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Bowen v. Ditech Financial LLC

United States District Court, D. Maine

September 20, 2017

MARK A. BOWEN, Plaintiff,
v.
DITECH FINANCIAL LLC, f/d/b/a/ GREEN TREE SERVICING LLC, and FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendants.

          ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         Mark A. Bowen brings this action against the servicer and owner of his mortgage note and loan claiming that the loan servicer engaged in repeated, coercive, and harassing attempts to collect money not owed by him two months after settling previous allegations of unfair debt collection practices and one month after reinstating the modified loan. Both parties move for summary judgment on all counts. The Court grants in part and denies in part the Plaintiff's Motion for Summary Judgment (ECF No. 83). The Court grants in part and denies in part the Defendants' Motion for Summary Judgment (ECF No. 86).

         I. PROCEDURAL HISTORY

         On April 5, 2016, Mark A. Bowen filed a complaint in this Court against Ditech Financial LLC (Ditech), f/d/b/a Green Tree Servicing LLC (Green Tree) and the Federal National Mortgage Association (Fannie Mae). Compl. (ECF No. 1). On June 3, 2016, Ditech and Fannie Mae answered the Complaint. Defs.' Answer and Affirmative Defenses (ECF No. 11). On November 18, 2016, Mr. Bowen moved for leave to amend his Complaint due to newly discovered facts and evidence, Pl.'s Mot. for Leave to Amend Compl. at 1 (ECF No. 25), which the Court granted without objection on December 13, 2016. Order (ECF No. 28). Mr. Bowen filed the First Amended Complaint on December 14, 2016. First Am. Compl. (ECF No. 29) (Am. Compl.). The Amended Complaint contains six counts: Count I-Fraud and Fraudulent Misrepresentation; Count II-violations of the Maine Unfair Trade Practices Act (MUTPA), 5 M.R.S. §§ 205-A et seq.; Count III-violations of the Maine Fair Debt Collection Practices Act (MFDCPA), 32 M.R.S. §§ 11001 et seq.; Count IV- violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq.; Count V-violations of the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2601 et seq.; and Count VI-Breach of Fiduciary Duty. Id. at 19-30.

         On March 10, 2017, Mr. Bowen filed a motion for summary judgment, Pl. Mark A. Bowen's Mot. for Summ. J. (ECF No. 83) (Pl.'s Mot.), with a statement of facts. Pl.'s Statement of Undisputed Material Facts (ECF No. 85) (PSMF). On March 29, 2017, the Defendants filed a response to Mr. Bowen's statement of facts, Resp. to Pl.'s Statement of Undisputed Material Facts and Additional Material Facts at 1-8 (ECF No. 95) (DRPSMF), and a set of additional material facts. Id. at 8-9 (DSAMF). The following day, the Defendants opposed Mr. Bowen's motion for summary judgment. Defs.' Opp'n to Pl. Mark A. Bowen's Mot. for Summ. J. (ECF No. 97) (Defs.' Opp'n). On April 12, 2017, Mr. Bowen replied. Pl.'s Reply to Defs.' Opp'n to Pl.'s Mot. for Summ. J. (ECF No. 101) (Pl.'s Reply).

         On March 10, 2017, the Defendants filed a cross-motion for summary judgment, Defs.' Mot. for Summ. J. (ECF No. 86) (Defs.' Mot.), and the stipulated record. Joint Statement of Stipulated Facts (ECF No. 81) (Stip.). They also requested oral argument. Mot. for Oral Arg. / Hr'g (ECF No. 87). On March 29, 2017, Mr. Bowen responded to the Defendants' motion for summary judgment, Pl. Mark A Bowen's Opp'n to Defs.' Mot. for Summ. J. (ECF No. 93) (Pl.'s Opp'n), and on April 12, 2017, he filed a response to the Defendants' statement of additional material facts. Pl.'s Reply to Defs.' Requests to Strike and Resps. to Defs.' Statement of Additional Material Facts (ECF No. 102) (PRDSAMF). The Defendants replied on April 12, 2017. Ditech Financial LLC and Federal National Mortgage Association's Reply Br. (ECF No. 103) (Defs.' Reply).[1]

         On April 18, 2017, the Court granted the motion for oral argument and on September 5, 2017, held oral argument on the pending motions. Order Granting Mot. for Oral Arg. (ECF No. 105); Min. Entry (ECF No. 112).

