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Kantz v. Bank of America, N.A.

United States District Court, M.D. Tennessee, Nashville Division

April 25, 2018

WILLIAM E. KANTZ, JR., Plaintiff,
BANK OF AMERICA, N.A., Defendant.



         I. Introduction

         Pending before the Court are Plaintiff's Motion For Summary Judgment (Doc. No. 52); Defendant's Cross Motion For Summary Judgment (Doc. No. 56); Plaintiff's Reply (Doc. Nos. 74, 76); and Defendant's Reply (Doc. No. 80). For the reasons set forth below, Plaintiff's Motion For Summary Judgment (Doc. No. 52) is DENIED, Defendant's Cross Motion For Summary Judgment (Doc. No. 56) is GRANTED, and this action is DISMISSED.

         II. Factual and Procedural Background

          In the Amended Verified Complaint, filed in this case on March 16, 2017, Plaintiff William E. Kantz, Jr. alleges that Defendant Bank of America (“BOA”) is liable for $25, 000 and other relief for failing to provide him with certain information required by the Real Estate Settlement Procedures Act (“RESPA”) and the Truth in Lending Act (“TILA”). (Doc. No. 21). The claims in this case arise out of a Note and Deed of Trust entered into by Plaintiff and Sandra Lee with Defendant, on December 20, 2007, and secured by the residence located at 1244 Mary Helen Drive, Nashville, Tennessee. (Doc. No. 21, at ¶¶ 1-3; Exhibit A). Plaintiff alleges that Defendant foreclosed on the property in early 2014, and that the ensuing three foreclosure sales were fraudulent and fake. (Doc. No. 21, at ¶ 4). In a separate action, Plaintiff challenged the foreclosure sales, and on March 30, 2017, the Sixth Circuit Court of Appeals issued an opinion affirming the district court's rejection of the challenge. (Doc. No. 90 in Case No. 3:14cv01113). Plaintiff alleges that he still resides at the address. (Doc. No. 21, at ¶ 1).

         In the meantime, on August 17, 2015, the Federal Home Loan Mortgage Corporation filed an unlawful detainer action against Plaintiff seeking possession of the property at 1244 Mary Helen Drive, and Plaintiff removed the case to federal court. (Doc. No. 1 in Case No. 3:15cv00932). In that case, Plaintiff raised additional claims, including claims for violations of RESPA, TILA, the Fair Debt Collection Practices Act, and a claim for declaratory judgment that the foreclosure sale was unlawful. (Doc. No. 9 in Case No. 3:15cv00932). Plaintiff's claims have been dismissed (Doc. No. 240 in Case No. 3:15cv00932).

         In this action, Plaintiff raises claims against Defendant for violation of TILA, specifically 15 U.S.C. § 1639g, by failing to provide him with information regarding the payoff amount of his loan. (Doc. No. 21). Plaintiff alleges that, on November 8, 2016, during a case management conference held in the case referenced above (3:15cv00932), counsel for Defendant indicated that BOA was the servicer of Plaintiff's loan. (Id., at ¶ 12). Plaintiff further alleges that, on November 9, 2016, his attorney sent a letter, which he characterizes as a “Qualified Written Request, ” to counsel for Defendant.[1] (Id., at ¶¶ 12-15). Through the letter, Plaintiff's counsel requests 20 categories of information under the heading: “R.E.S.P.A. Qualified Written Request, ” and the identity of the mortgage owner or servicer under the heading: “Truth-In- Lending Act § 131(f)(2).” (Doc. No. 21-3). These requests were duplicated in an email from Plaintiff's counsel to Defendant's counsel sent that same day. (Doc. No. 21-4). Item #14 in the RESPA section requests “[a]n itemized statement of the current amount needed to pay-off the loan in full.” (Id.) Plaintiff alleges that counsel for Defendant responded to the request in a letter to Plaintiff's counsel, dated December 8, 2016, notifying him of the need for additional time to complete the necessary research and stating that a response would be sent when the research was completed. (Doc. No. 21-5).

         Plaintiff further alleges that on January 25, 2017, counsel for Plaintiff sent another letter, which he characterizes as a “Qualified Written Request, ” to Defendant at a P.O. Box in Wilmington, Delaware. (Doc. No. 21-6). This letter appears to be substantially similar to the letters sent to counsel for the Defendant. Plaintiff alleges that, notwithstanding its receipt of the letter, Defendant has failed to provide the requested information. (Doc. No. 21, at ¶¶ 21-24).

         Through the summary judgment briefing, however, the parties appear to agree that Defendant sent Plaintiff a letter on February 11, 2017, stating that it was researching the January 25, 2017 request for information. (Doc. No. 75, at ¶ 4; Doc. No. 56-2). On February 21, 2017, Defendant sent a letter to Plaintiff's counsel stating that Defendant had received the January 25, 2017 request for information on February 3, 2017, but the request “did not include written authorization from [Plaintiff], for us to release loan information to you on his behalf, nor do we have existing authorization on file.” (Doc. No. 56-3). The letter suggested that counsel fax the authorization, and indicated that Defendant would not be able to respond to the inquiries if the authorization was not received by February 24, 2017. (Id.)

         In a letter to Defendant dated February 22, 2017, Plaintiff's counsel stated that an authorization was unnecessary and that Defendant's failure to respond violated TILA. (Doc. No. 56-4). The letter also repeated the requests for information listed in the earlier letters. (Id.) On February 27, 2018, Defendant sent a letter to Plaintiff indicating that it had not received an authorization for the release of information to his attorney, and consequently, it would be unable to respond to the inquiries. (Doc. No. 56-5). On March 10, 2017, counsel for Defendant sent a Third Party Authorization Form, via email, to counsel for Plaintiff and explained that Plaintiff would be required to complete the form before Defendant could discuss Plaintiff's account with counsel. (Doc. No. 56-6). Among other statements in his email response on March 13, 2017, Plaintiff's counsel insisted that an authorization form was unnecessary, argued that the form provided by Defendant's counsel was not appropriate, and asked for legal authority supporting the request for a third party authorization form. (Doc. No. 56-7).

         It is undisputed that, to date, Plaintiff has not provided an authorization form to Defendant. Nevertheless, on June 1, 2017, Defendant's corporate designate provided Plaintiff with the requested payoff information as part of the discovery in this case. (Plaintiff's Memorandum Of Law In Support Of Motion For Summary Judgment (Doc. No. 53, at 2)).

         III. Analysis

         A. The Standards Governing Motions For Summary Judgment

         Summary judgment should be granted "if 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 Supreme Court has construed Rule 56 to “mandate[] the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

         In considering a motion for summary judgment, a court must draw all reasonable inferences in favor of the nonmoving party. See, e.g., Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Shreve v. Franklin County, Ohio, 743 F.3d 126, 132 (6th Cir. 2014). The court does not, however, make credibility determinations, weigh the evidence, or determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

         In order to defeat the motion, the nonmoving party must provide evidence, beyond the pleadings, upon which a reasonable jury could return a verdict in its favor. Celotex Corp., 477 U.S. at 324; Shreve, 743 F.3d at 132. Ultimately, the court is to determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it ...

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