United States District Court, D. Maine
MARK A. BOWEN, Plaintiff,
DITECH FINANCIAL LLC, f/d/b/a/ GREEN TREE SERVICING LLC, and FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendants.
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
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).
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.
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).
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)
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).
STATEMENT OF FACTS
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.
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 ¶
¶ 2; DRPSMF ¶ 2.
Loan Modification Agreement
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
delivered a Loan Modification Clarity Commitment dated May
30, 2013 to Mr. Bowen. Stip. ¶ 10. The Clarity
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
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.
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:
New Principal Balance:
Deferred Principal Balance:
Interest Bearing Principal Balance:
First Modified Payment Due Dated:
Number of Monthly Payments:
Monthly Principal and Interest Payment:
Estimated Monthly Escrow Payment:
Total Monthly Payment:
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.
Transfer of Service to Ditech
service-transferred the loan to Ditech effective June 1, 2013.
Stip. ¶ 12. Fannie Mae owned the loan and
retained Ditech to service the loan. PSMF ¶ 3; DRPSMF
¶ 3. As
servicer of the loan, Ditech maintained the escrow account to
pay taxes and insurance on behalf of Fannie Mae. PSMF ¶
4; DRPSMF ¶4. Since the date of service transfer, Ditech
has paid Mr. Bowen's taxes and insurance. Stip.
2013 Billing Statements
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 ¶
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.
January 2014 Modification of Loan
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.
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
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.
Foreclosure Action and Settlement Agreement
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.
Reinstatement of Loan
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.
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. 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. Ditech did not provide
a history of the escrow account within ninety days of the
reinstatement. PSMF ¶ 10; DRPSMF ¶
did not perform an escrow analysis on the loan before January
2016 because it considered the loan delinquent. PSMF ¶
11; DRPSMF ¶ 11.
Improper Collection of “Total Fees & Charges
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.
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).
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. §
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 ¶
August 2015, Mr. Bowen's anxiety subsided, and he weaned
off his anxiety medication. Stip. ¶ 36.
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.
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
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)
3/17/2014: $ 12.51
Aug. 20, 2015 Ditech Letter at 1.
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).
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).
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
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
Stip. ¶ 43; Add'l Attachs. Attach.
3 Letter from Ditech to Mark A. Bowen (Oct. 22,
2015) (Oct. 22, 2015 Ditech Letter).
around November 2, 2015, Mr. Bowen made a payment of $966.37
to Ditech. Stip. ¶ 44.
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
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,
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.
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
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.
$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. 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.
Escrow Shortage & Deficiency
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. 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.
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).
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,
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. 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.
Correction of Errors
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 ¶
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. 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,
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 ¶
Bowen has paid his counsel $50.00 thus far. PSMF ¶ 15;
DRPSMF ¶ 15.
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)).
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).
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).
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.
The Effect of the Settlement Agreement and Release
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).
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 ...