         II. STATEMENT OF FACTS

         A. Background

         On December 20, 2005, Mr. Bowen and his now ex-wife, Nancy E. Bowen, signed a promissory note in the principal amount of $204, 422.00 payable to Bank of America, N.A. (BOA) and a mortgage granting BOA a security interest on property located at 17 Orchard Lane, Minot, Maine 04258. Stip. ¶ 1. Mr. Bowen still resides at the property. Stip. ¶ 3.

         Since December 20, 2005, Fannie Mae has been the owner and investor of the note and mortgage. Stip. ¶ 4. Originally, BOA was the servicer of the note and mortgage. Stip. ¶ 2. The mortgage requires BOA to maintain an escrow account to pay for real estate taxes and hazard insurance. PSMF ¶ 1; DRPSMF ¶ 1;[2] PSMF ¶ 2; DRPSMF ¶ 2.[3]

         B. Loan Modification Agreement

         In early 2013, Mr. Bowen defaulted under the terms of the note by failing to make his monthly payments, and he requested a loan modification. Stip. ¶¶ 6-7. BOA offered Mr. Bowen a Fannie Mae Trial Period Plan (TPP). Stip. ¶ 8. The TPP required Mr. Bowen to make three payments in the amount of $928.24 on March 1, 2013, April 1, 2013, and May 1, 2013. Stip. Attach. 4 Fannie Mae Trial Period Plan at 1 (Feb. 5, 2013) (TPP). Mr. Bowen accepted the offer by making all three payments on time, and BOA sent him a Loan Modification Agreement. Stip. ¶ 9; DSAMF ¶ 5; PRDSAMF ¶ 5.[4], [5]

         BOA delivered a Loan Modification Clarity Commitment dated May 30, 2013 to Mr. Bowen. Stip. ¶ 10. The Clarity Commitment stated:

Your new loan balance is $217, 698.87. To calculate this new loan balance, we added past due interest in the amount of $8, 202.81 and eligible servicing expenses of $26, 662.46 and taxes and insurance of $3, 630.70 totaling $38, 495.97 to your principal balance. Unpaid late fees are not included in this amount and will be waived when your loan modification is finalized.

Stip. Attach. 6 Loan Modification Clarity Commitment (May 30, 2013) (Clarity Commitment). BOA also issued a billing statement dated May 30, 2013 that showed that Mr. Bowen's negative escrow balance was -$3, 763.20. Stip. ¶ 13; id. Attach. 8 BOA Billing Statement at 1 (May 30, 2013) (May 2013 Statement); DSAMF ¶¶ 3-4; PRDSAMF ¶¶ 3-4.[6]

         Mr. Bowen signed the Modification Agreement on June 3, 2013 and returned it to BOA. Stip. ¶ 11. The payment schedule for the modified loan was as follows:

Maturity Dated:

06/01/2053

Interest Rate:

4.000%

New Principal Balance:

$217, 698.87

Deferred Principal Balance:

$65, 309.66

Interest Bearing Principal Balance:

$152, 389.21

First Modified Payment Due Dated:

07/01/2013

Number of Monthly Payments:

480

Monthly Principal and Interest Payment:

$636.89

Estimated Monthly Escrow Payment:

$293.78

Total Monthly Payment:

$930.67

Stip. Attach. 5 Fannie Mae Loan Modification Agreement at 3-4 (Modification Agreement) (emphasis supplied). The Effective Date of the Modification Agreement was July 1, 2013. Id. at 3.

         C. Transfer of Service to Ditech

         BOA service-transferred the loan to Ditech[7] effective June 1, 2013. Stip. ¶ 12. Fannie Mae owned the loan and retained Ditech to service the loan. PSMF ¶ 3; DRPSMF ¶ 3.[8] As servicer of the loan, Ditech maintained the escrow account to pay taxes and insurance on behalf of Fannie Mae. PSMF ¶ 4; DRPSMF ¶4.[9] Since the date of service transfer, Ditech has paid Mr. Bowen's taxes and insurance. Stip. ¶ 68.

