Bivens v. Select Portfolio Servicing, Inc.

REPLY BRIEF re MOTION for Summary Judgment

N.D. Ga.May 24, 2017

ATL:0530018/01100:5521331 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION STEVEN BIVENS, on behalf of himself and all persons similarly situated, Plaintiff, vs. SELECT PORTFOLIO SERVICING, INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. 1:15-CV-4325-ELR-JKL REPLY IN SUPPORT OF DEFENDANT SELECT PORTFOLIO SERVICING, INC.’S MOTION FOR SUMMARY JUDGMENT Plaintiff Steven Bivens has failed to identify a genuine issue of material fact in dispute between the parties that could lead a reasonable factfinder to decide that Defendant Select Portfolio Servicing, Inc. (“SPS”) is liable to Plaintiff under the Real Estate Settlement Procedures Act (“RESPA”) for a failure to adequately respond to the March 2015 Letter at issue in this case. The undisputed facts reflect that SPS adequately responded to Plaintiff’s March 2015 Letter, that the additional information Plaintiff sought from SPS was information Plaintiff already had in his possession and not salient to SPS’s servicing of his loan, and that Plaintiff’s inability to obtain that information from SPS did not cause him any harm. Case 1:15-cv-04325-ELR-JKL Document 72 Filed 05/24/17 Page 1 of 15 2 ATL:0530018/01100:5521331 I. Plaintiff’s Contention that SPS Violated RESPA By Failing to Provide Him With the Name and Telephone Number of an Individual at SPS Who Can Provide Assistance Is Not Properly Before the Court. Plaintiff makes an improper attempt to amend his pleading through his summary judgment response briefing by adding to his claim a contention that SPS violated RESPA by failing to provide him with contact information for an SPS employee or department who could provide him with further assistance when it responded to his March 2015 Letter. (Dkt. 68, pp. 16-18.) RESPA does require that in a response to a Qualified Written Request (“QWR”), a loan servicer must provide a borrower with “the name and telephone number of an individual employed by, or the office or department of, the servicer who can provide assistance to the borrower.” 12 U.S.C. § 2605(e). However, Plaintiff’s Amended Complaint, the operative pleading in this case, makes specific allegations as to SPS’s purported RESPA violations, and this allegation is not included. (Dkt. 59.) This issue also was not the subject of discovery in this case. Accordingly, Plaintiff should not be able to raise it now. Fed. R. Civ. P. 15 (“[A] party may amend its pleading only with the opposing party’s written consent or the court’s leave” after time has expired to amend as a matter of course.) If he is permitted to amend now, there will be prejudice to SPS. Furthermore, Plaintiff has not developed or proffered evidence demonstrating that a reasonable factfinder could conclude there has been a Case 1:15-cv-04325-ELR-JKL Document 72 Filed 05/24/17 Page 2 of 15 3 ATL:0530018/01100:5521331 violation here. Plaintiff provided no statement of additional facts supporting this eleventh-hour theory. To the extent he provides facts in the body of his brief, he fails to show a violation. Plaintiff does not contend that SPS did not include the relevant contact information in its response letter as required under the statute. It did. (Bivens Dep. 173:15-174:13 and Ex. 9.) Plaintiff contends, instead, that when Plaintiff called the number SPS provided, Plaintiff was transferred to personnel in the legal department. It is undisputed that SPS and Plaintiff were consistently engaged in litigation at the time Plaintiff sent the March 2015 Letter and have remained engaged in litigation since. (SUMF 11, Bivens Dep. 143:14-144:7; Bivens vs. Bank of America, N.A., et al., No. 1-14-CV-1569-ODE, N.D. Ga.) That inherently creates a dilemma for SPS with respect to communications with the borrower. Plaintiff has submitted no supporting facts on this issue for the Court to consider whether Plaintiff had a right to engage in communications with the customer service representatives at SPS rather than legal department personnel. Plaintiff merely submitted an affidavit, stating “I called SPS several times in response to its invitations ‘for further assistance’ in its response to my QWRs in the last few years, but no one at SPS would talk to me about my account.” (Dkt. 68-12, ¶ 7.) However, Plaintiff has not shown that he made any such calls to follow up on the requests he set out in the March 2015 Letter that is the subject of this case. He has not identified the substance of his calls or the substance of the Case 1:15-cv-04325-ELR-JKL Document 72 Filed 05/24/17 Page 3 of 15 4 ATL:0530018/01100:5521331 response he received. Nor has he submitted evidence demonstrating that any such conduct caused him damages. Plaintiff has also presented no supporting legal authority that SPS’s conduct constitutes a violation of the law. Because this issue is not properly before the Court, it should not be considered. Even if the Court were to entertain this issue, without additional evidence as to the substance of the communications, this Court cannot find that Plaintiff has raised a question as to whether there was a RESPA violation under this theory. II. SPS Adequately Responded to the March 2015 Letter. In his response to the Motion for Summary Judgment, Plaintiff complains that SPS violated RESPA by providing him a version of Plaintiff’s account history with SPS that includes references to fees SPS incurred related to his account but not charged to Plaintiff while also asserting that he was damaged because he was not given a version of the prior servicer’s account history containing information about the same kinds of fees. (Dkt. 68 pp. 6-7, 14.) This hypocrisy demonstrates that for this borrower, the exercise of requesting information through QWRs is for purposes other than addressing a servicing issue or obtaining information related to any concerns he has about his loan. When SPS responded to the March 2015 Letter, in which Plaintiff requested “a listing of all payments received and charges made to this account since the Case 1:15-cv-04325-ELR-JKL Document 72 Filed 05/24/17 Page 4 of 15 5 ATL:0530018/01100:5521331 execution of the note,” it knew that Plaintiff was in possession of his account history from January 16, 2007 through the date SPS began servicing the loan. It understood that because Plaintiff had attached that document to a Complaint in litigation that was pending at the time Plaintiff sent the March 2015 Letter. (SUMF 20, 21, Bivens Dep. 207:2-210:6 and Ex. 14; 289:4-292:13; 298:12-18; Syphus Dep. (March 2017) 7:4-8:4; 12:9-13:16.) Plaintiff’s letter raised no question about the loan status or the application of any payment by SPS or any prior servicer. (Bivens Dep. 143:14-144:7 and Ex. 3.) Plaintiff admits that at the time, he had no specific concern about the application of payments. (Bivens Dep. 145:23-148:6; 149:3-9.) Rather, he was demanding the information because he is “entitled to it.” (Id.) But the RESPA implementing regulation, Reg X, 12 C.F.R. 1024.36, does not require a servicer to respond to overbroad requests or to provide “irrelevant” information in response to a QWR. Courts have agreed that where a borrower has not raised any question about the servicing of a loan, a request in a QWR for a payment history for the entirety of a loan is either an overbroad request or a request for information that is “irrelevant.” Brewer v. Wells Fargo Bank, N.A., No. 16-cv-02665-HSG, 2017 WL 1315579, at *4 (N.D. Cal. Apr. 6, 2017) (request for complete life-of-loan history is overbroad); Rizk v. Residential Credit Solutions, Inc., No. CV-14-09371-MWF-JC, 2016 WL 6211727, at *2 (C.D. Cal. Apr 12, 2016) (request for loan history covering entire life of the loan is “far too Case 1:15-cv-04325-ELR-JKL Document 72 Filed 05/24/17 Page 5 of 15 6 ATL:0530018/01100:5521331 broad to be proper under RESPA”); Junod v. Dream House Mortg. Co., No. CV 11-7035-ODW, 2012 WL 94355, at *3-4 (C.D. Cal. June 5, 2012) (letter demanding a “true and present copy of the promissory note and deed of trust” and a life-of-loan history was not a QWR as contemplated under RESPA); Russell v. Nationstar Mortgage, LLC, No. 14-61977-CIV, 2015 WL 5029346, at *5 (S.D. Fla. Aug. 26, 2015) (servicer’s provision of partial loan history in response to request for line-by-line payment history for life of the loan was