United States District Court, E.D. Tennessee, Winchester
STEVEN R. LAYNE, Plaintiff,
OCWEN LOAN SERVICING, LLC, Defendant.
L. COLLIER UNITED STATES DISTRICT JUDGE
the Court is Defendant Ocwen Loan Servicing LLC's
(“Ocwen”) motion for summary judgment (Doc. 18)
on Plaintiff Steven Layne's claims arising out of the
refinancing and modification of a loan. Plaintiff responded
in opposition (Doc. 22), and Ocwen replied (Doc. 23). For the
reasons that follow, the Court will GRANT
Ocwen's motion for summary judgment (Doc. 18).
28, 2007, Plaintiff Steven Layne and his wife Sheri Layne
obtained a loan from Homecomings Financial, LLC
(“Homecomings”) in the amount of $228, 000.00
(the “Loan”) to purchase certain real property in
Hillsboro, Tennessee. (Doc. 18-1.) To secure the Loan,
Plaintiff executed a promissory note (the “Note”)
in favor of Homecomings (Doc. 18-1), as well as a deed of
trust (the “Deed of Trust”) (Doc. 18-2), which
identified Homecomings as the Lender and Mortgage Electronic
Registration Systems, Inc. (“MERS”) as the
beneficiary. Through various transfers,  Ocwen was
assigned both the Loan and the Deed of Trust. (Docs. 18-4 and
18-3, respectively.) Ocwen began servicing the Loan on
February 16, 2013. (Doc. 18-4.)
Note initially set a fixed interest rate of 7.875%. (Doc.
18-1.) Plaintiff modified the Loan in 2009, fixing a new
interest rate at 6.875%. (Doc. 18-5.) In its first year, the
2009 Loan modification required Plaintiff make $1, 601.79 in
monthly principal and interest payments and $224.20 in escrow
payments for a total monthly payment of $1, 825.99.
(Id.) The 2009 Loan modification agreement explained
that the monthly escrow payments would adjust annually, and
by the time Ocwen began servicing the Loan in 2013,
Plaintiff's escrow payment had increased to $436.47.
(Doc. 18-6.) As a result of the increased escrow payments,
Plaintiff's monthly payment rose to $2,
August 2015, Ocwen sent a letter to Plaintiff briefly
discussing the possibility of refinancing his Loan. (Doc.
18-7.) Specifically, the letter stated that Plaintiff
“may be eligible to participate in the Home Affordable
Refinance Program (HARP), ” through Ocwen's lending
affiliate. (Id.) Sometime thereafter, according to
Plaintiff, an Ocwen representative, Bob Gormley, communicated
to Plaintiff that the Loan was eligible for refinancing,
which would drop the interest rate to 4.5% and decrease the
total amount due. (Doc. 1.) However, after Plaintiff provided
Ocwen with the requested documents, Gormley allegedly
informed Plaintiff that the “refinancing would not be
processed due to a mistake in Ocwen's records that
erroneously indicated Plaintiff's land plot contained 25
acres instead of the factual 17 acres contained in the land
plot.” (Id.) Due to this alleged error,
Ocwen denied refinancing the Loan.
months later, Plaintiff contacted Ocwen about the possibility
of refinancing his Loan. In February 2016, Ocwen offered and
Plaintiff accepted a trial modification plan, which required
Plaintiff to make trial period payments of $1, 088.40 monthly
for three months. (Doc.18-8.) This was a lower monthly
payment in the immediate, designed to provide relief and the
opportunity to assess whether a lower monthly payment could
be managed. However, the trial plan also specifically
Any difference between the amount of the trial period
payments and [Plaintiff's] regular mortgage payments will
be added to the balance of [Plaintiff's] loan along with
any other past due amounts. While this will increase the
total amount that [Plaintiff] owe[s], it should not
significantly change the amount of [Plaintiff's] modified
Plaintiff successfully completed the trial period, the Loan
could then be permanently modified. Under the terms of the
proposed permanent modification (the “Permanent
Modification Offer”), Plaintiff's new monthly Loan
payment was to be $1, 097.22, with a new principal balance of
$225, 359.53. According to the Permanent Modification Offer,
this increase in the principal balance consisted of the
“unpaid amount(s) loaned to [Plaintiff] . . . plus any
interest and other amounts capitalized.” (Doc. 18-10.)
timely made the trial period payments but objected to the
Permanent Modification Offer. According to Plaintiff, the
“modification agreement . . . fraudulently and
inexplicably increased the outstanding principal balance
associated with the mortgage from $213, 900 to over $225,
000.” (Doc. 1.) Plaintiff refused to sign the agreement
until he received an explanation regarding the increase in
the total amount due. (Doc. 21.) Stephen King, an Ocwen
agent, allegedly refused to provide Plaintiff with an
explanation, instead urging Plaintiff to sign the agreement
anyway. (Id.) Plaintiff did not sign and return the
Permanent Modification Offer within the specified time
period, and Ocwen subsequently notified Plaintiff that, as a
result, the Loan could no longer be modified. (Doc. 18-9.)