         D. 2013 Billing Statements

         Ditech issued Mr. Bowen a welcome letter dated June 10, 2013 stating that Mr. Bowen had a negative escrow balance of $3, 763.20 and including a payment coupon for the amount of $1, 199.04. Stip. ¶¶ 14, 16; id. Attachs. 9, 11 Letter from Green Tree to Mark A. Bowen at 1 (June 10, 2013) (Welcome Letter). Ditech also issued Mr. Bowen a billing statement dated June 15, 2013 stating that Mr. Bowen had a negative escrow balance of $3, 763.20 and a total payment due of $14, 333.10, which included a current payment of $870.61, a past due payment of $9, 576.71, and escrow due of $3, 885.78. Stip. ¶ 18; id. Attach. 13 Green Tree Monthly Billing Statement (June 15, 2013) (June 2013 Statement); DSAMF ¶ 7; PRDSAMF ¶ 7.[10] Ditech issued to Mr. Bowen a billing statement dated July 8, 2013 stating that Mr. Bowen had a negative escrow balance of $3, 763.20 and a total payment due of $15, 522.91, which included a current payment of $870.61, a past due payment of $10, 447.32, and escrow due of $4, 204.98. Stip. ¶ 15; id. Attach. 10 Green Tree Monthly Billing Statement (July 8, 2013) (July 2013 Statement); DSAMF ¶ 8; PRDSAMF ¶ 8.[11]

         E. January 2014 Modification of Loan

         In January 2014, Ditech adjusted Mr. Bowen's account to reflect the terms of the Modification Agreement, including the modified agreed-upon monthly interest payment, except that Ditech only capitalized $2, 646.45 of the entire negative escrow balance of $3, 763.20 to the escrow account. Stip. ¶ 19. The remaining portion of the negative escrow balance, $1, 246.06, remained on his account. Stip. ¶ 20.

         Per the terms of the note and mortgage, if the monthly mortgage payment is not enough to cover principal, interest, and escrow, it is placed in unapplied funds until another payment is received to make up the difference. PSMF ¶ 5; DRPSMF ¶ 5.[12] When such a monthly payment is not applied to the month in which it is received, the borrower is considered in default. PSMF ¶ 6; DRPSMF ¶ 6.[13]

         F. Foreclosure Action and Settlement Agreement

         On March 10, 2014, Ditech initiated a foreclosure action captioned Green Tree Servicing LLC v. Mark A. Bowen, et al., No. AUSBSC RE 2014-00044 (State of Maine Superior Court, Androscoggin). Stip. ¶ 21. On July 8, 2014, Mr. Bowen filed an amended answer to the foreclosure action and added counterclaims. Id. ¶ 22. On April 24, 2015, the parties entered into a confidential settlement agreement and release in the foreclosure action. Id. ¶ 23. Mr. Bowen subsequently signed and filed a stipulation of dismissal of the counterclaims with prejudice. Id. ¶ 24.[14]

         G. Reinstatement of Loan

         Green Tree issued a reinstatement quote dated May 6, 2015 requiring a total sum of $21, 056.30 in order to reinstate the loan. Stip. ¶ 25; id. Attach. 18 Reinstatement Quote (May 6, 2015). The loan was considered in foreclosure status at the time the May 6, 2015 reinstatement quote was issued. PSMF ¶ 7; DRPSMF ¶ 7. On May 8, 2015, Mr. Bowen delivered a check in the amount of $21, 056.30 to counsel for Ditech to effectuate the reinstatement of the loan. Stip. ¶ 26.

         Per Ditech's policies and procedures laid out in its Collection Manual, a reinstatement quote should include any advances for taxes and insurance in calculating the amounts in arrears; however, Christy Christensen of Ditech stated that those funds are not included in the reinstatement quote because the escrow payment is established on a yearly basis. PSMF ¶ 8; DRPSMF ¶ 8.[15] Per Fannie Mae Guidelines, a reinstatement quote must include all amounts to bring the loan current including all past due advances for taxes and insurance; however, according to Ms. Christensen, advances for taxes and insurance do not need to be included in the reinstatement because escrow analyses are performed only once per year. PSMF ¶ 9; DRPSMF ¶ 9.[16] Ditech did not provide a history of the escrow account within ninety days of the reinstatement. PSMF ¶ 10; DRPSMF ¶ 10.[17] Ditech did not perform an escrow analysis on the loan before January 2016 because it considered the loan delinquent. PSMF ¶ 11; DRPSMF ¶ 11.

