and defamation of credit claim). The sole claim surviving Defendants' Motion to dismiss comes now before the Court as the subject of the parties' summary judgment Motions. Listed as the Fifth Claim in Plaintiff's Amended Complaint, it alleges that Defendants violated the Real Estate Settlement Procedure Act (RESPA), 12 U.S.C. §2601 et seq., by failing to adequately respond to her qualified written request within 20 days in accordance with the mandatory guidelines.


Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "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 party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); Beard v. Banks, 548 U.S. 521, 529 (2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A court must "'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing the judgment.'" Brown v. Henderson, 257 F.2d 246, 251 (2d Cir. 2001) (quoting Cifra v. General Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

If the moving party meets its initial burden of demonstrating that no genuine issue of material fact exists for trial, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Corp., 475 U.S. 574, 586 (1986) (citations omitted). The non-movant "must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown, 257 F.3d at 251 (citation omitted). The nonmoving party "may not rely merely on allegations or denials in its own pleadings;" bald assertions unsupported by evidence are insufficient to overcome a motion for summary judgment. FED. R. CIV. P. 56(e)(2); see Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). "Factual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiff's affidavit opposing summary judgment and that affidavit contradicts her own prior deposition testimony." Brown, 257 F.3d at 251 (citation omitted).


For Plaintiff to prevail on a RESPA violation under 12 U.S.C. ยง 2605(e)(1)(A), it is necessary that she be able to establish that she sent, and the Defendants received, a "qualified written request" that would trigger the Defendants' obligation to acknowledge the request; Plaintiff must then be able to prove that Defendants failed to meet this obligation. Plaintiff's sole claim for ...

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