Plaintiff's property was eventually foreclosed on after
Plaintiff failed to make the required payments on the
28, 2016, Plaintiff sent a twelve-page letter to Ocwen. (Doc.
18-11.) The letter purported to be a Qualified Written
Request (“QWR”), asking Ocwen to hand over a long
list of financial documents so that Plaintiff could
“validate the debt” Ocwen claimed he owed.
(Id.) Ocwen responded with a six-page letter of its
own on September 1, 2016, providing some, but not all, of the
information Plaintiff sought. (Doc. 18-12.)
filed this action on January 24, 2017, alleging five causes
of action: (1) violation of the Tennessee Consumer Protection
Act (the “TCPA”), (2) fraud, (3)
misrepresentation, (4) negligence, and (5) violation of the
Real Estate Settlement Procedures Act (“RESPA”).
Ocwen moves for summary judgment on each of Plaintiff's
STANDARD OF REVIEW
judgment is proper when “the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). The moving party bears the burden of demonstrating no
genuine issue of material fact exists. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); Leary v.
Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). A factual
dispute is “material” only if its resolution
might affect the outcome of the lawsuit. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court
should view the evidence, including all reasonable
inferences, in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Nat'l Satellite
Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th
survive a motion for summary judgment, “the non-moving
party must go beyond the pleadings and come forward with
specific facts to demonstrate that there is a genuine issue
for trial.” Chao v. Hall Holding Co., Inc.,
285 F.3d 415, 424 (6th Cir. 2002). Indeed, a
“[plaintiff] is not entitled to a trial on the basis of
mere allegations.” Smith v. City of
Chattanooga, No. 1:08-cv-63, 2009 WL 3762961, at *2-3
(E.D. Tenn. Nov. 4, 2009) (explaining the court must
determine whether “the record contains sufficient facts
and admissible evidence from which a rational jury could
reasonably find in favor of [the] plaintiff”). In
addition, should the non-moving party fail to provide
evidence to support an essential element of its case, the
movant can meet its burden of demonstrating no genuine issue
of material fact exists by pointing out such failure to the
court. Street v. J.C. Bradford & Co., 886 F.2d
1472, 1479 (6th Cir. 1989).
summary judgment, the Court's role is limited to
determining whether the case contains sufficient evidence
from which a jury could reasonably find for the non-movant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-49 (1986). If the Court concludes a fair-minded jury
could not return a verdict in favor of the non-movant based
on the record, the Court should grant summary judgment.
Id. at 251-52; Lansing Dairy, Inc. v. Espy,
39 F.3d 1339, 1347 (6th Cir. 1994).
alleges: (1) violations of the TCPA, (2) fraud, (3)
misrepresentation, (4) negligence, and (5) a violation of
RESPA. The Court addresses each in turn.
Tennessee Consumer Protection Act Claims
TCPA prohibits “[u]nfair or deceptive acts or practices
affecting the conduct of any trade or commerce.” Tenn.
Code Ann. § 47-18-104. To make out a claim under the
TCPA, a plaintiff must establish: “(1) an ascertainable
loss of money or property; (2) that such loss resulted from
an unfair or deceptive act or practice; and (3) that the act
or practice is declared unlawful under the TCPA.”
Amour v. Bank of Am., N.A., 1:13-CV-144, 2013 WL
6497821, at *5 (E.D. Tenn. Dec. 10, 2013) (citing Tenn. Code
Ann. § 47-18-109). A deceptive act or practice is
“a material representation, practice, or omission
likely to mislead . . . reasonable consumers to their
detriment.” Id. (quoting Fayne v.
Vincent, 301 S.W.3d 162, 177 (Tenn. 2009)).
alleges three instances in which Ocwen violated the TCPA. Two
of these incidents relate to attempts to modify
Plaintiff's Loan. The ...