         H. Improper Collection of “Total Fees & Charges Due”

         Mr. Bowen paid $930.67, representing his June 2015 payment. Stip. ¶ 27. On June 14, 2015, Ditech issued a monthly billing statement with an amount of $966.37 due by July 1, 2015. Id. ¶ 28; id. Attach. 19 Green Tree Monthly Billing Statement (June 14, 2015) (June 2015 Statement). The statement included “Total Fees & Charges Due” in the amount of $35.70. June 2015 Statement at 1. Mr. Bowen made a payment of $966.37 to Ditech on or around June 25, 2015 for the month of July 2015. Stip. ¶ 29. Ditech issued a monthly stated dated July 14, 2015 with an amount of $966.37 due by August 1, 2015. Stip. ¶ 30; id. Attach. 20 Green Tree Monthly Billing Statement (July 14, 2015) (July 2015 Statement). The statement included “Total Fees & Charges Due” in the amount of $35.70. July 2015 Statement at 1. On or around July 28, 2015, Mr. Bowen paid $966.37 to Ditech for the month of August 2015. Stip. ¶ 31.

         Mr. Bowen corresponded with Ditech on July 21, 2015 and July 27, 2015 regarding the fees. See Stip. Attach. 21 Consolidated Notes Log at 10. On July 28, 2015, Ditech sent a letter to Mr. Bowen that reads:

This letter is in response to a request to provide you information regarding the above-referenced account with Green Tree Servicing LLC (“Green Tree”).
Please be advised the advances in the amounts of $7.00 and $350.00 that were assessed to your account on May 15, 2015, have been scheduled for collection over a period of 10 months, beginning July 1, 2015. These are legitimate fees due to foreclosure action. The legal fees were not included in the reinstatement figures.

Stip. ¶ 33; id. Attach. 22 Letter from Green Tree to Mark and Nancy Bowen (July 28, 2015).

         On or around August 2015, Mr. Bowen retained counsel to assist him with his dispute. Stip. ¶ 34. On August 3, 2015, Mr. Bowen, through counsel, delivered a letter to Ditech that states:

As servicer of my client's mortgage loan, please treat this as a “qualified written request” under [RESPA] and “request for information” and “notice of error” pursuant to RESPA, subject to the response period set out in Regulation X, 12 C.F.R. § 1024.36(d)(2)(i)(B).

Id. ¶ 35; id. Attach. 23 Letter from A. Stark to Green Tree at 1 (Aug. 3, 2015) (Aug. 3, 2015 Dispute Letter). The letter asks Ditech to provide an explanation for the $35.70 in total fees and charges sought and requests other information about the loan payment history. Id. at 1-2. Attorney Stark sent the letter to P.O. Box 6176. Id. at 1. Ditech received Mr. Bowen's August 3, 2015 dispute letter on August 10, 2015. PSMF ¶ 14; DRPSMF ¶ 14.[18]

         In August 2015, Mr. Bowen's anxiety subsided, and he weaned off his anxiety medication. Stip. ¶ 36.

         Ditech issued a monthly billing statement dated August 14, 2015 with an amount of $966.37 due by September 1, 2015. Stip. ¶ 37; id. Attach. 24 Green Tree Monthly Billing Statement (Aug. 14, 2015) (Aug. 2015 Statement). The statement included “Total Fees & Charges Due” in the amount of $35.70. Aug. 2015 Statement at 1.