adequate where prior information was not “salient” to a current problem with borrower’s account); Bulmer v. MidFirst Bank, FSA, 59 F. Supp. 3d 271 (D. Mass 2014) (examining current servicer’s duty to provide prior servicer account history and determining duty is to provide “salient” servicing information). SPS was not obligated to provide any more information than it did. In particular, given the context in which the March 2015 Letter was sent—with a case pending that was initiated with a Complaint containing much of the information Plaintiff requested—SPS’s response was appropriate and compliant with RESPA. Plaintiff contends that his request was for “salient” information because he later asked questions in subsequent correspondence about specific charges listed on the prior servicer’s account history. (Dkt. 68, pp. 8-9.) But SPS made its decision as to what information this borrower needed at the time it sent its response. It could not base its decision on issues raised about that information that it only Case 1:15-cv-04325-ELR-JKL Document 72 Filed 05/24/17 Page 6 of 15 7 ATL:0530018/01100:5521331 received later. Furthermore, there is no evidence in the record that suggests Plaintiff had any specific concerns about the servicing of his loan when he sent the March 2015 Letter. Instead, the record suggests he sought the information for the purpose of identifying grounds to send additional QWRs. (Bivens Dep. 145:23- 148:6; 149:3-9.) Plaintiff’s deposition testimony reflects that his intention was to test whether SPS had the information, not that he sought the information itself. (Bivens Dep. 221:16-19.) Plaintiff’s contention that he was entitled to the Bank of America payment history is also not bolstered by his contention that when SPS later sent him another copy of the account history, that document also contained a listing of fees charged and credited to his account. His claim that the documents are “materially different” is contradicted by the documents themselves. They contain the same payment history. (Compare Dkt. 68-3 and 68-4; see also SPS’s Reply in Support of SUMF 22.) They contain the same principal balance due and the same escrow balance. (Id.) Plaintiff received a description of charges placed on the account rather than a spreadsheet of them with the first document. The second contained a spreadsheet containing the same information. (Id.) That is not a “material” difference. Furthermore, SPS did not violate RESPA by failing to provide a key to the codes for its account history. The March 2015 Letter did not request the codes. Case 1:15-cv-04325-ELR-JKL Document 72 Filed 05/24/17 Page 7 of 15 8 ATL:0530018/01100:5521331 (SUMF 12, Bivens Dep. 143:14-144:7 and Ex. 3.) Furthermore, the account history SPS provided does not simply provide numbers with codes. There are English language descriptions as to the charges in addition to the codes. (Bivens Dep. 174:14-17 and Ex. 9.) Notably, Plaintiff never made a clear request for the transaction codes before filing this lawsuit and did not do so in any later correspondence. (SUMF 29-47; Bivens Dep. 184:23-187:5 and Ex. 10, 224:8-16 and Ex. 15.) Plaintiff’s contention that there is a RESPA violation here fails. Plaintiff’s assertion that SPS violated RESPA by sending him an account history that reflects charges that it did not seek to collect from Plaintiff also fails. This argument is disingenuous given Plaintiff’s contentions about the importance of such information with respect to the prior servicer’s account history. Moreover, a borrower is not entitled to dictate the format in which the servicer responds to a QWR. See, e.g., O’Brien v. Seterus, No. 9:15-CV-80300, 2015 WL 4514512, at *3 (S.D. Fla. July 24, 2015) (noting that servicer’s response to a QWR was adequate even though it lacked the content and specificity the borrower desired to receive). III. Plaintiff Suffered No Harm and Cannot Recover Actual Damages. Even if the Court were to determine that Plaintiff was due some information that SPS did not provide in its response to the March 2015 Letter, Plaintiff has not raised a genuine issue of material fact as to whether he was harmed. The February 2016 and April 2016 Letters Case 1:15-cv-04325-ELR-JKL Document 72 Filed 05/24/17 Page 8 of 15 9 ATL:0530018/01100:5521331 Plaintiff contends that he is due to be reimbursed for the costs incurred in sending letters to SPS in February 2016 and April 2016, long after filing this lawsuit. Without submitting additional facts on this point, to explain the delay in pursuing the information, Plaintiff merely attached an affidavit. The Court should ignore the affidavit on the basis of this procedural deficiency. Even if the affidavit is considered, it is insufficient. Plaintiff contends that he was hoping to get the information he requested in the March 2015 Letter in the course of the 2014 Case he filed against SPS, and sent the additional letters only when he did not. But the record in the 2014 Case belies this contention. Plaintiff never sought this information in discovery. Plaintiff filed four motions to compel in the 2014 Case, but not one reflects an attempt to obtain this information. (No. 1:14-cv-01569-ODE, Dkt. 27, 42, 68, 74.) What the record does reflect, as SPS previously briefed, is that Plaintiff suddenly pursued the information through additional correspondence to SPS when he received briefing in the 2014 Case reflecting that his claim was due to be dismissed because he could not show actual damages. February 2016 Meeting with Rod Carnes Plaintiff also contends he incurred costs for attending a February 1, 2016 meeting with Rod Carnes of the Georgia Department of Banking and Finance. This claim, too, fails, because the undisputed facts reflect that the meeting Plaintiff Case 1:15-cv-04325-ELR-JKL Document 72 Filed 05/24/17 Page 9 of 15 10 ATL:0530018/01100:5521331 took with Carnes was not the proximate result of any RESPA violation on the part of SPS. Plaintiff told Carnes before the meeting that he was not asking the Department to do anything. (SUMF 30, Carnes Dep. 58:3-60:4.) Plaintiff testified unequivocally that he did not ask Carnes to help him get the account history or the transaction codes for the SPS account history during that meeting. (Bivens Dep. 246:19-247:4.) Plaintiff contends that the fact that the parties ultimately discussed the payment history and transaction codes, and that Carnes later contacted SPS to attempt to obtain the information demonstrates that the purpose of the meeting was to get this assistance. But Carnes’ testimony is not that he contacted SPS because he was asked to during the meeting with Plaintiff, but rather that he went back to the original request Plaintiff sent to SPS and followed up on that. (Carnes Dep. 88:14-89:10.) That is substantially different. That Carnes took it upon himself to follow up on the March 2015 Letter does not show that Plaintiff’s attendance at the meeting was proximately caused by any RESPA violation on the part of SPS. The undisputed facts reflect Plaintiff’s motives for attending the meeting were quite different. (Bivens Dep. 245:16-250:3.) IV. Plaintiff Has Not Shown a Pattern or Practice of RESPA Noncompliance. This Court has not, as Plaintiff contends, determined that Plaintiff has proven a pattern or practice. This Court earlier ruled only that Plaintiff had adequately pled facts to satisfy his burden to survive a motion to dismiss. The Case 1:15-cv-04325-ELR-JKL Document 72 Filed 05/24/17 Page 10 of 15 11 ATL:0530018/01100:5521331 Plaintiff’s burden on summary judgment is to show there is a material fact in dispute as to whether SPS has a pattern or practice of violating RESPA, and he cannot do so. The undisputed facts reflect that SPS has a policy of complying with RESPA and that it treats requests for information on an individual basis, attempting to satisfy the specific request of each borrower. (SUMF 56-62.) Plaintiff can demonstrate nothing different. Specifically, Plaintiff can show no pattern or practice involving a violation with respect to any other borrower, as he must. See, e.g., Toone v. Wells Fargo Bank, N.A., 716 F.3d 516, 523 (10th Cir. 2013) (affirming dismissal of RESPA claim for failure to allege violations with respect to other borrowers), Renfroe, 822 F.3d at 1247 (citing Toone); Gnipp v. Bank of Am., N.A., No. 2:15-cv-99, 2016 WL 4810541, at * 6 (M.D. Fla. Sept. 