         On August 20, 2015, Ditech sent Mr. Bowen, care of counsel, a letter stating that it had “completed a review of the above-referenced inquiry or dispute case number.” Stip. ¶ 38; id. Attach. 25 Letter from Green Tree to Andrea Bopp Stark at 1 (Aug. 20, 2015) (Aug. 20, 2015 Ditech Letter). The letter went on to say:

After further research, we have determined that the additional fees assessed after the reinstatement payoff will be removed. At this time, we are in the process of removing the subsequent fees in question. Please continue to monitor Mr. Bowen's monthly billing statements for the adjustment. We apologize for any inconvenience this matter has caused.
As of today's date, the current unpaid balance is $148, 893.66 and the current escrow balance is -$137.22. The account is next due $930.67 for the September 1, 2015 payment. Enclosed is list of advances that have been set up on the account. Below is a list of late fees that have been assessed to the account. As of today's date the late fee balance due is $0.00.
8/27/2013: $24.19 (Waived)
9/17/2013: $24.19 (Waived)
1/17/2014: $12.51
2/17/2014: $12.51
3/17/2014: $ 12.51

Aug. 20, 2015 Ditech Letter at 1.

         Ditech then sent Mr. Bowen a letter on August 26, 2015 thanking Mr. Bowen for participating in the Automatic Payment Plan and stating that the first automatic payment in the amount of $966.37 would be processed on September 1, 2015 from his checking account. Stip. ¶ 39; Letter from Green Tree to Mark A. Bowen (Aug. 26, 2015) (ECF No. 84) (Aug. 26, 2015 Ditech Letter).

         Ditech issued Mr. Bowen a monthly billing statement dated September 7, 2015 with a total amount due of $930.67 and $0.00 in “Total Fees & Charges Due.” Stip. ¶ 41; Add'l Attachs. (ECF No. 84) Attach. 1 Ditech Monthly Billing Statement (Sept. 7, 2015) (Sept. 2015 Statement). Ditech issued Mr. Bowen a monthly billing statement dated October 7, 2015 with a total amount due of $966.37, re-including the $35.70 for “Total Fees & Charges Due.” Stip. ¶ 42; Add'l Attachs. Attach. 2 Ditech Monthly Billing Statement (Oct. 7, 2015) (Oct. 2015 Statement).

         On October 22, 2015, Ditech sent Mr. Bowen a letter that stated:

During a recent conversation, you orally denied, disputed or challenged Ditech's claim that you owe the above-referenced debt or the amount asserted.
Therefore, in order to properly investigate your claim, you must submit your dispute in writing along with any supporting documentation to:
Ditech Financial LLC
PO Box 6172
Rapid City, S.D. 57709-6172
Please include your account number within your correspondence. Upon receipt of your dispute, Ditech will investigate and respond within 30 days. If you provide additional information within this 30-day period, Ditech may require an additional 15 days to respond. If you fail to submit the requested information within 30 days from the date of this letter, Ditech will be unable to complete an investigation.

Stip. ¶ 43; Add'l Attachs. Attach. 3 Letter from Ditech to Mark A. Bowen (Oct. 22, 2015) (Oct. 22, 2015 Ditech Letter).

         On or around November 2, 2015, Mr. Bowen made a payment of $966.37 to Ditech. Stip. ¶ 44.

         Mr. Bowen, through counsel, sent two letters via certified mail to Ditech dated November 3, 2015. Id. ¶ 45. The first letter states: “please treat this as a ‘qualified written request' (QWR) . . . and ‘request for information' and ‘notice of error.'” Add'l Attachs. Attach. 4 Letter from Andrea Bopp Stark to Ditech re Fee Dispute (Nov. 3, 2015) (Nov. 3, 2015 Dispute Letter). The letter discusses the $35.70 fee and asks for an explanation as to certain “Advances” on the account. Id. The second letter states “[p]lease consider this an offer of settlement per the Maine Unfair Trade Practices Act, 5 M.R.S. § 205-A et seq. for Ditechs continued efforts to collect monies not owed on Mr. Bowen's account.” Add'l Attachs. Attach. 5 Letter from Andrea Bopp Stark to Ditech re UTPA (Nov. 3, 2015) (Nov. 3, 2015 UTPA Letter).

         Ditech sent a letter dated November 9, 2015 to Mr. Bowen that stated: “Ditech Financial LLC received your correspondence regarding the above referenced account on 11/06/2015. Our inquiry is currently under review.” Stip. ¶ 47; Add'l Attachs. Attach. 7 Letter from Ditech to Mark A. Bowen (Nov. 9, 2015).

         Ditech issued Mr. Bowen a monthly billing statement on November 7, 2015 with a total amount due of $966.37, which included the $35.70 in fees. Stip. ¶ 46; Add'l Attachs. Attach. 6 Ditech Monthly Billing Statement (Nov. 7, 2015) (Nov. 2015 Statement). On or around December 1, 2015, Mr. Bowen made a payment of $966.37 to Ditech. Stip. ¶ 48.

         Ditech sent a letter dated December 9, 2015 to Mr. Bowen, care of his counsel, stating:

The Real Estate Settlement Procedures Act (“RESPA”) permits account servicers to designate a unique mailing address for receipt of a “qualified written request.” This is to ensure that the servicer receives the request timely in order to respond within the statutory time frame. Enclosed is a copy of the Notice of Assignment, Sale, or Transfer of Servicing Rights sent to you. According to the second page of the notice, qualified written requests are to be sent to Ditech Financial LLC, P.O. Box 6176, Rapid City, S.D. 57709-6176. As such, your correspondence mailed to Ditech Financial LLC, P.O. Box 6172, Rapid City, S.D. 57709, is not considered qualified and does not trigger RESPA. Regardless Ditech responds accordingly.

Stip. ¶ 50; Add'l Attachs. Attach. 9 Letter from Ditech to Stark re QWR (Dec. 9, 2015) (Dec. 9, 2015 Ditech Letter). The letter went on to state:

Please be advised, we have removed the fees that were inadvertently charged towards your client's account. The amount of $142.80 that was paid towards these advances is in the process of being credited back to the account.
On December 1, 2015, we received a payment of $966.37 and are in the process of applying $930.67 of these funds towards the December 1, 2015 due date. Please note the remaining amount of $35.70 will be applied towards the current unapplied funds balance of $107.10, so the full amount of $142.80 received for the advances will be available.

Dec. 9, 2015 Ditech Letter at 1-2.

         The $35.70 billed to Mr. Bowen in monthly statements dated June 14, 2015, July 14, 2015, August 14, 2015, October 7, 2015, and November 7, 2015 should not have been billed to Mr. Bowen. PSMF ¶ 12; DRPSMF ¶ 12. Mr. Bowen contacted Ditech to dispute the $35.70 charges on July 21, 2015, July 27, 2015, August 25, 2015, and November 5, 2015. PSMF ¶ 13; DRPSMF ¶ 13.[19] Ditech alleges that on December 4, 2015, it removed all fees and charges challenged by Mr. Bowen through his two alleged QWRs and provided Mr. Bowen a credit for each charge; however, according to Mr. Bowen, he had a total payment amount due of $1, 073.47 on December 9, 2014. DSAMF ¶ 1; PRDSAMF ¶ 1.[20]

         I. Escrow Shortage & Deficiency

         Ditech issued an Annual Escrow Disclosure Statement dated January 25, 2016 with a shortage amount of -$1, 109.22 and a deficiency amount of -$1, 702.16 for a total amount due of $2, 811.38. Stip. ¶ 52; Add'l Attachs. Attach. 10 2016 Annual Escrow Disclosure Statement (Escrow Statement). These amounts are based on an escrow payment that was not capitalized at the time of modification. PSMF ¶ 16; DRPSMF ¶ 16.[21] In the statement, Ditech explained that it would collect the shortage and deficiency over a thirty-six-month period, resulting in a new monthly payment of $992.28. Id. Mr. Bowen knew there was a problem with his escrow account in January of 2016. DSAMF ¶ 10; PRDSAMF ¶ 10.

         Mr. Bowen, through counsel, issued a letter dated February 10, 2016 to Ditech stating “please consider this an offer of settlement per the Maine Unfair Trade Practices Act . . . for Ditech's continued efforts to collect monies not owed on Mr. Bowen's account.” Stip. ¶ 54; Add'l Attachs. Attach. 12 Letter from Att'y Stark to Att'y Hobbib at 1 (Feb. 10, 2016). On February 22, 2016, Ditech sent a letter to Mr. Bowen's counsel acknowledging receipt of the consumer complaint filed in connection with Mr. Bowen's account and stating that it was reviewing the subject of the complaint. Stip. ¶ 55; Add'l Attachs. Attach. 13 Letter from Ditech to Mr. Bowen (Feb. 22, 2016). On March 17, 2016, Ditech responded to the complaint. Stip. ¶ 56; Add'l Attachs. Attach. 14 Letter from Ditech to Att'y Stark (Mar. 17, 2016).