14, 2016). Accordingly, Plaintiff cannot, as he must, demonstrate that SPS fails to satisfy its obligations under § 2605 as a routine matter. See, e.g., Miranda v. Ocwen Loan Servicing, LLC, No. 15-61434-CIV, 2015 WL 7767209, at *4 (S.D. Fla. Dec. 2, 2015) (the term “pattern or practice” suggests a standard or routine way of operating). Plaintiff’s attempt to overcome this hurdle by suggesting that comments by Elizabeth Campbell, counsel for SPS, during a teleconference with the Court, operate as a judicial admission attributable to SPS fails. “Only ‘deliberate, clear and unequivocal’ statements can constitute conclusive judicial admissions.” Case 1:15-cv-04325-ELR-JKL Document 72 Filed 05/24/17 Page 11 of 15 12 ATL:0530018/01100:5521331 Matter of Corland Corp., 967 F.2d 1069, 1074 (5th Cir. 1992). A judicial admission is a “formal concession” of an issue. McCaskill v. SCI Mgmt. Corp., 298 F.3d 677, 680 (7th Cir. 2002). Here, there has been no judicial admission by Ms. Campbell that is binding upon SPS. Ms. Campbell, in the course of an informal teleconference about a discovery dispute, spoke solely of her own conduct and that of her office when providing borrowers with payment histories. (Dkt. 59, p. 30:15-16; 37:25-28:1.) Her testimony is non-specific, even as to whether she was referring to responses to QWRs. There is no context provided as to how many payment histories Ms. Campbell has sent to borrowers, or on whose behalf she sent them, or whether she sent them in response to a QWR or for another purpose. (Id.) Indeed, there is no evidence that Ms. Campbell or her office has responded to QWRs other than those responses sent to Plaintiff. More importantly, both she and counsel for Plaintiff noted at the time that her statements during that teleconference did not constitute testimony. (Id., pp. 35:23-37:10.) Certainly, then, it was not “deliberate.” Indeed, as a result of this hearing, Judge Larkins ordered that Plaintiff could further question SPS on this point. (Dkt. 56.) Had there been a concession as to this issue through a binding judicial admission, there would have been no need for additional discovery. Also, contrary to Plaintiff’s declaration, Plaintiff’s showing of two alleged violations does not satisfy Plaintiff’s burden to show a pattern or practice under Case 1:15-cv-04325-ELR-JKL Document 72 Filed 05/24/17 Page 12 of 15 13 ATL:0530018/01100:5521331 RESPA. Courts have specifically noted that two violations do not suffice. See, e.g., Renfroe v. Nationstar Mortg., LLC, 822 F.3d 1241, 1247 (11th Cir. 2016), citing Kapsis v. Am. Home Mortg. Servicing, Inc., 923 F. Supp. 2d 430, 445 (E.D.N.Y. 2013). CONCLUSION For the foregoing reasons, and those set forth in its initial brief, SPS respectfully requests that the Court grant its Motion and grant summary judgment in favor of SPS. Dated: May 24, 2017. LOCKE LORD LLP s/ Elizabeth J. Campbell Elizabeth J. Campbell Georgia Bar No. 349249 Email: ecampbell@lockelord.com Alexandra M. Dishun Georgia Bar No. 184502 Email: adishun@lockelord.com Terminus 200, Suite 1200 3333 Piedmont Road NE Atlanta, GA 30305 (404) 870-4600 (404) 872-5547 (fax) Attorneys for Select Portfolio Servicing, Inc. Case 1:15-cv-04325-ELR-JKL Document 72 Filed 05/24/17 Page 13 of 15 14 ATL:0530018/01100:5521331 CERTIFICATION Pursuant to Local Rule 7.1, the undersigned counsel certifies that this memorandum was prepared with Times New Roman (14 point), one of the font and point selections approved by the Court in Local Rule 5.1C. /s/ Alexandra M. Dishun Alexandra M. Dishun Georgia Bar No. 184502 Case 1:15-cv-04325-ELR-JKL Document 72 Filed 05/24/17 Page 14 of 15 15 ATL:0530018/01100:5521331 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION STEVEN BIVENS, on behalf of himself and all persons similarly situated, Plaintiff, vs. SELECT PORTFOLIO SERVICING, INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. 1:15-CV-4325-ELR-JKL CERTIFICATE OF SERVICE I certify that I have this 24th day of May, 2017 electronically filed the foregoing DEFENDANT SELECT PORTFOLIO SERVICING, INC.’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system, which will electronically serve the same on Plaintiff’s counsel of record listed below: Wayne Charles 395 Highgrove Drive Fayetteville, GA 30215 s/ Alexandra M. Dishun Alexandra M. Dishun Georgia Bar No. 184502 One of the Attorneys for Defendant Select Portfolio Servicing, Inc. Case 1:15-cv-04325-ELR-JKL Document 72 Filed 05/24/17 Page 15 of 15 1 ATL 551927 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION STEVEN BIVENS, on behalf of himself and all persons similarly situated, Plaintiff, vs. SELECT PORTFOLIO SERVICING, INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. 1:15-CV-4325-ELR-JKL DEFENDANT SELECT PORTFOLIO SERVICING’S REPLY IN SUPPORT OF ITS STATEMENT OF UNDISPUTED MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE TO BE TRIED In support of its Motion for Summary Judgment, Defendant Select Portfolio Servicing, Inc. (“SPS”) hereby replies to Plaintiff’s Response to SPS’s Statement of Undisputed Material Facts as to Which There is No Genuine Issue to be Tried, pursuant to Rule 56 of the Federal Rules of Civil Procedure, Local Rule 56.1B(1), N.D. Ga., and the Court’s standing orders. UNDISPUTED MATERIAL FACTS 1. In 2006, Plaintiff Steven Bivens borrowed money from Mortgage Lenders Network USA, Inc. (“MLN”) to purchase residential property in Sugar Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 1 of 32 2 ATL 551927 Hill, Georgia (the “Loan”). (Deposition of Steven Bivens, March 9, 2017 (excerpts attached as Exhibit A to the Motion) at 42:15-45:25.) RESPONSE: None. REPLY: This fact should stand as undisputed. 2. Bivens made his initial payments on the loan to MLN from the origination of the Loan to December 2006. (Bivens Dep. 75:23-76:4.) RESPONSE: None. REPLY: This fact should stand as undisputed. 3. Beginning in January 2007, Bivens paid Countrywide. (Bivens Dep. 75:23-76:4.) RESPONSE: None. REPLY: This fact should stand as undisputed. 4. Servicing of the Loan later transferred to Bank of America. (Bivens Dep. 66:8-9.) RESPONSE: Mr. Bivens does not know if Bank of America was ever authorized to service his Loan, only that it claimed to be. REPLY: Mr. Bivens’ testimony is that Bank of America was his loan servicer. Mr. Bivens treated Bank of America as his loan servicer and made Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 2 of 32 3 ATL 551927 his loan payments to Bank of America for a period of time. Mr. Bivens raised no questions about Bank of America’s authority to service his loan before he was in default on his loan, and even then he attempted to negotiate a loan modification with Bank of America. (Bivens Dep. 66:8-9; 66:1-25; 59:24- 60:21; 62:4-18; 150:8-15.) 5. MLN was dissolved in a Chapter 11 bankruptcy case, effective June 10, 2009. (In re Mortgage Lenders Network USA, Inc., No. 07-10146 (PJW), U.S. Bankr. D. Del., Bankruptcy Plan Confirmation [Doc. 2611] and Notice of Confirmation and Effective Date of Bankruptcy Plan [Doc. 2823] copies of which are attached hereto as Exhibits E and F.) RESPONSE: None. REPLY: This fact should stand as undisputed. 6. Bivens stopped paying his loan in 2010. (Bivens Dep. 85:7-10.) RESPONSE: None. REPLY: This fact should stand as undisputed. 7. On December 1, 2012, SPS began servicing the Loan. (30(b)(6) Deposition of Select Portfolio Servicing, Inc. by Mark Syphus, February 2, 2017 Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 3 of 32 4 ATL 551927 (excerpts attached as Exhibit B to the Motion) at 80:2-81:9; Bivens Dep. 164:9- 17.) RESPONSE: Mr. Bivens does not know if SPS was ever authorized to service his Loan, only that it claimed to be. REPLY: SPS has conceded that it is the servicer of Bivens’ loan. As the Eleventh Circuit noted in McLean vs. GMAC Mortg. Corp., 398 F. App’x 467, 469 (11th Cir. 2010), if the plaintiff believes he has sued the wrong party, he is welcome to refile against the party he believes to be the proper party to answer to the claim. 8. Bivens filed a lawsuit against SPS on May 22, 2014 in which he asserted a claim under the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605(e). (Bivens vs. Bank of America, N.A., et al., No. 1-14-CV-1569-ODE, N.D. Ga. [Doc. 1] a copy of which is attached as Exhibit G to the Motion.) RESPONSE: None. REPLY: This fact should stand as undisputed. 9. Locke Lord LLP was counsel of record for SPS in the 2014 Case. (No. 1-14-CV-1569-ODE [Doc. 23, pp. 10-11], a copy of which is attached as Exhibit H to the Motion.) Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 4 of 32 5 ATL 551927 RESPONSE: None. REPLY: This fact should stand as undisputed. 10. A copy of the account history for the Loan beginning January 16, 2007 through is attached to the Complaint in the 2014 Case. (No. 14-CV-1569-ODE, [Doc. 1-2, p. 14], a copy of which is attached as Exhibit G to the Motion.) RESPONSE: The copy discussed here is not the copy of “the” account history, but is only “a” copy. There are different documents with different information. Compare Response, Ex. B to Response, Ex. C. REPLY: The account history Bivens attached to his Complaint in the 2014 Case reflects a principal balance of $113,675.84 and a negative escrow balance of $10,863.06. The account history SPS received from Bank of America and later provided to Bivens with its April 8, 2016 letter to him reflects a principal balance of $113,675.84 and a negative escrow balance of $10,863.06. They reflect the same payments and the same application of those payments. That the document provided to Bivens with SPS’s April 8, 2016 letter contains an additional table reflecting fees is of no consequence. That document shows that no fees were charged to his account. Instead, it reflects that, other than payment method convenience fees, Bank of America credited all fees charged Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 5 of 32 6 ATL 551927 and that they had no effect on Mr. Bivens’ loan account balance. Bivens only incurred convenience fee, which are not part of his principal or escrow balance. The evidence is clear that Bivens was in possession of all of the information about whether his payments had been received and properly applied to his account before he sent the March 25, 2015 letter that is at issue in this case. 11. While the 2014 Case was pending, Bivens sent a letter dated March 25, 2015 (the “March 2015 Letter”) to SPS. (Bivens Dep. 143:14-144:7.) RESPONSE: None. REPLY: This fact should stand as undisputed. 12. In the March 2015 Letter, Bivens made seven different requests. He asked about modification of his loan, asked SPS to opine about a document from “ABS Net,” requested the complete chain of transfer of the loan promissory note, asked questions about assignments of the Security Deed and requested “a listing of all payments received and charges made to this account since the execution of the note with the reasons for any charges to the account.” (Bivens Dep. 143:14-144:7 and Ex. 3.) RESPONSE: None. Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 6 of 32 7 ATL 551927 REPLY: This fact should stand as undisputed. 13. The reason Bivens requested the payment history in that letter is because he is “entitled to it” and because he thinks the account is “all wrong.” He offers no further specificity as to any error. (Bivens Dep. 145:23-148:6; 149:3-9.) RESPONSE: This paragraph grossly mischaracterizes Mr. Bivens testimony. Mr. Bivens testified: Q. Why did you ask for it? A. I’m entitled to it. You know, if you’re sending me a bill each month, then I want to – I want to understand if I can’t – if I get a monthly statement from SPS or a bill statement and I have no way of reconciling it, then at some point, I have the right to ask why are you sending me this and can you give me a breakdown and let’s start from the beginning. REPLY: Plaintiff has provided no contradictory evidence. This fact should stand as undisputed. 14. SPS typically consults its legal department before responding to borrower correspondence when there is litigation pending between SPS and the borrower. (Syphus Dep. (Feb. 2017) at 36:1-38:3; 126:21-127:13.) RESPONSE: None. REPLY: This fact should stand as undisputed. Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 7 of 32 8 ATL 551927 15. Locke Lord LLP sent a letter dated April 7, 2015 to Bivens’ counsel in which it acknowledged receipt of the March 2015 Letter on behalf of SPS. (Syphus Dep. (Feb. 2017) 35:1-17 and Ex. 5; Bivens Dep. 172:19-173:14 and Ex. 8.) RESPONSE: None. REPLY: This fact should stand as undisputed. 16. Locke Lord LLP, acting on behalf of SPS, sent a letter dated May 12, 2015 to Bivens’ lawyer responding to the inquiries in the March 2015 Letter. (Syphus Dep. (Feb. 2017) 36:22-39:4 and Ex. 6; Bivens Dep. 173:15-174:13 and Ex. 9.) RESPONSE: None. REPLY: This fact should stand as undisputed. 17. The SPS legal department, with outside counsel direction, investigated the information provided in the May 12, 2015 letter. (Syphus Dep. (Feb. 2017) 37:1-39:4.) RESPONSE: This statement is based only on inadmissible hearsay evidence. Mr. Syphus has no personal knowledge of what the persons in legal department and outside counsel did or did not do. Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 8 of 32 9 ATL 551927 REPLY: At summary judgment, the court may rely on evidence that is reducible to admissible evidence at trial. Here, Mark Syphus was designated as SPS’s 30(b)(6) witness to testify on behalf of the corporate party. Such evidence is reducible to admissible evidence at trial, because SPS could call a witness to testify to this information. In his second deposition, Mr. Syphus confirmed that SPS’s legal department and outside counsel determined how to respond to the March 2015 Letter. (Syphus Dep. (March 2017) 7:2-9:22; 12:9- 13:16.) 18. In response to Bivens’ request for a payment history, the May 12, 2015 letter states: “SPS began servicing the Loan on December 1, 2012. An account history showing that no payment for the Loan has been received by SPS since it began servicing the Loan on December 1, 2012 and showing the charges that have been made to the account since that date is enclosed with this letter.” (Bivens Dep. at 173:15-174:6 and Ex. 9.) The Payment History Report was enclosed with the May 12, 2015 letter. (Bivens Dep.174:14-17 and Ex. 9.) RESPONSE: None. REPLY: This fact should stand as undisputed. Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 9 of 32 10 ATL 551927 19. The Payment History Report enclosed with the May 12, 2015 letter was the normal payment history provided to a borrower who requested one around that time. (Syphus Dep. (Feb. 2017) 42:1-5 and Ex. 6.) RESPONSE: None. REPLY: This fact should stand as undisputed. 20. As of the date Bivens received SPS’s response to the March 2015 Letter, he was in possession of a complete account history for his loan beginning January 16, 2007. (Bivens Dep. 207:2-210:6 and Ex. 14; 289:4-292:13; 298:12-18.) RESPONSE: Mr. Bivens was not in possession of a “complete account history” and the account history he had received from the law firm representing Bank of America is materially different from the one he received from SPS. Compare Response, Ex. B to Response, Ex. C. REPLY: The statement of fact states that Bivens was “in possession of a complete account history for his loan beginning January 16, 2007.” The account history he had was not materially different from the one he later received from SPS. The account history Bivens attached to his Complaint in the 2014 Case reflects a principal balance of $113,675.84 and a negative escrow balance of $10,863.06. The account history SPS received from Bank of Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 10 of 32 11 ATL 551927 America and later provided to Bivens with its April 8, 2016 letter to him reflects a principal balance of $113,675.84 and a negative escrow balance of $10,863.06. They reflect the same payments and the same application of those payments. That the document provided to Bivens with SPS’s April 8, 2016 letter contains an additional table reflecting fees is of no consequence. That document shows that no fees were charged to his account. Instead, it reflects that, other than payment method convenience fees, Bank of America credited all fees charged and that they had no effect on Mr. Bivens’ loan account balance. Bivens only incurred convenience fee, which are not part of his principal or escrow balance. The evidence is clear that Bivens was in possession of all of the information about whether his payments had been received and properly applied to his account before he sent the March 25, 2015 letter that is at issue in this case. 21. SPS’s legal department and outside counsel were aware that Bivens had previously received the Bank of America payment history when they responded to the March 2015 Letter, and that is why the document was not provided in response to the March 2015 Letter. (30(b)(6) Deposition of Select Portfolio Servicing, Inc. Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 11 of 32 12 ATL 551927 by Mark Syphus, March 14, 2017 (excerpts attached as Exhibit C to the Motion) at 7:4-8:4; 12:9-13:16.) RESPONSE: This statement is based only on inadmissible hearsay evidence. Mr. Syphus has no personal knowledge of what the legal department and outside counsel were aware of nor does he have any personal knowledge of why they did not provide documents. REPLY: At summary judgment, the court may rely on evidence that is reducible to admissible evidence at trial. Here, Mark Syphus was designated as SPS’s 30(b)(6) witness to testify on behalf of the corporate party. Such evidence is reducible to admissible evidence at trial, because SPS could call a witness to testify to this information. In his second deposition, Mr. Syphus confirmed that SPS’s legal department and outside counsel determined how to respond to the March 2015 Letter. (Syphus Dep. (March 2017) 7:2-9:22; 12:9- 13:16.) 22. The only payment history Bivens did not have in his possession on that date was the history from the origination of the loan in July or August 2006 through January 16, 2007. (Bivens Dep. 43:4-46:9, 75:16-76:8; 299:7-20.) SPS Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 12 of 32 13 ATL 551927 also did not have the account history for that period either. (Syphus Dep. 85:23- 86:22.) RESPONSE: The account history he had received from the law firm representing Bank of America is materially different from the one he received from SPS. Compare Response, Ex. B to Response, Ex. C. REPLY: The account history he had was not materially different from the one he later received from SPS. The account history Bivens attached to his Complaint in the 2014 Case reflects a principal balance of $113,675.84 and a negative escrow balance of $10,863.06. The account history SPS received from Bank of America and later provided to Bivens with its April 8, 2016 letter to him reflects a principal balance of $113,675.84 and a negative escrow balance of $10,863.06. They reflect the same payments and the same application of those payments. That the document provided to Bivens with SPS’s April 8, 2016 letter contains an additional table reflecting fees is of no consequence. That document shows that no fees were charged to his account. Instead, it reflects that, other than payment method convenience fees, Bank of America credited all fees charged and that they had no effect on Mr. Bivens’ Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 13 of 32 14 ATL 551927 loan account balance. Bivens only incurred convenience fee, which are not part of his principal or escrow balance. 23. Bivens knows exactly what he paid in 2006; he is not confused about his payment history for that period. (Bivens Dep. 75:23-76:8.) RESPONSE: None. REPLY: This fact should stand as undisputed. 24. Bivens has requested his payment history for 2006 for the purpose of demonstrating that SPS does not have the complete payment history and “is not doing things right.” (Bivens Dep. 76:5-78:6; 80-20-25.) RESPONSE: None. REPLY: This fact should stand as undisputed. 25. When asked in his deposition whether he is concerned about misapplication of any payments on his loan, Bivens identified none and stated: “The question of the day is what does SPS have from the previous servicer from Bank of America?” (Bivens Dep. 221:16-19.) RESPONSE: None. REPLY: This fact should stand as undisputed. Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 14 of 32 15 ATL 551927 26. Bivens cannot show that he, or anyone acting on his behalf, has ever notified SPS that any of his 2006 payments have been misapplied. (Bivens Dep. 93:14-94:22.) RESPONSE: None. REPLY: This fact should stand as undisputed. 27. Bivens has no documents reflecting that any payment has been misapplied. (Bivens Dep. 99:24-100:3.) RESPONSE: None. REPLY: This fact should stand as undisputed. 28. Bivens filed the Complaint in this case on December 14, 2015. [Doc. 1.] RESPONSE: None. REPLY: This fact should stand as undisputed. 29. On February 1, 2016, Bivens met with Rod Carnes, Deputy Commissioner for Non-Depository Institutions for the Georgia Department of Banking and Finance. (Deposition of Derrell Ronald Carnes, Jr., February 27, 2017 (excerpts attached as Exhibit D to the Motion) at 43:22-44:4.) RESPONSE: None. REPLY: This fact should stand as undisputed. Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 15 of 32 16 ATL 551927 30. In the course of communications with Carnes to schedule that meeting, Bivens communicated to Carnes that he was not asking the Department to do anything at that time. (Carnes Dep. 58:3-60:4.) Instead, Bivens communicated that he wanted to show Carnes something. (Carnes Dep. 59:12-60:13 and Ex. 3, p. 245.) RESPONSE: None. REPLY: This fact should stand as undisputed. 31. During the course of the February 1, 2016 meeting, Carnes and Bivens discussed numerous topics unrelated to the March 2015 Letter. (Bivens Dep. 250:4-251:18; Carnes Dep. 71:15-72:24 and Ex. 3.) In particular, they discussed as a primary concern whether SPS is either the owner or the servicer of the Loan. (Carnes Dep. 48:13-49:4, 72:2-17 and Ex. 3.) RESPONSE: None. REPLY: This fact should stand as undisputed. 32. Carnes and the Georgia Department of Banking and Finance has no authority to enforce federal law, including the Real Estate Settlement Procedures Act. (Carnes Dep. 45:15-25; 69:19-22.) They have no authority to require a servicer to respond to a borrower’s letter. (Carnes Dep. 23:23-24:22, 30:10-19.) Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 16 of 32 17 ATL 551927 RESPONSE: SPS’s contention that Mr. Carnes could not enforce RESPA is immaterial. Mr. Bivens sought Mr. Carnes’ assistance in his capacity as the state regulator of SPS. REPLY: That Carnes, as a state regulator, had no authority to obtain the information Plaintiff sought in his March 2015 Letter is material to the determination of whether Bivens’ costs to attend the meeting with Carnes are the proximate result of any RESPA violation by SPS. 33. Bivens understood that Carnes had no such authority before the February 1, 2016 meeting. (Bivens Dep. 247:18-248:18.) RESPONSE: SPS’s contention that Mr. Carnes could not enforce RESPA is immaterial. Mr. Bivens sought Mr. Carnes’ assistance in his capacity as the state regulator of SPS. REPLY: That Bivens understood that Carnes had no authority to obtain the information Plaintiff sought in his March 2015 Letter is material to the determination of whether Bivens’ costs to attend the meeting with Carnes are the proximate result of any RESPA violation by SPS. Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 17 of 32 18 ATL 551927 34. Bivens understood at the time he took the meeting with Carnes that the Georgia Department of Banking and Finance is not the entity that enforces RESPA. (Bivens Dep. 247:18-248:18.) RESPONSE: SPS’s contention that Mr. Carnes could not enforce RESPA is immaterial. Mr. Bivens sought Mr. Carnes’ assistance in his capacity as the state regulator of SPS. REPLY: That Bivens understood that the Georgia Department of Banking and Finance had no authority to obtain the information Plaintiff sought in his March 2015 Letter is material to the determination of whether Bivens’ costs to attend the meeting with Carnes are the proximate result of any RESPA violation by SPS. 35. Bivens did not ask Carnes to assist him in obtaining the account history for his Loan or to get a copy of the prior servicer payment history. (Bivens Dep. 246:19-247:4.) RESPONSE: This is an inaccurate characterization of Mr. Bivens’ answer. Counsel for SPS interrupted Mr. Bivens’ answer and did not let him finish it. Counsel for Mr. Bivens objected to this. Bivens Dep., p. 247:1-12. Mr. Bivens did ask for Mr. Carnes help in getting the complete and comprehensible account Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 18 of 32 19 ATL 551927 history that SPS had not provided. Response, Ex. K (Bivens Declaration ¶ 4), and Carnes Dep., Ex. D 3, p. 87:9-88:9, and p. 239, 240. REPLY: The deposition transcript reflects that Bivens was asked a question and was provided an opportunity to respond. When asked if he asked Carnes for a copy of the prior servicer payment history or the code for the payment history, Bivens answered in the negative both times. (Bivens Dep. 246:19-247:4.) The fact that Carnes took it upon himself to seek the information after the meeting does not reflect that Bivens asked him to do so or that Bivens’ purpose in attending the meeting was to obtain Carnes’ assistance in obtaining these documents. When questioned as to whether Carnes made these attempts based on specific requests for this help by Bivens, he stated that he went back to what was requested in in the original written requests. (Carnes Dep. 88:15-89:10.) This fact should stand undisputed. 