         From March 2016 through January 2017, Mr. Bowen received monthly billing statements with a regular monthly payment of $992.28 and a total amount due of $1, 984.56. Stip. ¶¶ 53; 57; Add'l Attachs. Attach. 15 Monthly Billing Statements March 2016-January 2017. Ditech sent letters to Mr. Bowen dated April 1, 2016 and May 2, 2016 stating that “[y]our mortgage payment is now 30 days or more past due and your account is in default” and providing options available to Mr. Bowen to avoid foreclosure. Stip. ¶ 58; Add'l Attachs. Attach. 16 April 1, 2016 Letter and May 2, 2016 Letter.

         According to Mr. Bowen, each month Ditech attempted to collect $992.28, it was attempting to collect an inaccurate amount which was more than Mr. Bowen actually owed; however, Ditech believes that the mortgage authorized it to collect the escrow payments. PSMF ¶ 17; DRPSMF ¶ 17.[22] Mr. Bowen made the additional escrow payment each month based on Ditech's misrepresentations to avoid further complications with his loan, particularly another wrongful foreclosure. PSMF ¶ 18; DRPSMF ¶ 18.[23]

         J. Correction of Errors

         Ditech first realized that the incorrect amounts had been capitalized to the escrow account after the Complaint was filed in the current case. PSMF ¶ 19; DRPSMF ¶ 19. Ditech had an obligation to correct the errors with the escrow account. PSMF ¶ 20; DRPSMF ¶ 20.[24] Ditech made a decision not to correct the error in the escrow calculation or readjust the loan figures upon realization or discovery of the error because a lawsuit had been filed. PSMF ¶ 21; DRPSMF ¶ 21.[25] However, on December 8, 2016, Ditech's counsel emailed Mr. Bowen's counsel:

After reviewing Mr. Bowen's account, his prior history with Ditech Financial LLC, his deposition testimony and his current challenge to his monthly statements, Ditech has agreed to adjust Mark Bowen's monthly escrow account to $320.80 per month. Specifically, Ditech will agree to write off $1, 246.04 (amounts not capitalized); Ditech will agree to write off $132.00 from escrow (additional advances from Bank of America not included in the transparency notice); and Ditech will reallocate $34.59 of the monthly amounts paid to escrow from March 1, 2016 to the present ($355.29). These adjustments are not an admission of liability. Ditech continues to maintain that all charges were appropriately assessed to Mr. Bowen's account. Rather, these adjustments are an attempt to work with Mr. Bowen in good faith to resolve his problems and continue to build a relationship of trust with Ditech.

Add'l Attachs. Attach. 22 Email from Ditech Counsel to Andrea Bopp Stark (Dec. 8, 2016).[26]

         As of January 17, 2017, Mr. Bowen had an amount due of $1, 915.38 reflecting the regular monthly amount of $957.69 and a past due amount of the same. PSMF ¶ 22; DRPSMF ¶ 22.[27]

         Mr. Bowen has paid his counsel $50.00 thus far. PSMF ¶ 15; DRPSMF ¶ 15.[28]

         III. LEGAL STANDARD

         Summary judgment is appropriate “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). A fact is “material” if it “has the potential to change the outcome of the suit.” Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011) (quoting Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)). A dispute is “genuine” if “a reasonable jury could resolve the point in favor of the nonmoving party.” Id. (quoting McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)).

         Once this evidence is supplied by the moving party, the nonmovant must “produce ‘specific facts, in suitable evidentiary form, to . . . establish the presence of a trialworthy issue.'” Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quoting Morris v. Gov't Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994)). In other words, the nonmoving party must “present ‘enough competent evidence' to enable a factfinder to decide in its favor on the disputed claims.” Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002) (quoting Goldman v. First Nat'l Bank of Bos., 985 F.2d 1113, 1116 (1st Cir. 1993)). The Court then “views the facts and draws all reasonable inferences in favor of the nonmoving party.” Ophthalmic Surgeons, Ltd. v. Paychex, Inc., 632 F.3d 31, 35 (1st Cir. 2011). However, the Court “afford[s] no evidentiary weight to ‘conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative.'” Tropigas, 637 F.3d at 56 (quoting Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir. 2001)); accord Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir. 2009).

         Where, as here, the parties have filed cross-motions for summary judgment, the court must evaluate each motion independently and “determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Matusevich v. Middlesex Mut. Assurance Co., 782 F.3d 56, 59 (1st Cir. 2015) (citing Barnes v. Fleet Nat'l Bank, N.A., 370 F.3d 164, 170 (1st Cir. 2004)). As such, for cross-motions for summary judgment, the standard of review is applied to each motion separately. Libertarian Party of N.H. v. Gardner, 759 F.Supp.2d 215, 221 (D.N.H. 2010), aff'd, 638 F.3d 6 (1st Cir. 2011). The presence of cross-motions for summary judgment “neither dilutes nor distorts” the summary judgment standard. Mandel v. Bos. Phoenix, Inc., 456 F.3d 198, 205 (1st Cir. 2006).

         IV. DISCUSSION

         The Defendants raise two threshold issues: (1) whether all of Mr. Bowen's claims based on the negative escrow fees are barred by the settlement agreement and release in the underlying foreclosure action and (2) whether Mr. Bowen has demonstrated any pecuniary loss to sustain his tort and UTPA claims. The Court addresses these two arguments before turning to the individual counts.

         A. The Effect of the Settlement Agreement and Release

         The Defendants argue that Mr. Bowen's claims that are based on the negative escrow fees are barred by the Settlement Agreement from the underlying foreclosure action because these claims are “all based on Ditech's pre-settlement conduct.” Defs.' Mot. at 12-13. They argue that Mr. Bowen knew about the negative escrow balance and knew that these amounts should have been capitalized before the date of the Settlement Agreement, and that even if he did not know, the language “known or unknown or capable of being known” from the Agreement extends to these claims. Id. at 13-16. Mr. Bowen argues that the Settlement Agreement only released claims “up until the effective date” of the Agreement but that all of his claims are based on future, albeit similar, conduct. Pl.'s Mot. at 3; Pl.'s Opp'n at 5-6. The Defendants agree that the Settlement Agreement only released claims up until its April 24, 2015 effective date, but they disagree with Mr. Bowen's contention that his claims arise from conduct after that date. Tr. of Oral Argument at 9-10, 42-43, Mark A. Bowen v. Ditech Fin. LLC, f/d/b/a Green Tree Servicing LLC, & Fed. Nat'l Mortg. Ass'n, 2:16-cv-00195-JAW (D. Me. argued Sep. 5, 2017) (Tr. of Oral Argument).

         The Settlement Agreement in the underlying foreclosure action releases BOA, Green Tree, and any assignee:

from and against any and all past and present claims up until the Effective Date of this Agreement . . . whether known or unknown or capable of being known, whether existing now or to become known in the future, arising at law or in equity, by right of action or otherwise . . . that the Releasors . . . have or may have against the Releasees, for, upon, or by reason of any matter, cause or thing, whatsoever, in law or equity, including, without limitation, the claims made or which could have been made by Bowen arising from the origination or servicing of the Loan (in any manner) as well as in any way related to the underlying property, Notes, Mortgage and/or Deeds of Trust, any servicing act or omission thereon as well as any claim or issue which was or could have been brought in the Litigation.

Stip. Attach. 16 Settlement Agreement and Release ¶ 1E. Under Maine law, settlement agreements are analyzed as contracts, and “[i]f a release is ‘absolute and unequivocal' in its terms, it ‘cannot be explained by parol evidence and must be construed according to the language that the parties have seen fit to use.'” 2301Congress Realty, LLC v. Wise Bus. Forms, Inc., 2014 ME 147, ¶ 10, 106 A.3d 1131 (quoting Norton v. Benjamin, 220 A.2d 248, 253 (Me. 1966)); see also Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 35 (1st Cir. 2001) (construing settlement agreement with unambiguous language “in accordance with its plain and generally accepted meaning”). Here, the Agreement that the parties reached in the underlying action was broad and clear: by its language it applies only to causes of action related to the origination or servicing of the loan that existed up to and including April 24, 2015, the date that the Agreement became effective. Se ...


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