36. Also on February 1, 2016, SPS filed a motion for summary judgment in the 2014 Case. (No. 1:14-CV-1569 [Doc. 87-2], an excerpt of which is attached as Exhibit I to the Motion.) RESPONSE: None. REPLY: This fact should stand as undisputed. Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 19 of 32 20 ATL 551927 37. In that motion, SPS asserted an argument that Bivens could not recover statutory damages on his RESPA claim because he had not proven that he suffered actual damages recoverable under the statute. (Exhibit I, No. 1:14-CV-1569 [Doc. 87-2, pp. 15-17].) RESPONSE: None. REPLY: This fact should stand as undisputed. 38. Three days later, on February 4, 2016, Bivens faxed a letter to SPS asking for “the rest of the account history that was not sent with the May 12, 2015 letter.” (Bivens Dep. 185:10-187:5 and Ex. 10.) RESPONSE: None. REPLY: This fact should stand as undisputed. 39. Prior to February 4, 2016, Bivens had not requested any additional information in response to the March 2015 Letter. (Bivens Dep. 184:23-185:9.) RESPONSE: None. REPLY: This fact should stand as undisputed. 40. The February 2016 Letter does not request a key to the codes used in the SPS account history that Locke Lord LLP included in its response to the March 2015 Letter. (Bivens Dep. Ex. 10.) Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 20 of 32 21 ATL 551927 RESPONSE: SPS mischaracterizes Plaintiff’s request as “not request[ing] a key to the codes used in the SPS account history … .” In fact, Mr. Bivens requested, “the reason for each of the other charges and credits listed in the account history you provided with the May 12, 2015 letter.” Response, Ex. F. The code key is a necessary subset of the reasons for the charges. REPLY: The February 2016 Letter contains a duplicate request from the March 2015 Letter. If Plaintiff was specifically seeking a key to the codes in the payment history, he could have asked for one. He did not. This fact should stand as undisputed. 41. On March 16, 2016, SPS employee Marguerite Chesley sent an email to request the payment history for the Loan from Bank of America. (Syphus Dep. (Feb. 2017) 92:18, 94:16-95:10 and Ex. 13.) In response, Ms. Chesley received an account history dating back to January 16, 2007. (Syphus Dep. (Feb. 2017) 94:16- 95:19 and Ex. 13.) RESPONSE: None. REPLY: This fact should stand as undisputed. 42. SPS initially responded to the February 2016 Letter on March 18, 2016. (Bivens Dep. 199:21-200:7 and Ex. 13.) Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 21 of 32 22 ATL 551927 RESPONSE: None. REPLY: This fact should stand as undisputed. 43. In its March 18, 2016 response, SPS notified Bivens that it needed additional time to respond to some of the requests in the February 2016 Letter, including his request for “the rest” of the payment history. (Bivens Dep. Ex. 13.) RESPONSE: None. REPLY: This fact should stand as undisputed. 44. On March 23, 2015, Bank of America in an email provided an account history to Ms. Chesley. (Syphus Dep. (March 2017) 10:10-20; Syphus Dep. (Feb. 2017) Ex. 13.) RESPONSE: None. REPLY: This fact should stand as undisputed. 45. SPS sent additional correspondence to Bivens on April 8, 2016. (Bivens Dep. 207:2-210:11 and Ex. 14.) RESPONSE: None. REPLY: This fact should stand as undisputed. 46. Included with the April 8, 2016 letter was the account history that SPS received from Bank of America. (Bivens Dep. 207:2-210:20 and Ex. 14.) Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 22 of 32 23 ATL 551927 RESPONSE: None. REPLY: This fact should stand as undisputed. 47. On April 20, 2016, Bivens sent another letter to SPS by facsimile. In that letter, he requested the account history from before January 16, 2007. (Bivens Dep. 224:8-16 and Ex. 15.) He did not request a key to the transaction codes in the Payment History Report. (Bivens Dep. Ex. 15.) RESPONSE: This statement is inaccurate for the same reason as No. 40 supra. REPLY: The April 2016 Letter contains a duplicate request from the March 2015 Letter. If Plaintiff was specifically seeking a key to the codes in the payment history, he could have asked for one. He did not. This fact should stand as undisputed. 48. SPS responded to the April 2016 Letter in a letter dated June 2, 2016, but notified Bivens that it needed additional time to investigate his request for the earlier account history. (Bivens Dep. 228:8-229:22 and Ex. 16.) It included with that letter another version of SPS’s own account history—the Financial Breakdown Statement—for the period during which SPS serviced the Loan and a transaction Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 23 of 32 24 ATL 551927 code listing for the original Payment History Report. (Syphus Dep. (Feb. 2017) 107:23-110:23 and Ex. 17.) RESPONSE: None. REPLY: This fact should stand as undisputed. 49. On June 8, 2016, SPS employee Marguerite Chesley sent an email to Bank of America requesting again the account history prior to January 16, 2007. She did not receive a response. (Syphus Dep. (Feb. 2017) 120:14-121:23 and Ex. 18.) RESPONSE: None. REPLY: This fact should stand as undisputed. 50. On June 23, 2016, SPS sent Bivens another letter. In that letter, SPS stated: [SPS] . . . received correspondence from you dated April 20, 2016. SPS responded to that letter on June 2, 2016. In its response, SPS notified you that it considers this request to be overbroad but agreed, as a courtesy, to attempt to obtain an account history for the time before January 16, 2007. We have made a good faith effort to obtain that information from Bank of America, N.A., the prior servicer of your account; however, to date, SPS has not received any additional documents responsive to your request. SPS has provided you the account history within its custody or control. (Syphus Dep. (Feb. 2017) 122:20-123:4 and Ex. 19.) RESPONSE: None. Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 24 of 32 25 ATL 551927 REPLY: This fact should stand as undisputed. 51. In Plaintiff’s initial Complaint in this action, he pled only for statutory damages on behalf of himself and the putative class. He made no allegation that he had suffered harm as a result of any RESPA violation on the part of SPS. [Doc. 1.] RESPONSE: None. REPLY: This fact should stand as undisputed. 52. On June 1, 2016, Magistrate Judge Larkins issued a Report and Recommendation in this case recommending that the case be dismissed on the grounds that Plaintiff had failed to plead that he suffered actual damages as a result of SPS’s conduct. [Doc. 17.] RESPONSE: None. REPLY: This fact should stand as undisputed. 53. Shortly thereafter, Plaintiff filed a Motion for Leave to Amend Class Action Complaint. [Doc. 19.] RESPONSE: None. REPLY: This fact should stand as undisputed. 54. The modification to the pleading is the addition of allegations that Plaintiff suffered actual damages. ([Doc. 29]; Bivens Dep. 118:24-120:8.) Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 25 of 32 26 ATL 551927 RESPONSE: None. REPLY: This fact should stand as undisputed. 55. For his actual damages, Bivens asserts that he incurred travel expenses of $31.32 to attend the February 1, 2016 meeting with Rod Carnes and for traveling to fax follow-up QWRs in February 2016 and April 2016. He is also seeking expenses for faxing the follow-up QWRs, for a total of approximately $50.00. (Bivens Dep. 120:3-143:13 and Exs. 4-6; Plaintiff’s Response to Interrogatory No. 12, attached as Exhibit J to the Motion.) RESPONSE: None. REPLY: This fact should stand as undisputed. 56. There is no evidence in the record by which Plaintiff can prove that other borrowers have requested a life-of-loan payment history from SPS in a QWR but did not receive a complete life-of-loan payment history in response. (Ex. J, Plaintiff’s Response to Interrogatory No. 8; Bivens Dep. 262:4-270:8.) RESPONSE: SPS is playing word games here using the term “life-of-loan” to mean a complete payment history. Certainly, Mr. Bivens does not have evidence about persons using this particular term, but SPS’s corporate witness admitted in his 2015 deposition that it does not send a complete payment history when Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 26 of 32 27 ATL 551927 borrowers ask for a payment history, and SPS has admitted that a request for “the” payment history is a request for “the complete” payment history. Response, Ex. J (Syphus 2015 Dep. p. 73:3-19), and see Response, p. 3 (citing Motion, p. 5). REPLY: SPS is not playing “word games.” Plaintiff has proffered no evidence by which Plaintiff can prove that other borrowers have requested a life-of-loan payment history or a complete payment history from SPS in a QWR but did not receive a complete or life-of-loan payment history in response. SPS has not made the admission Plaintiff contends. And when it appeared Bank of America may have not understood SPS’s intention with its request, it clarified its request. (Syphus Dep. (March 2017) 13:17-15:8, referring to Syphus Dep. (Feb. 2017) Exs. 13, 18.) 57. There is no evidence in the record by which Plaintiff can prove that other borrowers have requested a key to the transaction codes used in SPS’s Payment History Report in a QWR but did not receive one in response. (Ex. J, Plaintiff’s Response to Interrogatory No. 8; Bivens Dep. 262:4-270:8.) RESPONSE: None. REPLY: This fact should stand as undisputed. Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 27 of 32 28 ATL 551927 58. It is SPS’s policy to respond to written disputes in a manner consistent with RESPA. (Syphus Dep. 19:19-25 and Ex. 2.) It is SPS’s practice and policy to follow its policies and procedures. (Syphus Dep. 28:13-14.) RESPONSE: The first statement is a legal, not a factual statement. The second statement is inadmissible hearsay evidence. Mr. Syphus testified that he has no personal knowledge of the “practice” of the personnel in the customer advocacy department: A. As I don’t work in the advocacy department or deal with them a whole lot, it’s hard for me to say if it’s followed. This is our practice and our policy. And it is our practice and policy to follow our P&Ps. Response, Ex. I (Syphus Feb. ’17 Dep., 28:10-14) (emphasis added). It is particularly disingenuous for SPS to present to this Court a statement that it claims is an “undisputed material fact” when their witness himself said he did not know if the statement was true two sentences prior to SPS’s quoted sentence in the same paragraph. REPLY: Mr. Syphus’s testimony was appropriately presented in his capacity as the corporate representative witness for a party, not based solely on his personal knowledge. Furthermore, Plaintiff’s citation was to Mr. Syphus’s response to a specific question about whether employees make Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 28 of 32 29 ATL 551927 telephone calls to borrowers “all of the time? Some of the time.” (Syphus Dep. (Feb. 2017) 27:23-28:12.) That specific question has no bearing here. 59. It is SPS’s practice to provide borrowers who request a complete payment history with the SPS payment history and that of prior servicers in SPS’s possession or control. (Syphus Dep. (Feb. 2017) 42:22-43:18.) RESPONSE: Mr. Syphus’ testimony is again disingenuously restated here by SPS: “It is SPS’s practice to provide borrowers who request a complete payment history with the SPS payment history and that of the prior servicers in SPS’s possession or control.” In fact, Mr. Syphus disputed his statement himself, acknowledging that he has no clue how often the prior servicer history is actually provided: Q. Okay. Do you know now what percentage of times SPS does not send the previous servicer’s history out? MS. CAMPBELL: Object to the form of the question. THE WITNESS: I do not know specific numbers. Q. (By Mr. Charles) Do you know ranges? A. Percentage ranges? Q. Sure. Or number ranges? A. I – I do not. Response, Ex. I (Syphus Depo. Feb. p. 46:1-20) REPLY: That Mr. Syphus was unable to state specific statistics that are not maintained by SPS does not negate the substance of his testimony, and Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 29 of 32 30 ATL 551927 Plaintiff has proffered no evidence to contradict it. This statement of fact should stand as undisputed. 60. It is not SPS’s policy to not provide borrowers with a key to the transaction codes used in SPS’s Payment History Report in a QWR. (Syphus Dep. (Feb. 2017) 47:22-48:12.) RESPONSE:1 SPS’s wants to say that it is company policy to send the key to the transaction codes, but it cannot because it is not true. So, it tortures the English language saying: “It is not SPS’s policy to not provide … .” In fact SPS’s witness testified that has no policy to send the code keys and that, while he knows that SPS’s both does and does not send the code keys, he has no idea how often: Q. Is it SPS’s practice to not provide the Transaction Code List when they provide this payment history: MS. CAMPBELL: Object to the form of the question. THE WITNESS: I have not seen any policies and procedures that state a Transaction Code List needs to be sent with every payment history. Q. (By Mr. Charles) Do you know if that happens or if it doesn’t happen? A. I have seen correspondence be sent with the Transaction Code List, along with the payment history. Q. And you’ve seen correspondence set without; is that also accurate? A. Correct. 1 Although this Response is numbered 59 in Plaintiff’s filing, from the context SPS interprets it to be a response to No. 60. Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 30 of 32 31 ATL 551927 Q. Do you have any idea of a percentage or a raw number? MS. CAMPBELL: Object to the form of the question. THE WITNESS: I do not. Response, Ex. I (Syphus Depo. Feb. pp. 47:22-48:17). REPLY: SPS stated the testimony as it was given. It does not “want” to say anything different. That Mr. Syphus could not state specific statistics that are not maintained by SPS does not negate the substance of his testimony, and Plaintiff has presented no evidence to contradict it. This fact should stand as undisputed. 61. It is SPS’s practice to provide documents that customers request that are in SPS’s business records that they can provide. (Syphus Dep. (Feb. 2017 88:18- 21.) RESPONSE: As shown in the Responses to nos. 59 and 60 supra, Mr. Syphus testified that he has no idea if it is SPS’s practice to provide documents that customers request. REPLY: That Mr. Syphus could not provide specific statistics that are not maintained by SPS does not negate the substance of his testimony, nor has Plaintiff proffered evidence to contradict it. This fact should stand as undisputed. Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 31 of 32 32 ATL 551927 62. When SPS receives borrower correspondence requesting a payment history when the borrower is engaged in litigation with SPS, the SPS legal department and outside counsel typically make the determination how to handle such correspondence considering all the variables. (Syphus Dep. (Feb. 2017) 38:22-41:1.) RESPONSE: None. REPLY: This fact should stand as undisputed. Dated: May 24, 2017. LOCKE LORD LLP s/ Alexandra M. Dishun Elizabeth J. Campbell Georgia Bar No. 349249 Email: ecampbell@lockelord.com Alexandra M. Dishun Georgia Bar No. 184502 Email: adishun@lockelord.com Terminus 200, Suite 1200 3333 Piedmont Road NE Atlanta, GA 30305 (404) 870-4600 (404) 872-5547 (fax) Attorneys for Select Portfolio Servicing, Inc. Case 1:15-cv-04325-ELR-JKL Document 72-1 Filed 05/24/17 Page 32 of 32 1 ATL 552114 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION STEVEN BIVENS, on behalf of himself and all persons similarly situated, Plaintiff, vs. SELECT PORTFOLIO SERVICING, INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. 1:15-CV-4325-ELR-JKL DEFENDANT SELECT PORTFOLIO SERVICING’S RESPONSE TO PLAINTIFF’S STATEMENT OF ADDITIONAL FACTS Defendant Select Portfolio Servicing, Inc. (“SPS”) hereby files its Response to Plaintiff’s Statement of Additional Facts pursuant to Rule 56 of the Federal Rules of Civil Procedure, Local Rule 56.1B(1), N.D. Ga., and this Court’s standing orders. PLAINTIFF’S ADDITIONAL FACTS 1. Wells Fargo’s corporate representative, Ms. Weinberger an employee of SPS, testified that it was normal for a servicer to testify for the trustee, and the noticed topics she testified on were: Case 1:15-cv-04325-ELR-JKL Document 72-2 Filed 05/24/17 Page 1 of 8 2 ATL 552114 1. Is the SASCO 2007-MLN1 Trust Fund (“the Trust”) the current holder of the Note? 2. Is the SASCO 2007-MLN1 Trust Fund (“the Trust”) the current holder in due course of the Note? 3. When was the Trust’s start-up date? 4. Is the Trust a REMIC trust? 5. When was the Note put in the Trust? 6. From whom did the Trust purchase the Note? 7. From whom was the Note transferred to the Trust and when was the note transferred? 8. Who endorsed the Note? 9. Is Select Portfolio Servicing, Inc. the current servicer of the Note, and when did it become the servicer of the Note? See Exhibit B to Response, Weinberger Deposition. RESPONSE BY SPS: This statement of fact is immaterial to the issues to be decided by the Court here. It refers solely to a deposition that occurred in prior litigation between these parties that has no bearing on this proceeding. 2. The Limited Power of Attorney provided by SPS shows its authority and its responsibilities cover a much wider range of actions and documents than courts have thought. Some of the documents the servicer has “full authority and power to execute and deliver on behalf of the Trustee” are: (i) All documents with respect to residential mortgage loans serviced for the Trust by the Subservicer which are customarily and reasonably necessary and appropriate for the satisfaction, cancellation, or partial or full release of any mortgages, deeds of trust, or deeds to secure debt upon payment and discharge of all sums secured thereby; … Case 1:15-cv-04325-ELR-JKL Document 72-2 Filed 05/24/17 Page 2 of 8 3 ATL 552114 (vi) All documents and instruments necessary to effect any assignment of mortgage or assignment of deed or trust; See Exhibit C to Response, Limited Power of Attorney. RESPONSE BY SPS: This statement of fact is immaterial to the Court’s adjudication of SPS’s Motion for Summary Judgment. Plaintiff offers this fact in an attempt to expand the definition of “servicing” applied by this Court in its interpretation of what SPS’s obligations under RESPA are. Plaintiff’s argument fails, however, because the term “servicing” is a defined term within the statute, and means: “receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts described in section 2609 of this title, and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan.” 12 U.S.C. § 2605(i)(3). The Court is not free to expand or ignore that definition. Buckley v. United States, 51 Fed. Cl. 174, 192-93 (2001) (“A court must not stray from the statutory definition of a term.”) (citing Stenberg v. Carhart, 530 U.S. 914, 942 (2000) ; Meese v. Keene, 481 U.S. 465, 484–485, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987); Colautti v. Franklin, 439 U.S. 379, 392 n. 10, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979).) “It is axiomatic that the statutory definition of the term excludes unstated meanings of that term.” Meese v. Case 1:15-cv-04325-ELR-JKL Document 72-2 Filed 05/24/17 Page 3 of 8 4 ATL 552114 Keene, 481 U.S. 465, 484–85 (1987). Thus, that SPS has contracted to provide additional duties beyond those covered by RESPA’s statutory definition of “servicing” is irrelevant to the Court’s adjudication of this case. Contractual obligations between SPS and Trustee in the Limited Power of Attorney are just that—they don’t expand or narrow RESPA. Courts have consistently drawn lines delineating activities that servicers engage in that fall within the definition of “servicing” under RESPA and other activities, such as loan modification. See Nash v. PNC Bank, N.A., No. TDC-16-2910, 2017 WL 1424317, at *5-6 (D. Md. Apr. 20, 2017) (collecting cases holding that a request for information about loan modification is not “related to servicing” under RESPA); Bracco v. PNC Mortg., No. 8:16-CV-1640-T-33TBM, 2016 WL 4507925, at *4-6 (M.D. Fla. Aug. 29, 2016) (finding requests for information about loan modification, payoff statements, and history of correspondence to be unrelated to servicing even though servicer undertook actions related to those issues); Sirote v. BBVA Compass Bank, 857 F. Supp. 2d 1213, 1221-22 (N.D. Ala. 2010) (“[C]ourts routinely interpret section 2605 as requiring a QWR to relate to the servicing of a loan, rather than the creation or modification of a loan.”), aff’d 462 F. App’x 888 (11th Cir. 2012); Alibhai v. Case 1:15-cv-04325-ELR-JKL Document 72-2 Filed 05/24/17 Page 4 of 8 5 ATL 552114 Wilmington Trust Co., No. 1:12-CV-03755-ODE-JFK, 2013 WL 12062270, at *10 (N.D. Ga. May 30, 2013) (explaining request for mortgage trust agreement does not relate to servicing). 3. SPS routinely has possession of its borrowers’ loan origination documents. See Exhibit A to Response, Syphus Deposition, at 113:12-18 and p. 124:18-21. RESPONSE BY SPS: This statement of fact is immaterial to the Court’s adjudication of SPS’s Motion for Summary Judgment. It is also false. 4. SPS’s corporate representative testified that SPS had the original note at its office in Salt Lake City. See Exhibit A to Response, Syphus Deposition at p. 45:10-16. RESPONSE BY SPS: This statement of fact is immaterial to the Court’s adjudication of SPS’s Motion for Summary Judgment. 5. Mail to the “Disputes/Inquiries” post office box and mail to the “General Correspondence” post office box actually went to the same physical address, the same office, the same department and the same people. See Exhibit A to Response, Syphus Deposition at p. 56:3-13. Case 1:15-cv-04325-ELR-JKL Document 72-2 Filed 05/24/17 Page 5 of 8 6 ATL 552114 RESPONSE BY SPS: This statement of fact is immaterial to the Court’s adjudication of SPS’s Motion for Summary Judgment. 6. Mr. Bivens suffered actual damages that were incurred in his attempts to get the information, especially ownership information, that SPS did not provide in response to Mr. Bivens’ December 17, 2012 letter. These damages included, but are not limited to, payments to investigators and travel expenses to meetings with government officials, including mileage and parking. See Exhibit E to Response, Bivens Deposition at pp. 257:8-273:14. RESPONSE BY SPS: This statement of fact is immaterial to the Court’s adjudication of SPS’s Motion for Summary Judgment. 7. SPS admitted in its deposition that all eight of the requests for information in Plaintiff’s December 17, 2012 letter were topics that were qualified written requests. See Exhibit A to Response, Syphus Deposition at pp. 35:22-52:3. RESPONSE BY SPS: This statement of fact is immaterial to the Court’s adjudication of SPS’s Motion for Summary Judgment. 8. Defendant admitted that it was a normal practice for it to fail to send a copy of the note when it was asked for. See Exhibit A to Response, Syphus Deposition at p. 44:5-11. Case 1:15-cv-04325-ELR-JKL Document 72-2 Filed 05/24/17 Page 6 of 8 7 ATL 552114 RESPONSE BY SPS: This statement of fact is immaterial to the adjudication of SPS’s Motion for Summary Judgment. Furthermore, Plaintiff refers only to testimony taken in prior litigation between these parties and misrepresents that testiomony. 9. SPS’s December 27, 2012 acknowledgement letter that stated Mr. Bivens’ December 17 letter “was sent to our general mailbox address and has been forwarded to the appropriate department for handling” was incorrect. In fact, it was handled by the same department and by the same employee. See Exhibit A to Response, Syphus Deposition at pp. 54:18-56:16, and see Defendant’s SUMF #30. RESPONSE BY SPS: This fact is immaterial to the Court’s adjudication of SPS’s Motion for Summary Judgment. Dated: May 24, 2017. Case 1:15-cv-04325-ELR-JKL Document 72-2 Filed 05/24/17 Page 7 of 8 8 ATL 552114 LOCKE LORD LLP s/ Alexandra M. Dishun Elizabeth J. Campbell Georgia Bar No. 349249 Email: ecampbell@lockelord.com Alexandra M. Dishun Georgia Bar No. 184502 Email: adishun@lockelord.com Terminus 200, Suite 1200 3333 Piedmont Road NE Atlanta, GA 30305 (404) 870-4600 (404) 872-5547 (fax) Attorneys for Select Portfolio Servicing, Inc. Case 1:15-cv-04325-ELR-JKL Document 72-2 Filed 05/24/17 Page 8 of 8